WE’RE ZOOMING TODAY AT 10! PLEASE JOIN LEANDRA ORTIZ AND THE DAWG FOR A LIVELY DISCUSSION OF THE PARENTAL RIGHT TO DIRECT THE EDUCATION OF THEIR CHILD.
Northwest ISD did not think it should have to pay for the IEE (Independent Educational Evaluation) obtained by P.H.’s parents. The district’s decision not to fund an IEE has now been affirmed by a special education due process hearing officer, federal district court, and the 5th Circuit Court of Appeals. Here’s how it happened.
Before enrolling their child in kindergarten, the parents gave the district a psychological evaluation they had obtained that diagnosed the student with Autism Spectrum Disorder, General Anxiety Disorder and separation anxiety. They asked the district to determine if the child needed special education services. The district then conducted its own FIIE (Full Initial Individual Evaluation). All of this information was then reviewed and considered at an ARD meeting in November. The ARD determined that the student was not eligible for special education services.
The parents did not challenge that decision immediately. But later in the school year, in April, the district determined that the student qualified for a Section 504 plan due to anxiety. At the 504 meeting the parents expressed their disagreement with the FIIE the district had completed in the fall. They asked the district to pay for an independent evaluation. The district said no, and requested a due process hearing to prove the appropriateness of the FIIE.
Let’s review a few basics about IEEs.
The starting point: These parents did the right thing by asking for the publicly funded IEE based on their disagreement with the district’s evaluation. That’s all it takes—a request based on a disagreement. The district also did the right thing by not just saying “no” but also requesting a hearing. That’s what IDEA requires.
It’s about the money. Parents don’t need the district’s approval to get an IEE. They need the district’s approval to get a publicly funded IEE. Sure enough, when the district refused to pay, the parents obtained a new evaluation at their own expense, and used it as evidence in the litigation.
Burden of proof: The district has the burden of proof in a case like this. It can prevail in the litigation by convincing the hearing officer of either of two things: 1) the district’s FIIE met all legal standards; or 2) the IEE failed to satisfy the district’s criteria. In this case, Northwest ISD relied on #1. NOTE: there is 5th Circuit caselaw that permits districts to refuse to pay for an IEE that fails to meet its criteria without having to request a due process hearing. But talk to your school attorney if you want to go that route. It can be tricky.
All areas of suspected disability. A good FIIE looks at every possible area of disability that might meet eligibility criteria. Here, the parents argued that the district focused exclusively on autism and ignored the possibility that the student could qualify as emotionally disturbed due to the anxiety. The court held that the FIIE had adequately taken the child’s anxiety into account, particularly since it appeared to fall short of what would be necessary for an ED label. The student did not show anxiety in the school setting, and teachers reported that the student’s emotional behavior was pretty typical of kindergarteners.
Choice of instruments. As the court noted, the choice of instruments is a professional decision to be made by the district’s evaluation professionals. The district used CARS-2 and SRS-2. The parents preferred ADOS-II. The court noted “Plaintiffs’ preference for one testing tool over another does not show the FIE was noncompliant.”
Proper administration of instruments. Formal testing needs to be done as per the instructions in the testing manual. In this case the court held that the parents failed to produce evidence of any problems in this area. But it’s a good reminder of the importance of reviewing the manual and following the required protocols.
That sums up Heather H. v. Northwest ISD, decided by the 5th Circuit on June 2, 2022. The case is cited at 2022 WL 1800771. I’m pleased to let you know that Meredith Walker from our firm’s Irving office represented the district and helped produce this good opinion.
DAWG BONE: DON’T WANT TO PAY FOR THE IEE? CALL YOUR LAWYER FIRST.
Got a question or comment for the Dawg? Let me hear from you at jwalsh@wabsa.com.
Tomorrow: caveat emptor and other handy Latin phrases