Can medical doctors prescribe special education?

No. Following a review of existing data and the administration of any additional assessments determined necessary, a group of qualified professionals and the parent of the child determines whether the child is a child with a disability and the educational needs of the child. [See 34 C.F.R. § 300.306] Information from a medical doctor should be considered by the multidisciplinary evaluation team (MET), but no one individual can determine that a child meets eligibility requirements; eligibility requires a team decision.

Does the LRE (Least Restrictive Environment) mean the general education classroom?

Not necessarily. The Individuals with Disabilities Education Act (IDEA) requires schools to place students in the LRE. LRE means that, to the maximum extent appropriate, schools must educate students with disabilities in the regular classroom with appropriate aids and supports, referred to as “supplementary aids and services,” along with their nondisabled peers in the school they would attend if not disabled, unless a student’s individualized education program (IEP) requires some other arrangement. This requires an individualized inquiry into the unique educational needs of each student with a disability in determining the possible range of aids and supports that are needed to facilitate the student’s placement in the regular educational environment before considering a more restrictive placement. [U.S. Department of Education, OSEP Memorandum 95-9 (November 23, 1994)] Although there is a strong preference for educating a child in the regular classroom, this may not always be the LRE. For example, a deaf student who communicates only with sign language may be unable to communicate easily or directly with hearing peers in the general education classroom/environment. In this case, a more restrictive environment on the continuum of possible placements, say a placement at a special school for the deaf, may actually be less restrictive for this child.

Do parents have to sign an IEP before it can be implemented?

Not according to the Individuals with Disabilities Education Act (IDEA) or Arizona State Board of Education rules (although some states and districts have imposed such a requirement). Although the regulations that implement the IDEA require that parents provide informed written consent prior to the initial provision of special education services [34 C.F.R. § 300.300(b)], there is nothing in the IDEA that requires IEP team members to sign the IEP. The United States Department of Education, Office of Special Education Programs (OSEP) believes it would be overly burdensome to impose such a requirement. [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. 46682 (August 2006)] Schools generally ask meeting participants to sign only to indicate that they were present as meeting participants.

Do parents have to approve an IEP before it can be implemented?

There is no such requirement in the Individuals with Disabilities Education Act (IDEA). The regulations that implement the IDEA require each child’s IEP team to determine the special education and related services that are needed to meet the child’s unique needs in order for the child to receive a free appropriate public education (FAPE). [34 C.F.R. §§ 300.320 and 324] If consensus is not possible, then schools have a duty to come up with an appropriate plan with the information from the IEP meeting, and then provide the parents the opportunity for due process if they disagree. [Doe v. Maher, 793 F.2d 1470 (9th Cir. 1986)]

Do schools have to give parents 10-days’ advance notice before scheduling an IEP meeting?

There is no such requirement in the Individuals with Disabilities Education Act (IDEA). The regulations that implement the IDEA state that a school “must take steps to ensure that one or both of the parents of a child with a disability are present at each IEP Team meeting or are afforded the opportunity to participate.” Schools must notify “parents of the meeting early enough to ensure that they will have an opportunity to attend,” and schedule “the meeting at a mutually agreed time and place.” [34 C.F.R. § 300.322(a)(1)and(2)]

Do IEPs have to be written by a certified special education teacher?

No. The federal regulations state that it is the IEP team “that is responsible for developing, reviewing, or revising an IEP for a child with a disability.” [34 C.F.R. § 300.23] Each child’s IEP team must include, at a minimum, the parent(s); a regular education teacher of the child; a special education teacher of the child, or when appropriate a special education service provider of the child; an agency representative; someone to explain evaluation results; and, when appropriate, the child. [34 C.F.R. § 300.321] The development of a child’s IEP is a collaborative effort and it is not relevant who actually puts pen to paper and writes/records the IEP document.

Do IEP and multidisciplinary evaluation teams (MET) vote when making decisions?

This is neither required nor recommended. In Doe v. Maher, the 9th U.S. Circuit Court of Appeals (of which Arizona is a part) addressed the question of whether, in the IEP team decision-making process, the team is required to follow a “majority rules” type of vote in making decisions. [793 F.2d 1470 (1986)] The court reasoned that a head count did not make sense due to the inconsistent makeup of IEP teams at meetings, and the potential for encouraging parties to “stack the deck.” Thus, schools have a duty to come up with an appropriate plan with the information from the meeting, and provide parents written notice of the final decision and the opportunity for due process if they disagree. [Id.]

