To ensure children receive a free appropriate public education (FAPE), the Individuals with Disabilities Education Act, 20 U.S.C. § 1400 et seq. establishes a comprehensive system of procedural safeguards designed to provide meaningful parental participation in all aspects of developing an IEP for a child with a disability. See, 20 U.S.C. § 1412(a)(6) (2015). Among those procedural safeguards is a parent’s right to obtain an independent educational evaluation (IEE) at public expense. See 20 U.S.C. § 1415(b)(1), (d)(2)(A) (2015).
Unfortunately, the statute itself contains no definition of, and no standards for, an IEE. The federal regulations define the right to an IEE, providing that when a parent of a child with a disability disagrees with an evaluation obtained by the school district, the parent may obtain an IEE at public expense under certain circumstances and subject to certain criteria. See, 34 C.F.R. § 300.502 (2015). The regulations define as IEE as an “evaluation conducted by a qualified examiner who is not employed by the public agency responsible for the education of the child in question.” Id. § 300.502(a)(3)(i).
However, the right to a publicly-funded IEE is not unlimited. The school district may require the IEE to meet the same criteria the school district applies to its own evaluations. Id. § 300.502(e). When an IEE that meets these criteria is presented to a school district, whether it is at public or private expense, the school district has an affirmative obligation to consider the evaluation in any decision with respect to the provision of FAPE to the child. Id. § 300.502(c)(1).
Does your school have written IEE criteria? It should. One of the criteria that has been upheld by courts, including the Arizona Office of Administrative Hearings, is a dollar-cap on the cost of the IEE. But in order for a school to enforce this cap, it is imperative that:
- School IEE criteria be in writing
- The written IEE criteria be provided to the parents/student
- The criteria include a specific dollar maximum
When a school develops written criteria, and routinely provides the written criteria to parents and IEE providers, they can then enforce the dollar cap if an IEE provider attempts to charge the school an amount that the school deems to be unreasonable.
This blog should be used for informational purposes only. It does not create an attorney-client relationship with any reader and should not be construed as legal advice. If you need legal advice regarding School Criteria for IEEs, or other Education Law matters, please feel free to contact Erin H. Walz at 480.461.5379, log on to www.udallshumway.com or contact an attorney in your area. Udall Shumway PLC is located in Mesa, Arizona and is a full service law firm. We assist Individuals, families, businesses, schools and municipalities in Mesa and the Phoenix/East Valley.