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  • No. 15-30164

    _____________________________

    IN THE UNITED STATES COURT OF APPEALS

    FOR THE FIFTH CIRCUIT

    _____________________________

    SETH B., by and through his parents and next friends,

    Donald B. and Cheryl B.; DONALD B.; CHERYL B.

    Plaintiffs-Appellants,

    v.

    ORLEANS PARISH SCHOOL BOARD,

    Defendant-Appellee.

    _____________________________

    ON APPEAL FROM THE UNITED STATES DISTRICT COURT

    FOR THE EASTERN DISTRICT OF LOUISIANA, NEW ORLEANS

    CIVIL ACTION NO. 2:13-CV-06068

    Honorable Nannette Jolivette Brown, United States District Judge

    _____________________________

    BRIEF FOR THE AMICI CURIAE NATIONAL DISABILITY RIGHTS

    NETWORK, THE NATIONAL FEDERATION OF THE BLIND, AND THE

    NATIONAL ASSOCIATION OF THE DEAF, IN SUPPORT OF

    PLAINTIFFS-APPELLANTS AND FOR REVERSAL OF THE DISTRICT

    COURTS ORDER

    (WITH CONSENT OF THE PARTIES)

    ELLEN SAIDEMAN CONSTANCE WANNAMAKER

    LAW OFFICE OF ELLEN SAIDEMAN DISABILITY RIGHTS TEXAS

    7 Henry Drive 300 E. Main, Suite 205

    Barrington, Rhode Island 02806 El Paso, Texas 79901

    (401) 258-7276 (Phone) (915) 542-0585 (Phone)

    (401) 709-0213 (Fax) (915) 542-2676 (Fax)

    esaideman@yahoo.com cwannamaker@disabilityrightstx.org

    Counsel for Amici Curiae

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  • i

    CERTIFICATE OF INTERESTED PERSONS

    (1) Seth B., by and through his parents and next friends, Donald B. and

    Cheryl B., Donald B. and Cheryl B. v. Orleans Parish School Board, Case No.

    2:13-CV-6068.

    (2) The undersigned counsel of record certifies that the following listed

    persons and entities described in the fourth sentence of Rule 28.2.1 have an interest

    in the outcome of this case. These representations are made in order that the

    judges of this Court may evaluate possible disqualification or recusal.

    Amici curiae in support of Plaintiffs-Appellants:

    National Disability Rights Network

    National Federation of the Blind

    National Association of the Deaf

    Council of Parent Attorneys and Advocates, Inc.

    Plaintiffs-Appellants:

    Seth B.

    Cheryl B.

    Don B.

    Defendant-Appellee:

    Orleans Parish School Board

    Attorneys:

    For amici curiae National Disability Rights Network:

    Ellen Saideman

    Constance Wannamaker

    For amici curiae Council of Parent Attorneys and Advocates, Inc.:

    Jon Zimring

    Selene Almazan-Altobelli

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  • ii

    For Plaintiffs-Appellants:

    The Advocacy Center (Louisiana)

    Ronald K. Lospennato

    Sarah Voigt

    Debra Weinberg

    For Defendant-Appellee:

    Wayne T. Stewart

    Judges below: Honorable Nannette J. Brown, United States District Judge for the Eastern

    District of Louisiana

    Honorable Daniel K. Knowles, III, United States Magistrate Judge for the

    Eastern District of Louisiana

    /s/ Constance Wannamaker

    CONSTANCE WANNAMAKER

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  • iii

    RULE 29(c)(5) STATEMENT

    Pursuant to Fed. R. App. P 29(c)(5), amici certify that: (A) no partys

    counsel authored this brief in whole or in part; (B) no party or partys counsel

    contributed money that was intended to fund preparing or submitting the brief; and

    (C) no personother than the amicus curiae, its members, or its counsel

    contributed money that was intended to fund preparing or submitting the brief.

    RULE 29(a) STATEMENT OF CONSENT

    Pursuant to Fed. R. App. P 29(a), no motion for leave to file this brief is

    required because all parties have consented to its filing.

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  • iv

    TABLE OF CONTENTS

    CERTIFICATE OF INTERESTED PERSONS ......................................................... i

    RULE 29(c)(5) STATEMENT ................................................................................ iii

    RULE 29(a) STATEMENT OF CONSENT ........................................................... iii

    TABLE OF CONTENTS .......................................................................................... iv

    TABLE OF AUTHORITIES .................................................................................... vi

    STATEMENT OF IDENTITY, INTEREST, AND SOURCES OF

    AUTHORITY TO FILE ............................................................................................ 1

    SUMMARY OF ARGUMENT ................................................................................. 4

    ARGUMENT ............................................................................................................. 7

    I. The Publicly-Funded IEE is an Essential Procedural

    Safeguard for Implementing the IDEA, by Enabling

    Parents to Obtain Relevant Expert Information

    Needed for Meaningful Participation in Their

    Childrens Education ............................................................................. 7

    II. Hearing Officers and Courts Must Review a School

    Districts Unilateral Decision to Deny Parents a

    Publicly-Funded IEE, and Have a Duty to Carefully

    Examine the Parents Claims that the Denial Deprives

    Them of an IEE ................................................................................... 12

    III. Allowing School Districts to Apply Inappropriate and

    Irrelevant Criteria to IEEs While Shifting the Burden

    of Proof to Parents Would Deprive Parents of Their

    Right to an IEE .................................................................................... 16

    A. School Districts Bear the Burden of

    Establishing that Their Criteria are Appropriate

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  • v

    and Not Inconsistent with the Parents Right to

    an IEE ........................................................................................ 17

    B. Hearing Officers and Courts Must Ensure that

    School Districts Only Use Criteria Relevant and

    Material to the Evaluation in Reviewing IEEs

    and that Those Criteria Do Not Deprive the

    Parents of an IEE....................................................................... 19

    1. Only agency criteria relevant to

    conducting the IEE requested by the

    parent may be imposed ................................................... 20

    2. The school districts criteria may not be

    deprive the parent of an IEE and may not

    constrain the evaluators professional

    judgment ......................................................................... 23

    IV. Because the Regulation Requires that the IEE be at

    No Cost to the Parents, Parents Have the Right to an

    Order Directing the School District to Pay for an IEE

    Before the Evaluator is Retained, and Therefore, a

    Determination Regarding the IEEs Cost ............................................ 23

