Getting An IEE Thrown Out

[Autism Mom]

Hi Brice:

We are in WA state. After much fighting including our school district filing Due Process against us to prevent an IEE by the provider we requested (we won on a Motion for Summary Judgement) we have the evaluation report in hand.

It is awful. I can't figure out why the school district objected to this practitioner. The report reads as if it was written by the district itself. The things my kid can do at age/grade level are dismissed as "splinter skills." Otherwise he is to blame for his failure to learn - that is when his parents are not at fault(!) True, the report does note that he has failed to meet some of his goals but this failure is attributed to the school having too many goals for him(!)

The report has few suggestions on alternatives to the way the school is attempting to educate my kid. It also fails to answer the questions we posed when we requested this IEE in the first place.

Help! I know it is thought to be inappropriate to criticize the practitioner we demanded but where do we go from here? The evaluator has already turned down our request for copies of the directions given to her by the school district prior to conducting this evaluation, saying: "The only written documents are my contracts and legal arrangement. No other notes available."

I made this request because I smell a rat. The report sounds so much like a repetition of the school district's position on various points of contention over the last year that I can't help but wonder what went on.

Are we entitled to copies of her notes from conversations related to this IEE? Would citing HIPPA permit us to obtain additional documents? (This practitioner is a neuropsychologist.) What about going directly to the school district and asking for copies of their conversations with the neuropsychologist under FERPA? Just because the documents she references are "contracts and legal arrangement" does that mean we are not entitled to copies? Are they somehow covered as "privileged" attorney-client papers?

Does the fact that the IEE fails to address the questions we posted when we requested it allow us to demand a new IEE?

Also, once an ALJ renders a decision do we have any recourse under the umbrella of the original Due Process proceedings or would any further action (such as attempts to figure out how the school district may have influenced the IEE) be the subject of a new Due Process action?

Thanks.

[Brice]

Representing the Special Education Child: Wrightslaw A Manual for the Attorney and Lay Advocatehttp://www.wrightslaw.com/advoc/arti...ey_manual.html

Congratulations for pursuading the hearing officer to rule in your favor on the motion for summary judgment.

The IEE Report Question

In your question you also said the IEE report notes that your son failed to meet some of his goals, but the failure is attributed to the school having too many goals for him.

Big questionSplinter skill: An isolated ability that often does not generalize across learning environments. These abilities are often widely discrepant from other areas of functioning.

Source: www.autism.concepts.com/glossary.php


Another example published by the Para eLink website describes a splinter skill as:

Splinter Skill: A skill that is not an integral part of the orderly sequential development. It is a skill mastered (usually under pressure) ahead of the usual developmental sequence. OR A child with poor overall motor coordination may be able to skip rope expertly. Rope skipping is in that case a splinter skill.

Source: www.autism.concepts.com/glossary.phpDEAL v. HAMILTON COUNTY DEPARTMENT OF EDUCATION, No. 1:01-cv-295 at p5, (E.D.Tenn. 2006) Note that the language in this quote is not the holding or a ruling in the case.SCHOENBACH v. DISTRICT OF COLUMBIANote that the language in this quote is not the holding or a ruling in the caseM.A. v. VOORHEES TOWNSHIP BOARD OF EDUCATIONCopies of the IEE Evaluator's Directions From the Schoolhttp://www.law.cornell.edu/cfr/text/34/300.502Was the IEE Truly Independent?

The other thing I noticed in your question is the professional told you that the only written documents [relating to the evaluation] are her contracts and legal arrangement. No other notes available.

This just does not pass the sniff test and it is beyond my experience and knowledge to give you a useable answer. My suggestion for you is to go to the source. They are the National Association of School Psychologists and the American Psychological Association. NASPA is located on the web at http://www.nasponline.org/ You can even call them and ask whether an individual is a member in good standing. The APA is located on the web at http://www.apa.org/Copies of Evaluator's Notes and Attorney-Client Privilegehttp://www.law.cornell.edu/cfr/text/34/99.3

[trek]

Curious to see what happened? So sorry.

[Autism Mom]

Still Trucking...

At a subsequent team meeting to consider the findings of an Assistive Technology (A-T) assessment "approval" of the IEE and an OT evaluation were tacked onto the end - surprise, surprise.