When does a manifestation determination meeting need to occur?

Within 10 school days of any decision to change the placement of a child with a disability because of a violation of a code of student conduct, the school, the parent, and relevant members of the child’s IEP Team must conduct a manifestation determination. [34 C.F.R. § 300.530(e)(1)] A change of placement occurs if: (1) the student is removed for more than 10 consecutive school days, or (2) the student is subjected to a series of removals that constitute a pattern. [34 C.F.R. § 300.536] A manifestation determination is a meeting at which the school, parent, and relevant members of the child’s IEP team (as determined by the parent and the school) review all relevant information in the student’s file, including the child’s IEP, any teacher observations, and any relevant information provided by the parents in order to determine: (i) If the conduct in question was caused by, or had a direct and substantial relationship to, the child’s disability; or (ii) If the conduct in question was the direct result of the [school’s] failure to implement the IEP.” [34 C.F.R. § 300.530(e)(1)]

Do IEP teams have the authority to retain a student to repeat a grade level, or promote a student eligible for special education to the next grade level?

Arizona law invests in teachers the duty to make the decision to promote a pupil from grade to grade or retain a pupil, and to pass or fail a pupil in a course in high school. [See A.R.S. § § 15-701(E) and 15-701.01(E)] The teacher’s decision may be overturned by the public education agency’s governing board. [A.R.S. § 15-342(11)] However, a statute commonly referred to as Move on When Reading prohibits a pupil from being promoted from the third grade if the pupil obtains a score on the reading portion of the AIMS test (Arizona’s Instrument to Measure Standards), or a successor test, that demonstrates that the pupil’s reading falls far below the third grade reading level. [A.R.S. § 15-701(A)(2)(a)] However, it is important to note that a child with a disability may be promoted from the third grade even if he or she falls far below the third grade reading standards “if the pupil’s individualized education program [IEP] team and the pupil’s parent or guardian agrees that promotion is appropriate based on the pupil’s individualized education program.” [A.R.S. § 15-701(A)(2)(b)(ii)]

Can a student eligible for special education receive a failing grade in a special education class or a general education class?

A student eligible for special education is entitled to certain protections outlined in the IDEA (in disciplinary matters, for example), but the right to obtain a particular grade is not enumerated anywhere in these protections. The purpose of the IDEA is “to ensure that all children with disabilities have available to them a free appropriate public education that emphasizes special education and related services designed to meet their unique needs and prepare them for further education, employment, independent living.” The United States Supreme Court has articulated that “. . . the intent of the [IDEA] was more to open the doors of public education to [children with disabilities] on appropriate terms than to guarantee any particular level of education once inside.” [Board of Education of the Hendrick Hudson Central School District v. Rowley, 455 U.S. 175, 102 S.Ct. 3034, (1982)] Thus, an IEP is not a contract, and a school cannot be held liable if a student does not perform at a certain level. Arizona law is clear that teachers “make the decision to promote or retain a pupil in grade in a common school or to pass or fail a pupil in a course in high school.” [See A.R.S. § § 15-701(E) and 15-701.01(E)] (There is, however, a specific exception pertaining to the promotion from third grade under A.R.S. § 15-701). Accordingly, the assignment of grades is not something that can be determined by an IEP team and included in a child’s IEP.

Can the IEP team or parents decide which staff people will work with a student eligible to receive special education?

Placement decisions must be made by a group of individuals, including the parents, and others knowledgeable about the child, the meaning of the evaluation data, and the placement options, and must be based on the child’s IEP. [34 C.F.R. § 300.116] However, a placement decision is not the determination of a particular classroom within a school or the identification of a particular teacher or school personnel who will be providing services to the child. The United States Department of Education/Office of Special Education Programs (OSEP) provides guidance in this regard by explaining that schools are permitted to make determinations about specific classrooms, teachers, and support personnel as a matter of administrative concern and prerogative. [Letter to Wessels, 16 IDELR 735 (OSEP 1990)]

Does a related service provider determine the amount of services that are to be provided to a student?

