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Parents Not Entitled to IEE at Public Expense Due to Minor Flaws in Reevaluation

By on October 10, 2018 in Special Education/504 with 0 Comments

In the realm of New Jersey special education, it is not a rare occurrence for parents to request an independent educational evaluation (“IEE”) of a special education student at public expense in response to an evaluation of the student conducted by the child study team.  Each year, New Jersey school districts are faced with hundreds of requests for IEEs at public expense.  The vast majority of these are granted voluntarily by the district, sometimes on the basis of a cost-benefit assessment that has little to do with whether the evaluation was appropriately conducted or whether the IEE will shed any new light on the child’s educational needs.  The reason is simple.  If a district decides to dispute the parent’s request for an IEE at public expense, it must file for due process to defend its own evaluation.  Yet, a recent decision of the Seventh Circuit Court of Appeals, B.G. by J.A.G. v. Board of Education of City of Chicago, 901 F.3d 903 (7th Cir. 2018), highlights the fact that, when school districts determine to defend their own evaluations, rather than acquiescing to pay for an IEE, courts may well find that the district’s own evaluation was properly conducted, and the parents are not truly entitled to have the IEE funded at public expense – even where minor flaws were present in the evaluation conducted by the school district.

Under the federal regulations of the Individuals with Disabilities Education Act (“IDEA”), a parent is entitled to an IEE at public expense “if the parent disagrees with an evaluation obtained by the public agency,” unless the school district requests a due process hearing “to show that its evaluation is appropriate.”  34 C.F.R. 300.502(b).  In New Jersey, if a parent makes a written request for an IEE “[u]pon completion of an initial evaluation or reevaluation” provided by the school district, the district must provide the IEE at no cost to the parent, unless it files for due process within 20 calendar days to show the appropriateness of its own evaluation with which the parent disagrees.  N.J.A.C. 6A:14-2.5(c).  Parents are entitled to only one IEE each time the school district performs an evaluation with which they disagree, although the request for an IEE can include requests for multiple different types of assessments, so long as only one such request is made in response to the district evaluation or reevaluation.

In B.G., the Seventh Circuit provided parties to special education disputes with a reminder of two important principles:  (1) federal courts reviewing IEE cases will often defer to the initial findings and credibility determinations of state hearing officers, and (2) properly conducted school district evaluations will generally not be found inappropriate, so long as they are based on valid testing and conducted in compliance with the requirements of 34 C.F.R. 300.304 and 300.305, even despite minor flaws in the evaluations.  In B.G., the parent of a 14-year old boy with a specific learning disability, who also had significant behavioral and attendance issues, requested a number of IEEs in response to a reevaluation of the student completed by the school district.  The child study team had continued the student’s classification under the category of “emotionally disturbed,” and developed and revised an IEP for the student, based, in part, on the results of its reevaluations.

The parent requested IEEs and raised challenges to the reevaluations completed by the school district, based on a number of alleged flaws in the assessments.  The parent criticized elements of the psychological assessment completed by two school psychologists, one of whom had administered intelligence testing and behavioral testing before going on maternity leave and leaving the other to interpret the data and finish the report.  The second psychologist was unable to administer certain additional academic testing or complete an interview with the student, due to the student’s lack of cooperation.  Among various other contentions, the parent argued that the psychological evaluation was inappropriate because the evaluators offered only minimal Spanish translation during the course of the testing, failed to explain certain scores in the behavioral testing scales, and failed to consider one behavioral assessment administered by a former special education teacher of the student.  However, the court affirmed the state hearing officer’s decision to credit the testimony of the district’s evaluators that these minor errors did not invalidate the results of the assessments – a conclusion with which even the parent’s expert was unwilling to disagree.

The case offered a window into how courts and hearing officers are likely to parse any number of potential objections to valid testing performed by a school district’s evaluators.  For example, the parent also claimed that the psychological evaluation improperly ignored that the student could potentially have had Attention Deficit Hyperactivity Disorder (“ADHD”).  The Circuit Court rejected this rationale, stating:  “ADHD is a medical diagnosis not within the area of expertise of the evaluators (or the hearing officer).”  After observing that an earlier district evaluation had indicated the presence of ADHD symptoms, the court noted that “B.G.’s mother then had five years to follow up on the potential of ADHD, but she failed to do so.”  The court went on:  “Without a diagnosis, there was nothing the District’s psychologists could have done differently.  They were not obliged to make a medical diagnosis during their evaluation of B.G.”  At another point, the parent argued that the evaluators improperly failed to make certain recommendations in their report, such a recommending a multi-sensory program or specifying the duration of instruction.  Again, the Circuit Court rejected these arguments, finding that “it was the IEP team, not [the evaluator] herself, whose job it was to create educational goals” for the student.

The B.G. case provides an example of extended analysis on an issue that is relatively rare in New Jersey special education practice.  The court’s analysis reinforces that these cases are generally fact-sensitive in the first instance.  Substantial deference is likely to be given to the initial findings of state hearing officers, such as administrative law judges (“ALJs”), especially where the ALJ finds that the District’s evaluator has testified credibly and that the testing was administered appropriately, even if not flawlessly.  Each case will be fact-specific in regards to the magnitude of any potential flaws in testing and its potential to invalidate the overall assessment results.  Yet, when well-qualified district personnel are able to credibly testify that the assessment was performed appropriately and the results are valid, reviewing courts are likely to defer to an ALJ’s finding that the district’s evaluation was appropriate and uphold denial of an IEE at public expense.

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Cameron R. Morgan

About the Author

About the Author:

Mr. Morgan has served the public school districts of the State of New Jersey in the specialized area of school law, representing boards of education in all aspects of their legal needs, with a focus on general counsel services, civil litigation, special education, administrative law, collective negotiations, labor and employment, and appellate practice. He has served as Board Solicitor to dozens of school districts, guiding district administrators through the diverse range of issues affecting the public schools, from personnel matters, tenure cases, and the range of issues that frequently arise at public board meetings, to student disciplinary matters, residency disputes, and homelessness issues, to complex matters involving the budgetary process or First Amendment rights.

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