Yesterday, I spoke about the basics of asking for an IEE and when a parent has that right. Today, I will address whether you want to exercise a right that you may have. In short, today I will hopefully help answer the question, “Do I really want an IEE?”
Many parents, advocates and attorneys jump to ask for an IEE and don’t really think through what the problem is and what the IEE will get them. For example, if the district has assessed the child and the assessment data appears to be accurate, reflecting a child with an intellectual disability, profound autism, severe behaviors, etc. and the conclusion of the IEP team is that the child needs to be placed in a self-contained class and the parent wants the child mainstreamed, what will an IEE get you? The IEE is designed to dispute the evaluation and obtain data that might result in the team having to rethink the conclusions that were drawn from that data. Asking for an IEE in this case may simply confirm the data. What you really need in this situation is an inclusion specialist to serve as an expert and come to an IEP meeting and discuss ways to include the child in the general education environment (LRE) that the district has not tried. What you need in that situation is an advocate or special education consultant, sitting at the IEP table, spouting off Federal law on inclusion and how there is a requirement to educate the child in the least restrictive environment. An IEE gets you neither of those things. So, if the evaluation data is accurate and it is the conclusion of the team that is the issue, an IEE may simply aggravate the situation.
But, if the issue is whether something is actually occurring or not, having an outside person come in may be critical. Often the issue the parent really is questioning is IEP compliance. The parent goes in to do an observation and sees all sorts of problems. The district responds that the child is acting up because the parent is there. Alternatively, the parent may have gone in to observe to insure that the methodology that the district claimed it was going to use was actually being used. The district may write an IEP stating that they will be providing 1:1 discrete trial with the child, or using ABA methodologies. There may be a behavior plan that provides for appropriately written reactive strategies that do not punish but, instead, prompt the child to the replacement behavior you are trying to teach. But, the child continues to do poorly, you continue to get reports home from the district that the behavior is impeding learning and the district is seeking to move the child to a more restrictive placement because of the claimed behavior. Once again, you ask to do an observation and you don’t see any DTT, there is nothing that resembles ABA or even close, the idea of positive behavioral management is just that, an idea as there is NO behavioral management at all in the classroom. And, of course, if you have the audacity to ask for an explanation of the reality you just saw, you are denigrated, ridiculed, and spoken down to because, after all, what the heck does any parent know anyway, right? Sound familiar? In these situations, getting independent observations and data from such observations may be critical to helping you get a change (either in placement, in staffing, or both). One avenue for getting that outside information is the IEE. But, there are steps that must be done first.
The parent can request a Functional Behavioral Assessment (FBA or FAA, depending upon what state you are in) to help address behavioral issues. The district gets the first chance at evaluation and their people may or may not be candid in what they are reporting. Or the district may give you an “evaluation” that they claim is an FBA but really isn’t. A true FBA or FAA will analyze behavior, look at its functions, challenge the antecedents to see if change makes a difference in the behavior, etc. If the so-called FBA/FAA that you are given instead raves about how amazing the district program is and what fabulous things the district is doing, it probably is not an FBA/FAA. In that situation, the request for assessment opens up the ability to disagree and to ask for an outside person who is truly qualified to come in and do the behavioral assessment. Every time I have had a BCBA go in and do a functional behavioral assessment, they have seen that aides were not using DTT, aides were NOT using ABA, or that aides were actually negatively reinforcing behavior by their actions. It wasn’t that the aides were intentionally messing with the child; rather, aides are often poorly trained and doing what they think they are supposed to be doing. Okay, one time, the behavioral specialist doing the evaluation actually saw physical abuse and it was reported to the police. That is the rare situation but the reality is that if your child is having problems and cannot adequately communicate what is going on, an outside, objective, independent set of eyes is worth its weight in gold.
So, while “getting to the truth” is not a basis to obtain an IEE, responding to a behavioral assessment with which you disagree may get you the truth you seek. And, in several of my cases, the IEE for behavior resulted in getting a privately provided aide or a private placement, because the IEE had established that the district did not know what they were doing. In other cases, the IEE resulted in the retention of the expert for the ultimate due process that was filed after the district dug a line in the sand. Each time that occurred, the district failed to cry “uncle” and ended up on the losing end of a substantial award after a successful hearing.
The other circumstance when an IEE is very helpful is when the district limits programs to the one size fits all that the district has. For example, many parents want specialized programming such as Fast ForWord, Pace, CogMed, Interactive Metronome, The Listening Program or Specialized Reading Instruction (Wilson, Lindamood Bell, etc). Asking for an assessment with the district may result in an agreement over the problem that the child has but no recommendations on how to intervene with that problem once found. Asking for an IEE, particularly a comprehensive psycho-educational IEE with a private psychologist, may result in additional recommendations for programming such as those listed above as outside evaluators are not handcuffed to promoting only the programs that the district has. An outside evaluator will look carefully at the problems that the child presents, and match those problems against all available resources/supports/programs and make recommendations that are truly uniquely tailored to meet the student’s needs. Again, the recommendation does not mean that the district has to roll over and accept it. This is particularly true with reading program recommendations. A parent pays for an evaluation with Lindamood Bell that recommends 6 weeks of intensive services over the summer and presents it to the district. The district responds by offering its reading program instead. Case law abounds that says that districts do NOT have to accept parent’s chosen methodology if there is more than one methodology that will meet a student’s need. Districts get to choose methodology. So, as long as the district is selecting a proven reading program, and there are many that meet the peer-reviewed standards published by the National Reading Council, you may not get what you were hoping for. But, for other programs, such as Fast ForWord, if the recommendation of the program was for a temporal processing problem, for example, there are not many other programs that are research based that address temporal processing. So, if your child has an auditory processing problem for which Fast ForWord has been recommended (not to improve reading but to improve processing), and the district does not include something on the IEP to address temporal processing, the IEE may provide you with expert support to help with a due process claim if you want to move forward with the recommendation (privately fund while reserving your right to seek public reimbursement after a due process).