No. Decisions regarding the special education and related services an eligible child needs in order to receive a FAPE are made by the child’s IEP team. Related service providers can provide input to the team and offer suggestions for the team’s consideration, but they are not the sole decision-maker when it comes to that particular related service. Although IEP teams should work toward achieving consensus, when that is not possible (either between the parent and the school or between school members of the IEP team) the public education agency representative is charged with making the final decision regarding the appropriate services because “it is the district that is finally accountable for the contents of the program.” [Letter to Richards, 55 IDELR 107 (OSEP 2010)] If parents disagree with any IEP team decision, their recourse is to request mediation or to file a due process complaint against the public education agency. [34 C.F.R. §§ 300.506(a) and 300.507(a), respectively]

Does the IEP team determine whether a pattern of disciplinary removals in excess of ten school days constitutes a change in educational placement?

No. The regulations that implement the IDEA state that it is the school that “determines on a case-by-case basis whether a pattern of [disciplinary] removals constitutes a change of placement.” [34 C.F.R. § 300.536(b)(1)] Parents may, however, challenge this determination through due process and judicial proceedings. [Id. at (b)(2)]

Are related service providers required to attend IEP meetings?

When assembling an IEP team, a school is required by the regulations that implement the IDEA to include, at a minimum, a regular education teacher of the child, a special education teacher of the child, the parent(s), an agency representative who has the authority to commit resources, someone to explain evaluation results, and, when appropriate, the child. [34 C.F.R. § 300.321] Others are permitted to attend, but are not required, including, “at the discretion of the parent or the [school], 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)] The Commentary to the federal regulations offers additional guidance: “The public agency determines the specific personnel to fill the roles for the public agency’s required participants at the IEP team meeting. Whether other teachers or service providers who are not the public agency’s required participants at the IEP Team meeting can attend an IEP Team meeting is best addressed by State and local officials.” [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. 46675 (August 2006)]

Does the person who conducts evaluations and explains evaluation results at an IEP meeting have to be a school psychologist?

With respect to conducting evaluations, the IDEA regulations state that “[a]ssessments and other evaluation materials used to assess a child . . . [must be] administered by trained and knowledgeable personnel and [ ] administered in accordance with any instructions provided by the producer of the assessments.” [34 C.F.R. § 300.304(c)] A school psychologist may meet the above requirements, or a given assessment may be administered by other qualified personnel. Regarding explaining the evaluation results, the regulations require each child’s IEP team to include, among other required members, “[a]n individual who can interpret the instructional implications of evaluations results.” [34 C.F.R. § 300.321(a)(5)] Although this role is frequently filled by a school psychologist, there is no requirement that it must be. According to Arizona State Board of Education rules, an evaluator "means a person trained and knowledgeable in a field relevant to the child's disability who administers specific and individualized assessment for the purpose of special education evaluation and placement." [A.A.C. R7-2-401(B)(7)] In Arizona, some evaluations require verification by a qualified professional, meaning an individual who has "met state approved or recognized degree, certification, licensure, registration or other requirements that apply in the areas in which the individual [is] providing services such as screening, identification, evaluations, general education, special education or related services, including supplemental aids and services." [A.A.C. R7-2-401(B)(17)]

What are the procedural requirements for excusing a required IEP team member from attending an IEP meeting?

IEP meetings can be conducted without all the required members being in attendance, but there are specific requirements. A required participant can be excused “in whole or in part, if the parent of a child with a disability and the [school] agree, in writing, that the attendance of the member is not necessary because the member’s area of the curriculum or related services is not being modified or discussed in the meeting.” [34 C.F.R. § 300.321(e)(1)] If the required member’s area is being discussed, then the member can be excused if the school and the parent consent to the excusal, in writing, and if the required member submits, “in writing to the parent and the IEP team, input into the development of the IEP prior to the meeting.” [Id. at subsection (e)(2)] “The [IDEA] does not specify how far in advance of an IEP Team meeting a parent must be notified of an agency’s request to excuse a member from attending an IEP Team meeting or when the parent and [the school] must sign a written agreement or provide consent to excuse an IEP Team member. . . We do not believe it is appropriate to impose a specific timeframe for matters relating to the excusal of IEP Team members.” [34 C.F.R. Part 300, Analysis of Comments and Changes, Subpart D–General, Federal Register, Vol. 71, No. 156, p. 46676 (August 2006)] Although the commentary to the IDEA regulations anticipates the excusal of a required IEP team participant when this is known prior to the convening of an IEP team, the regulations specifically address “in whole or in part,” therefore indicating that written consent is required when circumstances arise during a meeting that necessitate a required IEP team participant to leave prior to the conclusion of the meeting. “We do not believe that it is appropriate to require that the request to excuse an IEP Team member from an IEP Team meeting be included in the meeting notice, because the public agency may not be aware of the need to request an excusal of a member at the time the IEP Team meeting notice is sent. For similar reasons, it is not appropriate to require that the IEP Team meeting notice include any written input from an IEP Team member who may be excused from the IEP Team meeting. [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. 46678 (August 2006)]

