Independent Educational Evaluations (“IEEs”)


UPDATE (03/11/2011): Subsequent to posting this article, we became aware of a memorandum from the U.S. Department of Education Office of Special Education Programs (“OSEP”) of February 20, 2004, in which it states that parents determine which outsider assessor will conduct an IEE. Click here to download the OSEP letter. Please use this update to inform your decisions as you read through the content below.


I want to talk about Independent Educational Evaluations, or IEEs, in today’s posting and podcast because there seems to be a fair amount of confusion about what they are and when parents can ask for them to be provided at public expense – or even what it means for parents to ask for IEEs at public expense.  And the confusion is not just on the part of parents, which should be somewhat expected; it’s also on the part of special education professionals of varying ranks within public education agencies.

First, let’s define what an IEE is – it is an assessment that can inform the special education process that is conducted by a professional not employed by or acting on behalf of the public education agency responsible for educating a specific child.  An IEE can be obtained at private expense or at public expense.

An IEE is not, however, the same thing as a school district using an outside assessor to conduct an assessment on its behalf.  For example, many school districts do not have staff audiologists and will contract with third-party audiologists to conduct assessments for Auditory Processing Disorders (“APDs”) on their behalf, but this is still considered a district assessment since it is being done on the district’s behalf as a normal part of the assessment process when an APD is an area of suspected disability.

Many times, parents who do not understand the special education process will privately fund IEEs not realizing that assessment in all areas of suspected disability is the financial burden of the public education system.  I’ve had parents come to me after having paid for a private assessment such as this only to be surprised when I’ve informed them that the public schools have a mandated obligation to assess students who may be in need of special education.

These are often the parents who suspected their child had a learning problem and went out to the private practice community first to get answers to inform themselves.  Once they had information about their child’s unique learning needs, they subsequently found out that they could have gone straight to their child’s school for help.

Then there are parents who tried to get assessment from their child’s public school but were given misleading information regarding the school’s obligations with respect to assessment and were sent away empty-handed.  These parents then went out and paid for private assessment because they thought the school system couldn’t do anything to help identify why their child was failing to learn, only to find out afterward that they had been lied to and jerked around by the public schools or that whomever they had spoken to at the school had no idea what he/she was talking about and had provided them with poor guidance.

The thing to bear in mind is that if parents obtain an independent assessment at private expense and present it to the school district, and that outside assessment is used to find the child eligible for special education, the school district must reimburse the parents for the cost of the assessment.  This is because the financial burden of assessing for special education eligibility is that of the school district to bear.  This is why many districts will insist on doing their own assessments after receiving an outside assessment from a parent indicating that a student has special needs.  Outside assessments are often more costly than those done in-house by the district, so it’s less expensive to do its own assessment than reimburse the parent for the independent assessment that he/she had done at private expense.

The same rules for reimbursement can apply to an assessment that identifies needs that were not identified by the district that drive the content of a child’s IEP, even if the district found the child eligible as a result of its own assessments on the basis of some other need.  So, for example, let’s say we have a child with an APD in addition to Attention Deficit Hyperactivity Disorder (“ADHD”).  But, in this example, the district’s assessments only identified the ADHD and found the child eligible on the basis of that condition but failed to include assessment by an audiologist for an APD.  If the parents subsequently paid for an APD assessment by an audiologist and those finding were used to amend the child’s IEP to include auditory processing therapy, accommodations for auditory processing needs, adaptive technology for auditory processing issues, etc., then the district would owe reimbursement to the parents for the APD assessment.

Unfortunately, what often happens is that school districts do not want to admit that they failed to attend to their duties and will thus argue against the information brought in from the outside by parents.  They’ll argue all kinds of crazy things, not necessarily because they’re against the types of services that the independent assessments recommend, but more often because they don’t want to admit that they screwed up in the first place.  A lot of due process cases arise out of situations like these.  And, the child is the one caught in the middle failing to receive appropriate interventions while the adults involved argue over what is really going on and what should be done about it.

IEEs become particularly important when parents disagree with the assessments conducted by the public schools, and this is where things can become particularly tricky.  Some parents, completely unaware of their rights, will go out and pay for a private assessment after receiving an assessment from the public schools with which they disagree.  They will then submit the findings of the independent assessor to the school district to refute the district’s findings from its own assessment.

