C.P. v. Clifton Board of Education, Civ. No. 19-8469, 2020 WL 4530031, 77 IDELR 46 (D.N.J. Aug. 6, 2020), concerned what the court described as two independent educational evaluations of a child classified as “other health impaired.” The total charge was $5200, which the school district considered unreasonable and refused to pay. The ALJ ruled that the district did not have to pay at all, and in the alternative, that the amount claimed was excessive. The district court remanded to the ALJ for consideration whether the parent was entitled to reimbursement of any of the amount, but affirmed the ALJ’s ruling that the $5200 charge was “far in excess of what was ‘reasonable.’ Id. at *5.

The parent’s request for the publicly funded IEE stemmed from a comprehensive evaluation in November 2016. The parent on January 18, 2017, wrote the district that she disagreed with the psychological evaluation and requested an IEE at public expense. She also asked for an independent auditory processing evaluation of the student. There was no written response, but the parent reported an oral agreement to the independent testing.

On April 17, 2017, the parent filed for due process to require the district to pay for the two independent evaluations; the parent obtained them from independent practitioners on June 15 and September 10, 2017. The parent did not provide copies to the district or seek to have them considered by the district. Settlement discussions and motion practice ensued and a tentative reimbursement deal was reached, but the parent rescinded the agreement before the date for the school board’s meeting to approve the settlement. The ALJ set a hearing for September 7, 2017. The district did not provide its discovery materials five business days before the hearing date, and the parent moved to exclude the district’s evidence, but the ALJ rescheduled the hearing to October. At the October hearing, the ALJ identified the issues as whether the manner by which the IEEs were obtained was consistent with district criteria, and whether the amount was reasonable. The only testimony at hearing was from a district witness; the parent submitted two unauthenticated invoices in connection with the IEEs. One was heavily redacted and omitted any diagnosis; the other, from a date months after the evaluation, was just a single line. The ALJ concluded that there was no evidence that the IEEs conformed to the district’s regulatory requirements for reimbursement. Further, the ALJ said the only evidence as to reasonableness of cost was that similar evaluations run about $900 each, so the $5200 amount was not reasonable.

Citing 34 C.F.R. § 300.502(e), the court stated that under the federal regulations, the criteria for the parent’s IEE must be the same as those used by the district for its own evaluation. It said that a Board of Education policy required communication between an independent evaluator and the district and that the results of a publicly funded IEE must not be held in confidence but had to be shared with the district before payment. Moreover, board policy limited fees to reasonable amounts, though documentation could be submitted to demonstrate that maximum allowable costs should be exceeded.

The court ruled that the district’s failure to seek a due process hearing forfeited its right to contest that its own evaluation was appropriate. The court said, however, that eligibility for payment was not entitlement, and that the IEE would have to meet agency criteria, at least substantial compliance with agency criteria. Citing § 300.502(b)(2)(ii) and a Fifth Circuit case, Seth B. v. Orleans Parish School Board, 810 F.3d 961 (5th Cir. 2016), the court said that if the agency demonstrates at hearing that the evaluation did not meet agency criteria, the district would not have to pay. The court said that it was unclear what a district had to do to ensure that the IEE was provided and asserted that the district did not prevent the parent from obtaining the IEEs. But it stressed that the district’s failure to demand the due process hearing did not forfeit its right to challenge whether the IEEs met agency criteria.

The court said that agency criteria included that the independent evaluator release the results of the evaluation before payment for services, as well as make other contacts with the district. It said that did not happen. It also noted that the district did not prove that the IEEs failed to apply the same criteria as those governing district evaluations but said the parent prevented the district from doing so by refusing to reveal the contents to the district. The court declared, “The regulations do not seem to contemplate reimbursement for a back-pocket IEE.” 2020 WL 4530031, at *10. Nevertheless, since both sides went to hearing on the assumption that the district had to pay something, even though disputing how much, the district’s concession at hearing as to liability may have lulled the parent’s counsel into failing to put forward evidence on compliance. The court said that public money was at stake, so the ALJ could have explicitly rejected the concession. Therefore, the court remanded the case to the ALJ even though opining that the parent’s position was weak in light of the failure to share the IEEs.

The court affirmed the ALJ’s decision that $5200 was excessive, noting the evidence that independent psychological evaluations submitted to the district over two years were about $900, with none exceeding $1350, so the maximum reimbursement should be $1800. The court also rejected the parent’s argument that the five-day rule should have barred the district’s testimony, since the hearing was postponed to the next month, the information was disclosed more than five business days before the actual hearing, and the parent suffered no prejudice.

There might be some reasons to question the court’s analysis of the federal regulations concerning the entitlement to reimbursement. The agency criterion that the court suggested was not met was one requiring sharing the results of the evaluation with the district, a criterion that by its terms applied only to independent evaluations. Section 502(e) provides that the criteria under which the IEE “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 these criteria are consistent with the parent’s right to an independent educational evaluation [and] [e]xcept for [those] criteria . . . , a public agency may not impose conditions or timelines related to obtaining an evaluation at public expense.” Of course, agency evaluations are routinely furnished to the IEP team, but the specific rule the court applied related only to independent evaluations.

The decision of the court appears contrary to the view that the failure of a school district to promptly file a due process hearing in response to the parent’s request for a publicly funded IEE amounts to a waiver of the ability to contest payment for the IEE. See Pajaro Valley Unified Sch. Dist. v. J.S., No. C 06-0380, 2006 WL 3734289, at *3, 47 IDELR 12 (N.D. Cal. 2006) (entering judgment in favor of parent for publicly funded IEE when district lacked justification for waiting 11 weeks before filing due process request challenging demand for IEE, stating “Under the facts of the present case, the court finds that the District’s unexplained and unnecessary delay in filing for a due process hearing waived its right to contest Student’s request for an independent educational evaluation at public expense, and by itself warrants entry of judgment in favor of Student and A.O. in this action.”; further finding district evaluation inadequate). But see L.C. v. Alta Loma Sch. Dist., 389 F. Supp. 3d 845, 864, 74 IDELR 260 (C.D. Cal. July 18, 2019), appeal filed, No. 19-55968 (9th Cir. 2019), (stating “A finding that a public agency failed to ‘fund or file’ without unnecessary delay does not automatically necessitate a ruling in favor of the parents on their due process complaint,” but finding delay unnecessary and remanding for determination whether substantive rights were violated and if so, for entry of appropriate relief).

It might be noted that under the Second Circuit’s recent decision D.S. v. Trumbull Board of Education, No. 19-644, 2020 WL 5552035, ___ F.3d ___, 120 LRP 28133 (2d Cir. Sept. 17, 2020), specific individual psychological and auditory evaluations, standing alone, would not count as evaluations that trigger the right to an independent evaluation at public expense. In that court’s view, only a comprehensive evaluation, such as an initial evaluation or triennial reevaluation, may serve as predicates for the right. But since what the Second Circuit would characterize as individual assessments were part of a comprehensive evaluation in the C.P. case, the demand for a publicly funded IEE could still be proper if the assessments were inadequate and thus rendered the comprehensive evaluation inappropriate. If so, the publicly funded IEE would not be limited to the two specific assessments.