Paying for IEEs - Revisited

Parents frequently ask us about having their school district pay for an independent educational evaluation - an IEE - such as those we provide here at The Yellin Center. We wrote about this subject at length in a post from November 2013, but it has become clear to us that it is time to share this discussion again. We have added some additional information, (see the boldface text below) and hope this post helps answer questions that you may have.

 
When Must School Districts Pay for Evaluations?

Parents sometimes ask us if they can have their school district pay for their child's evaluation at The Yellin Center. The simple answer is "maybe, under certain circumstances," and we thought it might be helpful to explain the laws and regulations that govern this area.

The Individuals with Disabilities Education Act (IDEA) recognizes that an evaluation of a student in all suspected areas of disability is a crucial first step to determining whether that student is eligible for IDEA services and what kind of services will help that student to succeed in school. In fact, the "clock begins to run" with respect to the time limits set forth in the IDEA only once the parent consents to an evaluation of the student. The law anticipates that the school will then conduct an evaluation of the child and share the results with the parents and the IEP team, the committee that creates the student's Individualized Education Program. 

In many situations, this works out well for all concerned. The school district conducts an evaluation at no cost to the family; the findings make sense to the parents; the findings are incorporated into the student's IEP; and nothing more needs to be done. 

However, sometimes families do not agree with the findings of the school district evaluators and feel there may be something more going on with their child. Sometimes parents have had a long history of difficulties with the school and simply do not trust them to do an evaluation. Some parents of children enrolled in a private school do not want to have to work with the local public school district (especially in New York City). And, quite often, parents want the kind of in-depth, multi-disciplinary evaluation done here at The Yellin Center, rather than a more "cookie-cutter" series of tests given by their school's evaluators. In each of these situations, the parents seek an Independent Educational Evaluation (IEE) such as the ones we conduct here at The Yellin Center.

Before we look at specific rules and scenarios, we need to emphasize one important point. Parents have the absolute right to have their child independently evaluated and federal law requires that the public school district must consider the results of such evaluation. Dr. Yellin and his team frequently attend IEP meetings (via phone or other technology) to discuss the results of our evaluations and have been universally well-received by schools. However, the law does not require that districts follow the recommendations of our reports (or any outside evaluator).

So, when can a parent have a district pay for an IEE? 

1. The parent must disagree with the evaluation conducted by the district or consider it inadequate and notify the district of their intention to obtain an IEE.
2. The district must then either file for a due process hearing with a State Hearing Officer or agree to pay for the IEE.
3. The district can set criteria for the IEE's they will fund -- how much they cost, the geographic location of the evaluator(s), and the specific qualifications of the evaluator(s). However, the U.S. Department of Education notes that, "the district must allow parents the opportunity to demonstrate that unique circumstances justify an IEE that does not fall within the district's criteria. If an IEE that falls outside the district's criteria is justified by the child's unique circumstances, that IEE must be publicly funded." So, even if your district tells you that you are restricted to using the private evaluators on a list they provide, that is not strictly correct and you can and should push back to obtain the services of the evaluator you choose. 
4. An IEE can also be ordered by a State Hearing Officer as part of a due process hearing when aspects of an IEP are in dispute. 

We also encounter situations where a district paid evaluation at The Yellin Center is part of an ongoing discussion between a family and a school district, especially when the district has not been successful in addressing a child's educational needs. And families need to keep in mind that The Yellin Center has always had a sliding scale for families who need assistance in paying for our services. 

There are countless resources available to explain this process to parents and school administrators, but some you might find useful are:

• For New Jersey familes, a memo from the New Jersey Department of Education, with a list of Frequently Asked Questions about IEEs.
• From the U.S. Department of Education, a memo discussing why districts cannot set absolute cost limits on IEEs. 

One subject not addressed in our original post on this topic is the rights of parents when a district refuses to evaluate, either because they do not believe that the child has a disability, or without even providing a reason. The IDEA only addresses the situation where a family disagrees with an evaluation that has been already conducted. To the frustration of many families, if the school district declines to evaluate a student, the only remedy of the family is to file a complaint with a State Hearing Officer to challenge this decision. In addition, as noted above, parents always have the right to go ahead on their own to seek an IEE. 