People were leaving the meeting but the action pushed on regardless. I said we object to this IEE and was asked to put our objections in writing. I did so, although I must admit I left out our objections to the parent-blaming aspects of the report because I wanted our response to read as more objective than emotional. This occurred in late June. A week or two later the District Special Ed Coordinator (co-second-in-command in the "Special Services" dept. of the school district) said they were taking my response "under consideration." Now, five weeks later, I guess they are still thinking.

At the moment we continue "fixin' to get ready" to file a Due Process action. I don't want to pull the trigger until we have the proper paper trail/foundations to support our case. Due process is something to avoid, the standard advice goes. Sometimes, however, it can't be avoided. My kid is still trying, still attending to his lessons, still making an effort. We need to act while he is still willing to be taught, before his "learned" inappropriate behaviors are so firmly entrenched there is no going back.

One thing does give me hope with regards to parent-blaming, the recent 9th Circuit Court decision (July, 2012) that said school districts can not blame their failures to act on parents invoking their (child's) rights under IDEA.

[Brice]

www.wrightslaw.com

[Autism Mom]

Getting An IEE Thrown Out

Hi Brice,

To answer your questions, this was: 1) an IEE at Public Expense; 2) won on a Motion for Summary Judgment; 3) after the District filed for Due Process; 4) objecting to our selection of an assessor. In other words, we are objecting to the report of the examiner for whom we fought in Due Process.

I mention this last part because I question the strategic wisdom of continuing to push in this circumstance. They (the parents) don't like the report of "their" expert? There is no satisfying these people! Do we really want to risk raising sympathy for the District by allowing ourselves to be painted as "unsatisfiable" parents?

Our objections to the report include: 1) the failure to answer the questions we posed when seeking the IEE in the first place; 2) the examiner's failure to probe further when our son was unable to answer a question in the manner in which she posed it, e.g. asking "how old are you" if the child doesn't respond when asked "what is your birthdate"; 3) dismissing areas in which our son performs at grade level as "splinter-skills" rather than informing us as to how we might use his talents (such as his facility with numbers) to finesse his shortcommings; and, 4) over-reaching by making recommendations outside of her expertise and/or without sufficient data.

In our objections we purposely left out our dissatisfaction with her blaming us for failing to adequatedly parent our son. She also (unethically) ambushed us with a parent-interview questionaire at a meeting we were told would be strictly her reporting of her findings after examining our son. (We'd even called to double-check on this point before the meeting and were assured that if was to be a report only.)

My guess is that I don't have to tell you, Brice, that we find this "blaming the parents" strategy only slightly less objectionable than "blaming the kid" for his/her shortcommings. Why can't I, as a rational parent, decide that I am okay with my kid wearing flip-flops in the summer and slip-on shoes at other times rather than obsessing over the mastery of that last step of shoe-tying? I'll tell you why not...because when faced with a professional assessment of the child's life skills we end up scoring as bad parents, failing to help our son become as independent as possible. This is as ludicrous as saying we must teach him to bake cakes from scratch rather than using a cake mix, otherwise we are failing as parents.

We aren't rushing to Due Process nor have we ever rushed to Due Process. This is something we have considered in consultation with attorneys against two different school districts over eight or so years now. We are very conscious of the fact that we need to be patient, we need to lay the ground work, and we need to explore all options. Even though we have an attorney who helped us fight the District's Due Process filing we still explore our options widely. For example, in addition to discussing the matter with you I have a telephone meeting with an attorney from the Governor's Office of Education Obudsman to further discuss our options. This attorney was acting as a quasi-mediator while the Due Process case was ongoing.

BTW, may I make more general point here to all those who may be listening? I'd like to recommend that if you find yourself in a Due Process situation you read all the motions flying back and forth. Nobody knows your child's case as well as you. I was able to agument, buffer and refute points all along the way simply because I knew what had happened better than any of the attorneys involved. At one point I think I also prevented our attorney from making an erroneous claim too. Your attorney doesn't know all the documentation you have at hand. Further, chances are that none of the school personnel are following the proceedings as closely as you either.

