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. 

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.

Least Restrictive Environment

Parents of students with learning challenges who receive special education or related services from the public schools need to be familiar with the term Least Restrictive Environment – LRE.

The use of the term stems from language in the Individuals with Disabilities Education Act that requires that students receiving special education services be educated, “to the maximum extent appropriate … with children who are not disabled” and further provides that placing such children in separate classes or separate school settings or otherwise removing them from the regular educational environment occur only when “the nature or severity of the disability of a child is such that education in regular classes with the use of supplementary aids and services cannot be achieved satisfactorily.”  There is an excellent discussion of the issues relating to LRE from the U.S. Department of Education that appears on the Wrightslaw website.

The goal of LRE is to prevent children with any sort of disability (we don’t like that terminology, but it is the language used in the statute) from being removed from the regular classroom unless it is truly necessary. It is the basis for the variety of inclusion settings that schools have implemented to provide support for students with learning challenges while addressing the needs of their classmates. One model is Collaborative Team Teaching classes that use a special education teacher in a regular classroom to provide support needed by students with learning challenges. Other examples of LRE at work are “pull out” supports that keep students in regular classes while providing special education supports in a separate setting for only for part of the school day, or the inclusion of children who require a separate classroom setting for most of the day in non-academic activities (lunch, gym, recess) with their typically learning peers.

What does this mean for a child with learning difficulties who has an IEP – an Individualized Education Program? It means that for all children full time presence in a regular classroom is the “default” setting and that the IEP team (called the CSE -- Committee on Special Education -- in many locales, including here in New York) needs to consider each step away from this default and determine if it is truly necessary, before removing a child from that setting for even part of the day. It doesn’t mean that some children are not placed in separate classrooms or even separate schools, just that such placements must be justified as truly necessary for the child’s education.

Of course, as with many laudable goals, there are complexities and agendas at work when considering LRE. Children with behavioral issues who may be disruptive to their classmates may be placed in a separate setting, even when they could benefit from a regular classroom. Schools have generally found that inclusion classrooms, where children with and without IEPs are educated together, are less expensive than maintaining separate special education classes and may be reluctant to appropriately place a child in a separate class even when that would be the best setting for him or her.

Furthermore, as with much of special education, LRE is applicable only in the public school system. Parents of some students with learning issues are very eager to have them enrolled in private, special education schools whose entire mission is to educate students with learning difficulties, even though such schools are definitely a most restrictive environment.

Photo background used under Creative Commons by Horia Varlan

Advocates for Children of New York

We are extremely pleased about our recent partnership with Advocates for Children of New York. AFC's mission is to promote access to the best education New York can provide for all students, especially students of color and students from low-income backgrounds. We are working with AFC to help deliver our innovative educational assessment program to a small group of young people in need of educational support, and hope to expand our collaboration with this important and inspiring group in the future.

AFC, "fighting for the rights of students since 1971," provides free or low cost individual legal advocacy assistance for families and children who are having difficulty obtaining appropriate educational services -- including special ed, disciplinary, and other types of issues. They also work to ensure that children in the foster care system or whose families are homeless do not lose out on their education because they are moving from place to place.

Advocates for Children produces informative guides for parents on issues such as grade holdovers, the educational rights of immigrant families, and children with behavioral issues. Information is available in multiple languages. The organization has served as the lead counsel on a number of groundbreaking lawsuits that have helped to secure the rights of New York City children, and conducts over 40 different training workshops on education law and child welfare issues.

Advocates for Children of  New York provides a free education helpline, Monday through Thursday from 10 am to 4 pm at 1-866-427-6033. Parents can call and speak directly with an attorney or advocate at no charge.

Read about some of their success stories here.