    CONCLUSION ........................................................................................................ 29

    CERTIFICATE OF SERVICE ................................................................................ 31

    CERTIFICATE OF ELECTRONIC COMPLIANCE ............................................. 33

    CERTIFICATE OF COMPLIANCE ....................................................................... 34

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  • vi

    TABLE OF AUTHORITIES

    CASES

    Alief Indep. Sch. District v. C.C. ex rel. Kenneth C.,

    655 F.3d 412 (5th Cir. 2011) ................................................................................ 2

    Arlington Cent. Sch. Dist. Bd. of Educ. v. Murphy,

    548 U.S. 291 (2006) ............................................................................................ 18

    Burlington School Comm. v. Dept of Educ.,

    471 U.S. 359 (1983) .......................................................................................... 4, 7

    Chevron USA, Inc. v. Natural Resources Defense Council,

    467 U.S. 837 (1984) ............................................................................................ 14

    City of Cincinnati,

    114 LRP 50642 (Ohio SEA 2014) ................................................................ 18, 27

    Dunmore Sch. Dist.,

    53 IDELR 107 (July 3, 2009) ............................................................................. 27

    E.M. ex rel E.M. v. Pajaro Valley Unified Sch. Dist. Office of Admin. Hearings,

    758 F.3d 1162 (9th Cir. 2014) ............................................................................ 14

    El Paso Indep. Sch. Dist. v. R.,

    591 F.3d 417 (5th Cir. 2009) .............................................................................. 15

    Evans v. Dist. No. 17,

    841 F.2d 824 (8th Cir. 1988) .............................................................................. 16

    Florence Co. Sch. Dist. IV v. Carter,

    510 U.S. 7 (1993) ................................................................................................ 16

    G.D. v. Westmoreland Sch. Dist.,

    930 F.2d 942 (1st Cir. 1991) ............................................................................... 16

    Holmes v. Millcreek Twp. Sch. Dist. 591,

    205 F.3d 583 (3d Cir. 2000) ......................................................................... 15, 20

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  • vii

    Johnson v. La. Dept of Educ.,

    330 F.3d 362 (5th Cir. 2003) ................................................................................ 2

    Lakeville Indep. Sch. Dist. #194,

    53 IDELR 206 (Minn. SEA 2009) ................................................................ 14, 21

    Lauren W. ex rel Jean W. v. DeFalminis,

    480 F.3d 259 (3d Cir. 2007) ............................................................................... 21

    M.V. v. Shenedehowa Central School District, No. 1-11-CV-0071GTS

    2013 WL 936438 (N.D.N.Y. Mar. 8, 2013) ....................................................... 27

    Michael P. v. Dept of Educ.,

    656 F.3d 1057 (9th Cir. 2011) ............................................................................ 12

    Morgan Stanley Capital Grp., Inc. v. Public Util. Dist. No. 1,

    554 U.S. 527 (2008) ............................................................................................ 14

    Pace v. Bogalusa City Sch. Bd.,

    403 F.3d 272 (5th Cir. 2005) ................................................................................. 2

    Pajaro Valley Unified Sch. Dist. v. J.S.,

    47 IDELR 12 (N.D. Cal. Dec. 15, 2006) ............................................................ 10

    Philip C. ex rel A.C. v. Jefferson Cty. Bd. of Educ.,

    701 F.3d 691 (11th Cir. 2012) .............................................................................. 9

    S.H. ex rel Durrell v. Lower Merion Sch. Dist.,

    729 F.3d 248 (3d Cir. 2013) ............................................................................... 10

    Schaffer v. Weast,

    546 U.S. 49 (2005) .......................................................................... 5, 7, 17, 18, 26

    T.S. v. Bd. of Educ. of Town of Ridgefield,

    10 F.3d 87 (2d Cir. 1993) ............................................................................ 15, 16

    West Baton Rouge Parish School Bd. v. Deshotel, No.11-0053-SDD-SCR

    2014 WL 1327851 (M.D. La. Mar. 31, 2014) ................................................... 22

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  • viii

    Winkelman v. Parma City Sch. Dist.,

    550 U.S. 516 (2007) .................................................................................. 6, 18, 26

    STATUTES AND REGULATIONS

    20 U.S.C. 1400(d)(1)(A) ......................................................................................... 4

    20 U.S.C. 1400(d)(1)(B) ......................................................................................... 4

    20 U.S.C. 1400(9) ................................................................................................. 22

    20 U.S.C. 1414(a) ............................................................................................. 5, 20

    20 U.S.C. 1414(a)(1)(A) ......................................................................................... 5

    20 U.S.C. 1414(a)(2)(B)(ii) .................................................................................. 22

    20 U.S.C. 1414(b) ............................................................................................. 5, 20

    20 U.S.C. 1415 ........................................................................................................ 5

    20 U.S.C. 1415(b)(1)............................................................................................... 5

    20 U.S.C. 1414(c) ............................................................................................. 5, 20

    20 U.S.C. 1414(d) ................................................................................................... 5

    34 C.F.R. 300.502 ............................................................................................. 5, 17

    34 C.F.R. 300.502(a)(3)(i) .................................................................................... 22

    34 C.F.R. 300.502(a)(3)(ii) ................................................................................... 27

    34 C.F.R. 300.502(b) ............................................................................................ 21

    34 C.F.R. 300.502(b)(i) ......................................................................................... 26

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  • ix

    34 C.F.R. 300.502(b)(2)(ii) ............................................................................... 6, 13

    34 C.F.R. 300.502(b)(4) ........................................................................................ 24

    34 C.F.R. 300.502(c)(1) ........................................................................................ 20

    34 C.F.R. 300.502(e) ......................................................................................... 6, 13

    34 C.F.R. 300.502(e)(1) ........................................................................................ 20

    OTHER SOURCES

    Alison DeNisco, Navigating special education disputes in school:

    Attorneys advise how parents and school districts can work

    together to serve students, District Administration (October 2013) .................... 9

    Ashlie DErrico Surrur, Placing the Ball in Congress Court: A

    Critical Analysis of the Supreme Courts Decision in Arlington

    Central School District Board of Education v. Murphy, 27 J. Natl

    Admin. L. Judiciary 547 (2007) ......................................................................... 11

    David M. Engel, Law, Culture, and Children with Disabilities, 1991

    Duke L.J. 166 (1991) ............................................................................................ 8

    Debra Chopp, School Districts and Families Under the IDEA:

    Collaborative in Theory, Adversarial in Fact, 32 J. Natl Assn

    Admin L. Judiciary 423 (2012) ................................................................ 8, 10, 18

    DOE Guidance to Final IDEA 2004 Regulations, 71 Fed. Reg. 46540

    (Aug. 14, 2006) ................................................................................................... 25

    Elisa Hyman, How IDEA Fails Families Without Means: Causes and

    Corrections from the Frontlines of Special Education Lawyering,

    20 Am. U. J. Gender Soc. Poly & L. 107 (2011) .............................................. 10

    Gregory OBrien & Joanne Pearson, Autism and Learning Disability,

    8 Autism 125 (2004) ........................................................................................... 25

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  • x

    Jeannie F. Lake & Bonnie S. Billingsley, An Analysis of Factors that

    Contribute to Parent-School Conflict in Special Education, 21

    Remedial & Special Educ. 240 (2000) ........................................................... 8, 11

    Letter to Anonymous, 22 IDELR 637 (OSEP 1995) ................................................ 23

    Letter to Petska, 35 IDELR 191 (OSEP 2001) ........................................................ 19

    Letter to Wessels, 16 IDELR 735 (OSEP 1990) ...................................................... 27

    National Association of School Psychologists, Preventing and

    Resisting Administrative Pressure to Practice Unethically, Ethics

    Advisory Bulletin. ............................................................................................... 11

    National Association of School Psychologists, Principles for

    Professional Ethics, Principle II.3 & Principle III.4 ........................................... 25

    Ruth Colker, California Year in Review: 2013 Special Education ALJ

    Decisions, 34 J. Natl Assn Admin. Law Judiciary 47 (2014) ............................ 8

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  • 1

    STATEMENT OF IDENTITY, INTEREST, AND SOURCES OF

    AUTHORITY TO FILE

    The National Disability Rights Network (NDRN) is the non-profit

    membership association of protection and advocacy (P&A) agencies that are

    located in all 50 states, the District of Columbia, Puerto Rico, and the United States

    Territories and include a P&A affiliated with the Native American Consortium

    which includes the Hopi, Navajo and Piute Nations in the Four Corners region of

    the Southwest. P&A agencies are authorized under various federal statutes to

    provide legal representation and related advocacy services, and to investigate abuse

    and neglect of individuals with disabilities in various settings. The P&A system

    comprises the nations largest provider of legally-based advocacy services for

    persons with disabilities.