If a parent invites staff members (who are not part of the IEP team) to an IEP meeting, must the school ensure that these staff members are released from their duties to attend the IEP meeting?

In the analysis of comments and changes to the federal regulations, the United States Department of Education explains that “[a] parent does not have a legal right to require other members of the IEP Team to attend an IEP Team meeting. Therefore, if a parent invites other public agency personnel who are not designated by the [school] to be on the IEP Team, they are not required to attend.” [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. 46674 (August 2006)]

Can a parent decide not to permit his/her child to attend an IEP meeting?

“Section 300.321(b)(1) [of the IDEA] requires the public agency to invite a child with a disability to attend the child’s IEP Team meeting if a purpose of the meeting will be the consideration of the postsecondary goals for the child and the transition services needed to assist the child in reaching those goals, regardless of whether the child has reached the age of majority. However, until the child reaches the age of majority under State law, unless the rights of the parent to act for the child are extinguished or otherwise limited, only the parent has the authority to make educational decisions for the child under Part B of the Act, including whether the child should attend an IEP Team meeting.” [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. 46671 (August 2006)]

How often and when does an IEP team need to meet?

“Each public agency must ensure that . . . the IEP Team reviews the child’s IEP periodically, but not less than annually, to determine whether the annual goals for the child are being achieved; and revises the IEP, as appropriate, to address any lack of expected progress toward the annual goals described in § 300.320(a)(2), and in the general education curriculum, if appropriate,” and to address the results of any reevaluation, information about the child provided to, or by the parents, the child’s anticipated needs, or other matters. [34 C.F.R § 300.324(b)] Additionally, according to Arizona State Board of Education rules, a "parent or public education agency may request in writing a review of the IEP, and shall identify the basis for requesting review. Such review shall take place within 45 school days of the receipt of the request at a mutually agreed upon date and time. [A.A.C. R7-2-401(G)(7)]

Do schools need to accommodate parents who request an IEP meeting early in the morning, in the evening, or on weekends?

The regulations that implement the IDEA state that IEP meetings should be scheduled at a mutually agreed on time and place. [34 C.F.R. § 300.322(a)(2)] However, the regulations do not require the school to schedule an IEP meeting outside regular school hours to accommodate parents or their experts. [Letter to Thomas, 51 IDELR 224 (OSEP 2008)]

If a parent requests in writing for the IEP team to reconvene to review his/her child’s IEP, what is the required timeframe?

According to Arizona State Board of Education rules, a "parent or public education agency may request in writing a review of the IEP, and shall identify the basis for requesting review. Such review shall take place within 45 school days of the receipt of the request at a mutually agreed upon date and time." [A.A.C. R7-2-401(G)(7)]

Can a school conduct an IEP meeting without a parent in attendance?

Yes. An IEP meeting can take place without parental participation “if the public agency is unable to convince the parents that they should attend. In this case, the public agency must keep a record of its attempts to arrange a mutually agreed on time and place, such as: detailed records of telephone calls made or attempted and the results of those calls; copies of correspondence sent to the parents and any responses received; and detailed records of visits made to the parent’s home or place of employment and the results of those visits.” [34 C.F.R. § 300.322(d)(1)-(3)] It is important to note that the 9th Circuit Court of Appeals, of which Arizona is a part, has found in two cases that parental involvement in the IEP “creation process” requires schools to include parents unless they affirmatively refuse to attend, while clarifying that if a parent refuses to attend or is entirely unresponsive to the school’s requests to meet, the school has a duty to move forward with the IEP process. (Shapiro v. Paradise Valley Unified School District; Doug C. v. Hawaii Department of Education)

Can a parent or a school tape record an IEP meeting?

