Parental Challenges

 

May the parents of a disabled student challenge the actions taken by the committee on

special education (CSE), CSE subcommittee or the school board regarding the classification,
evaluation, or placement of the student?


Yes. Parents who disagree with the actions taken by the CSE, CSE subcommittee, and/or the school
board concerning the classification, evaluation or placement of their child may submit a complaint and
request, in writing, an impartial due process hearing (20 USC § 1415(b)(6)(A), (f); 34 CFR §§ 300.507–
514; Educ. Law § 4404(1); 8 NYCRR § 200.5(j)).


The complaint must be submitted within two years of the date the parents knew or should have known
about the alleged action that forms the basis of the complaint. However, this time limitation will not apply
where the parents were prevented from requesting a hearing due to either specific misrepresentations by
the school district that it had resolved the problem(s) complained of, or the district’s withholding of
information it was required to provide the parents (20 USC § 1415(b)(6)(B), (f)(3)(C), (D); 34 CFR §§
300.507(a)(2), 300.511(e), (f); 8 NYCRR § 200.5(j)(1)(i)).


School districts must inform parents requesting an impartial due process hearing of the availability of
mediation and of any free or low cost legal and other relevant services in the area (20 USC § 1415(e); 34
CFR § 300.507(b); 8 NYCRR § 200.5(j)(1)(iii)).


Can non-custodial parents of disabled students challenge the actions taken by the committee
on special education (CSE), CSE subcommittee or school board regarding their child?


Only if the separation agreement, custody order, or divorce decree authorizes the non-custodial parent
to make education decisions for the child. Otherwise, non-custodial parents may not initiate impartial due
process hearing requests to challenge actions taken by the CSE, CSE subcommittee or school board
(Fuentes v. Bd. of Educ. of the City of N.Y., 569 F.3d 46 (2d Cir. 2009) and 12 N.Y.3d 309 (2009)).


Similarly, a federal appellate court with jurisdiction over New York dismissed a lawsuit by a noncustodial
parent that alleged the school district violated the Americans with Disabilities Act integration
mandate when it removed her child from public school to a residential facility. The court found the father
had custody of the child and consented to the placement and determined the student’s mother was
precluded from establishing that the district acted with deliberate indifference to the student’s rights
(Frank v. Sachem Sch. Dist., 633 Fed. Appx. 14 (2d Cir. 2016)).


However, even if they have no decision-making authority, non-custodial parents may still participate in
the child’s education. Absent specific provisions in a separation agreement, custody order, or divorce
decree to the contrary, non-custodial parents can request information about, keep apprised of, and
otherwise remain interested in their child’s educational progress (Fuentes v. Bd. of Educ. of the City of
N.Y., 12 N.Y.3d 309 (2009); Taylor v. Vermont Dep’t of Educ., 313 F.3d 768 (2d Cir. 2002)).


Are school districts in receipt of a parental complaint required to try to resolve the
problem(s) identified in the complaint in a resolution meeting conducted before proceeding with a
hearing?


Yes. Prior to the actual commencement of such a hearing, a school district must convene a meeting with
the complaining parents and the relevant member(s) of the committee on special education who have
specific knowledge of the facts identified in the complaint. The meeting must be attended also by a district
representative with decisionmaking authority on behalf of the district. The purpose of the meeting is to
discuss the complaint and provide the district an opportunity to resolve it. The meeting must be held
within 15 days after the district’s receipt of the parents’ complaint unless the parents and the school
district agree to use mediation or waive the meeting by mutual agreement in writing (20 USC § 1415(f)(1)
(B)(i); 34 CFR § 300.510(a); 8 NYCRR § 200.5(j)(2)).


If the parents and the district are unable to resolve the complaint within 30 days of the district’s receipt
of the parents’ complaint, a due process hearing may commence (20 USC § 1415(f)(1)(B)(ii); 34 CFR §
300.510(b), (c); 8 NYCRR § 200.5(j)(2)(v)). The subject matter of the hearing will be limited to the
issues expressly raised in the parents’ complaint, unless the district agrees otherwise (20 USC § 1415(f)
(3)(B); 34 CFR § 300.511(d); 8 NYCRR § 200.5(j)(1)(ii)).