    The Advocacy Center, counsel for plaintiffs in this case, is a member

    agency. NDRN supports its members through the provision of training and

    technical assistance, legal support, and legislative advocacy, and works to create a

    society in which people with disabilities are afforded equality of opportunity and

    are able to fully participate by exercising choice and self-determination. Special

    education cases make up a large percentage of the P&A networks case work. The

    P&A agencies handled over 10,000 special education matters in the most recent

    year for which data is available.

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  • 2

    NDRN has an extensive history as amicus curiae, including Fifth Circuit

    education cases. See, e.g., Alief Indep. Sch. District v. C.C. ex rel. Kenneth C., 655

    F.3d 412 (5th Cir. 2011); Pace v. Bogalusa City Sch. Bd., 403 F.3d 272 (5th Cir.

    2005); Johnson v. La. Dept of Educ., 330 F.3d 362 (5th Cir. 2003).

    The National Federation of the Blind (NFB) is the largest organization

    of blind and low-vision people in the United States. Founded in 1940, the NFB has

    grown to over fifty-thousand members. The organization consists of affiliates and

    local chapters in every state, the District of Columbia, and Puerto Rico. The NFB

    devotes significant resources toward advocacy, education, research, and

    development of programs to integrate the blind into society on terms of equality

    and independence, and to remove barriers and change social attitudes, stereotypes

    and mistaken beliefs about blindness that result in the denial of opportunity to

    blind people. The NFB actively engages in litigation and advocacy to protect the

    civil rights of the blind, including the right to education of blind children.

    The National Association of the Deaf (NAD), founded in 1880, is the

    oldest civil rights organization in the United States, and is the nations premier

    organization of, by and for deaf and hard of hearing individuals. The mission of the

    NAD is to preserve, protect, and promote the civil, human and linguistic rights of

    48 million deaf and hard of hearing individuals in the country. The NAD

    endeavors to achieve true equality for its constituents in all aspects of society

    Case: 15-30164 Document: 00513029931 Page: 13 Date Filed: 05/04/2015

  • 3

    including but not limited to education, employment, and ensuring full access to

    programs and services. Serving all parts of the USA, the NAD is based in Silver

    Spring, MD and has dedicated much of its work over its 135 years to ensuring the

    appropriate education of deaf and hard of hearing children.

    Amici have advocated on behalf of students and their families on education

    issues for decades. Amici frequently assist parents of students with disabilities in

    obtaining Independent Educational Evaluations (IEEs). Amici found IEEs useful

    in the collaborative process, often providing new information about students and

    their educational needs that enables school districts to find students eligible for

    IDEA and to improve Individual Education Plans. More rarely, attorneys and

    advocates have used IEEs in due process hearings.

    Amici submit this brief to provide additional information about of the

    importance of a publicly-funded IEE for implementing IDEA, as the IEE provides

    parents the expert information that they need to participate as partners in their

    childrens education. Amici also explain how the district courts decision, if not

    reversed, could eliminate the IEE as a procedural safeguard of any kind for

    children with disabilities and their parents.

    Amici have authority to file pursuant to Fed. R. App. P. 29(a), as counsel for

    both the Plaintiffs-Appellants and the Defendant-Appellee have consented to the

    filing of this brief.

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  • 4

    SUMMARY OF ARGUMENT

    This case is one of first impression before this Court, and indeed, any Circuit

    Court of Appeal. It raises the question of whether a school district that has agreed

    to fund an Independent Educational Evaluation (IEE) may refuse to pay the bill

    based on the districts assertion that the IEE does not meet agency criteria

    without careful scrutiny of the parents claims that its criteria are irrelevant,

    immaterial, and inconsistent with their right to an IEE. Amici adopt the Plaintiffs-

    Appellants Statement of Facts.

    Congress has made clear that the purpose of the Individuals with Disabilities

    Education Act (IDEA) is to ensure that all children with disabilities have

    available to them a free appropriate public education [(FAPE)] that emphasizes

    special education and related services designed to meet their unique needs and

    prepare the child for further education, employment and independent living, 20

    U.S.C. 1400(d)(1)(A), and to ensure that the rights of children with disabilities

    and parents of such children are protected. 20 U.S.C. 1400(d)(1)(B).

    Although IDEA sets out a cooperative process for parents and school

    officials, Congress recognized that this process would not always produce a

    consensus between the school officials and the parents, and that in any dispute the

    school officials would have a natural advantage. Burlington School Comm. v.

    Dept of Educ., 471 U.S. 359, 36869 (1983). To address this imbalance,

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  • 5

    Congress incorporated an elaborate set of what it labeled procedural safeguards

    to insure full participation of parents and proper resolution of substantive

    disagreements. Id. See 20 U.S.C. 1415.

    Under IDEAs statutory scheme, accurate evaluations are essential. Before a

    child can get any services under IDEA, the child must be evaluated and found

    eligible for IDEA services. 20 U.S.C. 1414(a)(1)(A). The statute sets out

    requirements for both evaluations and reevaluations, including review by the

    Individual Education Program team (IEP Team).1 20 U.S.C. 1414(a), (b), &

    (c). These evaluations are then used to determine eligibility and develop the

    Individual Education Program (IEP) that is the foundation for FAPE. 20 U.S.C.

    1414(d). IDEA specifically provides that parents have a right to an IEE. 20 U.S.C.

    1415(b)(1). The United States Department of Education (DOE) promulgated

    its regulation detailing the IEE requirement to ensure that parents can participate

    fully and meaningfully in the IEP process. 34 C.F.R. 300.502.

    The Supreme Court has recognized that the parents right to an IEE ensures

    parents access to an expert who can evaluate all the materials that the school must

    make available, and who can give an independent opinion. Schaffer v. Weast, 546

    U.S. 49, 6061 (2005). It also held that parents may not be required to incur

    1 The IEP Team includes the parents and at least three school representatives: a regular

    education teacher, a special education teacher, and a school district representative. 20 U.S.C.

    1414(d).

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  • 6

    expenses to access the rights guaranteed by IDEA. Winkelman v. Parma City Sch.

    Dist., 550 U.S. 516, 532-33 (2007).

    The district courts decision guts the procedural safeguard of the IEE,

    shifting the burden from the school district to the parents and creating

    insurmountable obstacles for the vast majority of families receiving special

    education services under IDEA. For the IEE to be a meaningful procedural

    safeguard, courts should insist on strict adherence to the regulation, which requires

    the district to initiate a hearing and bear the burden of proof if it disputes a parents

    IEE. See 34 C.F.R. 300.502(b)(2)(ii).

    When a school district asserts that an IEE did not meet agency criteria,

    and refuses to pay for it, a hearing officer or court must carefully scrutinize and

    then decide whether those agency criteria are permissible criteria under IDEA

    and its regulations. The court or hearing officer must also carefully consider and

    decide whether those criteria are inconsistent with the parents right to an [IEE].

    34 C.F.R. 300.502(b)(2)(ii); 34 C.F.R. 300.502(e). By shifting the burden to

    the parents, the district court here abdicated its responsibility to review

    substantively the districts justifications for denying payment. Finally, a parent

    cannot be obligated to incur any expenses of an IEE.

    As with other rights and protections provided by the IDEA, an IEE should

    not depend on a parents level of education, sophistication, or ability to pay or

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  • 7

    access counsel. The district courts decision reinforces the power imbalance

    between parents and school districts, particularly for those parents who cannot

    afford to retain counsel or experts, or pay the up-front costs of an IEE. This Court

    should reverse district courts decision as contrary to IDEA.

