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Thread: Getting An IEE Thrown Out

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  1. #1
    Join Date
    May 2012

    Default Getting An IEE Thrown Out

    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?


  2. #2
    Join Date
    May 2012

    Default Getting an IEE Thrown Out

    At the onset let me apologize for the length of this response to your questions. They are great questions and there just aren’t any short answers to any of them.

    Thank you for asking them.

    It is regrettable that you, or any other parent, must be put through the ringer to sucessfully advocate for your own child. It is equally unfortunate that school districts often blame the child and parents for the child’s failure to learn.

    School districts have been playing the blame the child, blame the parent as their trump card for a very long time.

    The first time I saw that tactic described was in 1998. Pete Wright referred to it in his article, Representing the Special Education Child: Wrightslaw A Manual for the Attorney and Lay Advocate.

    Pete describes it as a school district theme for due process hearings.

    “Frequently the theme will be to blame the parent or child for the child's failure to have a successful educational experience. It will also be asserted that the child's performance is the best that can be expected.”

    You can read the latest revision of the manual on the Internet at

    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 question: If the expert the school district likes so much says your son failed to meet some of his [annual IEP] goals because there were too many goals, do you think maybe you can use this expert’s opinion to argue the IEP is not appropriate? I do.

    You mentioned that even though the school district objected to the practitioner who did the Independent Educational Evaluaton (IEE), the report reads as if the school district wrote it. Since I haven’t seen the report I’m not able to comment on it other than to say IEE reports are often contested by school districts and parents alike. School districts accuse parents of expert shopping and we on the parent side of advocacy accuse school districts of doing sloppy evaluations. I will say that in almost 20 years of advocating for families I have more confidence in more of the IEE reports I’ve reviewed than school district reports. That’s just me.

    One of the things that you mentioned that bothers you about the IEE report is the reference to splinter skills. You wrote that the report says your child can perform at grade and age levels, but the report dismissed that as splinter skills.

    It might be that not everyone who reads this knows what splinter skills are.

    I wasn’t sure either, so I looked it up.

    An example definition of a splinter skill is published in the glossary in the Autism Concepts website is:

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


    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.


    Since neither of these definitions satisfied me I thought surely there is some court decision out there that talks about splinter skills. There were three federal decisions that I could find.

    The Federal District Court for the Eastern District of Tennessee wrote, “[the student] has ‘splinter skills,’ meaning that he could display high levels of certain skills and much lower levels of other skills.’” DEAL 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.

    Gosh, that was helpful – Not.

    Then in 2004, the Federal District Court for the Discrict of Columbia wrote, [the doctor] testified that while [the student] has progressed academically, such progress in children with Asperger's can be misleading because they cannot effectively use information they seem to have mastered.” The court, then, refers to a footnote in its decision: Footnote 7, which quotes the trial transcript of part of the Doctor’s testimony:

    "[T]hese children can be misrepresented as appearing to be achieving in a very concrete way, because they have certain aptitude and ability to be loquacious. . . . But . . . that's misrepresentative of what they're actually able to do, specifically related to academics. . . . Executive function disorder is a major impairment that besets Asberger [sic] children. So they can't utilize the information that they do know. And the information is usually splinter skills, which really don't allow them to function well in reality." Tr. at 118-19 (Test, of Dr. Edelstein)
    SCHOENBACH v. DISTRICT OF COLUMBIA, 02-02034 (HHK) (D.D.C. 2004).

    Hmmmm. That wasn’t very enlightening either.

    A glimmer of the educational implication of splinter skills might be comes from a 2002 federal court decision handed down by the Federal District Court in New Jersey. Note that the language in this quote is not the holding or a ruling in the case.

    “[the witness] testified that [the student] needed more than the program he was receiving at Osage, which she concluded provided "isolated splinter skills," and recommended a program that promoted generalization of learning and functional skills.” M.A. v. VOORHEES TOWNSHIP BOARD OF EDUCATION, 202 F. Supp.2d 345, (D.N.J.)