So, while many parents get lulled into the panacea of a product that is pushed on them by some outside providers, there are times where a district is not doing anything and an outside evaluator will make recommendations that might result in the district providing more or different services. I often tell parents that the best advice comes from a neutral source; if they are having an evaluation performed by someone who is hoping to later provide the service, the results may not be the most objective. If, instead, the evaluation is performed by a psychologist or behavioralist who will NOT be providing the services but, instead, recommending others with whom to work, there is less likelihood of any conflict of interest. There are experts in the field who limit their practice to evaluation and this helps with establishing their objectivity. Just as the district has an innate conflict as their providers are supposed to support what the district is doing, some outside providers are well known to engage in self-promotion. This does not necessarily help the child or the process, if your hope is to obtain services.
So, if you retain an outside provider, try to find one that is objective, and has no “horse in the race” (so to speak). Make sure that the provider is available to attend an IEP meeting and serve as an outside, objective and independent source to advance the recommendations that are proposed. Remember, however, that just because your outside evaluator made a recommendation does not mean that the district must adopt it. The federal regulations provided: If the parent obtains an independent educational evaluation at private expense, the results of the evaluation “must be considered by the public agency” in any decision made with respect to the provision of a [free appropriate public education] to the child. (Emphasis added). 34 C.F.R. 300.502(c). The district must consider it, openly, without predetermination, and in good faith. As one court held:
[T]he failure to receive and consider parental information, including evaluations they may obtain, directly denies parents the pivotal role they should enjoy in the development of their child's placement. This role includes not only providing evaluations or other information, but discussing such information. Consideration of such outside information also ensures that a program is individualized and provides a check on the judgments being made by school officials regarding the child.Community Consolidated Sch. Dist. No. 180, 27 IDELR 1004, 1005-06.
Federal regulations make clear that parents and school personnel are equal participants in the development of a child's IEP and that the parents' participation in the IEP process must be meaningful. In many cases, IEEs provide support for the parents' opinions and requests. If a district rejects a recommendation in an IEE, it might be evidence from which a parent could successfully bring a due process, to obtain reimbursement if the parent decides to fund the services recommended by the evaluator.
The bottom line is that requesting an IEE shouldn’t simply be a knee jerk reaction for any disagreement with the district. You need to carefully analyze what you want and whether an IEE will help you get that or hinder you. Many parents think that the minute that they hire an independent evaluator, that provider will support whatever it is that the parent wants. This is often not the case. I have seen many IEE reports where the outside evaluator not only disagrees with the parent but supports the district. So, be sure that your goal is actually achievable through the request for an IEE. If you decide that an IEE is appropriate to request, here is one more practice pointer. You need to make your request in writing. This is NOT because the federal regulations require a written request but because if you do not make the request in writing, you can assume that the district can and will claim that they never received the request. If you are at an IEP meeting and orally request an IEE, ask that it be documented in writing in the IEP meeting notes. If they insist that you give them a written request, take out a piece of paper, put the date on it, address it to the head of special education, and write “I disagree with your evaluation and am requesting a psycho-educational (or speech, or behavior, or whatever) IEE.” Sign it and give it to the head of the team and ask that the notes reflect that you gave a written document to them. They like to delay your request by demanding that you submit something in writing to someone who is NOT at the IEP meeting. It turns out that they can’t inhibit your ability to immediately request an IEE and to respond to that by such games. Just give them the piece of paper and tell them you will expect their response “without unnecessary delay” as required under the federal regulations. The minute you get back to your computer, send an email to whomever it was that they claimed was the only person who had authority. That email should state something like this:
I just returned from an IEP for my son [insert name] that was held at ABC elementary school. The purpose of that IEP meeting was to review the district’s evaluation of my child. I formally disagreed with the evaluation and requested an IEE. I requested that the notes reflect my oral request and the team refused to include my request in the notes. The team insisted that the request needed to be in writing and sent to you. I gave the team a written request for the IEE and requested that they forward it to you. They refused. While I believe that their understanding of YOUR rules must be inaccurate and would impede the parent’s right to a prompt response “without unnecessary delay” as mandated by the federal regulations, please consider this my formal, written request for an IEE, sent directly to you, on the SAME date that I hand delivered the written request to district employees.”
The point of being very clear in what happened is to establish the stupidity of the district rules. If you end up in a fight with the district over the IEE (either because they refuse to provide one or disagree with the one you obtain), these types of rules make districts look bad. It makes them look like they are out to put up so many roadblocks to interfere with the parents’ right and judges don’t like that. Some districts play the “send it to someone else” game to add time to the response clock. They must respond to your request “without unnecessary delay”. In one district in San Diego, they take 15 days to respond and the initial response is a letter telling you that they have received your request and will respond in 15 more days. In a district in Phoenix, no matter who you give the written request to at an IEP meeting, until the “face of the district” receives a written request from the parent, in writing, the time clock does not start. There is generally a minimum of 7 to 10 days from the date you sent it to when that person actually claims he received it. The process is about delay and, candidly, it is also about making you suffer for your request. Unfortunately, in the real world districts cannot avoid parents who know their rights so they at least try to make them suffer for exercising them.
Eventually you get a response. What do you do if the response provides limits that are unreasonable? Stay tuned for tomorrow’s installment in this series on IEEs.
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