    ARGUMENT

    I. The Publicly-Funded IEE is an Essential Procedural Safeguard for

    Implementing the IDEA, by Enabling Parents to Obtain Relevant

    Expert Information Needed for Meaningful Participation in Their

    Childrens Education

    Although the IDEAs core is the cooperative process it establishes between

    parent and schools, school officials, who include professionals trained in special

    education, have a natural advantage. Schaffer, 546 U.S.at 53; Burlington, 471

    U.S. at 368. For parents to participate meaningfully in IEP team meetings, they

    must be seen as equal partners, which requires access to independent professionals

    to evaluate their children and inform them about their childrens educational needs.

    Without access to independent experts, parents find that school officials,

    who see themselves as experts, dismiss their opinions about their childrens needs.

    When attending IEP meetings, parents often find themselves vastly outnumbered

    by school district personnel. One researcher noted:

    Often, but not always, parents feel that their own observations or

    requests are given little weight and that decisions are based primarily

    on the recommendations of the professionals. Their own close

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  • 8

    relationship with the child is viewed as a liability rather than an as an

    asset a liability that renders their judgment inherently suspect.2

    Another researcher found that hearing officers often gave little weight to the

    testimony of mothers, including even a licensed speech and language therapist who

    had worked for the school district, and the hearing officers often described the

    mothers in a disparaging light. 3

    Moreover, although parents may know their children and their struggles in

    school very well, they are often unfamiliar with the technical language of psycho-

    educational testing and educational interventions, used by the school staff with

    the result that they find themselves shunted aside during the IEP process as they

    are bombarded with professional terminology in which they are not conversant.4

    Parents are also often unversed in the IDEAs requirements. As one parent noted,

    What is really hard is we go in there and . . . the special education director . . .

    knows the rules and regulations, everybody else knows the rules and regulations.5

    Parents find it difficult to know if the services offered for their children were

    really appropriate without adequate knowledge.6 Parents need access to experts to

    2 David M. Engel, Law, Culture, and Children with Disabilities, 1991 Duke L.J. 166, 188 (1991). 3 Ruth Colker, California Year in Review: 2013 Special Education ALJ Decisions, 34 J. Natl

    Assn Admin. Law Judiciary 47, 63 (2014). 4 Debra Chopp, School Districts and Families Under the IDEA: Collaborative in Theory,

    Adversarial in Fact, 32 J. Natl Assn Admin L. Judiciary 423, 434 (2012). 5 Jeannie F. Lake & Bonnie S. Billingsley, An Analysis of Factors that Contribute to Parent-

    School Conflict in Special Education, 21 Remedial & Special Educ. 240, 245 (2000). 6 Id. at 249.

    Case: 15-30164 Document: 00513029931 Page: 19 Date Filed: 05/04/2015

  • 9

    review and supplement the school evaluations and to ensure that school evaluations

    are accurate and complete.

    [T]he right to a publicly financed IEE guarantees meaningful [parental]

    participation throughout the development of the IEP. Philip C. ex rel A.C. v.

    Jefferson Cty. Bd. of Educ., 701 F.3d 691, 698 (11th Cir. 2012) (emphasis added).

    Since the inception of the IDEA in 1975, the Secretary of Education has

    promulgated the regulations . . . specifying that an IEE obtained by parents, subject

    to certain exceptions will be at public expense. Id. at 694. An IEE, a second

    opinion by an outside evaluator, provides parents with an important counterweight

    to the school districts evaluation.

    IEEs often provide valuable information that assists the parents and the

    school district in collaborating to provide FAPE to children. An experienced

    special education attorney advised school district administrators recently that:

    [IEEs] from an outside group also help avoid litigation. If the

    independent evaluation says the child needs the same services the

    school is saying, parents are willing to accept it much more quickly.

    And if it comes back and says the child needs more than what the

    school is recommending, it helps the school system regroup and

    rethink providing the services.7

    7 Alison DeNisco, Navigating special education disputes in school: Attorneys advise how

    parents and school districts can work together to serve students, District Administration

    (October 2013), at http://districtadministration.com/articlee/navigating-special-education-

    disputes-schools (Apr. 20,2015).

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  • 10

    The IEEs critical importance is demonstrated by numerous cases in which

    IEEs have determined that the schools evaluation was wrong or incomplete. See,

    e.g., S.H. ex rel Durrell v. Lower Merion Sch. Dist., 729 F.3d 248, 254 (3d Cir.

    2013) (IEE determined student did not have a learning disability, leading to a

    childs removal from special education); Pajaro Valley Unified Sch. Dist. v. J.S.,

    47 IDELR 12 (N.D. Cal. Dec. 15, 2006) (IEE needed to adequately explore

    pervasive developmental disability and nonverbal learning disabilities).

    It is very difficult for a parent without financial resources to exercise this

    right8 to an IEE, and millions of parents lack those resources. DOE has found that

    about one fourth of children eligible for special education have family incomes

    below the poverty line and as many as two-thirds have family incomes of $50,000

    or less,9 leaving them without the resources to pay thousands of dollars for

    evaluations. Many may not even know of their right to an IEE, which is often

    buried in the lengthy procedural safeguards document.10 And while some school

    districts will provide IEEs readily, too often parents find that districts refuse to

    provide IEEs, or, even if they agree to an IEE, they often move to choose the

    8 Elisa Hyman, How IDEA Fails Families Without Means: Causes and Corrections from the

    Frontlines of Special Education Lawyering, 20 Am. U. J. Gender Soc. Poly & L. 107, 127

    (2011). 9 Chopp, supra n. 3 at 437, n. 59. 10 Chopp, supra n. 3, at 436.

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    evaluator themselves or to limit the scope of the evaluation in order to control

    costs,11 As one commentator noted:

    Unfortunately, the vast majority of parents whose children require

    the benefits and protections provided in the IDEA lack knowledge

    about the educational resources available to their child and the

    sophistication to mount an effective case against a [district refusal to

    provide an IEE or to restrict an IEE]. Thus, the parents who need an

    expert the most will likely be unable to obtain one, and in effect, the

    level playing field imagined by Congress is now increasingly

    uneven.12

    Additionally, parents are often concerned that school officials, as

    gatekeepers of the districts funds, make decisions based on financial constraints

    rather than their childrens unique educational needs.13 Too frequently these

    concerns are warranted. One study found that 14% of school psychologists

    reported being pressured to violate federal or state law, including determining a

    student ineligible for special education although he met eligibility requirements

    and omitting recommendations for support services due to cost.14 The IEE

    provides an independent expert whose sole focus is determining the unique needs

    of a particular child; that experts opinion can assist both the parents and school

    officials in making informed decisions.

    11 Id. 12 Ashlie DErrico Surrur, Placing the Ball in Congress Court: A Critical Analysis of the

    Supreme Courts Decision in Arlington Central School District Board of Education v. Murphy,

    27 J. Natl Admin. L. Judiciary 547, 600 (2007). 13 Lake, supra n.4 at 246. 14 National Association of School Psychologists, Preventing and Resisting Administrative

    Pressure to Practice Unethically, Ethics Advisory Bulletin, at 2, available at

    www.napasonline.org/standards/ethics/Administrative_Pressure.pdf.

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    The district courts reliance on state regulations as a reason for denying an

    IEE is misplaced, as those regulations may violate IDEA. Because parents have

    the right to challenge state regulations as violating IDEA, they must also have a

    right to an IEE by an expert who can assist them in that endeavor. See, e.g.,

    Michael P. v. Dept of Educ., 656 F.3d 1057, 1068 (9th Cir. 2011) (holding

    Hawaiis regulation relying exclusively on the severe discrepancy model for

    eligibility for Severe Learning Disabilities violated IDEA).

