The parent wants us to pay for an IEE that we think is too expensive. What do we do?
A Texas hearing officer recently ruled in favor of a school district that put a cap on how much it would pay for an IEE—an Independent Educational Evaluation. Districts are allowed to have criteria pertaining to IEEs, including cost controls. This case involved a parent’s request for an independent evaluation for autism that would run $7,200, and that would not include the cost of a Functional Behavioral Assessment. The FBA would be done at $125/hour and could add up to an additional $9,700. This exceeded the district’s cap. The parent also requested a speech evaluation that was going to cost $1,500—four times the district’s cap.
The law is clear that districts can have “caps” on what it will pay, but there are two important caveats to add. First, “unique circumstances” must always be recognized and accommodated. Second, the district has to base its cap on realistic and accurate information. You can’t just pick a number out of the air. Here, the hearing officer concluded that the “district’s evidence on appropriate costs of IEEs was based on substantial objective data relevant to the issues presented by the parties.” The paragraph citing how the district did this is worth quoting in full:
The district has adopted operating guidelines for independent educational evaluations and their costs. The guidelines are based upon research in typical costs for evaluations within the geographic area, consideration of the evaluator’s credentials and the unique needs of the student, and approximations of costs up to 35% higher than Medicaid rates for the service. Data to establish the guidelines is gathered from two regional education service center regions and includes objective data from school districts, various professionals and private providers.
The case is Student v. Lewisville ISD, decided by hearing officer Lucius Bunton on June 5, 2015. The docket number of the case is 107-SE-1214, and you can find it on the T.E.A. website: http://tea.texas.gov/About_TEA/Legal_Services/Special_Education/Due_Process_Hearings/Special_Education_Due_Process_Hearings_2015/.
DAWG BONE: COST CRITERIA REGARDING IEEs REQUIRES RESEARCH, DATA.
Mr. Jones has exercised his rights under IDEA and is in the process of obtaining an IEE (Independent Educational Evaluation). The IEE is to be done by eminent and esteemed psychologist, Dr. Bigbrain. How eminent and esteemed is this guy? Well….he has many letters after his name. His glasses frequently slip down on his nose so that he can look over them in a very scholarly manner. He has a neatly trimmed Van Dyke. There are elbow patches on his tweed jacket. Rumor has it that he smokes a pipe. He uses big words. The man is uber-qualified.
And Bigbrain says that his evaluation must include a classroom observation of the child. Can the school refuse this request?
Yesterday we talked about a federal court case and an OSEP letter about classroom observations by parents and their attorneys. Both the case and the OSEP letter tell us that IDEA does not give parents the right to demand that they or their attorneys observe in the classroom.
However, observation by a qualified evaluator conducting an IEE should be looked at differently. Both the court case and the OSEP letter addressed this. In fact, in the court case, the original hearing officer ordered the district to allow the parents’ independent evaluator to conduct an observation in the classroom. The hearing officer concluded that barring a qualified evaluator from the classroom would interfere with the parents’ right to obtain an IEE. The school did not challenge that ruling on appeal. The case is T.M. v. District of Columbia, decided by the federal district court in Washington, D.C., on December 3, 2014.
OSEP sees it the same way. The OSEP Letter to Savit (February 10, 2014) notes that an observation by a qualified evaluator pursuant to an IEE is not the same as an observation by a parent or attorney: “Therefore, it would be inconsistent with the IDEA for a public agency to have a policy giving third party evaluators only a two hour observation window, because such a limitation may restrict the scope of the IEE and prevent an independent evaluator from fulfilling his or her purpose, unless the LEA also limits its evaluators to a two hour observation period.”
Why the difference? Because IEEs done at public expense are supposed to be conducted under the “same criteria” that the school uses in its own evaluations of students. If the school would include a classroom observation in its evaluation, it must permit the parents to do the same in an IEE. Likewise, OSEP says the school can limit the IEE observation to two hours only if it also limits itself to that timeframe.
DAWG BONE: REQUESTS FOR CLASSROOM OBSERVATION PRESENT LEGAL ISSUES—RESPOND THOUGHTFULLY.