Who conducts a due process hearing on a parental complaint?


A due process hearing on a parental complaint regarding the education of a child with a disability is
conducted by an impartial hearing officer (IHO) appointed by the school board (20 USC § 1415(f)(1)(A),
(3); 34 CFR § 300.511(b), (c)(3); Educ. Law § 4404(1); 8 NYCRR §§ 200.2(b)(9), 200.5(j)(3)(i), (ii)).


The IHO may schedule a pre-hearing conference with the parties to simplify or clarify the issue,
establish dates for the completion of the hearing, identify evidence and witnesses, and address any other
administrative matters necessary to complete a timely hearing (8 NYCRR § 200.5(j)(3)(xi)). Each party
will have up to one day to present its case unless the IHO determines that additional time is necessary for
a full, fair disclosure of the facts to arrive at a decision (8 NYCRR § 200.5(j)(3)(xiii)).


How are impartial hearing officers selected?


School districts appoint impartial hearing officers (IHO) on a rotation basis, from a list provided by
the NYS Education Department and maintained in alphabetical order, beginning with the first name after
the IHO who last served, or the first name on the list if no IHO on the list has served (Educ. Law §
4404(1); 8 NYCRR §§ 200.2(e)(1), 200.5(j)(3)(i); NYS Education Department, Selection and
Appointment of Special Education Impartial Hearing Officers (April 2015), at:


http://www.p12.nysed.gov/specialed/publications/2015-memos/impartial-hearing-officers-memo-april-
2015.pdf


The appointment process must be commenced immediately but no later than two business days after the
district receives a due process complaint notice (8 NYCRR § 200.5(j)(3)(i)(a)). A school board may
designate one or more of its members to appoint an IHO (8 NYCRR § 200.5(j)(3)(ii)). The
commissioner’s regulations set forth the process for consolidating multiple pending due process
complaint notices involving the same parties and the same student with a disability (8 NYCRR § 200.5(j)
(3)(ii)(a)).


An IHO may not accept appointment if unable to:


• make a determination regarding the sufficiency of a parental complaint notice within five days of
receiving such a request, and
• start the hearing within the first 14 days after either receiving a written waiver of the resolution
meeting or notice of the parties’ inability to resolve their problems at the resolution meeting (see
54:52), or the expiration of the 30-day period that started with the district’s receipt of the parents’
complaint, whichever occurs first (8 NYCRR § 200.5(j)(3)(i)(b), (iii)).


There are restrictions on who can serve as an impartial hearing officer. For example, individuals
employed by a school district, school, or program serving students with disabilities placed there by a
committee on special education, may not serve as an impartial hearing officer while so employed and for
individuals employed by such schools or programs, for two years following the termination of such
employment. An IHO who is serving as attorney in a due process complaint within the district or has
served as the attorney in a due process complaint in the district within the two-year period preceding the
offer of appointment may not accept appointment. An IHO with special knowledge or training with
respect to students with disabilities who has accompanied and advised a party from the same school
district regarding a due process complaint within a two year period may not accept appointment. In
addition, impartial hearing officers may not have a personal or professional interest that conflicts with
their objectivity in the hearing (20 USC § 1415(f)(3)(A)(i); 34 CFR § 300.511(c)(1)(i); 8 NYCRR §
200.1(x)(3)). An impartial hearing officer who also practices as a school district attorney must disclose
this information at the outset of the hearing as a potentially conflicting interest and allow the parties an
opportunity to question his or her impartiality (Application of a Child with a Disability, SRO dec. no.
06-051 (2006)).


What happens if an impartial hearing officer is unavailable or becomes unable to continue
with a hearing already in progress?


A district must offer appointment to each successive impartial hearing officer (IHO) on the list (see
54:54) whenever an IHO declines appointment or fails to respond or is unreachable within 24 hours after
documented, independently verifiable, reasonable efforts by the district (8 NYCRR § 200.2(e)(1)(ii)).
A board must rescind an IHO appointment and appoint a new IHO if after a hearing commences the
parents and the district agree that the IHO has become incapacitated or otherwise unavailable or
unwilling to continue the hearing or issue a decision (8 NYCRR § 200.5(j)(3)(xv)).