Back to the subject at hand. We are now six weeks out from receiving an email in which the 2nd in command for Special Services at the school district HQ told us that he was: "doing some reviewing on your request to have your parent input included within the recent [district] evaluation. I will not have an answer for you immediately, but want to assure you that your concerns are being addressed and will follow up with you." Any suggestions on our next move?

FYI, this objectionable evaluation was quoted in the most recent IEP meeting/summary document refining our son's program for the coming school year. School resumes just after Labor Day. If you will allow a related question, is there a limit to parent input?

I ask because now that we have the written IEP document in hand there are statements on paper with which we disagree. For example, in referring to the IEE the school speech therapist states that the examiner reviewed records, tested and observed our son. We would like to add that her observations totaled less than four hours and that she never saw our son outside her office.

Similarly, there is a point which might seem very minor but reflects an implied criticism of our parenting. The last two IEP documents (both within the last six months) have a section up front denoting attempts at contacting parents to set up the IEP meeting. Both documents show that we were first contacted by letter and note there was no response. They then show the District emailed us and we did respond. We never received either letter. Do I add this point in any response? Do I do it lightly - "you might want to check the address you are using because although we have received other communication from the District sent by US Mail neither of these meeting notices made it to our home." Or, is the direct and firm approach the best: "We never received any meeting notice from the Distict. Please eliminate the indication that the parents failed to respond when in fact, both times, the alleged meeting notice failed to arrive."

Currently we arrive at most team meetings with a prepared one-page Parent Input Statement. Do we appear to be harrassing these poor school district folks by submitting a post-meeting Parent Input Statement? Can we demand it be attached to the IEP document? Is there a better way to get our objections on record/written down?

Please allow me to add that we are not permitted to record these meetings here in Washington State. In addition to state regs and a Due Process decision our district can also site some language in the teachers' union contract that says if someone objects to a meeting being recorded then no recording is allowed. One local law professor opined that if we felt we needed to record the meetings then we probably needed to have a lawyer with us. Of course if we brought a lawyer the school district would insist that (one of) their lawyer(s) be present as well.

Where do we go from here? Thanks.

[Brice]

Dear Autism Mom.


Thank you for your well written follow-up to the questions I had from your first question.

I apologize in advance for this answer being as long as it is. A great many other parents face the same problems with their school districts.

Also, I am taking the liberty of going into some detail that I hope will not only answer your questions, but also will give you some insight into how to fix the problems you are having with the team.

I will begin by answering your last question first, which is -

Answer: Square One.

An Ugly TruthAll Force is Not Created Equal: There is a Velvet HammerThink about that for a moment.

Typically we go to IEP meetings hoping that we can at least get something we believe our student needs for FAPE.

In your last post you said that you arrive at most team meetings with a prepared one-page Parent Input Statement. You asked whether you can demand the school district to attach your parent input statement to the IEP document. You also asked whether there is a better way to make certain your written objections are on the record.

Answer to both questions: Yes, sort of.

Persuasive advocacy takes a different approach.A different way to prepare for team meetingsEvidence is a better friend than power

• If X happens then Y happens.

• Or, X happened because of Y.

• Or, the evaluation shows an adverse educational effect. Therefore, because the evaluation shows X, Y, and Z, the student is (or is not) eligible for special education under 34 CFR . . .

There are two formulas you can put to use when you are deciding what evidence you can use. These two formulas come from two separate disciplines: Medicine and Law.

Warning: I am not an attorney. Before you apply these analysis formulas to your own particular set of circumstances, get the advice of a licensed attorney in your state.

Medical formula: SOAPLegal Analysis Formula: IRAC

I = issue. An issue is a legal question. For example, did the school district deny a free appropriate public education to the student because it failed to identify the student as a student in need of special education?

R = Rule. What rule applies to the Issue? Because our issue here is identification, then the rule would be the Child Find rule in either Section 504 or the IDEA.

