Today we continue the series on the IDEA procedural safeguards. The four methods of dispute resolution were discussed in great detail in a previous series of posts; this series deals with the remaining procedural safeguards. The United States Supreme Court has frequently referred to the IDEA procedural safeguards as being at the heart of the fairness of the process, the great equalizer. Today we examine how the IDEA'04 changes and the latest federal regulations impact the right to an independent educational evaluation.
The parents of a child with a disability have the right to an independent educational evaluation (hereafter sometimes referred to as “IEE.”) IDEA Section 615(b)(1). The IEE must be provided by the school district at public expense unless the LEA files a due process complaint and shows that its evaluation was appropriate. 34 CFR Section 300.502(b). The U. S. Supreme Court found the right to an IEE, in particular, to be a very important safeguard for parents, and relied on it in part in rejecting the argument that school districts had an advantage in terms of expertise and knowledge. Schaffer v. Weast 546 U. S. 49, 126 S.Ct. 528, 44 IDELR 150 (2005).
Parents may obtain only one IEE at public expense each time the school district conducts an evaluation with which the parents disagree. 34 CFR Section 300.502(b)(5). The purpose of this new regulation is to protect the parents’ right to an IEE (OSEP rejected a suggestion limiting a parent to one IEE in a child’s school career) while ensuring that a school district does not have to bear the cost of multiple IEEs concerning a single disagreement. 71 Fed. Register No. 156 at page 46690 (August 14, 2006).
OSEP has noted that where a hearing officer orders an IEE, parental consent is needed for the release of education records to the independent evaluator. If the parent refuses to consent, the hearing officer could decide to dismiss the parent’s complaint. 71 Fed. Register No. 156 at page 46690 (August 14, 2006).
If a parent obtains an IEE at public expense, but disagrees with the result, the school district may introduce it as evidence in a due process hearing. 71 Fed. Register No. 156 at page 46690 (August 14, 2006).
IEE's (and procedural safeguards in general) are a wonderful "idea". The problem becomes when school districts simply refuse to comply with the law. They say "take us to due process" knowing full well that parents don't have the means to pay an attorney up front (which is becoming more commonplace), much less pay possible expert witness fees that (under current SC rulings) will not be able to be recouped. While the idea of procedural safeguards is a nice one, in many parts of the country, they are useless. And you certainly can't count on the state or OSEP to help. Just my two cents.
ReplyDeleteIn many states parents proceed to due process without lawyers. They obviously are at a disadvantage, but they do sometimes win. Thanks for your comment jeremy.
ReplyDeleteJG
I've requested a new IEE for my grandson whom is severe speech and language. His doctor says this is true but also has moderate autism. The school says they don't have to dual label him and is determine to push him into general education. Any help is appreciated. please
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