Friday, March 14, 2014

Procedural Safeguards The Series- Part IV

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This is the fourth installment in a multi-part series on procedural safeguards under the federal special education law, the Individuals With Disabilities Education Act. I work a lot in this area, so it is near and dear to my heart. Despite the importance of procedural safeguards. however, many issues in this area are misunderstood. I hope that all of the different types of special education stakeholders who read this blog find the information in this series helpful. Be sure to tell me what you think about the series.

Independent Educational Evaluations
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 theschool 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 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 ___ U.S.____, 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 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 could introduce it as evidence in a due process hearing. 71 Fed. Register No. 156 at page 46690 (August 14, 2006).

 In Phillip & Angie C ex rel AC v. Jefferson County Bd of Educ 112 LRP 56693 (11th Cir 2012) the Eleventh Circuit held that although IDEA does not expressly require public funding of IEEs, US DOE had the authority to require them by regulation. Under Chevron principles, DOE is entitled to deference and IDEA §606(b) adopts all regs by DOE protecting parents in effect in 1983.
                      In GJ v Muscogee Sch Dist 668 F.3d 1251, 58 IDELR 61 (11th Cir 1/31/12) the Eleventh Circuit held that because the parent’s refused to sign a consent form and instead attached a lengthy seven point addendum with conditions for the eval, resulted in no underlying evaluation, the parents were not entitled to an IEE because there was no district evaluation first.

           In   Letter to Inzelbuch 113 LRP 32485 (OSEP 8/1/13) OSEP opined that where an IEE is conducted at public expense, it would be inconsistent with IDEA for a school district to limit the IEE in any way that would prevent the evaluator from fulfilling its purposes (eligibility/continued eligibility and child’s needs).  Whether an IEE evaluator must be allowed to observe the student in the classroom must be decided on a case by case basis.  
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