Neither the IDEA nor its implementing regulations address the issue of tape recording IEP meetings, and Arizona has no law allowing or prohibiting this practice. Therefore, a school district or charter school may set the ground rules for recording IEP meetings, as long as those rules do not inhibit parental participation. [See Letter to Anonymous, 40 IDELR 70 (OSEP 2003) and Letter to Doerr, 213 IDELR 127 (OSEP 1988)]

What are the required components of an Individualized Education Program (IEP)?

An IEP is a written statement for a child with a disability that is developed, reviewed, and revised in a meeting and that must include certain content:

• A statement of the child’s present levels of academic achievement and functional performance
• A statement of measurable annual goals
• A description of how the child’s progress toward meeting the annual goals will be measured and when periodic reports on the child’s progress will be provided
• A statement of the special education and related services and supplementary aids and services to be provided to the child
• A statement of the program modifications or supports for school personnel
• An explanation of the extent, if any, to which the child will not participate with nondisabled children in the regular class and activities
• A statement of accommodations necessary to measure academic achievement and functional performance on State and districtwide assessments
• The projected date for the beginning of the services, and the anticipated frequency, location, and duration of those services
• If the IEP team determines that the child must take an alternate assessment, a statement explaining why
• If the child turns 16 while an IEP is in effect, appropriate measurable postsecondary goals based upon age-appropriate transition assessments related to training, education, employment, and, where appropriate, independent living, and transition services needed to assist the child in reaching the postsecondary goals. [34 C.F.R. § 300.320(a)]

Can an IEP ever be amended outside of an IEP meeting?

Yes. The federal regulations that implement the IDEA state that after the annual IEP review, the parent and the school may agree to make changes to the child’s IEP without convening the IEP team, and instead may develop a written document to amend or modify the child’s current IEP. [34 C.F.R. § 300.324(a)(4)]

Can an IEP state that a student will receive a service “as appropriate,” “as deemed appropriate,” or “as needed?”

The regulations that implement the IDEA state that an IEP must include “[t]he projected date for the beginning of the services and modifications . . . and the anticipated frequency, location, and duration of those services and modifications.” [34 C.F.R. § 300.320(a)(7)] “What is required is that the IEP include information about the amount of services that will he provided to the child, so that the level of the agency’s commitment of resources will be clear to parents and other IEP Team members. The amount of time to be committed to each of the various services to be provided must be appropriate to the specific service, and clearly stated in the IEP in a manner that can be understood by all involved in the development and implementation of the IEP.” [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. 46667 (August 2006)]

Does an IEP need to specify the exact number of minutes that a particular service will be provided to a child?

There is nothing in the regulations that implement the IDEA that requires an IEP to state the exact number of minutes that a particular service will be provided. “What is required is that the IEP include information about the amount of services that will be provided to the child so that the level of the agency’s commitment of resources will be clear to parents and other IEP Team members.” [Letter to Matthews, 55 IDELR 142 (OSEP 2010)] The amount of time for a particular service must be appropriate and clearly stated in the IEP so that all parties understand. [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. 46667 (August 2006)] The regulations that implement the IDEA require IEPs to include the projected date for the beginning of services and modifications, and also the anticipated frequency, location, and duration of those services and modifications. Frequency refers to how often a child will receive a service, meaning the number of times per day or per week. Duration refers to how long each session will last, meaning the number of minutes, and also when services will begin and end, meaning the starting and ending dates. [Letter to Matthews, 55 IDELR 142 (OSEP 2010)] An IEP needs to include information on the frequency and the duration; so a designation of 2,500 minutes/year (duration) is insufficient without also including information on the frequency of the service to be provided.

Must a school include a parent’s preferred educational methodology in his or her child’s IEP?

The requirement for schools to facilitate parents’ participation in educational decisions regarding their children is evident throughout the IDEA and its implementing regulations. The regulations require schools to afford the parents of a child with a disability the opportunity to participate in meetings that concern the identification, evaluation, educational placement, or the provision of a free appropriate public education (FAPE) to their child. [34 C.F.R. § 300.501(b)] In developing a child’s IEP, the team (which includes the child’s parent) must consider, among other things, “the concerns of the parents for enhancing the education of their child.” [34 C.F.R. § 300.324(a)(ii)] With that in mind, schools should consider parents’ preferences for specific educational methodologies; however, the ultimate decision regarding which methodology to utilize belongs to the school.

