5th Circuit Upends Conventional Wisdom About IEEs

The 5th Circuit has issued an important decision regarding IEEs for parents of students with disabilities.  Under our federal special education law, IDEA, parents are entitled to an IEE if they disagree with the evaluation conducted by the school.  Parents frequently request that the IEE be conducted at school district expense.  Lawyers have typically advised school administrators that when parents request a publicly funded IEE, the school must either pay for the IEE or request a due process hearing to show that its own evaluation is appropriate.  Reluctant to invoke the formal, expensive and legalistic due process mechanism, schools more often than not simply pay for the IEE.  Now, the 5th Circuit is telling us that it doesn’t have to work that way.

The court pointed out that districts can decline to pay for an IEE for two possible reasons: first, because its own evaluation is appropriate; or second, because the IEE fails to satisfy the district’s criteria.  The court held that the district is required to initiate the hearing process ONLY if it relies on the first reason.  If, on the other hand, the district objects to paying for the IEE due to its non-compliance with the district’s criteria, it can simply refuse to pay for it. This puts the burden on the parent to request a due process hearing.

The court affirmed the notion that an IEE must satisfy the district’s criteria for such an evaluation. However, it put a twist on that by holding that “substantial compliance” is all that is required.  School district lawyers argued that this puts us on the proverbial “slippery slope” toward the day when districts will be required to reimburse parents for shoddy or skimpy “evaluations.” The court tried to assuage these fears:

Although the slippery slope is always a concern when the law accepts a less-than-perfect compliance, we find the risk acceptable here, given the strong statutory interests favoring a substantial compliance standard and the use of such standards elsewhere in the IDEA case law. We do not suggest that “a couple of paragraphs” or a “prescription pad” notation will now pass muster.  Indeed, the determination will necessarily turn on the particular facts and agency criteria at issue in each case. “Substantial compliance,” allowing reimbursement in this context, means that insignificant or trivial deviations from the letter of agency criteria may be acceptable as long as there is substantive compliance with all material provisions of the agency criteria and the IEE provides detailed, rigorously produced and accessibly presented data.

This is an important precedent for us in Texas.  Directors of special education will want to take a fresh look at their IEE criteria and procedures.  If you have a request for IEE reimbursement, by all means talk to your school district lawyer about how to proceed in light of Seth B. v. Orleans Parish School Board. The case was decided by the 5th Circuit on January 13, 2016.  We found it at 116 LRP 1452.