English Language Learners

Required professional development courses vary greatly in quality, so it is a real delight when a day devoted to accumulating necessary Continuing Legal Education credits turns out to be a truly fascinating series of lessons in areas that attorneys working in the field of education and special education don't always consider.

Such was the case yesterday at the Practicing Law Institute's School Law Institute. Discussions about sexual assault on campus, transgender youth in public schools, the use of police authority and arrest powers in schools, and how changing family dynamics make deciding who is the "client" in an educational matter complicated, all were extremely well-presented. So was the more expected discussion of new developments in special education case law.

One particularly interesting topic was presented by Abja Midha, Esq. of Advocates for Children of New York, where she is Director of the Immigrant Students’ Rights Project, which works to protect English Language Learners’ and immigrant students’ access to educational programs and improve their educational outcomes. The Project has numerous resources available - many in multiple languages - and is involved in policy initiatives as well.

Ms. Midha noted that not all children who are English language learners (ELL) are immigrants. Some were born here to parents who speak languages other than English. And some children who are proficient in English have parents who have limited English proficiency and require translation services to be able to access necessary information about their child and the school system.

Federal statutes and case law have created significant rights for ELL. In the 1974 U.S. Supreme Court case  Lau v. Nichols, (414 U.S. 563), brought by non-English speaking Chinese students in the San Francisco public schools, Justice William O. Douglas' opinion noted, “There is no equality of treatment merely by providing students with the same facilities, textbooks, teachers, and curriculum; for students who do not understand English are effectively foreclosed from any meaningful education. Basic English skills are at the very core of what these public schools teach. Imposition of a requirement that, before a child can effective participate in the educational program, he must already have acquired those basic skills is to make a mockery of public education.”

The day's presentations on all topics will be available in a couple of weeks as an "on demand" program. The Practicing Law Institute offers scholarships to selected programs for attorneys in the nonprofit sector and others.

Bad News About a Bad Law

Back in May 2011, we wrote about a then pending Florida law that would prohibit physicians from asking parents about whether there are guns in their homes. The question, when asked by a pediatrician or family physician, can open the topic of gun safety and allow the doctor to counsel the parent about what is needed to make sure that their own and other people's children are kept safe. 

Gun advocates claimed that this would constitute harassment and somehow lead to records being kept by physicians as to which of their patient families had guns present in their homes. Opponents of the law pointed to limits on a physician's judgment, freedom of speech issues, and the appalling number of children injured or killed by playing with guns found in their home or another house at which they play.

The law was signed by Florida Governor Rick Scott shortly after our original post about it. In September of 2012 we were able to report that Federal District Court Judge Marcia G. Cooke had ruled that the Florida law was unconstitutional and issued a permanent injunction which blocked its enforcement.

Late last week, we learned that the United States Court of Appeals for the 11th Circuit, in Atlanta, overturned Judge Cooke's injunction, which means the law can take full effect. You can read the complete 160 plus page decision and the dissent by Judge Charles R.Wilson here.

We hope that some of the groups that brought the initial lawsuit against this law will continue to seek to overturn it. The next stop for this would be the United States Supreme Court. We will continue to follow and report on new developments. 

The Jury is Out on New NYC Special Education Rules

Parents who place their children in private special education schools in New York City and seek to have their tuition payments either made directly by the public school system (Connors funding) or reimbursed to them (Carter funding), have long come up against a NYC Department of Education which has put up extensive procedural barriers to avoid making these payments. Even the Mayor's office noted, in a press release, "The special education placement process has been fraught with contention and litigation in recent years."

    

Now, in the face of a bill pending in the New York State legislature which would make it easier and quicker for families to receive public funding, the City has decided to remove the most onerous barriers faced by families seeking school funding and, according to a statement by NYC Mayor Bill de Blasio, is "...turning the page, making changes that will ease the burden on these parents [by] ... cutting red tape, speeding up the process, and reaching outcomes that do right by families.”  A 2012 bill which would have permitted funding in religious schools was vetoed by the Governor, but the current bill (which has been put on hold in light of this action by New York City) did not include this provision.