The United States Supreme Court has stated that the requirement to provide a child with a FAPE is satisfied when a school provides “personalized instruction with sufficient support services to permit the child to benefit educationally from that instruction.” [Board of Education of the Hendrick Hudson Central School District v. Rowley, 455 U.S. 175, 102 S.Ct. 3034 (1982)] “In addition, the IEP, and therefore the personalized instruction, should be formulated in accordance with the requirements of the Act and . . . should be reasonably calculated to enable the child to achieve passing marks and advance from grade to grade.” [Id.] Consequently, if a school offers an appropriate program, it is not obligated to utilize a methodology preferred by the child’s parent. [see Carlson v. San Diego Unified School District, 54 IDELR 213 (9th Cir. 2001)]

May an IEP team include a goal in an area not specifically linked to the child’s eligibility category?

Yes. The regulations that implement the IDEA state that an IEP must include a statement of measurable annual goals, including academic and functional goals designed to meet the child’s needs that result from the child’s disability to enable the child to be involved in and make progress in the general education curriculum, and meet each of the child’s other educational needs that result from the child’s disability. [34 C.F.R. § 300.320(a)(2)] For example, a child may be eligible to receive special education and related services under the disability category of specific learning disability, but may have needs related to behavior. Because the regulations require IEP teams to consider the use of positive behavioral interventions and supports any time a child’s behavior impedes his or her learning or that of others [34 C.F.R. § 300.324(a)(2)], an IEP team may choose to include a goal to address the child’s behavior.

Does a child’s IEP have to be translated into the parents’ native language?

The regulations that implement the IDEA are clear that both the procedural safeguards notice and prior written notice must be written in language understandable to the general public and provided in the native language or other mode of communication of the parent, unless it is clearly not feasible to do so. [34 C.F.R. §§ 300.503(c) and 504(d)] If the native language or other mode of communication of the parent is not a written language, the public agency must take steps to ensure that the notice is translated orally or by other means to the parent in his or her native language or other mode of communication and that the parent understands the content of the notice. [Id.] There is not, however, a specific requirement under the IDEA or the regulations for other IEP documents to be translated into the parents’ native language. It is important to remember, though, that the regulations require schools to take steps to ensure that parents have an opportunity to participate meaningfully in the IEP development process and to “take whatever action is necessary to ensure that the parent understands the proceedings of the IEP team meeting, including arranging for an interpreter for parents with deafness or whose native language is other than English.” [34 C.F.R. §§ 300.322(a) and (e)] “In other words, while providing written translations of IEP documents is not required under IDEA, [the United States Department of Education/Office of Special Education Programs (OSEP)] believe[s] that in some circumstances [written translations] may help to show that a parent has been fully informed of the services his or her child will be receiving.” [Letter to Boswell, 49 IDELR 196 (OSEP 2007)]

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.

What is a functional behavioral assessment (FBA), when is one required, and who conducts it?

There is nothing in the IDEA regulations that specifically spells out how a FBA is to be conducted; the determination of what constitutes a valid or a current FBA is defined by the IEP team. [34 C.F.R. Part 300, Analysis of Comments and Changes, Subpart E-Procedural Safeguards, Federal Register, Vol. 71, No. 156, p. 46721 (August 2006)] When developing a child’s IEP, in the case of a child whose behavior impedes his learning or that of others, the child’s IEP team must consider the use of positive behavioral interventions and supports, and other strategies, to address the behavior. [34 C.F.R. § 300.324(a)(2)] However, the regulations only require behavior to be addressed with a FBA in certain disciplinary situations. [34 C.F.R. §§ 300.530(d)(1)(ii) and (f)(1)(i)] “The statute and regulations do not specify which individuals must conduct the FBA. There is no Part B requirement . . . that a Board Certified Behavior Analyst (BCBA) conduct the FBA, unless State law imposes such a requirement.” [Letter to Janssen, 51 IDELR 253 (OSERS 2008)] Arizona imposes no such requirement.

What is a behavioral intervention plan (BIP), when is one required, and is one required any time a student eligible for special education has a problematic behavior?

The only time a behavioral intervention plan is required by the IDEA is when a student’s behavior that led to a disciplinary change of placement is determined to be a manifestation of his/her disability. [34 C.F.R. § 300.530(f)(1)(i-ii)] When this occurs, the IDEA regulations require the school to return the child to the placement from which he/she was removed and require the child’s IEP team to implement a behavioral intervention plan for the child, or review and modify it as necessary if there is already such a plan in place. [34 C.F.R. § 300.530(f)(1)] The regulations do not define behavioral implementation plan or explain what such a plan must look like; instead, this is left to the IEP team.

