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Special Education Tip – The Continuing Demand for Publicly Funded IEEs – 104-2018

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Rochelle’s Special Education Tips

The Continuing Demand for Publicly Funded IEEs
Some More Guidance on When a School System Must Pay for an IEE

Maryland’s Office of Administrative Hearings (OAH) recently issued a decision answering the question: When does the school system have to publicly fund an Independent Educational Evaluation (IEE)? The IEE requested was for an orthographic processing assessment. To answer the question, the Administrative Law Judge (ALJ) first defined an “evaluation” as a process to review and weigh data generated by various assessments tools, measures, strategies, observations, and other data sources and then to determine disability and educational needs if any. It defined “assessments” as a means to generate the data. The ALJ noted, as others have before, that the IDEA does not require a school system to pay for an IEE. This requirement was concocted by the U.S. Department of Education when it issued its regulations, and then MSDE followed suit and issued similar regulations. And as you know, if you refuse to pay for the IEE, you are required to file for a due process hearing. But we digress.

The school system showed that all of the assessments, tools, measures strategies, observations and other data sources considered by the IEP team constituted an appropriate evaluation. The data was properly generated, reviewed, weighed, and evaluated. It was properly used to allow the IEP team to come to a conclusion about the student’s disability and educational needs. The parents said they wanted assessments that specifically collected data focusing on orthographic dyslexia or orthographic processing deficits in reading. The ALJ looked at the following requirements and found in favor of the school system for each one:

  1. Did the evaluation process use a variety of assessment tools and strategies to gather relevant functional, developmental, and academic information about the child, including information provided by the parent?
  2. Did the school system use more than one single measure or assessment as the sole criterion for determining disability and programming?
  3. Did the evaluation process use technically sound instruments that assess the relative contribution of cognitive and behavioral factors, in addition to physical or developmental factors?
  4. Did the evaluation process use assessments that were not discriminatory on a racial or cultural basis, were provided and administered in the student’s native language, used for the purposes for which the assessments or measures are valid and reliable, and administered by trained and knowledgeable personnel?
  5. Did the evaluation process use assessments that were administered in accordance with any instructions provided by the producer of the assessments?
  6. Did the evaluation process use assessments and other evaluation materials tailored to assess specific areas of educational need and not merely a single general intelligence quotient?
  7. Did the evaluation process assess the student in all areas related to the suspected disabilities?
  8. Was the school system’s evaluation process sufficiently comprehensive to identify all of the student’s special education and related service needs?

There is something wrong with a regulatory framework that requires a school system to spend three (3) days in a due process hearing over an IEE. Yes, three (3) days of a hearing over testing!!! All because the parent demanded that the school system pay for an additional assessment in orthographic processing with regard to reading and writing. But the comprehensive testing already conducted provided sufficient information about the student’s weaknesses in reading and writing. Additional testing would be superfluous and redundant.

When you decline to pay for an IEE, make sure your PWN answers “yes” to the above 8 questions so you, too, can prevail in an IEE hearing.

Rochelle’s Special Education Tips (“Tips”) are designed to be helpful and thought provoking, but should not be considered legal advice as they may not be accurate for use in all situations. Tips are based on my opinions and positions in accordance with federal and Maryland law and my over 35 years of experience in the special education legal field. – Rochelle S. Eisenberg, Esquire
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