POLICY LETTER: September 10, 2001 to Wisconsin Director of Special Education Dr. Stephanie J. Petska

Dated September 10, 2001Dr. Stephanie J. PetskaDirector of Special Education State of Wisconsin Department of Public InstructionP.O. Box 7841Madison, Wisconsin 53707-7841Dear Dr. Petska:Thank you for your letter asking the Office of Special Education Programs (OSEP) to clarify requirements relating to the qualifications that school districts may require of individuals who conduct an Independent Educational Evaluation (IEE). More specifically, you ask whether the written policies of four separate Wisconsin school districts regarding criteria for IEE examiner qualifications is consistent with the Individuals with Disabilities Education Act (IDEA) and its implementing regulations. Your inquiry was prompted by a complaint filed by the Wisconsin Coalition for Advocacy alleging that the policies violate IDEA because the criteria for IEE examiners are inconsistent with a parent's right to an IEE.Your letter asks five specific questions with respect to the qualifications for IEE examiners based on the written policies of the four school districts. In addition, copies of each school district's written IEE policies and procedures were enclosed as attachments to your letter. 34C.F.R.300.502(e) states that if an independent educational evaluation is at public expense, 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 parent's right to an independent educational evaluation [emphasis added]. Although your letter states the same criteria are used for IEE examiners that the public agency uses when it initiates an evaluation, none of the policies make it clear that the same criteria are used to select the public agency examiner. A statement to this effect in each policy is important for parents and others to understand that the same criteria are used for both public and independent examiners.The four qualifications for IEE examiners that prohibit particular professional associations and activities are inconsistent with the parent's right to an IEE. Criteria prohibiting an IEE examiner's association with private schools, organizations that advocate the interests of parents, organizations that advocate particular instructional approaches in the area of educating children with disabilities and a history of consistently acting as an expert witness against public schools are not qualifications necessary to perform an evaluation. These qualifications are unrelated to an examiner's ability to conduct an educational evaluation and undermine the parent's ability to obtain an independent evaluation. The qualification that IEE examiners have recent and extensive experience in the public schools is also inconsistent with the parent's right to an IEE. This qualification is unrelated to an examiner's ability to conduct an educational evaluation and may undermine the parent's ability to obtain an independent evaluation. In addition, this requirement is too narrow and may prohibit examiners with the expertise necessary for a full and individual evaluation under certain circumstances. A common instance where this policy may be too restrictive involves assistive technology evaluations performed by a specialist in, for example, wheelchair seating and positioning in which recent and extensive experience in the public schools is not reasonably necessary for such an evaluation.A public agency may establish a qualification that requires an IEE examiner to either hold or be eligible to hold a particular license when a public agency requires the same licensure for its own staff who conduct evaluations. The policies of the Lodi, Middle-Cross Plains, and D.C. Everest Area School Districts state that the prospective IEE examiner must be licensed, or eligible for licensure by the Wisconsin Department of Public Instruction in the appropriate field. A public agency must evaluate a student in all areas related to the suspected disability, including, if appropriate, health, vision, hearing, social and emotional status, general intelligence, academic performance, communicative status and motor abilities. 34 CFR 300.532(g). It may be impossible for a public agency to assess a student in all areas related to the suspected disability if the evaluator must be licensed by the State Department of Public Instruction. For example, there may be instances in which rehabilitation engineers or sensory deprivation therapists are the most appropriate individuals to conduct an evaluation with respect to a specific aspect of a disability, but thIn addition, two district policies (i.e., D.C. Everest Area and Lodi) establish criteria that restrict parents in terms of the geographic area where they may obtain an IEE. Both policies include that the parent may obtain an IEE that does not meet the district's criteria if unique circumstances warrant a publicly-funded IEE outside the district's criteria. Under 34CFR 300.502(b)(2), the school district must ensure that the IEE is provided at public expense unless it demonstrates in a due process hearing that the parent's IEE did not meet the district's criteria, including criteria related to location.Finally, the Verona Area School District must include in its policy that parents have the opportunity to demonstrate that unique circumstances justify selection of an IEE examiner who does not meet the agency's qualification criteria. 34 CFR 300.502(e)(2).We hope this information provides you with clarification concerning IEE policies. If you would like further assistance on this matter, please contact Dr. JoLeta Reynolds or Mr. Troy Justesen of the Office of Special Education Programs at (202) 205-5507 or (202) 205-9053, respectively.Sincerely,/signed Patricia J. Guard/Patricia J. GuardActing DirectorOffice of Special Education Programs D.C. Everest School District, Lodi School District, Middleton-Cross Plains Area School District, and the Verona Area School District. The School Districts' policies do allow for medical professionals licensed by the State of Wisconsin.PAGE 2Page PAGE 3 - Dr. Stephanie J. Petska