Are there any limitations on the authority of an impartial hearing officer?


Yes. An impartial hearing officer (IHO) may not “sua sponte” (on his or her own) raise and decide
issues that were not identified in the due process complaint notice filed by the parents or issues not
otherwise addressed during the impartial hearing (Application of the [redacted] Dep’t of Educ, SRO dec.
no. 09-024 (2009)). For example, it was improper for a hearing officer to award tuition reimbursement
(see 54:70-74) to the parents of a student with disabilities because the parents had asked the hearing
officer to decide only the stay-put placement (see 54:59-61) of the student until they and the district could
agree on an appropriate placement (Application of the [redacted] Dep’t of Educ., SRO dec. no. 09-027
(2009)). An IHO may not issue a so-ordered decision on the terms of a settlement agreement reached by
the parties in other matters not before the IHO in the due process complaint or amended due process
complaint (8 NYCRR § 200.5(j)(4)(iii).


In addition, the U.S. Court of Appeals for the Second Circuit, with jurisdiction over New York, has
determined that an impartial due process hearing is not the appropriate vehicle for enforcing a prior
settlement agreement entered into between parents and a school district under the Individuals with
Disabilities Education Act. A settlement agreement is a contract between the parties to the agreement. The
authority of IHOs is limited to matters relating to the identification, evaluation, or educational placement
of a child, or the provision of a free appropriate public education to such child (H.C. v.
Colton-Pierreport CSD, 341 Fed. Appx. 687 (2d Cir. 2009) (unpublished)).


On what basis must an impartial hearing officer decide the merits of a parental complaint?


An impartial hearing officer (IHO) must render a decision on substantive grounds based on a
determination as to whether the student received a free appropriate public education (FAPE) (see 54:3).
Procedural violations will be deemed to have deprived a student of FAPE only if they impeded the
student’s right to FAPE, significantly impeded the parents’ opportunity to participate in the decisionmaking
process regarding the provision of FAPE to the student, or if they caused a deprivation of
educational benefit (20 USC § 1415(f)(3)(E)(i), (ii); 34 CFR § 300.513(a); 8 NYCRR § 200.5(j)(4); L.O.
v. N.Y. City Dep’t of Educ., 822 F.3d 95 (2d Cir. 2016)). For example, a district’s persistent refusal to
discuss a student’s bullying during the development of her individualized educational program (IEP) was
a procedural violation that significantly impeded the parents’ right to participate in the development of
their daughter’s IEP and constituted a denial of FAPE (T.K. & S.K. v. N.Y. City Dep’t of Educ., 810 F.3d
869 (2d Cir. 2016)).


Generally, a complaint alleging a failure to make a valid offer of FAPE based on an allegedly
inappropriate individualized educational program (IEP) must be resolved on the terms of the written IEP.
Statements made by school staff to parents during a site visit are not binding on the district (B.P. & S.H. v.
N.Y. City Dep’t of Educ., 634 Fed. Appx. 845 (2d Cir. 2015)). A school district may not submit evidence
that they would have provided the student with services not listed in the IEP. This evidence is referred to
as “retrospective testimony.” A federal appellate court with jurisdiction over New York has concluded
that retrospective testimony is not permissible in tuition-reimbursement cases. A school district may,
however, provide testimony that explains or justifies the services listed in the IEP (R.E. v. N. Y. City Dep’t
of Educ., 694 F.3d 167 (2d Cir. 2012), cert. denied, 133 S. Ct. 2802 (2013)).


In addition, it is not appropriate to consider a change in placement in an IEP developed after
commencement of an impartial due process hearing as evidence that the placement included in the prior
IEP was inappropriate. Holding against a school district placement decisions made after an IEP is
challenged is inconsistent with the requirements of the Individuals with Disabilities Education Act that
districts continually reassess the needs of disabled students (Jordan S. v. Hewlett Woodmere UFSD, 2010
U.S. Dist. LEXIS 127781 (E.D.N.Y. Dec. 1, 2010)).


