District Court Upholds Cost Limitations Pertaining to Publicly Funded Independent Educational Evaluations (IEE)
Recently, a federal district court issued an opinion in Abarca v. Goleta Union School District, __ F. __ (C.D. Cal. 2017), affirming a 2013 Office of Administrative Hearings ("OAH") decision regarding a district’s refusal to fund an independent educational evaluation ("IEE") requested by a parent based on a Santa Barbara County’s Special Education Local Plan Area ("SELPA") IEE policy that contained cost containment criteria. The court held that the administrative law judge ("ALJ") did not err in determining that the applicable SELPA IEE policy cost ceiling was reasonable and that the parent failed to establish "unique circumstances" to warrant exceeding the cost cap.
In 2013, the Goleta Union School District ("District") conducted a psycho-educational assessment for a student who was eligible for special education and related services under the primary eligibility of autism and the secondary eligibility of intellectual disability. Subsequently, the Individualized Education Team ("IEP") team changed the child’s primary eligibility to intellectual disability and secondary eligibility to autism. In 2014, the parent requested a "comprehensive developmental assessment" without specifying further. The District responded to the parent’s request and provided a copy of the SELPA’s IEE guidelines, which included a non-exhaustive list of approved evaluators and "cost criteria" limiting the amount the SELPA, and its member districts, would pay for each type of IEE. The parent reiterated her request for a "comprehensive developmental assessment" and the District responded that it agreed to fund an independent psycho-educational evaluation pursuant to the SELPA IEE guidelines. In addition, the District explained that if the parent selected an evaluator who did not meet the SELPA IEE cost criteria, the parent would be required to demonstrate "why it is necessary that an assessor with unique qualifications was warranted."
The parent selected an IEE assessor who was not on the SELPA’s list, and whose quoted cost for a psycho-educational evaluation was $5,000 and, additionally, $6,000 for a neuropsychological evaluation. The assessor did not agree to accept the SELPA cost limitations for the IEE. The District therefore asked the parent to provide an explanation of the "unique circumstances" that might warrant funding an IEE which exceeded such a cost cap, such as "complex medical, educational, and/or psychological needs such that there are no other qualified assessors." The parent responded that the IEE assessor had experience testing students with the same disabling conditions as her son. The District determined that this explanation did not constitute sufficient unique circumstances to justify the requested IEE. Although the District attempted to work with the parent to reach agreement on the IEE, the parent ultimately indicated that she was proceeding with the IEE by the preferred assessor. The District then filed a request for a due process hearing to defend its refusal to fund the IEE as requested.
The Administrative Law Judge ("ALJ") found in favor of the District, holding that the student was not entitled to an IEE by an evaluator of the parent’s choice where the cost exceeded the SELPA’s cost criteria. The ALJ considered testimony from the SELPA Director, who explained how the cost ceilings were developed, through annual inquiries as to the rates charged for various types of assessments from professionals within the region, excluding outliers on both the high and low ends of the cost range. The ALJ found that the SELPA’s method of establishing cost limitations was reasonable. In addition, the ALJ held that the parent failed to establish any unique circumstances that justified an IEE exceeding the SELPA’s applicable maximum cost. Specifically, the ALJ pointed to the parent’s selection of the preferred IEE assessor prior to researching other assessors offered by the District and the parent’s inability to establish why she did not determine other assessors to be appropriate. The District, however, established through expert testimony that the student presented no unique or complex circumstances warranting an IEE which exceeded the specified cost limitations.
District Court Affirms OAH Decision
The district court rejected Student’s argument that the District’s reliance on the SELPA cost criteria was inappropriate because the District did not submit direct evidence regarding the rate charged by IEE assessors. Rather, the court found that it was appropriate for the ALJ to hear the SELPA Director’s testimony as to her knowledge of the rates, which showed that the SELPA had engaged in a "reasoned, systematic, and regular process" to establish its cost criteria.
In addition, the court agreed that the student failed to establish "unique circumstances" to warrant funding of the preferred IEE. The court also dismissed the student’s argument that his unique circumstances were obvious from the District assessment’s alleged deficiencies, opining that the student bore the burden of demonstrating unique circumstances, but failed.
Impact of Goleta on Districts’ IEE Practices
Districts can rely upon the Abarca v. Goleta Union School District decision in denying parent requests for IEEs where the cost of the preferred assessor’s evaluation exceeds the SELPA or District cost limitations (1) if the rate limitations are established using well-reasoned and current data on IEE rates, and (2) the parent cannot present sufficient facts to establish that unique circumstances exist to veer from the District’s or SELPA’s cost criteria.
However, prior to denying a request for an IEE, a district should ask the parent to identify the unique circumstances, such as "complex medical, educational, and/or psychological needs such that there are no other qualified assessors." Districts should also take heed in the caution highlighted by the ALJ in Abarca to not "simply average the rates of the professionals polled."
Importantly, the district court considered, but did not reach a decision as to whether a district is required – or permitted - to fund a parent’s preferred IEE up to the maximum value of its cost cap and permit parents to pay the balance of the IEE cost. Such "cost-sharing" or "cost-splitting" arrangements may not be deemed legally defensible under the IDEA’s requirement to provide an IEE "at public expense," which means at no cost to the parent. (34 C.F.R. § 300.502(a)(3)(ii)).