Tag Archives: children

Confronting “Alternative Facts” in Special Education

Recent events at the national level have exposed the mainstream public to the over-the-top misrepresentations that some public servants make. I’ve been witnessing the unbelievable spin jobs carried out by such individuals within the public education system for over 25 years, so none of this is new to me.

In truth, I’m glad the rest of the American public finally now understands what I’ve been dealing with this whole time. It used to be that when I’d explain what I do for a living and the behaviors I’d encounter on the part of some public education agency personnel and their contractors, people would think I was melodramatically making it all up. Honestly, as creative as I may be, I couldn’t make up stuff like that if I wanted to; no sane person’s imagination is that rich. Now, I can point to the White House saying, “It’s like that,” and people finally get it.

What the current administration has done for us is provide us with a new vocabulary used by its staffs who are utterly divorced from the truth, and that language helps us navigate their communicative intent. It’s language that they, themselves, have most usefully described as “alternative facts.” For the purpose of this post and future posts in which references to “alternative facts” are made, I am operationally defining “alternative facts” as untruths that are preferred by their speakers to the truth.

The pervasiveness of “alternative facts” in special education is so widespread and diverse that no single post could possibly capture our analyses thus far of their use. Because these governmental abuses of authority are woven so deeply into the fabric of public education, including special education, it is worthy of significant discourse.

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OMG, How Do We Protect Our Students, Now?

As we quickly approach the end of 2016, and the next Presidential inauguration in January 2017, those of us who have been protecting the educational and civil rights of students with disabilities already thought this effort was daunting, but now many of us are looking ahead at 2017 through 2021 in absolute horror. Just when we thought it couldn’t get any worse.

In part, we are floored by the reality that someone actively manifesting the symptoms of a personality disorder has been elected into the office of President of the United States. Based on our country’s voting behaviors, half the American public is made up of people who lack adult-level reasoning and perspective-taking abilities; that is, con artists and their regular victims.

On one hand, this could be viewed as a victory for those of us who seek to support and facilitate the integration and inclusion of those challenged by serious mental illness into mainstream society. However, even if we want to dress up this situation as a victory for the mentally ill, it’s going to take the rest of us to keep the current administration from running the ship of democracy onto a rocky reef, thereby ripping open its hull and dissipating our hard-earned freedoms into a sea of melodrama and destruction. We have all suddenly been forced to be our brothers’ and sisters’ keepers, if for no other reason than damage control.

Personality disorders and developmental delays in social-emotional functioning have taken center stage in this last election and will continue to do so once the newly elected and appointed are sworn in. Impairments in judgment, deductive reasoning, and emotional stability – in other words, the symptoms of significant handicapping conditions – are posing a direct threat to the programs and services that help people with disabilities function in their communities with as much independence as possible. I keep hearing Morpheus from The Matrix in my head saying, “Fate, it would seem, is not without a sense of irony.”

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The Approaching End of a Heartbreaking Era

Click here to listen to the podcast version of this blog post.


When the Education of All Handicapped Children’s Act (EAHCA) was enacted as PL94-142 in 1975, it was in the face of enormous opposition from school district administrators and their attorneys who were actively refusing to enroll children with disabilities in our nation’s public schools. Many have remained employed in public education, stewing in their own bile over their legal “loss” while begrudgingly enrolling students with special needs.

The EAHCA was reauthorized as the Individuals with Disabilities Education Act (IDEA) in 1990, which has, itself, been reauthorized twice since then, the last reauthorization being in 2004. Clearly, Congress has no intention of returning to a time when discriminating against those with disabilities was perfectly acceptable.

I don’t know how many of you have experienced an employment situation in which people have been required to do something that they opposed, but it’s been my experience that some people in this position are more likely to sabotage any attempts to do things differently to “prove” it was a bad idea than to willingly go with the program. Some people are just sore losers.

In short, you’re not likely to get buy-in from people who had to be Court-ordered or required by regulation to do the ethical and responsible thing. It says something, anyway, about a person’s character when he/she forgoes ethical solutions for whatever reasons and, therefore, requires enforceable regulations that dictate what his/her behavior should be. Some peoples’ characters create a situation in which the behaviors normally associated with common sense and ethics become subject to regulation.