What these parents often don’t realize is that if they disagree with the school district’s assessment, they have a right under the Individuals with Disabilities Education Act (“IDEA”) to an IEE at public expense – that is, a second opinion by someone not employed by the public schools but at the expense of the public education system.  What these parents also often don’t realize is that just because they provide the school district with an independent assessment, the school district is not procedurally bound by what the independent assessment recommends.

School districts must consider outside assessments provided by the parents.  Considering something and being bound by something are two different things.  When the findings of an independent assessor, particularly one paid for by the parents, conflicts significantly with the findings of the school district’s assessment, the school district will often “consider” the IEE to be without merit.  What can then ensue is a “war of the experts” in due process.

The cleaner, much preferred way to go about IEEs in my experience is to let the school district perform its own assessments (presuming they don’t refuse to assess) and see what they say.  If the district’s assessment results are inadequate and/or inaccurate, then the parents should disagree in writing with the district’s assessment and ask for an IEE at public expense.  The only way a school district can lawfully deny funding an IEE under such circumstances is to file for due process to assert the appropriateness of its own assessments, and this is a critical procedural consideration that parents and educators alike often fail to understand.  (See 34 CFR Sec. 300.502(b).)

I have a number of refusal letters on file from school districts where they declined to honor parents’ requests for IEEs after the parents disagreed with the districts’ assessments but the districts never filed for due process to assert the appropriateness of their own assessments.  In some of the cases, all I had to do was file a compliance complaint over the procedural violation and the state education agency ordered the offending districts to fund the IEEs.  In other cases, there were other issues that made due process necessary and the failures to fund the IEEs were just more fuel for the fire, so they were dealt with as due process issues.  In those cases, the parents had usually gone out and funded the IEEs themselves after their requests for IEEs had been unlawfully declined and the districts owed them reimbursement at that point.

And, that brings up another critical consideration.  If a parent asks for an IEE at public expense and the district refuses to fund it but fails to file for due process to assert the appropriateness of its own assessments, and the parent goes out and pays for the IEE at private expense, then files for due process over the denial of a Free and Appropriate Public Education (“FAPE”), the school district is then given the opportunity to demonstrate in hearing that its own assessment was adequate.? Parents need to take this into account.

Just because the district failed to abide by the procedural requirements to file for due process upon declining to fund the IEE does not mean the parents will automatically prevail in due process.  It is possible that a hearing officer could determine that, procedural violation aside, the district’s assessment was nonetheless adequate and reimbursement is not due.

However, some school districts will attempt to argue that the parents should be procedurally barred from seeking reimbursement from the district for IEEs if the parents didn’t first give the district notice that they intended to fund the IEEs themselves and later seek reimbursement from the district.  This is a misrepresentation of the regulations by the school district.  Parents are not required to give notice of their intent to seek reimbursement for a private assessment from the public schools upon disagreeing with the public school’s assessment.

When school districts try to assert this argument, they are confusing the notice requirements for unilateral placement by parents of their children in private schools or private special education programs with the intent to seek reimbursement for IEEs.  These are two completely unrelated types of reimbursement requests that are bound by completely different regulations.

Under the IDEA, if a parent believes that the district’s offer of services and/or placement are not appropriate, and the parent decides to put his/her child in a private program and seek reimbursement from the district for the costs of that program, the parent must give notice to the district at the last IEP meeting held before the unilateral placement by the parent is made or give written notice at least 10 business days prior to making the unilateral placement.  This is to afford the school district one last chance of pulling its butt out of the sling before it’s on the hook for the costs of a private placement, presuming the parent is right and the placement offered by the district was inappropriate.

However, the same rule does not apply for IEEs.  Parents can go out and get IEEs at private expense then turn around and hit their school districts up for reimbursement without having given prior notice of their intent to do so.  I’m not saying I recommend taking this route, though there are situations that sometimes make it necessary.