In the case of a child whose behavior impedes the child’s learning or that of others, the federal regulations require IEP teams to consider the use of positive behavioral interventions, supports, and other strategies to address that behavior. [34 C.F.R. § 300.324(a)(2)(i)] IEP teams have wide latitude in determining how to best address a child’s behavior, including behavioral goals, behavioral supports and services (such as a behavior coach or counseling services), or through a behavioral intervention plan. Additionally, behavior can be addressed outside of the IEP process through a behavior contract or through the use of informal strategies.

What are Extended School Year (ESY) services?

Extended school year services are special education and related services that are provided to a child with a disability beyond the normal school year, are in accordance with a child’s IEP, are provided at no cost to the parents, and are in alignment with the standards set by the state education agency (SEA). [34 C.F.R. § 300.106(b)] The regulations that implement the IDEA require IEP teams to determine, on an individual basis, whether ESY services are necessary to provide a FAPE to the child. [34 C.F.R. § 300.106(a)(1)] “Student participation in an ESY program is not compulsory. ESY services are not required for all students with a disability.”[A.A.C R7-2-408(D)] “Eligibility for [ESY] participation shall not be based on need or desire for any of the following: 1) A day care or respite care service for students with a disability; 2) A program to maximize the academic potential of a student with a disability; and 3) A summer recreation program for students with a disability.” [Id. at Subsection (E)]

Does ESY have to address all of a student’s IEP goals?

Extended school year services are special education and related services that are provided to a child with a disability beyond the normal school year, are in accordance with a child’s IEP, are provided at no cost to the parents, and are in alignment with the standards set by the state education agency (SEA). [34 C.F.R. § 300.106(b)] The regulations that implement the IDEA require IEP teams to determine, on an individual basis, whether ESY services are necessary to provide a FAPE to the child. [34 C.F.R. § 300.106(a)(1)] “The critical question that each IEP team must ask regarding ESY services is whether meaningful progress on critical skills related to IEP goals that occurred during the regular school year will be significantly jeopardized (thus significantly jeopardizing the provision of FAPE) if ESY is not provided.” [Arizona Department of Education, Exceptional Student Services (ESS) AZ-TAS Guidelines for Extended School Year Services, February 2007, pg. 2] A critical skill is defined as an academic, social, functional or behavioral skill that is related to an IEP goal and is critical to the student’s overall school and community functioning. [Id. pg. 5] Not all goals on a student’s IEP are necessarily critical skills. It is incumbent on the IEP team to make “a determination if the student’s IEP contains critical skills that need ESY services in order to ensure [a] FAPE to the student.” [Id. pg. 12]

What does an IEP team have to consider when making an ESY eligibility determination?

The determination of whether a pupil is eligible for ESY services shall take into account least restrictive environment considerations and shall be determined by a multifaceted inquiry by the [IEP] team based on retrospective data, such as past regression and the rate of recoupment, and predictive data. [A.R.S. § 15.881(B)] “The critical question that each IEP team must ask regarding ESY services is whether meaningful progress on critical skills related to IEP goals that occurred during the regular school year will be significantly jeopardized (thus significantly jeopardizing the provision of FAPE) if ESY is not provided.” [Arizona Department of Education, Exceptional Student Services (ESS) AZ-TAS Guidelines for Extended School Year Services, February 2007, pg. 2] A critical skill is defined as an academic, social, functional or behavioral skill that is related to an IEP goal and is critical to the student’s overall school and community functioning. [Id. pg. 5] It may be that some goals on a student’s IEP are not critical skills. Therefore, it is incumbent on the IEP team to make “a determination if the student’s IEP contains critical skills that need ESY services in order to ensure [a] FAPE to the student.” [Id. pg. 12]

When is a school required to make an eligibility determination for ESY services?

The regulations that implement the IDEA require IEP teams to determine, on an individual basis, whether ESY services are necessary to provide a FAPE to the child. [34 C.F.R. § 300.106(a)(2)] Arizona State Board of Education rules state that, “For a student with a disability currently enrolled in special education, eligibility for ESY services shall be determined no later than 45 calendar days prior to the last day of the school year.” [A.A.C. R7-2-408(C)]