    Here, educated parents represented by counsel have been stymied for years

    in their efforts to obtain reimbursement for an IEE after the school district agreed

    they were entitled to an IEE. The district courts decision, which failed to give the

    required scrutiny required to Plaintiffs claims that the Defendant deprived them of

    their rights to an IEE, should be reversed.

    II. Hearing Officers and Courts Must Review a School Districts Unilateral

    Decision to Deny Parents a Publicly-Funded IEE, and Have a Duty to

    Carefully Examine the Parents Claims that the Denial Deprives Them

    of an IEE

    The relevant federal regulation explicitly requires courts or hearing officers

    to make an independent analysis of a school districts justifications for denying a

    parent an IEE or reimbursement for an IEE. DOE provided for a district-initiated

    due process hearing as the procedural protection for an IEE if the district wishes to

    contest the IEE before it occurs. If a district agrees to an IEE and then wishes to

    contest payment for it, the relevant regulation requires the district to [e]nsure that

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  • 13

    an independent educational evaluation is provided at public expense, unless the

    agency demonstrates in a hearing . . . that the evaluation obtained by the parent did

    not meet agency criteria. 34 C.F.R. 300.502(b)(2)(ii) (emphasis added).

    The regulation further explains that the criteria under which the evaluation

    is obtained, including the location of the evaluation and the qualifications of the

    examiner, must be the same as the criteria that the public agency uses when it

    initiates an evaluation, to the extent those criteria are consistent with the parents

    right to an independent educational evaluation. 34 C.F.R. 300.502(e)

    (emphasis added). Thus, to prevail in a hearing, the school district must

    demonstrate both that the IEE did not meet agency criteria and that those criteria

    are consistent with the parents right to an IEE.

    Here, neither the hearing officer nor the district court judge ever determined

    whether any of the criteria applied by the school district were consistent with the

    parents right to an IEE as the regulations require, relying instead on the school

    districts self-serving assertion that its criteria were not met. Their failure to

    independently analyze the districts criteria is contrary to the plain language of the

    regulations: If all the school district had to do to decline payment for an IEE was

    assert noncompliance with its criteria, there would be no need for the hearing

    mandated by 34 C.F.R. 300.502(b)(2)(ii). The regulation explicitly provides

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  • 14

    jurisdiction to hearing officers regarding any claim that a school district has

    deprived a parent of an IEE, including claims about agency criteria.

    DOEs regulations regarding IEEs are entitled to Chevron deference as they

    are a proper exercise of DOEs regulatory authority, and they are not arbitrary,

    capricious, or manifestly contrary to the statute. See Morgan Stanley Capital

    Grp., Inc. v. Public Util. Dist. No. 1, 554 U.S. 527, 558 (2008); Chevron USA, Inc.

    v. Natural Resources Defense Council, 467 U.S. 837, 84344 (1984); E.M. ex rel

    E.M. v. Pajaro Valley Unified Sch. Dist. Office of Admin. Hearings, 758 F.3d

    1162, 117475 (9th Cir. 2014).

    Further, the requirement of a district-initiated hearing and careful oversight

    by hearing officers and courts is essential because school districts may err in

    applying their criteria. See, e.g., Lakeville Indep. Sch. Dist. #194, 53 IDELR 206

    (Minn. SEA 2009) (holding that a school district had erred in determining that tests

    over ten years old were invalid).15

    While the district court expressed concern that it lacked the specialized

    knowledge and experience, that school officials have, ROA.1234, such expertise

    is not necessary to decide IEE issues. Courts routinely adjudicate cases in which

    school districts claim their evaluations are appropriate and IEEs are not required.

    15 In that case, the school district had paid for the assessment but had refused to consider it at the

    IEP meeting.

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  • 15

    See, e.g., Holmes v. Millcreek Twp. Sch. Dist. 591, 205 F.3d 583, 591 (3d Cir.

    2000) (school district psychologists evaluation of a deaf student held appropriate).

    The type of deference the district court applied incentivizes protracted

    litigation and stymies parents efforts to obtain appropriate educational services for

    their children. As this Court has noted, The IDEA envisions that the parties to a

    dispute should resolve their disputes cooperatively. El Paso Indep. Sch. Dist. v.

    R., 591 F.3d 417, 425 (5th Cir. 2009). The requirement that the district timely

    initiate a hearing gives school districts an incentive to resolve any dispute

    regarding an IEE cooperatively. Otherwise, a school district could stonewall

    parents indefinitely without any penalty and deter parents from taking action to

    protect their rights. Time is of the essence in obtaining evaluations, as they are the

    foundation for FAPE.

    Courts should not encourage school districts to scour IEEs for possible

    defects and launch years of litigation before paying for an IEE when a parent is

    entitled to an IEE. The school district is free to contest the IEE on its merits, both

    at IEP meetings and due process and other legal proceedings. Significantly, the

    districts stakes are low in paying for the IEE; payment is not a School District

    Stamp of Approval. When provided at an IEP meeting, all the school district

    needs to do is consider the IEE; it need not adopt any of its recommendations or

    discuss its substance. See T.S. v. Bd. of Educ. of Town of Ridgefield, 10 F.3d 87,

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  • 16

    8990 (2d Cir. 1993); G.D. v. Westmoreland Sch. Dist., 930 F.2d 942, 947 (1st Cir.

    1991); Evans v. Dist. No. 17, 841 F.2d 824, 830 (8th Cir. 1988).

    Courts merely require that school evaluations be appropriate, not perfect,

    when parents challenge the school evaluation and seek public funding for an IEE.

    It would be contrary to the IDEA and grossly unfair to parents to impose a higher

    standard when assessing a parents IEE, as the goal of the IEE is to level the

    playing field between school districts and parents, not magnify the gap.16 See also

    Florence Co. Sch. Dist. IV v. Carter, 510 U.S. 7, 14 (1993) (allowing tuition

    reimbursement for a school that did not meet state standards, describing it ironic

    for a school district to insist on applying state standards when it failed to meet the

    students needs in the first place).

    III. Allowing School Districts to Apply Inappropriate and Irrelevant

    Criteria to IEEs While Shifting the Burden of Proof to Parents Would

    Deprive Parents of Their Right to an IEE

    The ruling below encourages school districts to become adversarial when

    presented with an IEE and applies inappropriate and irrelevant criteria to parents

    IEEs, impeding parents access to publicly-funded IEEs. For the IEE to be a

    meaningful procedural protection, school districts must bear the burden of proof on

    IEE issues and must be limited to criteria relevant and material to conducting

    particular assessments.

    16 In fact, a lower standard would be appropriate due to the disparities in resources between the

    parties.

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  • 17

    A. School Districts Bear the Burden of Establishing that Their

    Criteria are Appropriate and Not Inconsistent with the Parents

    Right to an IEE

    The DOE regulations, by requiring a district-initiated hearing in IEE matters,

    place the burden of proof on the school district. See Schaffer, 546 U.S. at 62. See

    also 34 C.F.R. 300.502. The district court erred in shifting the burden to the

    plaintiffs.

