FAQs: Independent Educational Evaluation

What is an independent educational evaluation (IEE) and when is a parent entitled to one?

Basically an IEE is a second opinion. The Individuals with Disabilities Education Act (IDEA) and its implementing regulations afford parents of children with disabilities the right to obtain, at public expense, an IEE, which is “an evaluation conducted by a qualified evaluator who is not employed by the public education agency responsible for the education of the child in question.” [34 C.F.R. § 300.502(3)(i)] Under the regulations that implement the IDEA, “[a] parent has the right to an independent educational evaluation at public expense if the parent disagrees with an evaluation obtained by the public agency.” [34 C.F.R. § 300.502(b)(1)] “A parent is entitled to only one IEE at public expense each time the public agency conducts an evaluation with which the parent disagrees.” [34 C.F.R. § 300.502(b)(5)] An IEE is not considered a reevaluation.

How often can a parent request an independent educational evaluation (IEE)?

A parent has the right to an IEE at public expense if he or she disagrees with an evaluation obtained by the school. [34 C.F.R. § 300.502(b)(1)] “[I]t is important to clarify that a parent is not entitled to more than one IEE at public expense when the parent disagrees with a specific evaluation or reevaluation conducted or obtained by the public agency. . . This regulatory provision is consistent with a parent’s statutory right to an IEE at public expense, while recognizing that public agencies should not be required to bear the cost of more than one IEE when a parent disagrees with an evaluation conducted or obtained by the public agency.” [34 C.F.R. Part 300, Analysis of Comments and Changes, Subpart D–Evaluation, Eligibility, IEP, Educational Placement, Federal Register, Vol.71, No. 156, p. 46690 (August 2006)]

What is a school required to do upon receipt of a request for an IEE?

“If a parent requests an IEE at public expense, the public agency must, without unnecessary delay, either file a due process complaint to request a hearing to show that its evaluation is appropriate;” or “ensure that an IEE is provided at public expense, unless the agency demonstrates in a [due process] hearing . . . that the evaluation obtained by the parent [does] not meet agency criteria.” [34 C.F.R. § 300.502(b)(2)(i)and(ii)] (Please note that there is no requirement that a request for an IEE be in writing.) The regulations that implement the Individuals with Disabilities Education Act (IDEA) do not define the term “unnecessary delay.” However, the United States Department of Education/Office of Special Education Programs (OSEP) has stated that the meaning of “unnecessary delay” depends on the facts and circumstances involved. “[i]t permits a reasonably flexible, though normally brief, period of time that could accommodate good faith discussions and negotiations between the parties over the need for, and arrangements for, an IEE.” [Letter to Anonymous, 56 IDELR 175 (OSEP 2010)]

Are parents entitled to an IEE when they disagree with a school’s evaluation because it did not assess the student in a particular area?

When an evaluation is conducted in accordance with 34 C.F.R. §§300.304 through 300.311 and a parent disagrees with the evaluation because the child was not assessed in a particular area, the parent has the right to request an IEE to assess the child in that area in order to determine whether the child has a disability and the nature and extent of the special education and related services that child needs, because an evaluation must be sufficiently comprehensive to assess the child in all areas related to the suspected disability, and must identify all of the child’s special needs, whether or not commonly linked to the disability category in which the child has been classified. [Letter to Baus, 115 LRP 8855 (OSEP 2015)]

Do parents have a right to an Independent Educational Evaluation (IEE) when they disagree with a school’s transition assessment?