Again, the only way the school district can refuse to pay for the IEE is to prove in due process that its own assessments were adequate.  If the district commits the procedural violation of failing to file for due process after declining to reimburse the family, then the family can file a compliance complaint or, if the failure to provide the IEE results in substantive harm to the student, the family can file for due process asserting a denial of FAPE and ask for reimbursement as one of the remedies being sought.

In any of these scenarios, the two most important things for parents and educators alike to understand is that 1) an IEE can only be provided at public expense when the parents disagree with the district’s assessment and 2) the parents’ request for an IEE or reimbursement for an IEE can only be declined by the district if the district proves in hearing that its own assessment was adequate.  This generally means that parents have to give districts the opportunity to do their own assessments first, or there’s nothing with which they can disagree.

The exception is if the district fails to assess when it should have, only for outside private assessment to reveal the presence of needs for which the child requires special education and/or related services.  In essence, the district’s findings are that the child has no special education need in that area and the independent assessment indicates otherwise.  A hearing officer can find that the district’s assessment was not adequate because it consisted of nothing at all and, therefore, the district owes the parents reimbursement for going out and doing the district’s job at their own expense.  As stated previously, the burden to assess in all areas of suspected disability is the district’s to bear, so if it fails to meet that burden by refusing to assess at all, it’s essentially the same outcome as assessing poorly.

This causes confusion for many because, generally speaking, an IEE at public expense is only warranted if a referral for assessment was made in the first place.  In such an event, either an assessment was conducted with which the parents disagreed or the referral to assess was declined by the school district and the parents then went out and got their own assessment by an outside assessor at private expense for which they subsequently sought reimbursement.

However, there is also the issue of “child find,” which is the federal mandate that all school districts actively seek out and identify those children within their attendance areas who are eligible for special education.  It can be successfully argued that if a school district fails to conduct child find, then when parents go out and get assessments done on their own dime only to later seek reimbursement for those assessments that reveal the child is in need of special education, and the record is clear that the child has not been successful at school for some time, then the school district can be found to owe reimbursement.

In essence, due to the district’s failure to conduct child find, the parents had reason to “disagree” with the school district’s “determination” that the student failed to qualify for special education and the district obliged itself to reimburse the parents for their costs to essentially conduct child find on the district’s behalf.  A failure to assess in an area of suspected disability is essentially the same thing as assessing poorly in an area of suspected disability, thereby preventing the district from successfully asserting the adequacy of its own assessments.  You can’t assert the adequacy of something that doesn’t exist.

All of this said, parents need to understand that they only get one IEE for every assessment by the district with which they disagree.  If they don’t agree with the findings of the IEE, they can still go out and get additional outside assessments and provide the reports to the district for its consideration, but they aren’t entitled to additional reimbursements.

I was at a training the other day for a surrogate parent program for incarcerated youth and the trainer was unclear on this issue.  She was under the mistaken impression that parents had the right to IEEs, but they had to pay for the IEEs themselves regardless of the circumstance.  And, this was a dedicated educator who regularly goes out on a limb for children who are, without a doubt, some of the most difficult-to-serve special education students in the world.  The rules about IEEs are confusing to a lot of people and our public schools have not done a particularly good job of training their people on how those rules work, which makes it that much harder on parents who understand special education procedure even less.

Click here to download the podcast version of this article.

18 thoughts on “Independent Educational Evaluations (“IEEs”)

  1. Dawn

    Have you had success with filing a compliance complaint for child find violations against school districts that refuse to assess for blatantly obvious situations? Is it worth pursuing this avenue with the possibility of an injunction to assess as a remedy? I am hesitant about pursuing due process immediately and would prefer to prepare a compliance complaint, obtain the injunction, obtain the assessments and then request an IEE at public expense should the assessments be incomplete.

    Reply
    1. Anne M. Zachry Post author

      Dawn,

      I think it may depend on what state you are in, but I don’t believe state education agencies issue injunctions as part of a procedural compliance investigation. Injunctions generally come from courts. State education agencies can, however, order assessment as a corrective action to a procedural violation if they sustain that one occurred and assessment is the appropriate remedy.

      That said, child find is so nuanced that you first have to look at the substantive concerns involving the child as to whether child find should have been triggered for him/her or not, which makes it a due process issue. The only way to make it a procedural issue is if you have evidence of a systemic lack of child find across the board in which the district has no child find policy in place, but that can be hard to prove. Many times they’ll have board policies and no one actually follows them or the language is so vague that no one knows when child find is triggered.