This is not specific to special education or the legal practices that surround it. This is human nature. Somewhere out there in the world is the person who justified warning labels on suppositories that advise they are not meant for oral consumption. Some people’s functional skills in various aspects of life, for whatever reasons, are seriously limited.

People tend not to make improvements when forced to, particularly when they perceive the improvements as a threat to their familiar, comfortable, self-serving routines. This, too, is human nature.

The problem in special education is that, following the passage of the EAHCA, too many people with chips on their shoulders were left over the decades in positions of authority in public education, passing their “insight” onto the people they were responsible for training and stacking the deck against the success of special education. In other words, ever since the passage of the EAHCA in 1975, there have been career public education administrators undermining the effectiveness of special education in order to win an argument rather than educate children, the latter of which being what we actually pay them six-figure salaries at public expense to do.

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Feds Seek to Outlaw Injurious & Deadly School Discipline Practices

On January 16, 2010, I posted an article about a federal report on the use of improper seclusions and restraints of children in our nation’s schools. These practices have been used mostly on children with disabilities, resulting in injury, trauma, and death. Continue reading

Independent Educational Evaluations (“IEEs”)


UPDATE (03/11/2011): Subsequent to posting this article, we became aware of a memorandum from the U.S. Department of Education Office of Special Education Programs (“OSEP”) of February 20, 2004, in which it states that parents determine which outsider assessor will conduct an IEE. Click here to download the OSEP letter. Please use this update to inform your decisions as you read through the content below.


I want to talk about Independent Educational Evaluations, or IEEs, in today’s posting and podcast because there seems to be a fair amount of confusion about what they are and when parents can ask for them to be provided at public expense – or even what it means for parents to ask for IEEs at public expense.  And the confusion is not just on the part of parents, which should be somewhat expected; it’s also on the part of special education professionals of varying ranks within public education agencies.

First, let’s define what an IEE is – it is an assessment that can inform the special education process that is conducted by a professional not employed by or acting on behalf of the public education agency responsible for educating a specific child.  An IEE can be obtained at private expense or at public expense.

An IEE is not, however, the same thing as a school district using an outside assessor to conduct an assessment on its behalf.  For example, many school districts do not have staff audiologists and will contract with third-party audiologists to conduct assessments for Auditory Processing Disorders (“APDs”) on their behalf, but this is still considered a district assessment since it is being done on the district’s behalf as a normal part of the assessment process when an APD is an area of suspected disability.

Many times, parents who do not understand the special education process will privately fund IEEs not realizing that assessment in all areas of suspected disability is the financial burden of the public education system.  I’ve had parents come to me after having paid for a private assessment such as this only to be surprised when I’ve informed them that the public schools have a mandated obligation to assess students who may be in need of special education.

These are often the parents who suspected their child had a learning problem and went out to the private practice community first to get answers to inform themselves.  Once they had information about their child’s unique learning needs, they subsequently found out that they could have gone straight to their child’s school for help.

Then there are parents who tried to get assessment from their child’s public school but were given misleading information regarding the school’s obligations with respect to assessment and were sent away empty-handed.  These parents then went out and paid for private assessment because they thought the school system couldn’t do anything to help identify why their child was failing to learn, only to find out afterward that they had been lied to and jerked around by the public schools or that whomever they had spoken to at the school had no idea what he/she was talking about and had provided them with poor guidance.

The thing to bear in mind is that if parents obtain an independent assessment at private expense and present it to the school district, and that outside assessment is used to find the child eligible for special education, the school district must reimburse the parents for the cost of the assessment.  This is because the financial burden of assessing for special education eligibility is that of the school district to bear.  This is why many districts will insist on doing their own assessments after receiving an outside assessment from a parent indicating that a student has special needs.  Outside assessments are often more costly than those done in-house by the district, so it’s less expensive to do its own assessment than reimburse the parent for the independent assessment that he/she had done at private expense.