The IDEA Child Find rule requires a public school to locate, identify and evaluate a child who is suspected of having a disability to determine eligibility for special education and related services. 34 CFR 300.111 (Authority, 20 U.S.C. 1401(3) ); 1412(a)(3))

A = Analysis. To analyze this, apply the facts of a particular situation to the rule. For example -

At the time, the student was 4 years old. A licensed doctor diagnosed the student as apraxic. The school district had reason to suspect the student might have a disabling condition becauseHere are a few tips for how you can put this stuff to work.Powerful Word: Becausebecause the OT therapy service hours were reduced, and becauseBlaming the parentRecording IEP Team Meetings I believe there are some articles published on www.wrightslaw.comOn the other hand, when a parent can prove that tape recording is necessary to understand the meeting proceedings, then the IDEA overrides any conflicting state law. The IDEA requires the district to allow the parent to record the meeting because. You should check with an experienced special education attorney in your area for a legal opinion on this.

[Autism Mom]

Getting An IEE Thrown Out

Brice ~~

Thank you for your detailed response. I think it will be a guidepost for us as we continue to lay the groundwork for Due Process.

You approach the IEP team as if they are a rational body that is swayed by evidence and well-reasoned perspectives. Unfortunately this is not our experience.

Across two school districts, across two states, we have been lied to repeatedly. Mind you they were stupid lies, easy to catch & refute, but that hasn't stopped these administrators and administrator wanna-bees from trying. Your mention of legally defensible programs amuses me. The Director of Special Ed in our old school district stood up in a public meeting discussing the autism program and said: "...the goal is a legally defensible program." This quote even appeared in print in the local newspaper. How audacious! The district motto for general ed students is along the lines of helping kids become the best they can be. For the kids with autism, the goal is we don't want to lose any lawsuits. Disgusting!

I think you lay out a great model for Due Process. For example, the school OT recently decided that she would move from 30 minutes per week working directly with my son to 30 minutes per week advising school personnel on how to work with him. She even declared, in a team meeting, that this is "the best use of my time." Huh? Now we get to pull out an independent OT eval saying this kid needs services. Will it influence the IEP team? Nope. Will it help our case in the long run? I hope so but the bottom line is that the school service will not be restored.

Brice, please don't feel deflated that I'm dismissing what you have to say because I'm not. All I'm saying is that IEP teams are not necessarily rational bodies. Even when some members are out to do the right thing for my kid there are so may political twists and turns as to whose opinion carries more weight or even who voices an opinion at all since jobs are at stake. In our case, since our son has been deemed a "high cost" IEP the document is reviewed after it is written by district administators so that the case manager doesn't even have the "last word."

Please allow me to underscore my impressions with an example of how our special ed system works. Toward the end of the school year the administators decided they would finally make good on the Assistive Technology assessment they'd promised. After the initial meeting wherein the team discussed our son's needs it became clear. Mind you the A-T folks hadn't seen him yet but I knew what their recommendation would be. They would find he should use software to which the district already subscribes on hardware the district has in the warehouse. A few weeks later the report came out just as I predicted. Never mind the fact that we have prior documentation saying our son had previously tried this particular software unsuccessfully. The evaluators did/found what was most appropriate/less expensive for the District and its personnel.

Does this action satisfy the "individualized" spec of IDEA? Can we argue that this generic "one-program-fits-all" kids with autism approach is inappropriate? Wouldn't the school district just refute this argument by saying this is what has been successful for other students in the past?

I think we are in for a tough fight, more of an uphill battle than most Due Process issues. Although the issue we will probably end up arguing is FAPE I think we will be addressing the underlying issue of "educational benefit." Am I right in saying this is the most difficult aspect of the law for parents to successfully argue?

Again, please don't think I dismissed what you have to say. I do find it enlightening and anticipate I will incorporate some of your suggestions. They will serve us well in the long run.

[trek]

Following all this is interesting. Not all school districts or states are alike that is for sure even with IDEA. My nephew in NJ without any medical dx is getting help for fine motor issues. In our district even with dx of Autism and test scores on same test that are much lower 1 to 3% for composite motor skills.

Anyway, thankfully the middle school we are zoned for has more than stepped up. The key is they VALUE parents as part of the IEP team. Sad that is takes until 6th grade to have that happen-sure there are test results to back up, but it was evident in my older son's case YEARS ago. All they did was BLAME him, than me.