      If you’re looking to assert a child find violation on behalf of an individual student, there first has to be a determination that there was reason to suspect a disability, and many state investigative agencies will declare that a due process issue, not a matter for a compliance complaint. The reason is that state education agencies are only looking at whether or not the procedures were followed in a very black-and-white way (did the district use the right form, comply with the timelines, implement the IEP as written, etc.). It’s very concrete. Judging whether a student’s issues rose to the level of triggering child find is more substantively nuanced and is based on the unique needs of the student, not purely procedure. That makes the issue more appropriate for due process than an investigation of procedural compliance.

      I recently assisted on a case in which the student prevailed in due process on a child find issue. Interestingly, OAH has not published the decision on its website, so I’ve uploaded the PDF to our server and you can access it by clicking here. There’s really good language about child find in this decision (jump forward to pages 16-20). The judge ordered the District to train all its people on child find.

      I understand your concerns about taking this to due process first. Child find failures can be really difficult to prove. But, if you’ve got evidence of a disability (medical or psychological diagnoses from sources outside the district, such as your child’s pediatrician or a psychologist), or you have evidence of possible symptoms of a disability that have been documented at school, and you have evidence that your child is failing to benefit from his/her education, if you can show that the challenges your child is demonstrating are sufficient to suspect that he/she has disabilities that are responsible for or contributing to them, then that is enough to trigger child find. If you only go to hearing on the issue of child find and your evidence is strong enough, then you should prevail.

      Just because a student is suspected of having a disability doesn’t mean he/she will qualify for special education following competent assessment. The whole point of child find is not to assert eligibility; child find is meant to take students who are suspected of needing special education and assessing them to find out whether they really need it or not. You do not have to prove your child is eligible to prevail on child find; you just have to prove that there was legitimate reason to suspect that a child may need special education, which is a much lower threshold than actually qualifying for special ed.

      All that said, if you’re thinking of going the compliance complaint route, you could make a written referral for assessment yourself. In California, at least, this requires that the district provide an assessment plan. In many other states, they can turn you down. (Some district’s in California will still try to turn parents down, which is a procedural violation, but then a compliance complaint can be filed on that basis.) If you’re in a state where a parent referral automatically triggers the process, and you submit a referral but they don’t honor it, then your plan to file a compliance complaint to achieve an order for assessment could work. Otherwise, I’m afraid that you may be looking at a due process case.

      If you think due process might be in your future, you should probably reach out to a special ed attorney in your area. Many will give you a free consultation before deciding whether to take your case and will be able to give you better guidance as to how to play this given your state’s regulations.

      Anne

      Reply
  2. Marlene O'Neill

    We just had an IEE at public expense because we did not agree with the assessment of our son. The district agreed and the IEE was given to the district dated 11/10/11. What is the next step in this process? We are waiting to have a meeting to go over the results with the IEP team, but instead we are told be patient,that it is alot of information to go through and that they are in the process of completely rewriting his IEP. And, “we can talk about everything at the IEP meeting”. How can they write a new IEP without first going over the IEE? And how can they write an IEP without input from us?

    Reply
    1. Anne M. Zachry Post author

      Marlene,

      You asked the question that immediately came to my mind of “How can they write an IEP without input from us?” Legally, they can’t, though they aren’t barred from developing proposed IEP content in light of any new development that might influence how your child needs to be served. What I’m reading between the lines (which is all assumption, so take it for what it’s worth) is that your IEE must have really revealed some serious failures on the part of the District or it wouldn’t be scrambling to overhaul the IEP, now. That could be a victory. Or, it could be the District engaging in a CYA tactic. My advice is to go through the IEE report and come up with a list of student needs that the IEE identifies that the IEP needs to address to take in with you to the IEP meeting. That really is the place where everybody is supposed to talk about the findings and figure out what to do from there.