The same rules for reimbursement can apply to an assessment that identifies needs that were not identified by the district that drive the content of a child’s IEP, even if the district found the child eligible as a result of its own assessments on the basis of some other need.  So, for example, let’s say we have a child with an APD in addition to Attention Deficit Hyperactivity Disorder (“ADHD”).  But, in this example, the district’s assessments only identified the ADHD and found the child eligible on the basis of that condition but failed to include assessment by an audiologist for an APD.  If the parents subsequently paid for an APD assessment by an audiologist and those finding were used to amend the child’s IEP to include auditory processing therapy, accommodations for auditory processing needs, adaptive technology for auditory processing issues, etc., then the district would owe reimbursement to the parents for the APD assessment.

Unfortunately, what often happens is that school districts do not want to admit that they failed to attend to their duties and will thus argue against the information brought in from the outside by parents.  They’ll argue all kinds of crazy things, not necessarily because they’re against the types of services that the independent assessments recommend, but more often because they don’t want to admit that they screwed up in the first place.  A lot of due process cases arise out of situations like these.  And, the child is the one caught in the middle failing to receive appropriate interventions while the adults involved argue over what is really going on and what should be done about it.

IEEs become particularly important when parents disagree with the assessments conducted by the public schools, and this is where things can become particularly tricky.  Some parents, completely unaware of their rights, will go out and pay for a private assessment after receiving an assessment from the public schools with which they disagree.  They will then submit the findings of the independent assessor to the school district to refute the district’s findings from its own assessment.

What these parents often don’t realize is that if they disagree with the school district’s assessment, they have a right under the Individuals with Disabilities Education Act (“IDEA”) to an IEE at public expense – that is, a second opinion by someone not employed by the public schools but at the expense of the public education system.  What these parents also often don’t realize is that just because they provide the school district with an independent assessment, the school district is not procedurally bound by what the independent assessment recommends.

School districts must consider outside assessments provided by the parents.  Considering something and being bound by something are two different things.  When the findings of an independent assessor, particularly one paid for by the parents, conflicts significantly with the findings of the school district’s assessment, the school district will often “consider” the IEE to be without merit.  What can then ensue is a “war of the experts” in due process.

The cleaner, much preferred way to go about IEEs in my experience is to let the school district perform its own assessments (presuming they don’t refuse to assess) and see what they say.  If the district’s assessment results are inadequate and/or inaccurate, then the parents should disagree in writing with the district’s assessment and ask for an IEE at public expense.  The only way a school district can lawfully deny funding an IEE under such circumstances is to file for due process to assert the appropriateness of its own assessments, and this is a critical procedural consideration that parents and educators alike often fail to understand.  (See 34 CFR Sec. 300.502(b).)

I have a number of refusal letters on file from school districts where they declined to honor parents’ requests for IEEs after the parents disagreed with the districts’ assessments but the districts never filed for due process to assert the appropriateness of their own assessments.  In some of the cases, all I had to do was file a compliance complaint over the procedural violation and the state education agency ordered the offending districts to fund the IEEs.  In other cases, there were other issues that made due process necessary and the failures to fund the IEEs were just more fuel for the fire, so they were dealt with as due process issues.  In those cases, the parents had usually gone out and funded the IEEs themselves after their requests for IEEs had been unlawfully declined and the districts owed them reimbursement at that point.

And, that brings up another critical consideration.  If a parent asks for an IEE at public expense and the district refuses to fund it but fails to file for due process to assert the appropriateness of its own assessments, and the parent goes out and pays for the IEE at private expense, then files for due process over the denial of a Free and Appropriate Public Education (“FAPE”), the school district is then given the opportunity to demonstrate in hearing that its own assessment was adequate.? Parents need to take this into account.

Just because the district failed to abide by the procedural requirements to file for due process upon declining to fund the IEE does not mean the parents will automatically prevail in due process.  It is possible that a hearing officer could determine that, procedural violation aside, the district’s assessment was nonetheless adequate and reimbursement is not due.

However, some school districts will attempt to argue that the parents should be procedurally barred from seeking reimbursement from the district for IEEs if the parents didn’t first give the district notice that they intended to fund the IEEs themselves and later seek reimbursement from the district.  This is a misrepresentation of the regulations by the school district.  Parents are not required to give notice of their intent to seek reimbursement for a private assessment from the public schools upon disagreeing with the public school’s assessment.