The specifics of the new policy are scheduled to be put in place by September of this year and include:

• Expedited Decisions: The City will now seek to reach a settlement with parents (in cases where settlement is appropriate) within 15 days of receiving notice from the parent of their intention to place their child in a private special education school.
• Ending Unnecessary Litigation: The City will no longer litigate cases which were settled or decided in prior years, or where the Department of Education fails to offer a school placement, except where there is a change in the kind of educational setting the student requires.
• Less Paperwork: Parents will no longer need to submit full documentation every year. The new requirement will be for documentation every three years.
• Quicker Payments: The City will make monthly payments where required by a school and give parents a payment schedule for other payments. 
• Payments Pending Appeals: Where parents have won a claim for tuition reimbursement which the City seeks to appeal, the City will pay the tuition while the appeal is pending.

Attorneys practicing in the area of special education are hopeful that these new policies mark an end to the very difficult relationship between the City and it's Department of Education and parents. Still, the devil is always in the details and families and the attorneys representing them are reserving judgement until they see how this new approach works in practice. 

Lawsuit Results in Fairer LSAT Accommodations

Thanks to our colleague, Jo Anne Simon, Esq., whose legal practice focuses on disability civil rights in high-stakes standardized testing and higher education, we have just learned of a Consent Decree from the United States District Court for the Northern District of California, which changes the rules for individuals with disabilities who seek accommodations to take the Law School Admission Test (LSAT).

We have written before about the Law School Admission Council (LSAC) and their refusal to comply with a survey of accommodation practices by the United States Government Accountability Office, as well as how the American Bar Association was urging the LSAC to end their practice of "flagging" scores of students who took the LSAT with disability accommodations. Flagging is the practice of annotating score reports of individuals who receive extended test time due to disability, something which the College Board (SAT, AP, and other exams) and the ACT folks have not used in the last ten years.

The Consent Decree is the result of a lawsuit brought by the California Department of Fair Employment and Housing, several individual students (represented by The Legal Aid Society - Employment Law Center), and the U.S. Department of Justice against the LSAC. Its terms are sweeping and include:

• An end to flagging of LSAT scores

• Creation of a panel of experts to establish "best practices" in handling accommodations, which the LSAC shall be required to implement
• Creation of a fund of almost seven million dollars to compensate individuals who were turned down for LSAT accommodations because of inappropriate requirements by the LSAC.

• Permitting many candidates to submit testing conducted within five years of the date of the request for testing accommodations, instead of within three years as currently required.

These changes are long overdue and should bring fundamental fairness to an exam that is a required by virtually every law school in the country. Anyone even thinking of applying to law school should read this decree in its entirety.

Photo credit: www.stockmonkeys.com via flickr

When Must School Districts Pay for Evaluations?

Parents sometimes ask us if they can have their school district pay for their child's evaluation at The Yellin Center. The simple answer is "maybe, under certain circumstances," and we thought it might be helpful to explain the laws and regulations that govern this area.

The Individuals with Disabilities Education Act (IDEA) recognizes that an evaluation of a student in all suspected areas of disability is a crucial first step to determining whether that student is eligible for IDEA services and what kind of services will help that student to succeed in school. In fact, the "clock begins to run" with respect to the time limits set forth in the IDEA only once the parent consents to an evaluation of the student. The law anticipates that the school will then conduct an evaluation of the child and share the results with the parents and the IEP team, the committee that creates the student's Individualized Education Program. 

It's Our City

In many situations, this works out well for all concerned. The school district conducts an evaluation at no cost to the family; the findings make sense to the parents; the findings are incorporated into the student's IEP; and nothing more needs to be done. 

However, sometimes families do not agree with the findings of the school district evaluators and feel there may be something more going on with their child. Sometimes parents have had a long history of difficulties with the school and simply do not trust them to do an evaluation. Some parents of children enrolled in a private school do not want to have to work with the local public school district (especially in New York City). And, quite often, parents want the kind of in-depth, multi-disciplinary kind of evaluation done here at The Yellin Center, rather than a more "cookie-cutter" series of tests given by their school's evaluators. In each of these situations, the parents seek an Independent Educational Evaluation (IEE) such as the ones we conduct here at The Yellin Center.

