July 2023
On January 28, 2022, the Virginia Department of Education (VDOE) issued a Letter of Findings (LOF) in which it ruled Loudoun County Public Schools (LCPS) at fault for noncompliance regarding Independent Educational Evaluations (IEEs). The Letter of Findings concluded that LCPS was in noncompliance for maintaining cost containment criteria that were too low to provide parents with an opportunity to obtain an IEE at public expense. LCPS was directed to:
- Review its cost containment criteria and align its funding limits with the market rate.
- Establish a process to reimburse parents who have paid out of pocket for IEEs due to the unreasonable cost containment criteria.
- Review and revise its IEE policies/procedures/guidelines prohibiting IEE providers from providing IEE reports directly to parents.
- Review and revise its IEE policies/procedures/guidelines requiring pre-evaluation discussions.
- VDOE will review policy changes for approval.
- Upon VDOE’s approval of updated changes. LCPS shall provide training on the IEE information to all school division staff and administrators who may respond to request for an IEE.
On July 14, 2023, the VDOE issued another LOF in which it again ruled LCPS at fault for systemic noncompliance regarding IEEs.
Pursuant to Sec. 300.502(3)(i) of IDEA, an IEE is “an evaluation conducted by a qualified examiner who is not employed by the public agency responsible for the education of the child in question” and is provided at public expense.
Parents of a child who has a disability have the right to obtain an IEE at public expense if the parents disagree with an evaluation administered by the public agency. “Public expense,” as defined by Sec. 300.502(3)(ii), “means that the public agency either pays for the full cost of the evaluation or ensures that the evaluation is otherwise provided at no cost to the parent, consistent with §300.103.”
After a parent requests an IEE, the “public agency must, without unnecessary delay, either—(i) File a due process complaint to request a hearing to show that its evaluation is appropriate; or (ii) Ensure that an independent educational evaluation is provided at public expense, unless the agency demonstrates in a hearing pursuant to §§300.507 through 300.513 that the evaluation obtained by the parent did not meet agency criteria.”
The 2023 Complaint against LCPS contained four allegations of systemic violations regarding IEEs:
- LCPS’ IEE funding limits are still too low;
- LCPS continues to deny waivers to Parents who identify a unique circumstance;
- LCPS is limiting IEEs to assessments only conducted by LCPS; and
- LCPS is denying IEE requests without reason or justification or taking the Parent to due process.
It should be noted that the Complainant also alleged the VDOE was out of compliance for failing to correct the deficiencies identified in the Letter of Findings issued on January 2022. Specifically, the VDOE failed to ensure 1) LCPS has aligned its funding limits for IEEs with market rates; 2) LCPS has granted waivers of its fee caps when parents identify unique circumstances justifying costs that exceed the fee cap; and 3) LCPS created a process to reimburse parents who had to pay out-of-pocket for a publicly funded IEEs. However, the Office of Dispute Resolution and Administrative Services (ODRAS) and VDOE were found to be in compliance.
LCPS’ IEE funding limits are still too low
Complainants alleged LCPS’ fee caps are too low to cover a basic psychoeducational evaluation for most providers in the area and are too low to cover comprehensive assessments for children with other disabilities. Nearby school districts have established higher fee caps than LCPS and LCPS has only 4 providers on its IEE list, whereas the neighboring district has 14.
LCPS argued that it was in compliance with the VDOE’s Corrective Action Plan (CAP) because it established its cost containment criteria by identifying practitioners who could complete relevant evaluations in the area and then collecting information about the fees these practitioners charge for their evaluations. The criteria was not established by averaging the fees charges, but rather by eliminating fees that were unreasonably excessive. They additionally argued that if a student requires an evaluation that costs more than LCPS’ maximum fee, LCPS permits parents to request waivers based on their child’s unique circumstances.
The VDOE noted that while a parent is not necessarily limited to choosing a provider off of LCPS’ list of qualified professionals in the area, the fee cap is set so low that parents are by default limited to only 4 of the 19 providers in the area. This means that LCPS’ cost cap does not reflect the elimination of only unreasonable fees. Therefore, LCPS was found to be in noncompliance.
LCPS’s denial of waivers for a unique circumstance
If a district does establish a maximum allowable charge for specific tests, they may not enforce the maximums in an absolute manner. The district must provide the parents an opportunity to show that unique circumstances justify a test or an evaluator whose fees fall outside the cost containment criteria. Most importantly, an LEA cannot unilaterally decide that it will only pay their maximum allowed costs. It must initiate a due process 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.”
LCPS’ cost containment criteria were so restrictive, parents were forced to demonstrate unique circumstances to obtain waiver just so they could see a particular provider that was not on the LEA’s list, not because the situation was exceptional, but because the cost criteria was so low. Their requests were then denied because they could not show a unique circumstance. Therefore, the entire process was meaningless which meant parents were not receiving IEEs at public expense and LCPS was in noncompliance.
LCPS is limiting IEEs to assessments only conducted by LCPS
When parents requested an IEE at LCPS, each received a letter stating they were entitled to request the same evaluations the school provided as IEEs at public expense. LCPS argued that this response was merely to assist parents with recalling what evaluation LCPS recently completed and that their letter did not prohibit families from requesting assessments beyond the assessments originally completed by LCPS. The VDOE disagreed with LCPS and noted that the Office of Special Education Programs (OSEP) has constantly taken the position that a parent’s right to an IEE at public expense is not limited to those assessments that were part of the school’s evaluation. This interpretation is consistent with the plain language of the statute, which does not restrict a parent’s right to an IEE at public expense to those assessments previously conducted by the public agency. Additionally, LCPS was previously advised to remove the language that required parents to state which part of the evaluation they disagreed, and while LCPS complied, the record clearly shows that they failed to modify their practices and have a clear misunderstanding of the IEE approval process. Therefore, the VDOE found LCPS in noncompliance.
LCPS is denying IEE requests without reason or justification or taking the Parent to due process
Complainants disagreed with the comprehensiveness of the evaluation done by LCPS and therefore they requested an IEE that included an evaluation that was not originally conducted by LCPS. LCPS denied the request for reimbursement because the parents never submitted a waiver based on unique circumstances. LCPS’ actions were improper and not in alignment with the regulations. First, the parent was not limited to the assessments provided by LCPS. Second, LCPS was required to either pay for the IEE or initiate a due process hearing, neither of which they did. Therefore, the VDOE found LCPS in noncompliance.
LCPS was given a new Corrective Action Plan which requires LCPS to:
- Create a new cost containment plan.
- Develop a new letter to parents removing all language that implies the request for an IEE is limited to those assessments previously completed by LCPS.
- Submit all parent requests for an IEE, including any request for a waiver, and LCPS’ response to those requests.
- LCPS must use the new cost containment process to reprocess the complainant’s requests for an IEE and all requests for the 2022-2023 academic school year. All correspondence must be provided to the VDOE.
- LCPS must provide a list of all parents who requested a fee waiver in 2022-2023 school year, the correspondence from LCPS denying the waiver, any out of pockets expenses paid by those parents, and any money reimbursed to those parents by LCPS.
To read the complete Letter of Findings, please see VIRGINIA DEPARTMENT OF EDUCATION