Your child’s school district must evaluate your child “in all suspected areas of disability,” according to the Individuals with Disabilities Education Act (IDEA). Furthermore, schools must re-evaluate at least every three years, which is often referred to as a “Triennial.” What should you do if you think the testing done by your child’s school is not accurate? What happens if you disagree with the school’s findings?
If a parent disagrees with their school district’s evaluation of their child or disagree with the district’s findings or recommendations, parents of a child with a disability have the right to request an Independent Educational Evaluation (IEE) at public expense. 20 U.S.C. §1415 (b); 34 C.F.R. §300.502; Cal. Ed. Code §56329 The IEE must be conducted by a qualified examiner who is not employed by your child’s school district. In short, an Independent Educational Evaluation is a “second opinion” on the assessment your school district performed. In many cases, the school district must pay for the IEE. In other cases, the district may take legal action against you in order to prove its assessments were appropriate.
Why Would I Request An IEE?
Why would a parent request an IEE? One such reason might be if the school did not find your child eligible for special education or an Individualized Education Plan (IEP), and you disagree. Another reason might be that the school finds your child eligible for special education but not under the eligibility category you think is most appropriate (e.g., you believe your child has Autism Spectrum Disorder and ADHD, but the school determines your child only qualifies for an IEP based on ADHD, leaving the autism unaddressed). There are many other reasons why a parent might disagree with the school district’s evaluation, and I won’t go into all of them here. The bottom line is: If you disagree with the school district’s evaluation, you can ask for an IEE at public expense.
How Do I Request An IEE?
Parents should request an IEE in writing, stating that they disagree with the school district’s assessment findings and requesting an IEE at public expense. That’s it. Often times, school districts will ask parents why they disagree with the district’s assessments. They may even tell parents they will not grant an IEE unless the parents explain why they disagree with the district’s evaluation. Don’t fall for this trick. You do not have to provide any reason why you disagree with the school’s assessments.
Sometimes school districts will respond to a parent’s request for an IEE by offering to re-administer the assessments or conduct “further testing.” Don’t fall for this either. The whole point of an IEE is that it is a second opinion from someone who is NOT a district employee. That’s why it’s called an “Independent Educational Evaluation.” You don’t have to justify your request, and you don’t have to accept re-testing at your child’s school. Whether you want to accept re-testing by the district is up to you, and whether you should accept re-testing in lieu of the IEE must be determine based on the individual facts of your case. Just know that you do not have to accept re-testing or further testing by district personnel if you don’t want to.
The School District Denied My Request For An IEE; What Can I do?
When a parent requests an IEE, the school district has only one of two options: 1) Grand the independent evaluation; or 2) file a Due Process complaint to prove its evaluation is appropriate. 20 U.S.C. §1415 (b); 34 C.F.R. §300.502; Cal. Ed. Code §56329. These are the only two responses permitted by law.
Rather than grant the IEE or file for Due Process, some districts chose to issue Prior Written Notice (PWN) denying the request in writing. This PWN is basically a letter of denial saying, “sorry, we will not grant an IEE because we think our assessment was just fine.” Such a response is improper as it does not comply with the IDEA or California law.
So, what can you do if your child’s school simply denies your request for an IEE? When school districts deny your request for something or schedule IEP meetings, they must notify you of your parental rights. Typically, this is a form document entitled “Notice of Procedural Safeguards” or something similar. A lot of parents don’t understand what is written in the document or overlook it, but the Procedural Safeguards actually tell you what your rights are under the IDEA. Go grab it out of your trash, and read it.
In the Procedural Safeguards, you will see that parents have the right to request an IEE at public expense and the two options a school district has when responding to such a request. School districts know that most parents do not read the Procedural Safeguards and know they can likely get away with simply issuing a letter of denial. Don’t be that parent; know your rights! Take your Procedural Safeguards back to the person who denied your IEE request, and let them know that their written or verbal denial is not proper, citing to the Procedural Safeguards themselves. Ask that they issue a response that either grants your request or file a Due Process complaint.
What If The District Files For Due Process?
As we discussed, the school district must either grant your request for an IEE or file Due Process to prove its assessments were appropriate. In some cases, a district may decide it is not worth the time and expense to file Due Process and will grant the IEE. If so, great!
In other cases, the district may choose to file a Due Process complaint. There are many reasons a district might file for Due Process in response to a request for an IEE. Just know that the district has the option to file for Due Process when you ask for an IEE.
Due Process is a formal legal proceeding where the case will be decided by an Administrative Law Judge. If a district ever files a Due Process complaint against you, for any reason, I highly recommend you consult with a special education attorney. A special education attorney can evaluate the facts of your case and advise you how to proceed. The attorney can also represent you in the Due Process case.
Keep an eye out for Part 2, where I will discuss what happens when the district grants your request for an IEE, including how to select independent evaluators and how the IEE process works.
If you have questions about your child’s IEP or need help navigating the special education system, I’m here to help. Schedule your consultation today!
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