    Now that’s something we can put to use. Can it be that the splinter skills the IEE report talks about are actually flashing signs that say your son’s IEP IS NOT APPROPRIATE?

    I’m still not sure that I understand what splitter skills means. More important, though, is how a splinter skill (as defined above) translates into something an IEP team can use to write a proper statement of academic achievement and functional performance. I don’t know about you, but I like more specific language for that section of an IEP. You know, something that can be measured.

    Copies of the IEE Evaluator's Directions From the School

    You also asked about whether a parent may see, or have a copy, of the directions a school district gives an independent evaluator before the evaluation is performed. I think it is perfectly reasonable for you to want to see that stuff. The IDEA calls that stuff Conditions.

    Most of the time when advocates and parents talk about IEEs and restrictions as school districts apply to them, we talk about the criteria the school district imposes on getting an IEE. Criteria includes the location of the evaluation and the qualifications of the examiner must be the same as the criteria the school district uses when it initiates an evaluation that it will perform, and we talk about the criteria must be consistent with the parent’s right to an IEE. That rule is 34 CFR 300.502(e)(1).

    But wait – does criteria mean the same thing as conditions?


    34 CFR 300.502(e)(2) tells us that a public agency (your school district) may not impose conditions or timelines related to obtaining an IEE at public expense.

    You can read the regulation language on the Internet at

    So when you say you would like to see the directions the school district gave the professional who did the IEE for your son, I’d think that because the restrictions are written into the federal regulations, the school should hand them over for you to look at.

    However, if one of the conditions (directions) the school gave that professional went something like this –

    “You know we do a lot of evaluations here, and if you want to be on our A list you’ll think about your report very carefully”

    Then Houston, we have a problem.

    The chances of getting the professional to admit something like that was a “condition” or part of the criteria for paying her bill is nill.

    But someone, somewhere must have written about this problem, right?

    The good news is yes. The U.S. Department of Education took the position that a district may not require advance consultation and clearance as a condition for payment (to an independent evaluator).

    The bad news is that I don’t have a copy of that little gem. It’s called Letter to Bluhm, EHLR 211:227 (OSEP 1980).

    Was 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 You can even call them and ask whether an individual is a member in good standing. The APA is located on the web at .

    In addition to what you suspect is an IEE that might not have been entirely independent, you asked whether you can ask for another IEE because the evaluator did not answer the questions you posed when you asked for the IEE in the first place.

    Some states and school districts do limit the number of IEEs a parent can ask for in a calendar year. I don’t know about your state or school district. That information is likely in the school’s written criteria. If you believe you have provable challenge to the validity of the IEE, then I suggest you get a legal opinion about that from a special education attorney in your area.

    Copies of Evaluator's Notes and Attorney-Client Privilege

    You also asked whether you are entitled to copies of the IEE evaluator’s notes from conversations related to the IEE, and whether the rules in HIPPA help you get them. I think the rule you should think about first is FERPA (Family Educaton Records Privacy Act). FERPA tells us what an education record is and what is not an education record. As a broad brush stroke, we can think of any document that relates to your son’s education and contains personally identifiable information about your son, and is kept and maintained by the school is probably an education record. There are exceptions, and the big one is personal notes. A personal note is anything written by an individual for that individual’s personal use, and is not shown to anyone else. Personal notes are not education records under FERPA. This is a very wide and unspecific description. You can read the FERPA definitions at

    You also asked whether the documents the IEE profesional characterized as “contracts and legal arrangement” are protected by the attorney-client privilege. This is a question I cannot answer. For the attorney-client privilege to attach to papers and conversations, an attorney must be in a representative capacity with, in your question, the school district and advised the school district about the circumstances of the IEE you asked for and the district agreed to pay for. Again, this is a broad brush explanation and you should consult an attorney in your area to get an answer to that question.

    I hope all your questions are answered here. If not, let me know and I’ll give it another shot.


  3. #3
    trek is offline INCIIDer - A Community Creator
    Join Date
    Sep 2006


    Curious to see what happened? So sorry.

  4. #4
    Join Date
    May 2012

    Default 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.