The IHO must mail a copy of the decision, or at the parents’ option, provide electronic findings of fact
and decision to the parents, the school board, and the Office of Special Education at the NYS Education
Department in accordance with the timelines set forth in regulations (30 CFR § 515; 8 NYCRR § 200.5(j)
(5)).


May an impartial hearing officer’s decision be appealed?


Yes. The impartial hearing officer’s decision may be appealed to the state review officer (SRO) at the
NYS Education Department’s Office of State Review in accordance with the provisions of Part 279 of the
commissioner’s regulations (20 USC § 1415(g); 34 CFR § 300.514(b); Educ. Law § 4404(2); 8 NYCRR
§ 200.5(k)). However, the SRO will dismiss any appeal by a school district that is not supported by
official school board action authorizing the appeal (Application of Bd. of Educ. of the Carmel CSD, SRO
dec. no. 00-004 (2001)).


The SRO’s decision may, in turn, be appealed to the New York State Supreme Court or federal district
court (20 USC § 1415(i)(2)(A); 34 CFR §§ 300.514(d); 300.516; Educ. Law § 4404(3); 8 NYCRR §
200.5(k)(3)). Under New York’s two-tier administrative review scheme, parties wishing to appeal the
hearing officer’s decision may not proceed directly to state or federal court without first appealing to the
SRO (Cave v. E. Meadow UFSD, 514 F.3d 240 (2d Cir. 2008)).


What is the status of a student with a disability while proceedings regarding his or her
classification, evaluation, or academic placement take place?


With the exception of certain disciplinary proceedings, during the pendency of proceedings challenging
the classification, evaluation and placement of a student with a disability, that student must remain in his
or her current educational placement unless the school district and the parent agree otherwise (20 USC §
1415(j), (k)(4)(A); 34 CFR §§ 300.518, 300.533). This is often referred to as “stay-put.” Generally, the
stay-put placement must be a program in which the student has actually participated, rather than a
proposed program (Application of Bd. of Educ. of the City Sch. Dist. of the City of Buffalo, SRO dec.
no. 05-006 (2005)). However, as set forth below, a child’s particular circumstances may affect the
determination of his or her stay-put placement.


A school district can alter its stay-put obligations by providing additional services while the parent’s
complaint is pending. In one case, the district’s compliance with an impartial hearing officer’s order to
provide in-home applied behavioral analysis (ABA) immediately pending appeal precluded them from
terminating those additional services at a later date (M.G. and V.M. v. N.Y. City Dep’t of Educ., 982
F.Supp.2d 240 (S.D.N.Y. 2013)).


The stay-put placement for a student applying for initial admission to a public school would be, with
parental consent, the public school program (20 USC § 1415(j); 34 CFR § 300.518(b); Educ. Law §
4404(4); 8 NYCRR § 200.5(m)). Similarly, during the pendency of any due process proceeding related to
the evaluation and initial placement in special education, the student shall not be evaluated and shall
remain in the then current educational placement, unless the district and the parent agree otherwise (8
NYCRR § 200.5(m)).


Furthermore, where parents challenging their child’s placement enroll the child in a private school, the
private school becomes the child’s stay-put placement if, on appeal, New York’s State Review Officer
agrees with the parents that the child’s placement should be changed. In such an instance, the school
district becomes financially responsible for maintaining the child at the private school during the
pendency of any further appeals (Mackey v. Bd. of Educ. for the Arlington CSD, 386 F.3d 158 (2d Cir.
2004); Bd. of Educ. of the Pawling CSD v. Schutz, 290 F.3d 476 (2d Cir. 2002), cert. denied, 537 U.S.
1227 (2003)). However, that would not be the case if the child’s parents subsequently enroll the child in a
new private school and there is no evidence that the educational programs of both private schools are
substantially similar (Application of a Child with a Disability, SRO dec. no. 02-031 (2002)).


Are there any circumstances under which the “stay-put” provisions that require students to
remain in their current educational placement while proceedings are pending do not apply?