Hang in there

[Autism Mom]

Getting An IEE Thrown Out

New Jersey has a much better reputation for services than most states. Your nephew is a lucky kid.

Your comment about middle school is intersting. There is so much focus on early intervention that sometimes it seems the elementary age kids are lost. It's as if someone decides if they can't be fully included by kindergarten then the war is lost.

The crux of the Due Process case we will probably be forced to file will be the denial of FAPE. Our school district regards our son's inappropriate behavior as his prinicpal issue, rather than the fact that they have failed to provide him with a communication system. Their own FBAs say that my son's (mis-)behavior is rooted in his lack of language. We say it is easier and less expensive for them to address the behavior rather than the language issues.

Thank goodness we have forums like this where we can share the bullying tactics that the schools use - the delays, the denials, the misrepresentations - and demystify their blame game.

Good luck in your efforts.

[Brice]

Someone at the meeting must be rationional and well reasoned

Look at the eligibility determination documents.
Look at the statement of present levels.
Look at the first annual goals. Are they tied directly to the present levels?
Look at the description of the specialized instructions and related services.
Look at the accomodations and modifications section.

Some members of the team are rational and well reasoned.

Yes, and you can use this to your advantage. Here are some tips about how to do it.

1. For the moment we will call the rationional and well reasoned team members potential allies.

2. There are several ways that you can identify the potential allies.

a. Duing the meetings watch the body language each school district team member displays. Watch for smiles, heads nodding in affirmation, smirks, wrinkled brows, sitting back in their chairs after a statement is made, sitting foreward in their chairs after a statement or a point is made. Watch for telltale signs of dishonesty. When an idividual speaks does that individual touch their nose, does that person speak with an open hand or a closed hand? If these things are not familiar to you then I urge you to Google the term body language.

c. The allies you identify might never have anything to say during the meetings. They might be influential, though, in decisions made outside of the meeting. We never know just how much an influencer can affect the team decisions. As you know, some IEP decisions are made outside of the formal meetings.

And this brings us to another of your questions, or comments, about getting ready for a due process hearing.You must reduce your case to a short statement of the case and you must have a theory of the case.

Why? Because if you can't explain your case to someone who knows nothing about special education, you cannot explain it to a hearing officer through your exhibits and witness testimony in a way that will persuade the hearing officer to want to rule in your favor.

Does that surprise you? Just remember that even hearing officers and administrative law judges are also human beings.

The Road Map

Each alleged violation is founded on specific federal and state statutes (and the regulations). The undisputable facts will boil down to not hundreds or thousands, but to the least number of relevant facts among all the available facts for eachThe UpshotThis is what I mean by a Velvet Hammer.

Deal with the school district proactively, do it in a civil way, and when you must ask for a hearing, be ready to vigorously prosecute your case against the school district. Each witness, each exhibit, each fact you choose must advance the theory of the case you laid out in your request for a hearing.

The IDEA rules define what process is due. A due process hearing is to decide whether the school district gave you all the process that was due.

I hope this helps.

- brice

[Autism Mom]

Getting An IEE Thrown Out - The Saga Continues

Brice ~~

Now it is my turn to apologize for the delay. No matter how much one prepares "back to school" time is always hectic.

Allow me to return for a moment to my original question. The fact of the matter is that the school district has decided to accept the IEE. Our objections, detailed by us in a three-page rejoinder, are part of the IEE report file.

If I may I would like to encourage parents to submit written "Parent Input" statements. They seem, to me, to be our only opportunity to make sure our points are entered into the record in our words rather than relying on the notes (paraphrasing) of a school district employee.

Our choice now is to use the IEE to our best advantage. Why is it that they choose to act on some of the evaluator's suggestions but not others? Plus, with the recommendations that they have decided to implement we find the execution to be sloppy at best. More (possible) fuel for the Due Process fire?

I must admit that after almost ten years of IEP meetings I still don't feel as if I have a good grasp on the process. What does it mean if you sign or don't sign an IEP document? My understanding is that they don't need a parent's consent for anything except evaluations. The most we can say is that we disagree with the team's decisions.