    DOE regulations logically place the burden on school districts. As the

    Supreme Court noted [t]he ordinary rule, based on considerations of fairness

    does not place the burden upon a litigant of establishing facts peculiarly within the

    knowledge of his adversary. Schaffer, 546 U.S. at 60. This consideration is

    particularly true in the IEE context, where the school districts perform evaluations,

    sometimes hire outside evaluators and expert witnesses, and design the criteria for

    the evaluations. Districts also set cost restrictions without being bound by them, as

    they typically use salaried professionals to do the evaluations, as was done here.17

    School districts also have substantial advantages when they hire private

    evaluators. They have the funds to hire the experts of their choice, and providers

    are willing to enter into contracts even if they have to wait for payment until the

    17 The defendant here provided inadequate notice of the requirements for IEEs, as providing

    parents, many lacking even a high school diploma, a link to an extensive document is inadequate.

    Further, omitting checklists available to district evaluators is contrary to the collaborative

    process envisioned by the statute.

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  • 18

    evaluation is completed. They have the economies of scale, as they may contract

    for multiple evaluations. Many districts have insurance policies that fund both

    experts and attorneys.18 They have attorneys trained in defending school districts

    to advise them on establishing criteria.19

    In contrast, parents often struggle to find evaluators willing to conduct IEEs.

    First, most parents are without the resources to fund an IEE themselves. Second,

    usually evaluators are unwilling to provide evaluations without the certainty of

    prompt payment. Third, many evaluators consult with school districts and are

    unwilling to testify for parents at due process proceedings because of realistic fears

    that they may be blackballed from subsequent consulting work. Finally, most

    parents lack access to attorneys, as the Supreme Court acknowledged in holding

    parents could proceed pro se on IDEA claims. See Winkelman, 550 U.S. at 535.

    The Supreme Court noted that school districts have a natural advantage in

    information and expertise, but pointed to the IEE as giving the parent an expert to

    counter the school districts expertise. Schaffer, 546 U.S. at 60. The importance of

    the IEE has grown since then, as the Supreme Court later ruled that expert witness

    fees are not available under IDEA. See Arlington Cent. Sch. Dist. Bd. of Educ. v.

    Murphy, 548 U.S. 291, 304 (2006). Thus, to even attempt to level the playing

    18 The author noted that in Michigan, a school districts insurance policy covers up to $100,000

    for due process proceedings. Chopp, supra n.3, at 456. 19 See, e.g., City of Cincinnati, 114 LRP 50642 (Ohio SEA 2014) (noting school used

    recommendation and advice from a law firm active in education law in developing its criteria).

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    field, it is essential that the school district bear the burden of proof, as the

    regulations provide.

    B. Hearing Officers and Courts Must Ensure that School Districts

    Only Use Criteria Relevant and Material to the Evaluation in

    Reviewing IEEs and that Those Criteria Do Not Deprive the

    Parents of an IEE

    Without close scrutiny of the agency criteria used by school districts, school

    districts may be tempted to impose criteria designed to thwart the parents right to

    an IEE that would be useful in challenging school districts. For example, four

    Wisconsin school districts barred evaluators with histories of advocating for

    parents and serving as expert witnesses for parents from doing IEEs. DOE

    determined that these criteria were inconsistent with the parents right to an IEE.

    DOE said these are not qualifications necessary to perform an evaluation. These

    qualification are unrelated to an examiners ability to conduct an educational

    evaluation and undermine the parents ability to obtain an independent evaluation.

    Letter to Petska, 35 IDELR 191 (OSEP 2001).

    Here, the district court simply accepted at face value defendants claims that

    the IEE did not meet its criteria without examining whether such criteria were

    related to the IEE and whether they undermined the parents ability to obtain an

    IEE.

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    1. Only agency criteria relevant to conducting the IEE

    requested by the parent may be imposed.

    Although the agency criteria must be the same as the criteria that the

    agency uses when it initiates an evaluation, not all criteria are relevant to the

    substance of the IEE.20 34 C.F.R. 300.502(e)(1). The plain reading of the

    regulation, which only mentions the location and the examiners qualifications as

    specific criteria, is that school districts may impose only criteria that directly relate

    to conducting diagnostic examinations. See id. The language initiates an

    evaluation references the requirements of 20 U.S.C. 1414(a), (b), and (c), which

    govern evaluations. Thus, IEE evaluators must also, among other things, obtain

    parental consent and use a variety of assessment tools. Courts use these criteria in

    determining whether a school districts IEE is appropriate. See, e.g., Holmes, 205

    F.3d at 591.

    Here, the district court improperly applied irrelevant criteria beyond those

    required by federal statute or regulation, thereby allowing the school district to

    thwart the parents efforts to obtain an IEE. The district should have only

    considered those criteria relevant to the specific evaluations performed.

    20 The regulation uses the same term, same agency criteria, to apply to parent-initiated

    evaluations at parent expense. Thus, the IEP team can refuse to consider a parent-initiated

    evaluation that did not use a variety of assessment tools and strategies or was racially biased.

    See 34 C.F.R. 300.502(c)(1).

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    Because of the direct relationship between criteria and cost, imposing

    unnecessary criteria on IEEs drives up the cost and reduces the time and money

    available for the assessments the evaluators believe are necessary. Here, the

    parents spent a large sum of money on the IEE precisely because they were trying

    to meet the school districts unnecessary requirements of recreating a multi-

    disciplinary team. As the IEE is typically considered by the school districts own

    multidisciplinary team, the requirement of a general education teacher and a full-

    blown multi-disciplinary team is unnecessarily duplicative. See, e.g., Lakeville, 53

    IDELR 206.

    The district cannot require the parent to repeat an evaluation with which the

    parent agrees to receive public funding for a different evaluation, as the district

    required here.21 The regulation specifies that the parent has the right to an

    evaluation at public expense if the parent disagrees with the evaluation obtained

    by the public agency, 34 C.F.R. 300.502(b).22 Repeating evaluations

    unnecessarily would not only waste money but subject children to unnecessary

    tests. Further, 2004 IDEA makes clear there is no need for unnecessary

    evaluations as it eliminated mandatory triennial reevaluations if the parent and the

    21 Typically, when school districts receive advance notice that parents disagree with a

    multidisciplinary evaluation, the first question they ask is which evaluations the parents want.

    That is in keeping with the collaborative core of IDEA. 22 School districts often argue that parents are not entitled to IEEs at public expense because

    they do not disagree with the school districts evaluation. See, e.g., Lauren W. ex rel Jean W. v.

    DeFalminis, 480 F.3d 259, 275 (3d Cir. 2007).

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  • 22

    local agency agree that the reevaluation is unnecessary. 20 U.S.C.

    1414(a)(2)(B)(ii). This was consistent with the IDEAs goal of reducing irrelevant

    and unnecessary burdens that do not lead to improved educational outcomes. 20

    U.S.C. 1400(9).

    Because parental disagreement is a prerequisite, the cases involving IEEs

    typically involve one or more specific evaluations by particular professionals. See,

    e.g., West Baton Rouge Parish School Bd. v. Deshotel, No. 11-0053-SDD-SCR,

    2014 WL 1327851, at *2 (M.D. La. Mar. 31, 2014) (court ordered functional

    behavioral and psychological assessment). The federal regulation uses the singular

    term, examiner, in defining an IEE as an evaluation conducted by a qualified

    examiner who is not employed by the public agency for the education of the child

    in question. 34 C.F.R. 300.502(a)(3)(i). There is no need to recreate a multi-

    disciplinary team evaluation, as the district insisted here.

