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Ask the Attorney with John Brower, J.D.

Question: We have requested an independent educational evaluation and the school district has agreed to the doctor we have chosen. The district says it will pay up to $1000-1200 of whatever our private insurance doesn't cover. I thought that the IEE was supposed to be at public expense. Do I have to use my insurance?


Answer: U.S. District Court, Northern District of Iowa, Central Division

RAYMOND S. and JANET S. as next friends of JOSEPH S., Plaintiffs
V. Al RAMIREZ, Director, State of Iowa Department of Education, The CLARION-

No. C-95-3027
March 4, 1996

The parents of a child with Down Syndrome obtained an independent educational evaluation and payment was contested at due process. The parents had obtained partial reimbursement from their insurance carrier and an administrative law judge determined that the public agency was only required to pay for the portion of the IEE not covered by the private insurance. The parents appealed.

HELD: for the parents.

Also, see the following from the old OSEP Letter to Wilson from 1989 that is only available from the OSEP site or via LRP:

In order to avoid unreasonable charges for IEE's, a district may establish maximum allowable charges for specific tests. If a district does establish maximum allowable charges for specific tests, the maximum cannot simply be an average of the fees customarily charged in the area by professionals who are qualified to conduct the specific test. Rather, the maximum must be established so that it allows parents to choose from among the qualified professionals in the area and only eliminates unreasonably excessive fees. When enforcing reasonable cost containment criteria, the district must allow parents the opportunity to demonstrate that unique circumstances justify an IEE that does not fall within the district's criteria.

If an IEE that falls outside the district's criteria is justified by the child's unique circumstances, that IEE must be publicly-funded.
Where an agency does not adopt cost criteria, parents are free to obtain the services of any qualified evaluator. If, in that circumstance, the public agency believes the fees charged were unreasonable, it has two options: (1) pay the fees charged to the parents, or (2) challenge the right of parents to be reimbursed for the particular fee in a due process hearing, where the agency would have to show that the fee was "unreasonably expensive."

Basically, it is my opinion that parents cannot be required to use their insurance coverage to pay any aspect of an IEE as it may decrease a life time limit for coverage, and therefore is not "free" to the parent. My position has been supported by case law, although I am not sure if it was in the 6th Circuit. On the other hand, many parents in a spirit of cooperation do agree to only have the school pay any expense not covered by insurance.

John Brower, JD
Education Law Center, PLLC

Education Law Center, PLLC 810-227-9850 

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