February 11, 2019:
A recent New Jersey Special Education Due Process Hearing decision, C.B. on behalf of C.B. v. Hopewell Township Board of Education (OAL DKT. No. EDS 10497-18 and EDS 11689-18) (Final Decision, December 5, 2018), offers a useful summary for both parents and schools when it comes to Independent Educational Evaluations (IEEs).
What is an “IEE”?
Under the Individuals with Disabilities Education Act (IDEA) and corresponding New Jersey requirements, parents of disabled students may request an Independent Educational Evaluation (IEE) at school expense when they object to an evaluation (or lack thereof) conducted by the school.
What Were the Facts in This Case?
In this case, the District last evaluated the special education student, C.B., in 2016. The Parents did not request an IEE at that time. Applying the requirement that a re-evaluation is conducted at least every three years, C.B. was not “technically,” due for a re-evaluation until 2019. On May 31, 2018, the parents sought an IEE (the Decision does not offer background about why). Specifically, the Parents sent the District a written request requesting an independent behavior and educational evaluation. Approximately 12 days later, the Parents sent a follow-up letter proposing two, specific evaluators they desired. Three days later, the District responded in writing; its letter noted that the Parents’ proposed neuropsychologist was more expensive than those they proposed and asked the Parents to clarify why their proposed neuro-psych was a better choice. Six days later the District wrote parents to propose two alternate doctors and sought parents’ mutual agreement to one. Five days later the Parents requested a Special Education Due Process Hearing seeking the IEE at District expense. Why note the days in between letters? Because timing is a key factor in IEE cases, as explained below.
What Were the Legal Arguments in This Case?
The School District argued two things: 1) Parents failed to request the IEE in a timely fashion and, 2) the IEE request was barred by the two-year “statute of limitations” on IDEA claims. A statute of limitations is how long a party has to file their legal claim.
In this case, the last “official” evaluation of C.B. was June 2016. The Parents requested the IEE in May of 2018. Thus, the District argued that the Parents could only seek an IEE either at the time the 2016 evaluation was conducted, if they disagreed, or after the next evaluation was due and conducted, in 2019.
In response, the Parents argued: 1) the School District must have either granted the May 2018 IEE request, or 2) sought a hearing within 20 calendar days of the Parents’ first request. Since it did neither, according to the Parents’ attorney, they were entitled to the requested IEEs.
What Did the Judge Say About IEEs?
New Jersey Code Section 6A:14.2-5(c)(1)(i.) makes clear that when a parent requests an IEE, the school must provide the parent with information on how to obtain an independent evaluation and “take steps to ensure that the independent evaluation is provided without undue delay.”
Or, if rejecting the IEE request, the school must request a due process hearing to defend the appropriateness of its own evaluation “not later than 20 calendar days after receipt of the parental request for the independent evaluation…” 6A:14.2-5(c)(1)(ii.)
The Judge noted several other cases where exceptions were not made to the 20 calendar-day requirement. For example, where the hearing request was delayed due to spring break (IEE awarded), where a school requested the hearing on day 21 (no exception, IEE awarded) and where the school district sought the hearing on day 27 (no exception, IEE granted). Based on such precedent the Judge held: “…the case law is clear that where a due-process petition is filed late, the parent is entitled to reimbursement. It is clear in this case that the District never filed a due-process petition at all.”
The Judge also rejected the School’s argument that Parents were not entitled to an IEE because the next triennial re-evaluation was not required until 2019, stating, “… to conclude otherwise would place a time limitation upon the parents entitlement to an independent evaluation not otherwise found in the regulations. “
The Judge also quoted directly from guidance issued in 2013 by the New Jersey Office for Special Education Programs: “…districts may no longer limit the parents’ right to an IEE by first conducting an assessment in an area not already assessed by the initial evaluation or reevaluation before the parents’ request is granted. Rather, when a parental request for an independent evaluation is received, a district must provide the evaluation at no cost to the parent, unless the school district initiates a due process hearing.”
Ultimately, the Judge dismissed the District’s arguments and granted the Parents’ IEE request, ruling:
1) the Parents were not barred from seeking an evaluation in between the 2016 and 2019 evaluations, and
2) the School District failed to either grant the IEE request or request a hearing within 20 calendar days.
This decision offers useful guidance for schools and parents about how to approach IEEs. Ideally, parties will collaborate to obtain the best evaluative data about a student’s needs. If your staff needs training about this topic or you seek assistance to obtain an IEE, please contact our Special Education Team at Posternock Apell, PC. to find out how we can help.