  5. #5
    Join Date
    May 2012

    Default Getting An IEE Thrown Out

    Dear Autism Mom.

    I need a little more information before working out an answer for you.

    1. Did you ask for an IEE and the school district provided one for you at public expense – or –

    2. Did you get the IEE at your own expense without asking for it from the school district?

    3. Can you summarize the objections you had to the IEE?

    4. Due Process hearing. There is a saying: When the stuff hits the fan the stuff is not distributed evenly.

    What that really means is that unless you are absolutely prepared for a due process hearing before you formally ask for one − don’t.

    Getting ready for a hearing is time intensive and, I’m sad to say, expensive. Even if you do a hearing on your own without an attorney or a litigating lay advocate, be prepared to spend a lot of time and money just getting ready. Many parents make the mistake of thinking a complaint (or request for a hearing) is all there is to getting ready. Don’t make that mistake.

    There are other, less formal ways to resolve most problems with a school district. But again, how you go about it and how well you prepare your “case” will make all the difference in whether you succeed or not.

    There are several good articles about how to prepare for a due process hearing at The articles are written written by advocates and attorneys. One of those articles is mine.

    I’ll wait to see your next posting with the answers to the questions I asked earlier in this post.

    Thank you for your questions. I look forward to hearing from you again and filling in the blank spots.

    -- brice palmer

  6. #6
    Join Date
    May 2012

    Default 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.

  7. #7
    Join Date
    May 2012


    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 -

    “Where do we go from here?”

    Answer: Square One.

    I’m not trying to be cute or trite. You must repair the working atmosphere between you and school before your son gets the IEP he needs. The good news is that you can repair it.

    There is an overarching principle in the Square One answer. It is the way in which a school district and parents work together becomes a “them against us” and “us against them” condition that hangs over each meeting, piece of correspondence, and team meeting. The working relationship between the school and a parent becomes a game of Gotcha, which isn’t productive when getting a free, appropriate public education is at stake.

    You know the school district is indifferent and out of compliance. The school district thinks you are unreasonable and overprotective.

    An Ugly Truth

    The school isn’t going to bother fixing the problem. It doesn’t have to. The district stacked the foot-dragging and delay strategy cards in its favor.

    That means it is up to you to repair the working relationship if you are ever going to get an IEP that provides what your son needs - and - the school will faithfully carry out.

    Oh sure, a school district can write a good IEP. But getting it implemented is a horse of a different color. We want the school to comply with the IEP because it is in the District’s best interest and not because you are forcing it to comply. Forcing anyone to do anything only creates resentment for the one that applies the force. We must always remember that people and organizations first must have their interests satsfied before any voluntary agreement can be made.

    All Force is Not Created Equal: There is a Velvet Hammer

    Applying the velvet hammer begins with you deciding that nobody but you is responsible for seeing to it that your son’s IEP delivers a free, and appropriate public education. When you do, that huge weight on your shoulders will disappear.

    Why? Because a typical school district’s only interest is making sure all the procedural boxes are checked off. And, as in almost any bureaucracy, once a check box is marked off the task is finished, finito - put it in the drawer until the next meeting.

    Think about that. How many times have you gotten everything you wanted in an IEP, all the boxes checked, and then low and behold, by midterm you discover that nothing whatever has changed in the day-to-day provision of services for your child?

    As the theory goes, if the school checks off all the procedural boxes, the IEP is legally defensible.

    Legally defensible? In my mind, that is backward thinking. How about making sure the IEP provides what a child needs as the boxes are checked off? How about making sure the IEP provides FAPE? Is it just me, or what? The priority for any IEP is to provide FAPE for a specific student. If it does, then the IEP is legally defensible. It just doesn’t get any more complicated than that.

    Once you take charge of managing your son’s special education program the school district cannot bully you again. The most powerful position you can possibly have is knowing exactly what you can do for your son without any help whatever from the school district.

    Think 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.

    How about doing this: Instead of showing up with your prepared written statement for the meeting and demanding that it be attached to the IEP, write your objections in a letter addressed to the school. In the space under the address block, write the following:

    I expect this letter to be placed in my child’s education records.



