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Interactive Convention 2015 Learning Labs

Breaking News Regarding IEE’s! Jan Watson, Walsh Gallegos Trevino Russo Kyle P.C.

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• 34 C.F.R. § 300.502(a)(3)(i).

“Independent Educational Evaluation [IEE] meansan evaluation conducted by a qualified examinerwho is not employed by the public agencyresponsible for the education of the child inquestion.”

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• 34 C.F.R. § 300.502(a)(3)(ii).

“Public expense means that the public agencyeither pays for the full cost of the evaluation orensures that the evaluation is otherwise provided at no cost to the parent, consistent with § 300.103.”

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• 34 C.F.R. § 300.502(e).

“…the criteria under which the evaluation isobtained, including the location of the evaluationand the qualifications of the examiner, must be thesame as the criteria that the public agency useswhen it initiates an evaluation, to the extent thosecriteria are consistent with the parent’s right to anindependent educational evaluation.”

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• 34 C.F.R. § 300.502(a)(2).

“Each public agency must provide to parents, uponrequest for an independent educational evaluation,information about where an independenteducational evaluation may be obtained, and theagency criteria applicable for independenteducation evaluations set forth in paragraph (e) ofthis section.”

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• 34 C.F.R. § 300.502(b)(3).

“If the public agency files a due process complaintnotice to request a hearing and the final decision isthat the agency’s evaluation is appropriate, theparent still has the right to an independenteducational evaluation, but not at public expense.”

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• 71 Fed Reg. 46689 (August 14, 2006).

“It is the Department’s longstanding position thatpublic agencies should not be required to bear thecost of unreasonably expensive IEEs. This position isreflected in the regulatory provisions.”

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• 71 Fed. Reg. 46690 (August 14, 2006).

“…a public agency would need to provide a parentthe opportunity to demonstrate that uniquecircumstances justify selection of an evaluatorwhose fees fall outside the agency’s costcontainment criteria.”

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Mangum v. Renton Sch. Dist. No. 403, 584 F. App’x618 (9th Cir. 2014) cert denied, No. 14-8204, 2015WL 2464142 (U.S. June 1, 2015); M.S. v. Utah Sch.for the Deaf and Blind 64 IDELR 11 (D. Utah 2014).

Because of the absence of qualified experts in thestate who did not work for USDB, and the need forout-of-state travel, the cap of $2000 was notreasonable.

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Mangum v. Renton Sch. Dist. #403, 63 IDELR 277(9th Cir. 2014) (unpublished).

The District’s efforts overcame the parents’ claim ofunnecessary delay for two years, because theDistrict informed the parents of the IEE process,provided them with a list of providers and wherethey could obtain an IEE, and continued to makeefforts to find out who the parents selected tomake arrangements for payment.

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• 34 C.F.R. § 300.502(b)(2).

“…the public agency must, without unnecessarydelay, either – (i) file a due process complaint torequest a hearing to show that its evaluation isappropriate; or (ii) ensure that an independenteducation evaluation is provided at public expense,unless the agency demonstrates in a hearing…thatthe evaluation obtained by the parent did not meetthe agency criteria.”

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Owen J. Roberts Sch. Dist., 115 LRP 10060 (SEA PA02/21/15).

The District violated 34 C.F.R. § 300.622(a) by notobtaining the parents’ consent before delivering therecords to the independent evaluator for the IEEordered by the Hearing Officer.

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Volusia County Sch. Dist., 114 LRP 47025 (SEA Fla.10/28/14).

When a District responds to the request timely,delays created by the parent in failing to identifythe evaluator, agreeing to a scheduled delayrequested by the IEE evaluator, and neglecting toreturn completed evaluation forms to the IEEevaluator do not cconstitute an unnecessary delay.

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Letter to Savit, 114 LRP 50211 (OSEP 6/02/14).

“Therefore, it would be inconsistent with theIDEA for a public agency to have a policy givingthird party evaluators only a two hourobservation window, because such a limitationmay restrict the scope of the IEE and prevent anindependent evaluator from fulfilling his or herpurpose, unless the LEA also limits its evaluatorsto a two hour observation window.”

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Capistrano Unified Sch. Dist., 114 LRP 38493 (SEACal. 07/10/14).

The District should have filed a request for specialeducation due process hearing or granted theparental request for an IEE when the parentsrevoked consent for the IEP for a 3-year-old with ahearing loss, because it was clear they still wantedspecial education services.

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Olentangy Local Sch. Dist., 115 LRP 9484 (SEA OH02/06/15).

When the District granted an IEE that concurredwith the District’s evaluation indicating the studentdid not qualify for special education, the Districtwas not required to provide another IEE due toparental disagreement with the results from theirown IEE.

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Belvidere Cmty. Unit Sch. Dist. #100, 114 LRP22690 (SEA Ill. 12/02/13).

“By any reasonable measure, the evaluation wascomprehensive, relevant, consistent, andappropriate.”

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Letter to Baus, 115 LRP 8855 (OSEP 02/23/15).

“When an evaluation is conducted in accordancewith §§ 300.304 through 300.311 and a parentdisagrees with the evaluation because a child wasnot assessed in a particular area, the parent has theright to request an IEE to assess the child in thatarea to determine whether the child has a disabilityand the nature and extent of the special educationand realted services that child needs.”

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• 34 C.F.R. § 300.502(b).

“A parent is entitled to only one independenteducational evaluation at public expense each timethe public agency conducts an evaluation withwhich the parent disagrees.”

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• 34 C.F.R. § 300.502(c).

“…the results of the evaluation – (1) must beconsidered by the public agency, if it meets agencycriteria, in any decision made with respect to theprovision of FAPE to the child; and (2) may bepresented by any party as evidence at a hearing ona due process complaint under subpart E of thispart regarding that child.”

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