Before we look at specific rules and scenarios, we need to emphasize one important point. Parents have the absolute right to have their child independently evaluated and federal law requires that the public school district must consider the results of such evaluation. Dr. Yellin and his team frequently attend IEP meetings (via phone or other technology) to discuss the results of our evaluations and have been universally well-received by schools. However, the law does not require that districts follow the recommendations of our reports (or any outside evaluator).

So, when can a parent have a district pay for an IEE? 

1. The parent must disagree with the evaluation conducted by the district or consider it inadequate and notify the district of their intention to obtain an IEE.
2. The district must then either file for a due process hearing with a State Hearing Officer or agree to pay for the IEE.
3. The district can set criteria for the IEE's they will fund -- how much they cost, the geographic location of the evaluator(s), and the specific qualifications of the evaluator(s). However, the U.S. Department of Education notes that, "the district must allow parents the opportunity to demonstrate that unique circumstances justify an IEE that does not fall within the district's criteria. If an IEE that falls outside the district's criteria is justified by the child's unique circumstances, that IEE must be publicly funded." So, even if your district tells you that you are restricted to using the private evaluators on a list they provide, that is not strictly correct and you can and should push back to obtain the services of the evaluator you choose. 
4. An IEE can also be ordered by a State Hearing Officer as part of a due process hearing when aspects of an IEP are in dispute. 

We also encounter situations where a district paid evaluation at The Yellin Center is part of an ongoing discussion between a family and a school district, especially when the district has not been successful in addressing a child's educational needs. And families need to keep in mind that The Yellin Center has always had a sliding scale for families who need assistance in paying for our services. 

There are countless resources available to explain this process to parents and school administrators, but some you might find useful are:

• For New Jersey familes, a memo from the New Jersey Department of Education, with a list of Frequently Asked Questions about IEEs.
• From the U.S. Department of Education, a memo discussing why districts cannot set absolute cost limits on IEEs and a link to a number of other memos discussing other aspects of the IEE funding process.
• For a review of court cases that have dealt with the IEE issue, a law review survey of cases by Perry Zirkel.

Book Banning from a Legal Perspective

Just how does a book get banned? Who decides what goes into library collections in the first place? What rights do libraries and readers have? Read on for facts about obscenity, book banning, and the First Amendment.

Chillinhead/Flickr

Selecting Books

When it comes to choosing books, librarians follow a series of self-established guidelines. Most libraries seem to have similar philosophies about collection materials, though the criteria may vary slightly from place to place. In general, libraries attempt to maintain a diverse collection of media that are free from bias and stereotype and intended to reflect the multiple facets of life around the world. Libraries generally accept recommendations from readers as well. They research recommended materials to determine whether acquiring the media in question would enrich the library’s collection.

Because they are public institutions, libraries are not permitted to discriminate. That means anyone can check out any materials they choose, regardless of age, sex, or race. Most libraries do request that guardians monitor the selections of minors, however.

Banning Books

Censorship of ideas is nothing new, but US laws dictating freedom of information are comparatively new on the scene. In 1982, the Supreme Court found in Board of Education, Island Trees School District v. Pico that school officials did not have the right to remove library material because they disagreed with the ideas it espoused. (School libraries continue to receive more requests to ban materials than public libraries.) To justify banishment from a school library, the material must be “pervasively vulgar.”

US libraries receive hundreds of requests each year to remove books from their shelves. Patrons most commonly challenge books on the grounds that they contain sexually explicit content, offensive language, and/or inappropriate subjects for minors. Public libraries regard themselves as open forums for ideas and so are generally loathe to censor their offerings. Just as challenging a book is the right of any citizen, it is the right of each individual library to decide whether to comply with these requests. On the occasions that such cases have been decided by courts, judges generally rule in favor of the library because of the freedoms guaranteed by the First Amendment.

Freedom of expression aside, libraries must not maintain materials that are unquestionably obscene. But just what defines obscenity? The US Supreme Court decision in Miller v. California in 1973 established that materials must “appeal to prurient interests when taken as a whole; involve patently offensive sexual conducts; and contain no literary, artistic, political, or scientific value” to be deemed obscene. Of course, even this three-point test is subjective, and in the case of banned books the burden of proof lies with the protesting party, not the library, to demonstrate that the material is inappropriate.

For more information, please visit the American Library Association.