    Ms. SpedHead
    Old Overshoe Elementary School
    2736 Lovely Dr.
    Old Overshoe, Nebraska

    Reference: Student ID # 000000

    I expect the school district to place this letter in my child’s education records.

    Dear Ms. SpedHead

    This letter contains my objections and parent input statement concerning the IEP developed by the team for my child on [date] . . . . .


    Autism Mom

    A different way to prepare for team meetings

    Go to any meeting fully prepared on every front. Have your talking points well thought out and written. Your talking points will be your outline for the essential points you want to make during the meeting.

    Make your talking points about what your son needs and why he needs it.

    Don’t make your talking points about attacking the school.

    Talk about what it will take to do it right.

    Back up everything you ask for with evidence. After all, a statement without evidence is merely an opinion.

    Remember this: Evidence is a better friend than power — Andrew J. Vickers, Sloan-Kettering Cancer Center, New York, USA.

    Have every piece of evidence that supports your arguments that a student needs X, Y, or Z to receive FAPE. Keep in mind that everything in special education has a cause and effect relationship.

    • 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: SOAP

    S = subjective
    O = Objective
    A = Analysis
    P = Plan

    Subjective information is information drawn from personal observations, interviews, intuition, and so on. Anything that is not backed up with data or provable facts.

    Objective information is information that is quantifiable, provable, and can be reduced to provable facts.

    Analysis is made from the Subjective and Objective information to draw a conclusion about a condition or set of circumstances.

    A Plan, then is how to carry out a course of “treatment.” We can use this formula to make a strategic and tactical plan for dealing with the the school district team members.

    Legal 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 because the parents gave Old Overshoe a copy of the diagnosis, which they asked the school to put into the student’s education records. The parents also asked for a meeting with the school to decide eligibility for special education and related services. That set of facts require a school district to evaluate the student under Child Find.

    C = Conclusion. 34 CFR 300.111 (The 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. The Old Overshoe School District did not evaluate the student even though it had reason to suspect the student has a disabling condition. Therefore, the Old Overshoe School District failed to locate, identify, evaluate, and determine whether the Student is eligible for special education and related services. As a result, the Old Overshoe School District denied the student a free appropriate public education.

    Here are a few tips for how you can put this stuff to work.

    One of the most useful team meeting tactics I ever learned came from my colleague and friend, Barbara Ebenstein. Barbara is a practicing special education attorney, law school lecturer, and hearing officer in New York City.

    Barbara says, invite someone to go with you to the meeting. Tell that person to wear business clothing and carry a briefcase. Introduce that individual at the meeting by their name, and say nothing else about that person. Your meeting companion’s job at the meeting is to sit, say nothing, and take notes on a yellow legal pad. You’d be amazed how effective this maneuver can be to tame the crowd of school district team members.

    Powerful Word: Because

    Present your evidence during the team meeting as cause and effect. For example, The current IEP reduced the student’s OT therapy by X number of hours each week. The most recent progress report shows the student regressed. The conclusion is that because the OT therapy service hours were reduced, and because the progress report shows regression, the IEP is not reasonably calculated to provide the student with an educational benefit. In other words, the IEP did not provided FAPE for the student.

    The word because has a lot more oomph than the overused and worn out cliche’ - Due to.

    Review and rehearse your presentation (arguments) the evening before the meeting. Go to the meeting with a calm, positive attitude about it all. Don’t rehearse by trying to figure out if they say this, I’ll say that. You will never anticipate everything a school district will or will not say. Instead, prepare to argue the principles you know are right for your child’s circumstances.

    [NOTE: The word argument here means argumentation as a method, not a knock-down-drag-out shouting match. If you want to know more about this you can send an email to me at Brice [at] Ask for my article called An Argument Runs Through It]

    Nobody but you can be your son’s best advocate. Nobody.

    Becoming your son’s best advocate, though, means you must learn some of the artful skills of the craft effective advocates use. I teach each of my parent clients these skills because I believe teaching is one of the duties every advocate has. I ask each of my parent clients to learn these skills and then teach another parent what they learned.

