Denying a Request for an IEE Without Filing for Due Process

Pursuant to the Individuals with Disabilities in Education Act (“IDEA”), Title 34 Code of Federal Regulations (“C.F.R.”) Section 300.502(b)(5), a student is entitled to an independent educational evaluation (“IEE”) at public expense when the public agency has conducted an evaluation with which the parent disagrees. The IDEA identifies two choices for a local education agency (“LEA”), i.e., school district or county office of education, when it receives a request for an IEE at public expense when the parent disagrees with an evaluation conducted by the LEA. The LEA must, without delay, either fund the requested IEE or deny the IEE and file for hearing to defend the appropriateness of the LEA’s assessment. While 34 C.F.R Section 300.502 fails to specify a time limit in which the parent must request the IEE after the LEA conducted the evaluation, 34 C.F.R. Section 300.507(a)(2) and California’ Education Code imposes a two-year statute of limitations on a parent or LEA’s right to file a due process complaint generally.

Case law appears to support the position that the two-year statute of limitations applies to requests for an IEE. In a 2008 Georgia case involving the Atlanta Public Schools, Administrative Law Judge (“ALJ”) La Ronda D. Barnes found that a student’s request for an IEE which was made three years after the Atlanta Public Schools conducted its assessment, was “untimely, as it was not made within a reasonable time after [the district] conducted its evaluation and is beyond the two-year statute of limitations". ALJ Barnes went on to hold that the student was not entitled to an IEE at public expense and any request for an IEE based on the Atlanta Public Schools disputed evaluation was barred by the statute of limitations. ALJ Barnes granted the school district’s motion for summary judgment based on the statute of limitations. (Student v. Atlanta Public Schools; 51 IDELR 29 (2008).

In California, the Office of Administrative Hearings (“OAH”) has expressed a similar opinion in recent years. In a 2011 matter, ALJ Rebecca Freie stated that there is not “any statutory or regulatory time limit for requesting an IEE after a school district has conducted an assessment, other than the two year statute of limitations imposed by California law for the filing of a due process complaint.” (Parents v. Fullerton School District, OAH Case No. 2011061318)  Additionally, in a decision by ALJ Richard Breen, he indicated that “the ALJ is unaware of any statutory or regulatory timeline other than the statue of limitations that would proscribe a student’s ability to request an IEE.” (Student v. Capistrano Unified School District, OAH Case Nos. 2006070729, 2006100264, and 2007070928 [consolidated]).  Based on the current state of the law it is advisable that to the extent that the student seeks an IEE based on a disagreement with an LEA assessment, the LEA is within it’s right to deny a request for IEEs at public expense where the request falls outside of the relevant statute of limitations for special education matters.

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