It depends. The IDEA regulations require that “[b]eginning not later than the first IEP [individualized education program] to be in effect when the child turns 16 … the IEP must include [a]ppropriate measurable postsecondary goals based upon age appropriate transition assessments.” [34 C.F.R. § 300.320(b)(1)] When asked in the Commentary to the IDEA regulations to clarify “whether ‘transition assessments’ are formal evaluations or competency assessments” the U.S. Department of Education declined to make such a distinction, stating, “the specific transition assessments used to determine appropriate measurable postsecondary goals will depend on the individual needs of the child, and are, therefore, best left to States and districts to determine on an individual basis.” [34 C.F.R. Part 300, Analysis of Comments and Changes, Subpart D—Evaluations, Eligibility Determinations, Individualized Education Programs, and Educational Placements, Federal Register, Vol. 71, No. 156, p. 46667] Based on that response, transition assessments may be either formal evaluative tools or informal assessments. “Evaluation” is defined in the IDEA regulations as procedures that are used to determine whether a student has a disability and, if so, the nature and extent of his/her need for special education and related services. [34 C.F.R. § 300.15] Additionally, the IDEA regulations specify that evaluations may, among other things, be used to determine whether additions or modifications to a child’s special education and related services are needed. [34 C.F.R. § 300.305(a)(2)(iv)] The discussion to this regulation states, “If a reevaluation is requested to determine the child’s educational needs when the child’s continued eligibility is not in question, the public agency must either conduct the reevaluation or provide notice to the parents as to why the public agency believes a reevaluation is unnecessary.” [34 C.F.R. Part 300, Analysis of Comments and Changes, Subpart D—Evaluations, Eligibility Determinations, Individualized Education Programs, and Educational Placements, Federal Register, Vol. 71, No. 156, p. 46644] Thus, the purpose of the transition assessment becomes critical in determining whether parents are entitled to an IEE when they disagree with a transition assessment. If the purpose of the transition assessment is to determine the presence or absence of a disability or to evaluate the nature or extent of a student’s need for special education and related services, the parent would be entitled to an IEE if they disagreed with the results of that evaluation. If, on the other hand, a transition assessment is administered to inform the present levels of academic and functional performance and/or to develop measurable postsecondary goals in the IEP (and does not result in an evaluation), the parent would not be entitled to an IEE.

Can a school impose reasonable cost containment criteria for an IEE?

In the analysis of comments and changes to the federal regulations that implement the IDEA, the United States Department of Education explains that it is its longstanding position that schools should not have to bear the cost of unreasonably expensive IEEs; thus, they may establish reasonable cost containment criteria. [34 C.F.R. Part 300, Analysis of Comments and Changes, Subpart E – Procedural Safeguards. Federal Register, Vol. 71, No. 156, p. 46689-46690 (August 2006)] However, schools must provide parents the opportunity to demonstrate that unique circumstances justify their selection of an evaluator whose fees fall outside the agency’s criteria. [Id.] “To avoid unreasonable charges for independent educational evaluations, a school district may establish maximum allowable charges for specific tests. If a district does establish maximum allowable charges for specific tests, the maximum cannot simply be an average of the fees customarily charged in the area by professionals who are qualified to conduct the specific test. Rather, the maximum must be established so that it allows parents to choose from among the qualified professionals in the area and only eliminates unreasonably excessive fees.” [Letter to Anonymous, 22 IDELR 637 (OSEP 1995)][See also Letter to Thorne, 16 IDELR 606 (OSEP 1990)] However, although schools can establish reasonable cost containment criteria, a school has but two options when a parent requests an IEE: it can either file a due process complaint to show that its evaluation is appropriate; or it can ensure that an IEE is provided at public expense, unless it demonstrates in a due process hearing that the evaluation obtained by the parent does not meet agency criteria. [34 C.F.R. § 300.502(b)(1) & (2)] The regulations do not give schools the option of unilaterally determining that an IEE does not meet the agency’s cost containment criteria and refusing to provide that IEE at public expense; such a decision can only be made in a due process proceeding.

Can a district or charter school deny a parental request for an IEE without filing for due process if the district or charter school evaluation is more than two years old?

Yes. The United States Department of Education/Office of Special Education Programs (OSEP) has indicated that a school can deny an IEE without requesting a due process hearing if the school’s evaluation is more than two years old. This aligns with the IDEA’s two-year statute of limitations under the 2004 reauthorization of the IDEA. [See Letter to Thorne, 16 IDELR 606 (OSEP 1990)]

If a parent requests an Independent Educational Evaluation (IEE), can the school ask the parent the reason that he/she objects to the school’s evaluation?

“If a parent requests an [IEE], the [school] may ask for the parent’s reason why he or she objects to the public evaluation. However, the [school] may not require the parent to provide an explanation and may not unreasonably delay either providing the [IEE] at public expense or filing a due process complaint to request a due process hearing to defend the public evaluation.” [34 C.F.R. § 300.502(b)(5)]

Can a parent request an IEE (independent educational evaluation) at any time in the evaluation process?

No. Under the regulations that implement the IDEA, “[a] parent has the right to an independent educational evaluation at public expense if the parent disagrees with an evaluation obtained by the public agency.” [34 C.F.R. § 300.502(b)(1)] (Emphasis added) A parent is entitled to only one IEE each time a school conducts an evaluation with which the parent disagrees. [34 C.F.R. § 300.502(b)(5)] If a parent requests an IEE at public expense, the school “must, without unnecessary delay, either file a due process complaint” on the grounds that its evaluation is appropriate, “or ensure that an IEE is provided [to the parent] at public expense.” [34 C.F.R. § 300.502(b)(2)]

Are schools obligated to pay parents’ out-of-pocket costs that are associated with an IEE?