According to one federal district court in New York, the stay-put provisions do not apply
during the pendency of an appeal from an order of compensatory education for a student who has aged out and is no longer otherwise eligible to receive services under the Individuals with Disabilities
Education Act (Cosgrove v. Bd. of Educ. of the Niskayuna CSD, 175 F.Supp.2d 375 (N.D.N.Y. 2001)). In
another ruling, a federal appellate court with jurisdiction outside New York held that the stay-put
provisions do not apply where a student relocates from one state to another, even if the student is forced
to cope in regular education without supports while the parents resolve their differences with the district
in the new state (Michael C. v. Radnor Twp. Sch. Dist., 202 F.3d 642 (3d Cir.), cert. denied, 531 U.S.
813 (2000)).


In addition, the stay-put provisions have been found not to apply when a child’s current educational
placement is no longer functionally available. That was the case where a Lovaas service provider who
had the only state approved program that would satisfy the requirements of the student’s IEP became
unavailable to provide the services. In such an instance, parents and their school district remain free to
agree on a new placement. Absent an agreement, a court may award relief seeking a change in placement
where such a change is shown to be warranted (Wagner v. Bd. of Educ. of Montgomery Cnty., 335 F.3d
297 (4th Cir. 2003)).


What is the status of a student transitioning from early intervention services while
proceedings are pending relating to that transition?


According to both federal and state regulations, when a child is first transitioning from early childhood
intervention services and is no longer eligible for such services because the child has turned three, a
district does not have to provide the early intervention services the child had been receiving. Once the
child is found eligible for special education and related services and there is parental consent for the
initial provision of such services, the district must provide only those services that are not in dispute (34
CFR § 300.518(c); Letter to Zahorchack, OSEP Response to Inquiry, 48 IDELR 135 (Feb. 2007)). A
student transitioning from early intervention to school-age IDEA services is not entitled to continuation of
early intervention services during the pendency of a due process proceeding challenging his preschool
placement (M.M. v. N.Y. City Dep’t of Educ., 583 F.Supp.2d 498 (S.D.N.Y. 2008)).


Are school districts liable for money damages when parents challenge their determination
regarding their child’s classification, evaluation or placement?


Not in a lawsuit brought directly under the Individuals with Disabilities Education Act (IDEA).
However, parents may recover money damages if they prevail in a lawsuit under Section 1983 of the
Civil Rights Act of 1964 alleging a violation of the IDEA (Polera v. Bd. of Educ. of the Newburgh City
Sch. Dist., 288 F.3d 478 (2d Cir. 2002)).


Are school districts liable for the cost of attorneys’ fees incurred by parents who challenge a
district’s determination regarding the classification, evaluation, or placement of their child?


Yes, if the parents are the prevailing party on an action or proceeding (20 USC § 1415(i)(3); 34 CFR §
300.517), and are the parents of a student who has been deemed to be a child with a disability (Durkee v.
Livonia CSD, 487 F.Supp.2d 318 (W.D.N.Y. 2007); see also D.S. v. Neptune Twp. Bd. of Educ., 264 Fed.
Appx. 186 (3d Cir. 2008)).


However, parents are not deemed prevailing parties entitled to attorneys’ fees when they enter into a
voluntary settlement of their differences with their school district, unless the agreement provides for court
enforcement of the settlement. A settlement agreement that is enforceable by a court through a consent
decree order would entitle parents to attorneys’ fees (Roberson v. Giuliani, 346 F.3d 75 (2d Cir. 2003);
J.C. v. Reg’l Sch. Dist. 10, 278 F.3d 119 (2d Cir. 2002); see also Student X v. N.Y. City Dep’t of Educ.,
2008 U.S. Dist. LEXIS 88163 (E.D.N.Y. Oct. 30, 2008)). So would a settlement incorporated into an
order from an impartial hearing officer otherwise dismissing a hearing. That a hearing officer has no
jurisdiction to enforce the terms of the settlement (see 54:56) is irrelevant, as long as judicial
enforcement is available (A.R. v. N.Y. City Dep’t of Educ., 407 F.3d 65 (2d Cir. 2005)).