    DOE has recognized that an IEE may consist of several different

    assessments by different evaluators, and that a school district may be required to

    pay the evaluators individually rather than make one payment to a

    multidisciplinary team. Thus, when asked whether a school district may pay the

    full amount of its cost restriction to one evaluator, and deny payment to a second

    evaluator, DOE advised that a school district may not cherry pick from among the

    evaluators, and if it believed that the IEE obtained by the parent did not meet its

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  • 23

    criteria, it must either initiate a due process hearing or pay for an IEE. Letter to

    Anonymous, 22 IDELR 637 (OSEP 1995).

    Finally, a school district cannot shirk payment because of immaterial

    problems, just as similar problems would not impair the appropriateness of a

    districts evaluation. The district court opinion did not analyze any of the allegedly

    missing initial evaluation components, yet found their absence justified the

    school districts refusal to pay.23 ROA.1219. It is unlikely that a court would find

    a districts evaluation inappropriate because of stylistic quibbles such as

    Defendants complaint that the IEE lacked a summary and a prioritized order of

    educational needs.24 See ROA.451.

    Had the court given careful scrutiny to the criteria, it would have found them

    irrelevant and immaterial to the evaluations.

    2. The school districts criteria may not be deprive the parent

    of an IEE and may not constrain the evaluators

    professional judgment.

    School districts may not set criteria that impose financial or time constraints

    that operate to deprive a parent of an IEE conducted by an evaluator using his

    professional judgment. As the IEE must be at no cost to parents, criteria that

    23 A review of the IEE itself shows that most, if not all of the information allegedly missing is

    included in the document. Compare ROA.450453 with ROA.660669. 24 Defendants objections were also vague and unfounded. For example, it claimed that the

    evaluation lacked systematic student observations in environments in which the student is

    experiencing learning disabilities, even though the evaluation devotes extensive discussion to

    classroom observations performed by the evaluators. Compare ROA.451 with ROA.1623,

    ROA.1633. ROA.1639, and ROA.1644.

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  • 24

    require parents to expend unnecessary money and reduce the examiners time

    interfere with the parents right to an IEE. More importantly, for students and their

    families, unnecessary evaluations cost them time and effort, and can exact a

    psychic toll.

    The school district may not preclude IEE evaluators from reaching

    conclusions that differ with school districts eligibility criteria, as parents are free

    to challenge those criteria in a due process proceeding. For example, if a school

    district limited eligibility for occupational therapy to fine motor skill concerns, a

    parent could still obtain an IEE to assess a student with autism for sensory

    integration issues and then challenge the denial of occupational therapy as

    violating IDEA.

    Similarly, the school district cannot refuse to pay for an evaluation because

    it does not like the result, such as the inclusion of a secondary diagnosis. The

    district court indicated that the school district could evade paying for an IEE if it

    includes a secondary diagnosis not mentioned in the request for an IEE.

    ROA.1219. But a parent is not required to explain the reasons for the IEE. 34

    C.F.R. 300.502(b)(4). Once the school district agrees to fund an IEE, the

    psychologist is responsible for using her professional judgment in writing her

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  • 25

    report based on her observations and findings.25 After conducting an IEE for a

    student with autism, a psychologist may well conclude that the student has a

    secondary diagnosis of learning disability.26 The schools IEP team can then

    review the report along with other data to see if the student meets eligibility criteria

    for Specific Learning Disabilities.

    Additionally, DOE has recognized that necessity may require parents to

    deviate from agency criteria for an IEE because they need to find evaluators in the

    private marketplace, not among school employees. Thus, a district could not

    require an evaluator to have a license if only individuals employed by a school

    district were eligible for that license. See DOE Guidance to Final IDEA 2004

    Regulations, 71 Fed. Reg. 46540, 46689 (Aug. 14, 2006).

    Had the district court given careful scrutiny to the districts criteria, it would

    have many of them inconsistent with the parents right to an IEE because they

    imposed inappropriate constraints on the parents evaluators.

    25 National Association of School Psychologists, Principles for Professional Ethics, Principle II.3

    & Principle III.4, available at http://www.nasponline.org/standards /2010standards/1_%20Ethical

    %20Principles.pdf, at 7-8, 10-11. 26 Many students with autism also have learning disabilities. Gregory OBrien & Joanne

    Pearson, Autism and Learning Disability, 8 Autism 125 (2004).

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  • 26

    IV. Because the Regulation Requires that the IEE be at No Cost to the

    Parents, Parents Have the Right to an Order Directing the School

    District to Pay for an IEE Before the Evaluator is Retained, and

    Therefore, a Determination Regarding the IEEs Cost

    The district court below declined to decide the issues of advance payment

    and costs because it had decided that the IEE in question was not yet complete. A

    decision that allows a school district to defer a decision on cost restrictions until

    after an IEE was completed would eliminate an IEE as a procedural protection for

    many students with disabilities because, as noted above, the vast majority do not

    have the resources to pay the evaluators in advance. The term at no cost to

    parents does not intend that only some parents would be able to enforce that

    mandate. Winkelman, 550 U.S. at 533.

    For a publicly funded IEE to be a meaningful right, parents need an

    agreement on cost before the evaluation begins, as the cost affects the willingness

    of evaluators to do the IEE. In Schaffer, the Supreme Court emphasized that the

    regulations clarify the entitlement to an IEE by providing that 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. 546 U.S. at 60,

    quoting 34 C.F.R. 300.502(b)(1) (emphasis added). Public expense means the

    parent cannot be required to pay anything.

    Both Courts and hearing officers have found that they have jurisdiction to

    both order districts to fund IEEs and to decide disputes regarding cost criteria in

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  • 27

    advance of a hearing so parties have clarity regarding an IEEs reasonable cost.27

    See, e.g., M.V. v. Shenedehowa Central School District, No. 1:11-CV-00701, 2013

    WL 936438, at *7 (N.D.N.Y. Mar. 8, 2013) (holding school districts cost and

    geographic limits were reasonable). See also Cincinnati City Sch., 114 LRP 50642

    (although school districts limits of $1000 in costs and 25 miles were reasonable,

    the students unique circumstances justified a departure; the hearing officer

    authorized caps for four specific assessments for a total of $5,480, identified the

    evaluators, and ordered the school district to pay); Dunmore Sch. Dist., 53 IDELR

    107 (Pa. SEA 2009) (ordering that the school district shall fund an IEE by a

    school psychologist for $4,200, including expenses, over the school districts

    objection that the cost was not reasonable).

    The regulation clearly envisions that school districts would either advance

    payment or contract with the providers, to ensure that the IEE is done at no cost to

    the parent, as it requires the school district to ensure [] that evaluation is otherwise

    provided at no cost to the parent. 34 C.F.R. 300.502(a)(3)(ii). DOE has

    recognized that parents may be entitled to advanced funding of an IEE. Letter

    Wessels, 16 IDELR 735 (OSEP Mar. 9, 1990).

    27 Perhaps if Defendant had been ordered to reimburse parents for their costs to date and to pay

    the balance needed for any revisions, it might have decided on its own that further revisions were

    completely unnecessary.

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    Because the regulation requires school districts to ensure that the evaluation

    is provided at no cost to parents, school districts cannot ask parents to search for

    evaluators willing to await payment until the school district approves the IEE

    without a contractual commitment from the school district. It is not reasonable to

    expect an evaluator to provide an IEE for free to parents on speculation that

    someday a school district might pay for it.

    Here, the hearing officer erred in finding he was without jurisdiction to hear

    Plaintiffs claims regarding payment in the absence of a final report satisfactory to

    the Defendant, and the district judge erred in determining that there was no need to

    address these issues. Because of the close relationship between the districts

    criteria and the costs they imposed on the evaluation, the parents were entitled to a

    determination of both the criteria that applied to the IEE and the reasonable cost of

    an evaluation that would comply with the relevant criteria. Here, without a prompt

    resolution of their claims, the parents are put in the position of having to throw

    more good money after the $8,000 they have already spent in the hope that they

    will somehow be able to generate an IEE acceptable to the defendant and that a

    hearing officer might find that their expenses were fully reimbursable.

