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Nov 25
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by Dennise Goldberg

A School District in Alabama decided it was worth hundreds of thousands of dollars in legal fees to try to invalidate a Parent’s right to an Independent Educational Evaluation (IEE) at public expense that has been part and parcel with the Individual’s with Disabilities Education Act (IDEA) for decades.  Parent’s are at a marked disadvantage when dealing with a School District regarding their child’s Individualized Education Program and Congress was well aware of this when they crafted IDEA.  This is why IDEA includes various Procedural Safeguards for the sole purpose of leveling the playing field for Parents who are trying their best to raise a child with a disability and negotiate for an appropriate education for that child.  This is why it enrages me when a School District spends money that should have been used to educate students on lawyers when the intention of Congress regarding reimbursement of IEE’s is very clear.  

In a recent 11th Circuit Court of appeals decision, PHILLIP & Angie C. on behalf of their son A.C. versus the JEFFERSON COUNTY BOARD OF EDUCATION, the Court upheld a lower court decision “that 34 C.F.R. § 300.502 is a valid regulation requiring the Board to reimburse Philip and Angie C. for the independent educational evaluation of their child, A.C.”  To fully understand the absurdity of the School Board’s actions we need to go back and review the history.

In 2005 during a re-evaluation there was a disagreement regarding the results of the Board’s assessment and A.C.’s parents obtained an IEE.  Here is where the train goes off the tracks for me, “Notwithstanding the federal and Alabama regulations requiring reimbursement, the Board refused to reimburse the parents for the IEE.”  So the parent’s not giving up filed a due process complaint in order to receive the reimbursement of the IEE that they are entitled to.  The Due Process Hearing Officer agreed with A.C.’s parents and ordered the Board to reimburse the cost of the IEE.  Here is where the true absurdity begins, the School District continued to refuse to reimburse A.C.’s parents.  Let me repeat that, the District refused to honor the Hearing Officer’s decision.  “The parents then filed a complaint in district court to enforce the Hearing Officer’s ruling and to seek attorney’s fees. In response, the Board counterclaimed, appealing the administrative decision and filing a motion for summary judgment. The district court denied the Board’s motion for summary judgment and affirmed the Hearing Officer’s determination that the parents were entitled to reimbursement.”  Not giving up again the Board appealed the lower court decision to the 11th Circuit.  As I already mentioned, the Board lost again.

The Board I’m sure spent a fortune in legal fees to try and stop from paying for an IEE that most likely only cost a few thousand dollars.  The Board hung their hat on the premise that IDEA does not expressly state that a School District must pay for an IEE.  This however was addressed in the 11th Circuit’s decision:

As the Board notes, 20 U.S.C. § 1415(b) does not expressly state that agencies must pay for a parent’s IEE. See 20 U.S.C. § 1415(b) (stating only that a parent must “have an opportunity . . . to obtain an [IEE] of the child”). However, another section of the IDEA, 20 U.S.C. § 1406(b)(2), expressly requires the Secretary of Education to preserve any IDEA regulation that existed as of July 20, 1983 and provided protection for children:

The Secretary may not implement, or publish in final form, any regulation prescribed pursuant to this chapter that . . . procedurally or substantively lessens the protections provided to children with disabilities under this chapter, as embodied in regulations in effect on July 20, 1983 (particularly as such protections related to parental consent to initial evaluation or initial placement in special education, least restrictive environment, related services, timelines, attendance of evaluation personnel at [IEP] meetings, or qualifications of personnel), except to the extent that such regulation reflects the clear and unequivocal intent of Congress in legislation.

Id. § 1406(b)(2). One of the regulations in effect on July 20, 1983 expressly provided to parents “the right to an independent educational evaluation at public expense if the parent disagrees with an evaluation obtained by the public agency.”

The 11th Circuit decision went on to state:

Moreover, subsequent to 1983, Congress reauthorized the IDEA in 1990, 1997, and 2004 without altering a parent’s right to a publicly financed IEE.  Under the re-enactment doctrine, “Congress is presumed to be aware of an administrative or judicial interpretation of a statute and to adopt that interpretation when it re-enacts a statute without change.” Lorillard v. Pons, 434 U.S. 575, 580 (1978).

This means that since Congress re-enacted IDEA three times since 1983 without changing a parent’s right to an IEE that means Congress wanted a Parent’s right to obtain an IEE at public expense to stay intact.

The 11th Circuit decision also concluded that:

The right to a publicly financed IEE guarantees meaningful participation throughout the development of the IEP. See generally id. at 53-54; see also Honig v. Doe, 484 U.S. 305, 311 (1988) (“Congress repeatedly emphasized . . . the necessity of parental participation in both the development of the IEP and any subsequent assessments of its effectiveness.”). Without public financing of an IEE, a class of parents would be unable to afford an IEE and their children would not receive, as the IDEA intended, “a free and appropriate public education” as the result of a cooperative process that protects the rights of parents.

While this decision is a victory for Parents it is a travesty that it went this far.  How can a School Board just refuse to honor a Hearing Officer’s decision?  How can a School Board decide it’s worth fighting not once but three times and losing each and every time?  The School Board obviously had a much bigger agenda than not paying for one IEE they, in my opinion, were trying to weaken the entire underpinnings of IDEA.  They were again, in my opinion, trying to make it difficult for any parent to disagree with the School Board and tip the scale of power in their direction for good.  At least that didn’t happen but the mere fact that they took it this far scares me to death.  Thank goodness for A.C.’s parents and to all the other parent’s out there fighting the good fight.

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2 Responses to “11th Circuit Court of Appeals Decision: IEE reimbursement”

  1. Our district has set limits on IEEs to avoid paying experts that actually do a good job. On top of that they have contracted with “experts” they like who are further away than the experts they refuse to fund. In order to get beyond their limits I have had to file for due process, then they agree to pay only a certain amount so that I must incur a portion of the costs. Anything to avoid paying what they are required to pay by law.

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  2. during my child’s last ARC i was told that inorder to disagree w/ the school eval and request an independent eval i would be required to take the school district to due process. i was concerned w/ the school’s eval b/c it conflicted w/ the eval done at Vanderbilt. since the school and the dr had not come to the same conclusion about my child, i was concerned. i had also been told that the school wouldn’t have to comply with the dr recommendations unless the school was responsible for the eval. so anything recommended by our dr at Vandy wouldn’t necessarily make it into her iep since it was a private eval paid by our insurance.

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