Parents of special education students often seek an evaluation by a  professional not employed by the school district regarding which services ought to be included in their son’s or daughter’s individualized education plan (IEP). These evaluations typically cost hundreds or thousands of dollars, often at school district expense.

Although federal regulations limit a parent to only one “independent educational evaluation” (IEE) per evaluation conducted by the school district, it is not uncommon for parents to obtain an independent assessment for each evaluation conducted by the school. Expenses also increase when parents use independent evaluations to expand the sets of data under consideration. For instance, it is not unusual that parents obtain a neuropsychological evaluation, even though its scope (and cost) may far exceed that of the district’s psychological evaluation.

While there is no dispute that parents have a right to have IEEs performed when they disagree with a school evaluation, school boards have ways to avoid or minimize unnecessary expenses. Federal regulations and recent federal litigation involving an upstate school district make it clear that school boards can:

• Establish criteria for all evaluations.
•  Impose reasonable cost limits as part of such criteria.
•  Call for an impartial hearing to present evidence that the requested evaluation does not meet district criteria.

At this time, it is unclear whether districts can skip the third step and simply refuse to pay for services that do not meet district criteria.

‘An expert with firepower’

The right of parents to participate meaningfully in the development of their child’s IEP is recognized in the U.S. Individuals with Disabilities Education Act (IDEA). The U.S. Department of Education’s IDEA regulations specify that the right to seek an IEE is among many procedural protections provided to parents. It is a right available whenever parents disagree with an evaluation obtained by the school district.

The U.S. Supreme Court has recognized the right to an IEE as a means to ensure not only meaningful parental participation in the development of the IEP but, in the event of a disagreement between the school and parents, parental access to “an expert with the firepower to match the opposition” (Schaffer ex. rel. Schaffer v. Weast, 2005).

Under federal regulations, a parent’s right to an IEE is automatic. The district must either (a) pay for the full cost of the evaluation, (b) ensure that it is otherwise provided at no cost to the parent or (c) initiate an impartial hearing to show that its evaluation is “appropriate.”

The regulations further provide that the district does not need to fund an IEE if it demonstrates in an impartial hearing that the evaluation does not meet district criteria.

Accordingly, establishing school district criteria for all evaluations, including both school district-obtained evaluations and IEEs, seems to be the only means available to schools to attempt to rein in the increasing expense of independent evaluations.

For example, a district may require that independent evaluators be state-certified or licensed. It may require that the independent evaluator’s place of business be located within a certain geographic location or radius of the school district. Such criteria are stated in the federal regulations. It must be remembered, however, that the school is bound by the same criteria when it initiates evaluations of students with a disability; it may not impose criteria to make the parent’s right to an IEE more restrictive than that of the school district.

Also, the criteria must be broad enough that the parent is able to identify at least one (preferably more) potential evaluator. A criterion, for example, that the evaluator possess “recent and extensive experience in the public schools” has been considered to be inconsistent with the parent’s right to an IEE (Letter to Petska, 2001).

Criteria should be described in either board policy or administrative regulations/ guidelines, and parents should be made aware of the criteria.

Cost-containment criteria

School boards also have the option of imposing reasonable cost limits as part of their criteria. The U.S. Department of Education has opined that “[t]o avoid unreasonable charges for IEEs, the school district may establish maximum allowable charges for specific tests.” (Letter of OSERS, 2002). The caveat is that the school “would need to provide a parent the opportunity to demonstrate that unique circumstances justify selection of an evaluator whose fees fall outside the … cost containment criteria” (Fed. Reg., Vol. 71, No. 156).

In a decision issued in March 2013, the U.S. District Court for the Northern District of New York upheld a 2010 school district policy imposing an $1,800 cost cap on IEEs (M.V. v. Shenendehowa CSD). The court found that the cap was reasonable because, at the time, there existed several independent evaluators in the relevant geographic area willing to perform an IEE for less than $1,800 – just not the evaluator selected by the parent. The $1,800 was not based on the average evaluation cost, but on the documented cost of actual outside evaluations paid for by the school district in recent years.

While the Shenendehowa case seems to pave the way for IEE cost containment provisions, it was significant that the cost cap was not an arbitrary amount, but based on documented evidence and would not unreasonably restrict the parent in exercising the right to an IEE.

Who is responsible for initiating an impartial hearing?

If a parent obtains an evaluation that the district believes falls outside the district’s cost-containment criteria or other criteria, can the district simply refuse to pay the bill? This is an unsettled question.

The law provides for an impartial hearing to resolve disputes regarding independent evaluations, but it is unclear whether the burden of initiating a hearing in such a situation lies on the district or the parent. Should the district call for a hearing on the appropriateness of the parent’s choice of independent evaluator, or should the parent call for a hearing on the appropriateness of the district’s criteria?

Federal regulations are not clear on the subject, and opinions offered by federal officials have been contradictory.

The U.S. DOE issued opinion letters in 2001 and 2002 stating that the district must “without unnecessary delay” initiate a hearing to demonstrate that an evaluation obtained by a parent does not comply with the district’s criteria.

But DOE comments in the Federal Register regarding the most recent version of the federal regulations suggest that the burden may be on the parent to initiate an impartial hearing to show that unique circumstances justify the selection of an evaluator whose fees fall outside a district’s cost-containment criteria.

The court in the Shenendehowa case never reached the issue of which party has the duty of challenging the behavior of the other by initiating a hearing. Noting that the parent in the case never disagreed with a district evaluation, the court found that the district had no duty to initiate a hearing in order to refuse payment.

School districts confronting issues involving independent evaluations should consult with their school attorneys.

Members of the New York State Association of School Attorneys represent school boards and school districts.

This article was written by Susan T. Johns of Ferrara Fiorenza Larrison Barrett & Reitz, P.C.