Attorneys’ fees may be awarded even if their amount exceeds the cost of the settlement of a parent’s
claim (Elliott v. Bd. of Educ. of the Rochester City Sch. Dist., 295 F.Supp.2d 282 (W.D.N.Y. 2003)).
They must be based on rates prevailing in the community where the action or proceeding arose for the
kind and quality of services furnished. No bonus or multiplier may be used in calculating attorneys’ fees
(20 USC § 1415(i)(3)(C); 34 CFR § 300.517(c)(1); I.B. v N.Y. City Dep’t of Educ., 336 F.3d 79 (2d Cir.
2003)). Prevailing rates refer to the amount actually charged by the attorneys and not the rate a school
board pays when it agrees to pay attorneys’ fees (R.E. v. N. Y. City Bd. of Educ., 38 IDELR 66 (S.D.N.Y.
2003)). Westlaw computer research charges are not recoverable (B.D. v. DeBuono, 177 F.Supp.2d 201
(S.D.N.Y. 2001)).


Are school districts liable for the cost of attorneys’ fees incurred by parents who prevail as
defendants at an impartial due process hearing?


Yes. According to the U.S. Court of Appeals for the Second Circuit, which has jurisdiction over New
York, parents would be entitled to an award of attorneys’ fees, as well, if they are a “prevailing
defendant.” However, the court did not identify any standard for determining whether a prevailing
defendant parent should be awarded such fees (Mr. L. v. Sloan, 449 F.3d 405 (2d Cir. 2006)).
Appellate courts will not reverse a district court’s award of attorneys’ fees unless the district court
abused its discretion in awarding such fees (Green v. City of N.Y., 403 Fed. Appx. 626 (2d Cir. 2010)).


Are school districts liable for attorneys’ fees even when parents are represented by a
publicly-funded attorney?


Yes. Attorneys’ fees may be awarded despite the fact that the parents were represented by a publiclyfunded
attorney (Yankton Sch. Dist. v. Schramm, 93 F.3d 1369 (8th Cir. 1996)). However, attorneys’ fees
are not available to a lay advocate (Connors v. Mills, 34 F.Supp.2d 795 (N.D.N.Y. 1998)).


Are there any limitations on the ability of parents to recover attorneys’ fees?


Yes. Attorneys’ fees may not be awarded for an attorney’s attendance at a committee on special
education (CSE) meeting unless it is convened as a result of an administrative proceeding or judicial
action (20 USC § 1415(i)(3)(D)(ii), (iii); 34 CFR § 300.517(c)(2)(ii), (iii)), a request for an impartial
due process hearing (V.G. v. Auburn Enlarged CSD, 349 Fed. Appx. 582 (2d Cir. 2009); F.R. & K.R. v.
Bd. of Educ., Plainedge Pub. Schs., 67 F.Supp.2d 142 (E.D.N.Y. 1999)), or attendance at a complaint
resolution meeting (20 USC § 1415(i)(3)(D)(iii); 34 CFR § 517(c)(2)(ii), (iii); see 54:52). Neither may
attorneys’ fees be awarded for mediation that is conducted prior to the filing of a complaint, at the
discretion of the State (20 USC § 1415(i)(3)(D)(ii)), or under certain circumstances for services
performed after a written offer of settlement is made to a parent unless the parent was substantially
justified in rejecting the settlement offer (20 USC § 1415(i)(3)(D)(i), (E); 34 CFR § 517(c)(2)(i), (3)).
In addition, attorneys’ fees may be reduced under certain circumstances, including when the relief
finally obtained by the parents is less favorable than a district’s previous offer of settlement (20 USC §
1415(i)(3)(D)(i)(III)). Attorney’s fees may be reduced also when the parent or the parent’s attorney
unreasonably protracted final resolution of the controversy, or the amount authorized unreasonably
exceeds the hourly prevailing rate in the community for similar services by attorneys of reasonably
comparable skill, reputation and experience (see 54:63). One exception would be when a school district
unreasonably protracts final resolution (20 USC § 1415(i)(3)(F), (G); 34 CFR § 517(c)(4), (5)).
Attorneys fees may be reduced, as well, when parents reject a district’s proposed settlement but the
basics of an eventual court decree already had been provided to the parents and the minor changes and
adjustments do not warrant the amount of time expanded by the attorney (V.G. v. Auburn Enlarged City
Sch. Dist. 2008 U.S. Dist. LEXIS 99743 (N.D.N.Y. Dec. 9, 2008), aff ’d, 349 Fed. Appx. 582 (2d Cir.
2009)).


