010-10 IEEs for Students who Transfer
If a student is evaluated and found ineligible for special education and related services, moves to another locality, and the child’s parent requests an independent educational evaluation (IEE), which school division is required to pay for the IEE: the former school division or the receiving school division?
Federal and state regulations governing special education are clear that the IDEA requirements shift from the former school division to the receiving school division when the child transfers. (34 CFR § 300.323; 8 VAC 20-81-120). This includes responding to a parent disagreeing with the former school division’s evaluation-eligibility process and requesting an IEE.
In this instance, the previous school division determined the child ineligible for special education and related services. The parent’s request for an IEE means that the evaluation-eligibility process is not fully concluded. When a parent requests an IEE, school personnel have two choices: grant the request, or initiate a due process hearing to show that its evaluation is appropriate. (8 VAC 20-81-170 B.2.b(2)). However, the child’s transfer triggers a critical, preliminary step to the LEA fulfilling its obligations regarding the IEE. The referenced regulations on student transfers direct the receiving school division to either adopt the previous LEA’s evaluation and eligibility determination or conduct its own evaluations. (8 VAC 20-81-120 A). Once the receiving school division has completed this preliminary step, and the parent disagrees with the receiving school division’s evaluation or adoption of those evaluations completed by the previous LEA, the parent would then be disagreeing with the receiving school division’s evaluation(s). The school division then would respond to the parent’s request for an IEE, in accordance with 8 VAC 20-81-170 B.2.b(2), noted above.
Would the same reasoning apply if the former LEA determined the child eligible for special education and related services, the child moves to another locality, and the parent requests an IEE?
Would the same reasoning apply if the parent requests the IEE prior to the transfer?
No. This is a matter of timing. If the parent requests the IEE of the former school division and the student transfers while the school division is processing the request, the former school division is responsible for completing the process. In this instance, the former LEA must either grant the IEE request or initiate a due process hearing to show that its evaluation(s) is appropriate. Following the disposition of the IEE and completion of the eligibility process by the former school division, the receiving LEA is responsible for either adopting the previous LEA’s evaluation and eligibility determination or conducting its own evaluations. [Note: If the disposition of the IEE involves a due process hearing, the receiving LEA will be guided by the hearing officer’s decision.]
- Even if the parent does not request an IEE upon the student’s transfer, the receiving LEA should review the former LEA’s evaluation(s) and decision that the student is ineligible for special education and related services, and determine whether or not to conduct its own evaluations or adopt those evaluations completed by the previous LEA. This places the receiving LEA in a clear position if the child’s eligibility ever becomes an issue.
- With an out-of-state transfer student, the school division should review carefully the evaluations and eligibility determination, since each state may have different eligibility criteria.