    For parents to have a meaningful right to an IEE, hearing officers and courts

    must hear claims regarding financial matters before an IEE is obtained and, unless

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  • 29

    the school district succeeds on the merits of its claims, order the school district to

    fund the IEE so that the IEE can be obtained without any cost to the parents at all.

    CONCLUSION

    For a publicly-funded IEE to be meaningful for parents and provide any help

    in leveling the uneven playing field between school staff and parents, school

    districts cannot be given the authority to deny that right without following the

    regulatory requirement of a district-initiated due process hearing, and the hearing

    officer and any reviewing court need to carefully scrutinize the school districts

    assertions and the parents claims that their right to an IEE is being denied.

    Otherwise, the school districts will have license to run roughshod over the rights of

    parents and their children.

    For the reasons set forth above and in Plaintiffs-Appellants brief, amici urge

    this court to reverse the decision of the United States District Court for the Eastern

    District of Louisiana.

    Respectfully submitted,

    /s/ Constance Wannamaker

    CONSTANCE WANNAMAKER

    Texas Bar No. 24029329

    DISABILITY RIGHTS TEXAS

    300 E. Main, Suite 205

    El Paso, Texas 79901

    (915) 542-0585 (Phone)

    (915) 542-2676 (Fax)

    cwannamaker@disabilityrightstx.org

    Case: 15-30164 Document: 00513029931 Page: 40 Date Filed: 05/04/2015

  • 30

    ELLEN SAIDEMAN

    Rhode Island Bar No. 6532

    LAW OFFICE OF ELLEN SAIDEMAN

    7 Henry Drive

    Barrington, Rhode Island 02806

    (401) 258-7276 (Phone)

    (401) 709-0213 (Fax)

    esaideman@yahoo.com

    Attorneys for Amici Curiae

    Case: 15-30164 Document: 00513029931 Page: 41 Date Filed: 05/04/2015

  • 31

    CERTIFICATE OF SERVICE

    I certify that on this 4th day of May, 2015, a true and correct copy of the

    foregoing document was filed electronically. Notice of this filing will be sent by

    operation of the ECF system to all counsel of record:

    Sarah Hall Voigt, svoigt@advocacyla.org

    Debra J. Weinberg, dweinberg@advocacyla.org

    Advocacy Center

    8325 Oak Street

    New Orleans, LA 70118

    Telephone: (504) 522-2337

    Ronald K. Lospennato, ron@lospennatolaw.com

    Law Office of Ronald K. Lospennato

    8325 Oak Street

    New Orleans, LA 70118

    Telephone: (504) 208-4679

    Counsel for Plaintiffs-Appellants

    Wayne Thomas Stewart, wstewart@hamsil.com

    Hammonds, Sills, Adkins & Guice, L.L.P.

    2431 South Acadian Thruway

    Baton Rouge, LA 70808

    Telephone: (225) 923-3462

    Counsel for Defendant-Appellee

    Jonathan A. Zimring, zimring@zlawyers.com

    ZIMRING LAW FIRM

    1425A Dutch Valley Place

    Atlanta, Georgia 30324

    Telephone: (404) 607-1600

    Case: 15-30164 Document: 00513029931 Page: 42 Date Filed: 05/04/2015

  • 32

    Selene A. Almazan-Altobelli, selene@copaa.org

    COPAA, INC.

    P.O. Box 6767

    Towson, Maryland 21285

    Telephone: (844) 426-7224

    Counsel for Amicus Curiae (COPAA)

    /s/ Constance Wannamaker

    CONSTANCE WANNAMAKER

    Case: 15-30164 Document: 00513029931 Page: 43 Date Filed: 05/04/2015

  • 33

    CERTIFICATE OF ELECTRONIC COMPLIANCE

    Counsel also certifies that on May 4, 2015 this brief was transmitted to Mr.

    Lyle W. Cayce, Clerk of the United States Court of Appeals for the Fifth Circuit,

    via the Courts CM/ECF Document Filing System, https://ecf.ca5.uscourts.gov/.

    Counsel further certifies that: (1) required privacy redactions have been

    made, 5TH CIR. R. 25.2.13; (2) the electronic submission is an exact copy of the

    paper document, 5TH CIR. R. 25.2.1; and (3) the document has been scanned with

    the most recent version of Symantec Endpoint Protection and is free of viruses.

    /s/ Constance Wannamaker

    CONSTANCE WANNAMAKER

    Case: 15-30164 Document: 00513029931 Page: 44 Date Filed: 05/04/2015

  • 34

    CERTIFICATE OF COMPLIANCE

    1. This brief complies with the type-volume limitation of FED. R. APP. P.

    32(a)(7)(B) and FED. R. APP. P. 29(d), because this brief contains 6,950 words,

    excluding the parts of the brief exempted by FED. R. APP. P. 32(a)(7)(B)(iii).

    2. This brief complies with the typeface requirements of FED. R. APP. P.

    32(a)(5) and the type-style requirements of FED. R. APP. P. 32(a)(6), because this

    brief has been prepared in a proportionally spaced typeface using Microsoft Word

    software, in Times New Roman 14-point font in text, and Times New Roman 12-

    point font in footnotes.

    /s/ Constance Wannamaker

    CONSTANCE WANNAMAKER

    Case: 15-30164 Document: 00513029931 Page: 45 Date Filed: 05/04/2015

    BRIEF FOR THE AMICI CURIAECERTIFICATE OF INTERESTED PERSONSRULE 29(c)(5) STATEMENTRULE 29(a) STATEMENT OF CONSENTTABLE OF CONTENTSTABLE OF AUTHORITIESSTATEMENT OF IDENTITY, INTEREST, AND SOURCES OF AUTHORITY TO FILESUMMARY OF ARGUMENTARGUMENTI. The Publicly-Funded IEE is an Essential Procedural Safeguard for Implementing the IDEA, by Enabling Parents to Obtain Relevant Expert Information Needed for Meaningful Participation in Their Childrens EducationII. Hearing Officers and Courts Must Review a School Districts Unilateral Decision to Deny Parents a Publicly-Funded IEE, and Have a Duty to Carefully Examine the Parents Claims that the Denial Deprives Them of an IEEIII. Allowing School Districts to Apply Inappropriate and Irrelevant Criteria to IEEs While Shifting the Burden of Proof to Parents Would Deprive Parents of Their Right to an IEEA. School Districts Bear the Burden of Establishing that Their Criteria are Appropriate and Not Inconsistent with the Parents Right to an IEEB. Hearing Officers and Courts Must Ensure that School Districts Only Use Criteria Relevant and Material to the Evaluation in Reviewing IEEs and that Those Criteria Do Not Deprive the Parents of an IEE1. Only agency criteria relevant to conducting the IEE requested by the parent may be imposed.2. The school districts criteria may not be deprive the parent of an IEE and may not constrain the evaluators professional judgment.

    IV. Because the Regulation Requires that the IEE be at No Cost to the Parents, Parents Have the Right to an Order Directing the School District to Pay for an IEE Before the Evaluator is Retained, and Therefore, a Determination Regarding the IEEs Cost

    CONCLUSIONCERTIFICATE OF SERVICECERTIFICATE OF ELECTRONIC COMPLIANCECERTIFICATE OF COMPLIANCE

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