    What I’m talking about here is the art of advocacy.

    This isn’t anything new. As with any art or craft, skills are passed from one individual to another. It has been that way since prehistoric people began making tools from stones and creating paintings on cave walls.

    Blaming the parent

    Using the blame game is an old, old tactic. The formula is simple: Deny the claim and attack (destroy) the accuser. This is a well and often used tactic in politics. That tactic effectively removes the real subject from the meeting conversation and deflects it into oblivion. The real subject is FAPE for your son.

    Another word for blaming the parent is scapegoating. When a school district attacks in this way you will know the school has either run out of supportable arguments in favor of its position or it is trying to create a snow job cover to end the meeting. It is the school’s last defense. Unfortunately a school district can usually get away with it because it holds the power to inflict collateral damage. For example, the school district can report a parent to the state child protective services.

    The root of this kind of scapegoating is usually zealous advocacy by the parents. I cannot go into detail here about how parents are protected for their vigorous advocacy. What I can say is there are more than an ample court decisions and other legal sources that say Congress anticipated that parents would be vigorous advocates for their children - and public schools should expect it. This is one reason why the procedural safeguards under 20 USC Section 1415 are detailed and extensive. To my knowledge, only in extreme circumstances will a court find a parent blameworthy for vigorous advocacy.

    Recording IEP Team Meetings

    In your question you said the State of Washington regulations do not allow recording an IEP team meeting. My suggestion to you is find that regulation, read it carefully, and see if that regulation has any exceptions.

    Any parent who can show that a recording of the meeting is necessary for parental participation should be able to record the meeting. There are several reasons why this might apply. For example, if one parent cannot attend the meeting, then a recording might be necessary for that parent’s full participation in the meeting. There are other reasons as well. The IDEA itself guarantees a parent’s right to participate in developing their child’s IEP and “meaningful” participation in all IEP team meetings. I’m not an attorney, so my thinking on this is founded solely on my experience as an advocate and the literature on that subject. I believe there are some articles published on on this subject.

    Also, remember the IDEA controls IEP meetings - not union contracts. Therefore, you have to ask yourself why having an attorney attend the meeting with you would suddenly change the union contract “rule” about recording an IEP team meeting. As far as I know there is no attorney at the meeting exception to the parental participation rule in the IDEA. The regulation for parental participation is 34 CFR 300.322 (Authority, 20 USC 20 U.S.C. 1414(d)(1)(B)(i)).

    The Congress must have considered parents as important and necessary members of a child’s IEP team because Congress put parents at the top of the list for required IEP team members. Look at the regulations that cover the make-up of the IEP team. You can find it at 34 CFR 300.321(a)(1) (Authority, 20 USC 20 U.S.C. 1414(d)(1)(B) -(d)(1)(D)). Notably, Congress did not mention unions in the regulation language.

    The IDEA does not speak to recording IEP meetings. That means state law controls whether a parent may make a tape-recoring or an audio recoring of an IEP team meeting. See Letter to Doerr, 213 IDELR 127 (OSEP 1988).

    On 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 the 2006 IDEA Part B regulations, at 34 CFR 300.322(e) require districts to take "whatever action is necessary to ensure that the parent understands the proceedings at a meeting." See E.H. v. Tirozzi, 16 IDELR 787 (D. Conn. 1990); Warrensburg Cent. Sch. Dist., 17 IDELR 371 (SEA NY 1990).

    It seems to me that this part of the IDEA trumps any union contract argument thrown in the parent’s face at a team meeting.

    Again, I’m not an attorney. You should check with an experienced special education attorney in your area for a legal opinion on this.

    I hope this has answered your question, “Where Do We Begin From Here,” and gives you some insight into how to fix the problems you are having with the school district and become your son’s most effective advocate.

    Thank you for your questions.

    - brice palmer

  8. #8
    Join Date
    May 2012

    Default 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.

  9. #9
    trek is offline INCIIDer - A Community Creator
    Join Date
    Sep 2006


    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

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