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.