Eleventh Circuit Upholds Right to Independent Educational Evaluation at Public Expense

A couple of weeks ago, the United States Court of Appeals for the Eleventh Circuit issued an opinion in Phillip C. v. Jefferson County Board of Education.  In this case under the Individuals with Disabilities Education Act, the parents disagreed with the school district's assessment of their child's educational needs.  They obtained an independent educational evaluation (IEE).  Pursuant to the relevant Department of Education regulation, 34 C.F.R. 300.502, which provides that such an IEE will be performed at "public expense," the parents sought reimbursement for the evaluation from the school district.  The school district refused on the ground that the statute provides only that the parents shall be entitled to obtain an IEE, not that it shall be performed at public expense.  According to the state, the regulation thus went beyond the Department's authority under the statute.

The Eleventh Circuit rejected that argument:

As the Board notes, 20 U.S.C. § 1415(b) does not expressly state that agencies must pay for a parent’s IEE. See 20 U.S.C. § 1415(b) (stating only that a parent must “have an opportunity . . . to obtain an [IEE] of the child”). However, another section of the IDEA, 20 U.S.C. § 1406(b)(2), expressly requires the Secretary of Education to preserve any IDEA regulation that existed as of July 20, 1983 and provided protection for children:

The Secretary may not implement, or publish in final form, any regulation prescribed pursuant to this chapter that . . . procedurally or substantively lessens the protections provided to children with disabilities under this chapter, as embodied in regulations in effect on July 20, 1983 (particularly as such protections related to parental consent to initial evaluation or initial placement in special education, least restrictive environment, related services, timelines, attendance of evaluation personnel at [IEP] meetings, or qualifications of personnel), except to the extent that such regulation reflects the clear and unequivocal intent of Congress in legislation.

Id. § 1406(b)(2). One of the regulations in effect on July 20, 1983 expressly provided to parents “the right to an independent educational evaluation at public expense if the parent disagrees with an evaluation obtained by the public agency.”

By enacting 20 U.S.C. § 1406(b), Congress sought to “reaffirm support for the program and its existing regulations,” which included a parent’s right to an IEE at public expense. 129 Cong. Rec. 33,316 (1983) (statement of Rep. Biaggi); see also H.R. Rep. No. 98-410, at 21 (Oct. 6, 1983) (“[T]he current regulations which govern programs under [the IDEA] have received the strong support of Congress.”). Significantly, this reaffirmation was in response to proposed regulations that, in part, would have significantly curtailed a parent’s right to a publicly financed IEE by requiring public reimbursement “only where a hearing or reviewing officer determines that such an evaluation is necessary to resolve the issues in dispute in a hearing or review.” Assistance to States for Education of Handicapped Children, 47 Fed. Reg. 33836-01, 33841 (proposed Aug. 4, 1982) (emphasis added). Congress “remain[ed] strongly opposed to any attempts to alter current regulatory requirements which would result in diminished rights and protections for handicapped children under the [IDEA].” H.R. Rep. No. 98-410, at 21. It is clear that Congress enacted 20 U.S.C. § 1406(b) to ensure that the “Secretary cannot propose any regulations which . . . have the direct or indirect effect of weakening the protections for handicapped children under existing law and regulation.” 129 Cong. Rec. 33,316 (1983) (statement of Rep. Biaggi).

Moreover, subsequent to 1983, Congress reauthorized the IDEA in 1990, 1997, and 2004 without altering a parent’s right to a publicly financed IEE.  Under the re-enactment doctrine, “Congress is presumed to be aware of an administrative or judicial interpretation of a statute and to adopt that interpretation when it re-enacts a statute without change.” Lorillard v. Pons, 434 U.S. 575, 580 (1978). This doctrine is particularly applicable here, where a parent’s right to a publicly financed IEE has endured since the Department of Education first implemented the IDEA. See United States v. Baxter Int’l, 345 F.3d 866, 887 (11th Cir. 2003).8 Accordingly, Congress has clearly evinced its intent that parents have the right to obtain an IEE at public expense. See 34 C.F.R. § 300.502.