      Anne

      Reply
  3. Emmy Vesta

    We had two IEEs done…

    1. Oldest daughter: The district and the IEE provider have a very “close” relationship. The IEE provider refused to give us her report until she gained “permission” from the school. I informed her that “I” hired her, and that by her bowing down to the district’s policies she has now become an “employee” of said district. She said she had a contract with them for the IEE, then how is it a true IEE?

    2. Youngest son: Same IEE provider will not give us report, until district permits her.

    How is she an independent provider if she is only following their policies and not talking to us but is talking to them way more?

    Reply
    1. Anne M. Zachry Post author

      Emmy, the assessor may not be a District employee, but I agree that her behavior does not seem “independent.” Did you choose the assessor or did the District choose her? It matters because, pursuant to a 2004 letter to CDE from OSEP, the parents choose the assessor, not the District, and you should be working directly with the assessor and seeing the report before it ever goes over to the District, if for no other reason than to make sure that what you said was accurately represented in her report (see the update at the top of this article posting).

      You may have grounds for a compliance complaint, if not a due process complaint, if the assessor really was not independent. You also have a right to a copy of her contract with the District. If it says that she has to cow-tow to the District in order to be contracted to provide an IEE, then I’d argue that it’s not an IEE at all and you are still due one.

      The problem with getting yet another assessment now is that your child(ren) will have to endure yet another round of assessment and you can’t keep repeating the same standardized tests because of the rehearsal effect. The message that it sends kids when that have to be assessed over and over is “Wow! There’s something really so wrong with you that we can’t figure it out,” which is not a constructive message for children to perceive. Sometimes, whether deliberate or not, what education agencies end up doing is creating a situation where the IEP is left without a solid body of evidence as to what a child’s needs actually are because assessment has been botched so badly and even though you need valid data, you can’t in good conscience put your kids through all of that again.

      Have you considered asking for a Diagnostic Center referral? Here is a link to the Central California location, but there are links at the bottom of the page to the other two locations: http://www.dcc-cde.ca.gov/. (I don’t know where in CA you’re located, so you would need to figure out which one is the closest to you – each one has its own catchment area.)

      Reply
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  6. Anne M. Zachry Post author

    Amy,

    Glad to help out! If the District does file for due process in response to your request for IEEs, and you’ve explained the deficiencies of the District’s assessments as part of your IEE request, you may decide to wait and see how it goes in mediation before bringing in an attorney, though that’s totally your call. Sometimes, depending on the nature of the law firm representing the District, once the District’s lawyer sees what he/she will be up against in hearing if the case goes forward, he/she will encourage the District to settle. They’ll never admit fault, but they may decide it’s “not worth the expense and acrimony” to argue over it. If they think that you don’t have a case, or the lawyer for the District is a billing machine, though, they very well may gamble on the outcome in hearing, at which point you’ll probably want an attorney of your own. If you prevail, your attorney’s fees and costs can be recovered in whole or part.

    Anne

    Reply
  7. Amy

    I should have come here first! I’ve been searching for 3 nights and finally found the explanation I was looking for in the last two paragraphs of your comment response above. We were told we had to hire a lawyer if the district took us to due process court for our IEE request. I’m sure it’s a good idea, but it’s a relief to see that the district can’t technically force parents to agree to assessments or else spend thousands of dollars in attorney fees.

    Reply
  8. Jane Doherty

    Here’s what happens a lot in my district. A parent requests an evaluation for disability under IDEA. The school says OK, but first we have hold an SST. Weeks later at the SST everyone goes through the whole schtick of strengths, weaknesses, concerns, etc., at the end of which parents are told there’s no evidence to suggest a disability and everything is actually okay.

    I think what you’re saying is that this SST screening and refusal to do a full assessment is, in effect, a leapfrog determination of ineligibility for special ed. services. What is the parent’s next move? If the school already refused to do a full evaluation, then is there any point in the parent saying they disagree with the school’s (non)assessment, so please give me an IEE at public expense? Won’t the school just laugh at the parent?

    Reply
    1. Anne M. Zachry Post author

      Jane,

      What you described is one of my top pet peeves in special education. It happens all the time. And, yes, I would argue that the district has, in a situation like this, essentially reached a determination with which the parents have a right to disagree, but procedurally you couldn’t proceed to a written request for an IEE. This argument only really works in due process when you are pursuing reimbursement for IEEs initially funded at private expense.

