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Prescription Pad Diagnoses and Other IEE Issues

Prescription Pad Diagnoses and Other IEE Issues. Presented by Jose Mart ín, Attorney at Law Richards Lindsay & Martín, L.L.P. Austin, Texas. Current IEE Regulation. 34 C.F.R. §300.502 Establishes parental right to IEE

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Prescription Pad Diagnoses and Other IEE Issues

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  1. Prescription Pad Diagnosesand Other IEE Issues Presented by Jose Martín, Attorney at Law Richards Lindsay & Martín, L.L.P. Austin, Texas

  2. Current IEE Regulation • 34 C.F.R. §300.502 • Establishes parental right to IEE • Upon IEE request, school must provide info on where to get IEE, and of local IEE criteria Info can be in the form of a list of qualified evaluators

  3. Parent is not limited to list School criteria can be overlooked if parents show unique circumstances (hard to do, rare) • What is an “independent” evaluation?

  4. • Parent has right to IEE if they disagree with a district evaluation Thus, districts have a right to conduct evaluations first Implied: parents can’t force districts to use IEEs instead of district evaluations

  5. • When a parent properly requests IEE, districts must, without unnecessary delay, either: 1. Request a hearing to prove district evaluation is appropriate, or 2. Provide the IEE at district expense (unless district proves IEE did not meet criteria)

  6. Thus, most districts grant IEE requests (given the cost and risks of a hearing request) And, most districts work with parents to ensure IEE will meet criteria • Are there circumstances where schools might want to deny an IEE request?…

  7. • See cases for successful denials of IEE (Lawrence Township, DeMerchant) • See cases for unsuccessful denials, i.e. when school fails to timely request hearing (Los Angeles USD) • What if school is working with parent on evaluation dispute? See Abington SD

  8. • Schools can ask why a parent wants an IEE, but parent doesn’t have to answer • Parent can only get one IEE per district evaluation

  9. • When parents submit privately-arranged IEEs to the district… IEPT must review and consider IEE (but not necessarily follow it), if it meets district criteria So, IEPT technically not under duty to consider non-compliant IEE (e.g., if outside normal geographic area)

  10. • Hearing officers can order IEEs • District IEE criteria Must be the same criteria applied to district evaluations Aside from criteria, no other timelines or conditions are allowed Criteria can’t be too restrictive…

  11. Geographic area limitations— Where does the district get its own evaluations? Cost limitations—Maximum allowable charges per evaluation Qualifications requirements— Same as required for district evaluations

  12. District, based on state requirements, decides qualifications See Tustin USD (parent wants Doctor of Optometry to do vision evaluation) • Watch for weird or irrelevant IEE conditions (see Letter to Petska)

  13. Miscellaneous IEE Issues • IEE observations at school—See Capistrano USD • Are there limits to right to observe? See 2005 Nevada case • Can parents reject district IEE list out of hand? See San Antonio ISD

  14. • What if IEE is not educationally useful? (See USDOE commentary) To be considered, IEEs must provide data relevant to educational decision-making District criteria can limit consideration of IEEs that don’t provide educationally relevant info

  15. Practical guidance—Make sure district IEE criteria addresses need for educationally relevant information

  16. • How do IEEs work under modern LD evaluations? Parents can get IEEs for LD, but Parents can’t get IEE simply based on disagreement with proposal to conduct RtI-based evaluations • Independent evals should review existing data

  17. Difficult scenario—LEA LD eval shows non-eligibility using RtI option, IEE concludes student is LD using assessment-based methods Does IEE “meet district criteria” due to using non-RtI method?... What if IEE analyzes RtI data differently than LEA?...

  18. • Are opinions of private physicians entitled to favor over those of school staff? They shouldn’t… See Christopher M. v. Corpus Christi ISD (5th Cir. 1997)

  19. IDEA Eligibility • Marshall Joint Dist. No. 2 (7th Cir. 2010) Private MD opinion vs. school staff’s Student with genetic disorder needs OT and PT, seeks eligibility MD says student needs adapted PE Court disagrees—Finds no need for specialized instruction

  20. Marshall Joint Dist. No. 2 (7th Cir. 2010) HO ruled incorrectly on whether disability could affect educational performance MD’s opinion based on 15-min visit, no testing, no observation, parent info only Staff testified student participated well in regular PE with some accommodations “Physician cannot prescribe sp. ed.”

  21. Marshall Joint Dist. No. 2 (7th Cir. 2010) P.S. Lower court decision caused debate when it held that IDEA eligibility had to be determined as if child were not receiving accommodations in PE Not a very pro-RtI analysis!... Would discourage reged interventions And, is the issue not whether the student needs services not available in sp ed?...

  22. Alvin ISD v. A.D. (5th Cir. 2007) Modern pre-referral practices collide with IDEA child-find… 9th-grader passes state test, passes his classes, has good achievement scores Parent gets two ADHD diagnoses

  23. The two private MDs recommended sp. ed. eligibility, but IEPT disagreed When parent asked for IEE, school requested hearing At hearing, parents pointed to behavior issues, school pointed to family events, alcohol use, problems with step-dad Behavior culminated with a theft

  24. School pointed out that a “Student Success Team” was working on case, developed a behavior contract School also showed student was well-liked and socially appropriate

  25. HO found for student, finding that school was essentially providing a “special” program (behavior contract), thus tacitly agreeing with IDEA eligibility She held school improperly rejected private doctors’ recommendations School appealed to federal court, which reversed the HO’s decision, and parent appealed to 5th Circuit

  26. 5th Circuit agreed with federal court Although ADHD may “adversely affect” student, he’s not in need of sp. ed. services School was right to place more weight on recommendations of school staff than on those of MDs MDs’ opinions based on incomplete info and isolated visits

  27. Court felt behavior problems were understandable result of family events, alcohol use, problems with step-dad Case shows how easily a parent can get a skewed recommendation from a private physician…

  28. Questions for private evaluations or recommendations • Is private evaluation based on achieving maximum potential? • Look at sources of data • Is evaluator qualified? • Are findings well-supported or conclusory?

  29. • Does report go into educational areas not within area of expertise? • Will evaluator answer follow-up questions? • Is recommendation made without assessment?

  30. • In the case of prescription pad diagnoses or recommendations, will parent consent to follow-up with expert?

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