Speaking of teams I'm also unclear on what team meetings qualify as IEP meetings & when decisions can be made. For example, right before the school year began we met with some members of the team - two administrators, the special ed teacher and one therapist - to decide about bringing our son back to school (one day, as it turned out) early. Other questions arose such as an APE eval and the issue of allowing him to ride a bicycle at school as part of his behavior plan rather than a tricycle but these questions were delayed yet again. Can the team make decisions without a gen ed teacher in the mix? What kind of documentation (meeting notes?) is the district obligated to retain from this kind of get-together? Are there supposed to be official notes from all team meetings, whether or not they are formal IEP gatherings? Are we entitled to a copy of the official district notes?

I must admit as I listen to myself ask these questions I wonder how parents manage to prevail in any but the most cut-and-dried situations. You have shared lots of wisdom with us. It is clear that "slow and steady" is the only chance we have to prevail, carefully documenting our conversations, asking questions and receiving responses in writing and saving all the paperwork we get in an organized fashion.

As we work to build our case I'm seeing that we need several different types of documentation - the legal principals, precedents and citations under which we are bringing our complaint plus the paperwork the school has issued detailing their plans plus evidence such as expert witness testimony showing where the district has fallen short. Then we have to specify the remedy we are requesting as well as the legal underpinnings as to why the remedy we suggest is appropriate. Of course all this is built with the knowledge that even though the school district is regarded as the "expert" the burden of proof lies with the complainant - us!

If I might add yet another question, what do we expect from Due Process? I understand that there are timelines for motions and hearings, etc. What happens if we prevail at Due Process? If the district decides to appeal does that mean that none of the remedies the ALJ provides go into effect until the legal process is exhausted? Is there any kind of ballpark timeline to how long this could take? Is there any notion of swift justice since we are dealing with minors?

Thank you very much for all your careful and detailed reflection on my questions.

[Brice]

.

The bad newsThe good news isWhat in the world does appropriate mean, and why.

"A public agency provides an "appropriate" special
education program by observing the evaluation and
placement procedures of Regs. 300.530-300.534, the least
restrictive environment procedures of Regs. 300.550-
300.556, the IEP procedures of Regs. 300.340-300.349,
and the procedural safeguards of Regs. 300.500-300.514."

(17EHLR 391 (1990)).

When we read the OSERS language we find that OSERS did not give us a plain language definition of the word appropriate except to say that to be appropriate, the school district must follow the rules.

We are still left wondering; what in the world does appropriate mean and why does it mean what it means?

We have said before there is no issue under the I.D.E.A. that does not relate directly to FAPE. If you accept that, then we can say that for something the school provides or that we ask for in an IEP, that something mustmust be conditioned on some other thing in the sentence.

The book is appropriate because the book is written at the student's reading level as determined by his last evaluation.

The evaluation is appropriate because the procedures for conducting an evaluation were faithfully met.

You can almost always test any sentence that has appropriate in it by applying the Because test.

Why go though this exercise? Because when we use words and special education jargon over and over again we tend to use them without giving a lot of thought anymore to what they mean.

The word appropriate in special education is too important to the educational welfare of children to not be clear about what it means.

The word because is your best little friend when you deal with school district IEP team members.Say What?Hint.

Do not try to get services by justifying them as appropriate. The school folks do not use the same logic that you just learned. Instead, use strong words such as, Need, Essential, Necessary, Critical, Crucial. These are active words that imply action is necessary, or infers a sense of urgency.

Appropriate is a passive word. Passive words delay everything. Your life with the school will take on a whole new patina if you avoid speaking and writing passive sentences and phrases.

For example, instead of saying "I would ask that the district provide me with donuts and coffee at each and every IEP meeting."

Compare that sentence with, "I want the school district to serve donuts and coffee at every IEP meeting."

In another article for this forum I'll write something about using plain language.

HINT: Even if you are a lawyer, don't write or talk like one when you're dealing with the school district about your child's IEP.

Read the following portion of Section 1401 and take an inventory of the strong words that either imply or mandate action. This text defines An Appropriate Public Education.

Bore in. Demand understandable answers.

[inciidadmin]

Hi Brice --

[Autism Mom]

More Input on IEP Meetings?

Hi Brice!

Your last post ended with the following:

As usual, I await your well-thought out guidance.

Thanks! Autism Mom