      Technically, in a situation like this, you have no assessment by the district with which to express disagreement that would give you an automatic procedural right to a second opinion by an outside assessor at the district’s expense. But, if you go get an IEE at private expense that demonstrates the child’s eligibility and then pursue reimbursement, you can effectively argue that you’re due reimbursement because of, as you said, the district’s leapfrog determination of ineligibility as well as a failure to assess in all areas of suspected disability and a failure to conduct child find, all of which would amount to a denial of a FAPE if the child was truly eligible.

      The parent could file for due process just to get the initial assessment, but in my experience, if you have to litigate to get the assessment, the judge will most likely order the district to perform it and the likelihood of it being any good is pretty slim. More likely, the district will be pissed off for having been called on the carpet and will magically find the student ineligible. Or, even if the student is found eligible, the assessment may be shoddy and incomplete, leaving the IEP team without sufficient information to write a decent IEP. (I’d be interested to know if anyone has successfully litigated for an IEE to be conducted at public expense after a district refused to assess at all, but I suspect that such a case wouldn’t prevail because the district bears the burden of conducting assessment in the first place and if it has failed to meet that burden, it will most likely be ordered to meet it.)

      Then, at that point, the parents could disagree with the district’s assessment and ask for IEEs. But, that means putting the child through a battery of assessments that are not all that likely to lead to a constructive outcome just to get to the point where the parents can get legitimate assessment data through second opinions. Some kids just can’t take that much testing.

      If you’ve been SST-ed to death and you still don’t have an assessment to show for it, and assessment truly is warranted, then my advice to parents who can afford it is to go get the assessments done at private expense, figure out what’s really going on, and then take the district to due process to recover the costs of the assessments, get an IEP, and secure whatever services are necessary to not only render a FAPE but also compensate for the lost educational benefit the child experienced while the school district was busy jerking everybody around. That’s the quickest path to resolution in my experience, though I realize that not all parents can afford to privately fund decent assessments even if they have reimbursements coming to them.

      Unfortunately, if the parents can’t afford to front the private assessments and seek reimbursement later, then they have to go through the tedious process of filing for due process just to get district assessments and then disagreeing with them and asking for IEEs if the district’s assessments turn out to be crap. At that point, the only way the district can decline the IEEs is to take the family to due process to assert the appropriateness of its own assessments. If the family can reasonably demonstrate what questions remain unanswered by the district’s assessments or that the tests were not administered and/or scored properly (which is going to require an expert witness, the fees for which cannot be recovered from the district thanks to the Supreme Court), then the hearing officer can order the IEEs.

      More often than not, it’s less expensive for the district to fund the IEEs than to go to hearing. However, common sense does not always prevail when someone petty within the district has gotten his/her feathers ruffled. I always recommend that when parents express disagreement with the district’s assessments, they explain what information they were seeking that the assessments failed to provide or point out what’s wrong with the testing that was done, even though they are not legally required to do so. If you point out the fatal flaws in the district’s assessments on the record, then they look pretty stupid taking the matter to hearing and the hearing officer is going to want to know why they put up such a fuss when such obvious flaws in their assessments were already brought to their attention.

      Anne

      Reply
  9. Pingback: IEEs in Arkansas | Arkansas Special Education Project

  10. Marjorie Greenberg

    A question on medical assessments:

    My state rarely has educational autism diagnoses. However, parents who bring medical diagnoses of autism spectrum disorders can still find their evaluations rejected.

    Would such a medical diagnosis also be within the independent educational evaluation group, or is it a medical evaluation?

    Reply
    1. Anne M. Zachry Post author

      Marjorie,

      Arkansas has a unique body of regulations regarding identifying children with autism for the purposes of special education and it seems like they’ve been written as they are mainly to prevent children on the spectrum from being legitimately identified for special ed, presumably because the state doesn’t know what to do with them all. It’s easier for the state to simply claim that it doesn’t have that many students with autism who need special education than to create appropriate programming for them. (See http://arkansas.kps4parents.org.)

