Independent Education Evaluations under the IDEA:
Advo-Kids answers your most Frequently Asked Questions
Under the Individuals with Disabilities Education Act (IDEA), parents of disabled students may request an independent education evaluation (IEE) at school expense when they “disagree” with an evaluation conducted by the school. Sounds fairly straightforward; right? In practice, the logistics of IEEs can become tricky. Parent questions often arise about when and how to submit IEE requests. Similarly, schools ask when and how best to respond.
For a general overview of IEE’s in NJ, we recommend starting with the New Jersey Parental Rights in Special Education (NJ PRISE, revised August 2019).
For answers to some of the common questions not covered by the PRISE, we hope this “Q and A” assists parents and schools alike. The guidance below covers logistics and procedure; but, decisions about what type of evaluation and additional assessments are needed are highly case-specific. Advo-Kids provides individualized guidance for families or can assist with the development of a school IEE policy and procedure.
Must a school automatically pay for an IEE when it is requested? No.
The New Jersey Code Section 6A:14.2-5(c)(1)(i) makes clear that when a parent requests an IEE, the school must:
provide the parent with information on how to obtain an independent evaluation and
“take steps to ensure that the independent evaluation is provided without undue delay.” Or, if rejecting the IEE request, the school must:
request a due process hearing to defend the appropriateness of its own evaluation “not later than 20 calendar days after receipt of the parental request for the independent evaluation… .” N.J.A.C. 6A:14.2-5(c)(1)(ii.)
You can read more about the 20-day timeline in another blog we posted about IEE’s: https://www.posternockapell.com/blog/guidance-for-schools-and-parents-independent-education-evaluations/
If a parent disagrees with an evaluation to the extent it failed to sufficiently assess a particular area, may the school district rectify the issue by first conducting its own assessment? No.
This issue was definitively settled in New Jersey in 2014 when the U.S. OSEP found New Jersey’s then-current regulations in violation of the IDEA. See the policy guidance issued by the NJ DOE: https://homeroom5.doe.state.nj.us/broadcasts/2014/SEP/09/11865/IEE%20memo.pdf
The NJ regulations no longer permit a district to first conduct an evaluation in an area not previously assessed. See N.J.A.C. 16A:14-2.5(c). The updated rule is often repeated in recent cases. One U.S. OSEP guidance letter provides a clear summary: “The IDEA affords a parent the right to an IEE at public expense and does not condition that right on a public agency’s ability to cure the defects of the evaluation it conducted prior to granting the parent’s request for an IEE.” Therefore, it would be inconsistent with the provisions of 34 CFR §300.502 to allow the public agency to conduct an assessment in an area that was not part of the initial evaluation or reevaluation before either granting the parents’ request for an IEE at public expense or filing a due process complaint to show that its evaluation was appropriate.” https://www2.ed.gov/policy/speced/guid/idea/memosdcltrs/carroll-iee-policy.pdf
May parents request an IEE after an initial evaluation for eligibility is conducted but the student is not found eligible for special education? Yes.
If the parents disagree with an evaluation or feel it did not sufficiently examine all areas of possible disability, they may request an IEE.
As one source of support and further discussion of this, check-out U.S. OSEP Letter to Zirkel of May 2, 2019. https://www2.ed.gov/policy/speced/guid/idea/memosdcltrs/osep-letter-to-zirkel-05-02-2019.pdf
Can a school set basic criteria for the independent evaluator’s qualifications? Yes, as long as they mirror the state’s required qualifications for licensure and certification.
The independent evaluator must meet the minimum criteria set for evaluators employed by the school district – i.e. they must have all the required licenses and certifications. “If an independent educational evaluation is at public expense, the criteria under which the evaluation is obtained, including the location of the evaluation and the qualifications of the examiner, must be the same as the criteria that the public agency uses when it initiates an evaluation, to the extent those criteria are consistent with the parent’s right to an independent educational evaluation.” 34 C.F.R.§300.502(e).
Can the school district give parents a list of suggested evaluators to select from? Yes. In fact, the IDEA regulations implicitly support this. but…must parents select their evaluator from this list provided by a school? No. Parents may select an evaluator of their choice so long as the evaluator meets the district’s criteria for the required qualifications. May parents only seek an IEE immediately following a school district evaluation or re-evaluation? No, not necessarily.
A parent’s right to request an IEE in between tri-annual re-evaluations depends somewhat on the facts a student’s case. In some cases, if you are in between the technically required tri-annual evaluation, but evaluative information is missing or needed to revise a student’s IEP and the district will not assess, an IEE may be appropriate. For example, see C.B. OBO C.B. v. Hopewell Township Board of Ed., OAL DKT. NO. EDS 10497-18 AND (December 2018) for discussion about this.
May a school district have a policy about how to request an IEE? Yes.
Be sure to check for one before submitting an IEE request. Keep in mind that while a school district may have a policy on where to submit requests to or what the qualification criteria are, the policy should not contradict or restrict the IDEA regulations. In one recent decision, a New Jersey administrative law judge criticized a district’s policy for being difficult for parents to find. See Edison Township Bd. Of Education v. E.L. OBO E.L., OAL DKT. NO. EDS08095-18 (November 2018). School board members and administrators may find the Edison decision informative when it comes to developing an IEE policy.
May a school prohibit an independent evaluator from observing the student in school? No. N.J.A.C. 6A:14.2-5(c)(6).
May school districts set cost criteria for independent evaluations? Yes, however, the cost parameters must be reasonable, may not interfere with a parent’s right to an IEE and must be based on the reasonable costs for an evaluation in a geographic location.
Where the cost of a parent’s requested evaluation exceeds the school district’s parameters, parents may submit justification for the expense. Where an evaluation has a seemingly unreasonable cost, the school district may request a hearing to resolve the issue. In one New Jersey administrative due process hearing decision, the administrative judge denied the parents’ request for an IEE where their evaluation was $5,200, compared to the typical, local rate of $900 AND the parents refused to share or discuss the evaluations with the school AND submitted “heavily” redacted the receipts. Unusual factors like these could lead to denial of an IEE request for reimbursement. See C.P. on behalf of F.P. v. Clifton Bd. Of Ed., N.J. OAL. DKT. No. EDS 15781-17 (November 2018).
© 2019 Advo-Kids, “All Rights Reserved.” This material is for educational purposes only; it does not provide legal advice. Please be advised that there is no attorney-client relationship between you and Advo-Kids or this author. This article should not be used as a substitute for competent legal advice from a licensed professional attorney in your state.