Responding to IEE requests for students who are learning remotely

When a parent asks for an independent educational evaluation for a child with a suspected disability, school teams should be proactive to avoid liability exposure.

A parent requests an independent educational evaluation for her child with a disability who is learning remotely. She claims that her child’s recent evaluation didn’t delve into his challenging behavior at home. But the student’s IEP team had not heard previously from the parent about that. Staff has seen no evidence of that behavior during remote learning. The district evaluated the student in all areas of suspected disability as required by the IDEA.

Although a district in this situation would likely maintain compliance because it evaluated the student based on all the information available, you may want to keep closer tabs on how students are behaving at home while they receive instruction virtually.

“The more proactive schools are, the more likely they are to avoid liability exposure,” says Sarah Dragotta, a school attorney at McKenna Snyder LLC in Exton, Pa. “They have to continue communicating. There’s nothing better than a good-faith effort for a school.”

Follow these tips to respond to requests for IEEs based on behavioral concerns:

  • Review what the team knows. Review what information the team had when the student was evaluated, Dragotta says. This includes observation data from teachers and related service providers, input from parents, and results of assessments. “A school has to focus on what it feels are the areas of concern based on what everyone brings to the table,” she says. “It is not obligated to assess for every single thing unless it is on the school’s radar.” If the team looked into everything that was brought to its attention by staff and parents, it fulfilled its obligation. “As long as there was no other observable adverse educational impact, they can say their evaluation was proper,” she adds.
  • Document response to parent request. If you have determined that you have done what you were supposed to do based on the information you had, document that and share that information with parents along with your decision to file for due process to defend your evaluation, Dragotta says. Or offer to conduct a reevaluation or fund an IEE that addresses the areas the parents are concerned about if you think you missed the mark.
  • Conduct an FBA. As part of the reevaluation, conduct a functional behavioral assessment to determine why the student’s behavior may be interfering with his remote learning. The student may not necessarily have an emotional disturbance in addition to his existing disability, but he may require some supplementary behavioral or mental health supports to receive FAPE.

Just be sure to document that the assessment is being conducted with the knowledge that the test integrity may be affected in part by having to do the testing remotely, Dragotta says. Even if you can bring the student into the school building for a face-to-face assessment, the results may not be wholly reliable because of social distancing constraints.

These concerns should also be considered if you are approving an IEE. Private evaluators also may not be able to guarantee that their testing is reliable under the circumstances. “Some are putting their foot down about the integrity issue and saying that certain tests should not be done virtually,” she says.

Whether or not you agree to an IEE, you should continue to communicate and collaborate with parents regarding their child’s behavior, Dragotta says. “A school has an obligation to circle back around and not be afraid to say, ‘Are you still seeing that behavior at home?’ The school can be more proactive and maybe put the student in tier-level support. It’s not a bad thing to offer interventions.”

If you’re not seeing any behaviors during remote learning, but the parents repeatedly share that they are struggling, you may also want to suggest some strategies parents can use at home, Dragotta says. “There’s nothing wrong with giving parents some pointers on what they can do at home. I’m always ready to say, pick up the phone and call.”

Cara Nissman covers autism, school psychology, and IEP team issues for Special Ed Connection, a DA sister publication. 

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