      That said, by reputation, the hearing officers in Arkansas seem to give undue weight to medical assessments in the absence of true educational assessments, and I think this is simply because there aren’t enough cases in Arkansas going to litigation to better inform the process and the hearing officer training on these concerns may not be particularly well done. It seems like from what I’ve seen that school districts go out and get “expert” assessments from medical people who know nothing about special education and the hearing officers don’t know a snow job when they see one.

      Here’s what I think, though this is just me sharing my opinion here: A medical diagnosis of any kind of handicapping condition establishes the presence of disability under the ADA and Section 504. Regardless of the state’s eligibility criteria for special ed under autism, the ADA and 504 will automatically consider a child with a medical diagnosis of autism as disabled so long as interference with any major life functions can be established. With autism, that’s usually not very hard to do. Under Section 504, disabled students are still entitled to a FAPE and a 504 Plan can have whatever is necessary to render a FAPE to a handicapped child, even if that means making it identical to an IEP. I’d be curious to see what would happen if parents whose children are being denied eligibility for special ed under the autism criteria were to ask for 504 Plans and demand a FAPE under Section 504, then file 504 complaints with OCR when the plans fail to deliver a FAPE.

      I suspect that if enough families were to take that route, filing federal complaints that bypass the state’s special education due process mechanism or otherwise suing in federal court under Section 504, the Arkansas Dept. of Ed. and state legislature would have to re-examine its regulations and practices with respect to children with autism in Arkansas. It’s still a civil rights violation to deny a handicapped child what he/she needs in order to receive a FAPE at school, regardless of whether he/she is eligible for special ed under the IDEA so long as that child meets the criteria of Section 504.

      Also, there’s no such thing as an “educational diagnosis.” The term “diagnosis” is limited to medical or psychological findings. All that can happen in the special education setting is a finding of eligibility. When people stop misusing the term “diagnosis” in special education, the legal parameters make a lot more sense. No one at the school district is qualified to diagnose anyone with anything. They can only state if someone is eligible for services under a set of predetermined criteria.

      Anne

      Reply
  11. Marjorie Greenberg

    Good and very useful article.

    How useful do you find the list of IEE providers that a district must supply on parental request? Does it make it easier for the parent to get the district to agree to IEP changes if the IEE comes from the district list?

    Reply
    1. Anne M. Zachry Post author

      Marjorie,

      I think the school districts I work with know better than to give me a list of the assessors they have in their hip pockets. I already come armed with a list of reputable assessors who are known not to be sell-outs. Everyone I refer parents to has a reputation for calling it like they see it regardless of the positions maintained by the parties.

      That said, the average parent isn’t going to have a renowned expert up his/her sleeve, so your question is a very legitimate one. On the one hand, federal law requires that the school district assist parents in finding an independent assessor. But, in my experience, this has usually led to school districts recommending assessors who are in their hip pockets and will say whatever they are being paid by the districts to say.

      This isn’t always the case, though. A couple of the best assessors we’ve identified were originally recommended by school districts and turned out to be totally amazing. But, more often than not, they’ve been shills or just the cheapest independent assessors the district could find and not necessarily all that good.

      Our founder, Nyanza Cook, identified our core experts that we continue to refer to today after doing research for her own child. She went through the due process decision database for our state (California) and looked at which assessors the hearing officers took seriously, commended as being reputable assessors, and found in favor of whatever these experts recommended. The ones that showed up most frequently with favorable outcomes were the ones she took her child to.

      I realize in Arkansas where you’re located, the hearing decisions that are published are poorly written and don’t come with any kind of summary of the findings of fact and the legal authorities that were applied to them, which would by necessity include references to the testimony of the expert witnesses, so I don’t know that this strategy is going to do parents much good. I guess the next best way of figuring out who good independent assessors might be would be to contact the attorneys representing the prevailing parties in any of the due process cases that were published and finding out who the experts they used were.

      The thing about good independent assessors is you not only need someone who will do a stellar assessment and write up a good report, that person has to also be able to hold their own on the witness stand and that’s a rare combination of talent to find. Of course, you always hope that the assessment findings speak for themselves and that school districts will see the light of day once the reports come back, but we all know that common sense is in infrequent element in special education cases, especially when people get caught breaking the law or otherwise screwing up and panic.

      Anne

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