Although the regulations that implement the Individuals with Disabilities Education Act (IDEA) are silent as to this matter, the United States Department of Education/Office of Special Education Programs (OSEP) provides clarity by stating that funding for the IEE must include “the [reasonable] expenses incurred by the parent for travel, meals, and lodging if an overnight trip is necessary . . . [and the] financial resources of the parent would not be determinative.” [Letter to Heldman, 20 IDELR 621 (OSEP 1993)]

For an IEE, who decides whether or not the outside evaluation meets the agency criteria?

Although it might seem intuitive that the school can objectively determine whether or not an IEE meets its own agency criteria, the regulations that implement the IDEA do not give this power of review to schools. The regulations state that when parents ask for an IEE because they disagree with a school’s evaluation, the school must, without unnecessary delay, either initiate a due process proceeding to show the school’s evaluation is appropriate, or ensure that the IEE is provided at public expense, unless the school demonstrates in a due process hearing that the evaluation does not meet the agency’s criteria. [34 C.F.R. § 300.502(b)(2)] The United States Department of Education/Office of Special Education Programs (OSEP) has explained that in regard to cost of the IEE, “[i]f the total cost of the IEE exceeds the maximum allowable costs and the school district believes that there is no justification for the excess cost, the school district cannot in its sole judgment determine that it will pay only the maximum allowable cost and no further. The public agency must, without unnecessary delay, initiate a hearing to demonstrate that the evaluation obtained by the parent did not meet the agency’s cost criteria and that unique circumstances of the child do not justify an IEE at a rate that is higher than normally allowed.” [Letter to Anonymous, 103 LRP 22731 (OSEP 2002)]

If a school conducts a review of existing data, determines that no additional assessments are needed, and determines that a child is not eligible to receive special education, is the parent entitled to an IEE?

An evaluation conducted in order to determine if a child is a child with a disability under the IDEA is a process that begins with a review of existing data and ends with a determination as to the child’s eligibility to receive special education and related services. [34 C.F.R. §§ 300.301-311] If a school conducts an evaluation and the multidisciplinary evaluation team (MET) determines that a child is not eligible, the parent would be entitled to an IEE, even if the eligibility determination is solely based on a review of existing data. [See 34 C.F.R. § 300.305] This is not the case when a parent requests an initial evaluation to determine if a child is eligible for special education and the school refuses (via PWN) to conduct the evaluation because it has no reason to suspect that the child is a child with a disability who needs special education. [34 C.F.R. § 300.503(a)] That is, if a school refuses to conduct an initial evaluation because there is no suspicion that the child has a qualifying disability, the parent would not be entitled to an IEE, although he/she would have the right to challenge the school’s refusal to evaluate the child by requesting mediation or a due process hearing.

Is a school responsible for the cost of the hours billed by an independent evaluator if the parent invites the evaluator to (and he/she attends) the meeting to review the results of the testing after the IEE has been completed?

Possibly. The federal regulations entitle parents to an IEE at public expense if the parent disagrees with the school’s evaluation. [34 C.F.R. § 300.502(b)(1)] “Public expense” means that the school must pay “for the full cost of the evaluation or ensures that the evaluation is otherwise provided at no cost to the parent.” [34 C.F.R. § 300.502(a)(3)(ii)] The federal regulations are silent as to whether this includes the cost of the evaluator’s time at the subsequent IEP meeting where the results of the evaluation are considered. One of the required roles at an IEP meeting is someone who can explain and “interpret the instructional implications of evaluation results” [34 C.F.R. § 300.321(a)(5)]; there is no specific requirement that the evaluator of the child, whether the school’s evaluator or an outside IEE evaluator, attend the IEP meeting. However, at least one court (not in Arizona) has required the school to pay for the evaluator’s time spent explaining her evaluation to the IEP team. [See Meridian Joint Sch. Dist. v. D.A. and J.A., 62 IDELR 144 (D. Idaho 2013)] It is important to remember that the child’s IEP team includes certain specified members, including, “[a]t the discretion of the parent or the agency, other individuals who have knowledge or special expertise regarding the child, including related services personnel as appropriate.” [34 C.F.R. § 300.321(a)(6)] Accordingly, parents can invite anyone they want who they believe has knowledge or special expertise regarding the child.