Are school districts liable for the cost of services rendered by experts that are incurred by
parents who challenge a school district’s determination regarding the classification, evaluation or
placement of their child?


No. According to the U. S. Supreme Court, the Individuals with Disabilities Education Act (IDEA)
does not authorize prevailing parents to recover fees for services rendered by experts in IDEA actions,
including the services of an educational consultant (Arlington CSD Bd. of Educ. v. Murphy, 548 U.S. 291
(2006)).


Are school districts entitled to attorneys’ fees?


Yes, against the attorney of a parent who files a complaint or subsequent action that is determined to
have been “frivolous, unreasonable or without foundation,” or who “continues to litigate after the
litigation clearly becomes frivolous, unreasonable, or without foundation” (20 USC § 1415(i)(3)(B)(i)
(II); 34 CFR § 300.517(a)(1)(ii)). School districts may recover attorneys’ fees, as well, against a parent
or a parent’s attorney if the parent’s complaint or subsequent action was presented for an improper
purpose, such as to harass, cause unnecessary delay, or needlessly increase the cost of litigation (20 USC
§ 1415(i)(3)(B)(i)(III); 34 CFR § 300.517(a)(1)(iii)).


Are the parents of a child with a disability entitled to an independent educational evaluation
of their child at public expense?


Yes, if they disagree with the evaluation obtained by the school district (20 USC § 1415(b)(1); 34 CFR
§ 300.502(a); 8 NYCRR § 200.5(g)(1); Application of a Student with a Disability, SRO dec. no. 09-144
(2010)).


An independent educational evaluation (IEE) consists of an individual evaluation of a student
conducted by a qualified examiner who is not employed by the public agency responsible for the
education of the student (8 NYCRR § 200.1(z)).


However, when parents request an IEE, the district may initiate a hearing to show that its evaluation is
appropriate or that the evaluation obtained by the parent does not meet school district criteria. If the
hearing officer agrees with the school district, the parents still have a right to an IEE, but not at public
expense (20 USC § 1415(b)(1), (d)(2)(A); 34 CFR § 300.502(b); 8 NYCRR § 200.5(g)).


When IEEs are at public expense they are subject to the same criteria that the school district uses when
it initiates an evaluation, including the location of the evaluation and the qualifications of the examiner
(34 CFR § 300.502(a)(2), (e); 8 NYCRR §§ 200.1(z), 200.5(g)(1)(ii)). Upper limits on the costs of
particular tests may not simply be an average of fees customarily charged by professionals in the area, but
must permit parents to choose from among qualified individuals in the area (Application of a Child with a
Handicapping Condition, SRO dec. no. 92-35 (1992); Application of a Child with a Disability, SRO
dec. no. 93-26 (1993)). A school district policy may cap the cost of an IEE unless the parents can
demonstrate that their child’s unique circumstances justify payment beyond the standard limit (M.V. v.
Shenendehowa CSD, 2013 U.S. Dist. LEXIS 32069 (N.D.N.Y. 2013)). In addition, a parent is entitled
only to one IEE at public expense each time a school district conducts an evaluation with which the parent
disagrees (Application of a Student with a Disability, SRO dec. no. 09-144 (2010)).
A school district may ask, but not require, that parents tell why they disagree with the district’s
evaluation (34 CFR § 300.502(b)(4); 8 NYCRR § 200.5(g)(1)(iii)).

 

 

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Neither receipt of information presented on this site nor any email or other electronic communication sent to Castro CLAN PLLC or its lawyers through this site will create an attorney-client relationship, and no such email or communication will be treated as confidential. No user of this site should act or refrain from acting on the basis of information on this site without seeking legal advice from counsel in the relevant jurisdiction. Castro CLAN PLLC expressly disclaims liability with respect to actions taken or not taken based on the contents of this site.

 

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