IEEs, Splinter Skills and getting put through the ringer

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 successfully 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 persuading the hearing officer to rule in your favor on the motion for summary judgment.

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 Evaluation (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 parent 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: 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 District of Columbia wrote, “[the doctor] testified that while Anna 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 what 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 are. 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.

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 nil.

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).

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 sources. 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.

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 Education Records Privacy Act).

FERPA tells us what an education record is and what an education record is not.

As a broad brush stroke, we can think of any document that relates to your son’s education, 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 professional characterized as “contracts and legal arrangement” are protected by the attorney-client privilege.

I cannot answer this question. 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.