When school districts try to assert this argument, they are confusing the notice requirements for unilateral placement by parents of their children in private schools or private special education programs with the intent to seek reimbursement for IEEs.  These are two completely unrelated types of reimbursement requests that are bound by completely different regulations.

Under the IDEA, if a parent believes that the district’s offer of services and/or placement are not appropriate, and the parent decides to put his/her child in a private program and seek reimbursement from the district for the costs of that program, the parent must give notice to the district at the last IEP meeting held before the unilateral placement by the parent is made or give written notice at least 10 business days prior to making the unilateral placement.  This is to afford the school district one last chance of pulling its butt out of the sling before it’s on the hook for the costs of a private placement, presuming the parent is right and the placement offered by the district was inappropriate.

However, the same rule does not apply for IEEs.  Parents can go out and get IEEs at private expense then turn around and hit their school districts up for reimbursement without having given prior notice of their intent to do so.  I’m not saying I recommend taking this route, though there are situations that sometimes make it necessary.

Again, the only way the school district can refuse to pay for the IEE is to prove in due process that its own assessments were adequate.  If the district commits the procedural violation of failing to file for due process after declining to reimburse the family, then the family can file a compliance complaint or, if the failure to provide the IEE results in substantive harm to the student, the family can file for due process asserting a denial of FAPE and ask for reimbursement as one of the remedies being sought.

In any of these scenarios, the two most important things for parents and educators alike to understand is that 1) an IEE can only be provided at public expense when the parents disagree with the district’s assessment and 2) the parents’ request for an IEE or reimbursement for an IEE can only be declined by the district if the district proves in hearing that its own assessment was adequate.  This generally means that parents have to give districts the opportunity to do their own assessments first, or there’s nothing with which they can disagree.

The exception is if the district fails to assess when it should have, only for outside private assessment to reveal the presence of needs for which the child requires special education and/or related services.  In essence, the district’s findings are that the child has no special education need in that area and the independent assessment indicates otherwise.  A hearing officer can find that the district’s assessment was not adequate because it consisted of nothing at all and, therefore, the district owes the parents reimbursement for going out and doing the district’s job at their own expense.  As stated previously, the burden to assess in all areas of suspected disability is the district’s to bear, so if it fails to meet that burden by refusing to assess at all, it’s essentially the same outcome as assessing poorly.

This causes confusion for many because, generally speaking, an IEE at public expense is only warranted if a referral for assessment was made in the first place.  In such an event, either an assessment was conducted with which the parents disagreed or the referral to assess was declined by the school district and the parents then went out and got their own assessment by an outside assessor at private expense for which they subsequently sought reimbursement.

However, there is also the issue of “child find,” which is the federal mandate that all school districts actively seek out and identify those children within their attendance areas who are eligible for special education.  It can be successfully argued that if a school district fails to conduct child find, then when parents go out and get assessments done on their own dime only to later seek reimbursement for those assessments that reveal the child is in need of special education, and the record is clear that the child has not been successful at school for some time, then the school district can be found to owe reimbursement.

In essence, due to the district’s failure to conduct child find, the parents had reason to “disagree” with the school district’s “determination” that the student failed to qualify for special education and the district obliged itself to reimburse the parents for their costs to essentially conduct child find on the district’s behalf.  A failure to assess in an area of suspected disability is essentially the same thing as assessing poorly in an area of suspected disability, thereby preventing the district from successfully asserting the adequacy of its own assessments.  You can’t assert the adequacy of something that doesn’t exist.

All of this said, parents need to understand that they only get one IEE for every assessment by the district with which they disagree.  If they don’t agree with the findings of the IEE, they can still go out and get additional outside assessments and provide the reports to the district for its consideration, but they aren’t entitled to additional reimbursements.

I was at a training the other day for a surrogate parent program for incarcerated youth and the trainer was unclear on this issue.  She was under the mistaken impression that parents had the right to IEEs, but they had to pay for the IEEs themselves regardless of the circumstance.  And, this was a dedicated educator who regularly goes out on a limb for children who are, without a doubt, some of the most difficult-to-serve special education students in the world.  The rules about IEEs are confusing to a lot of people and our public schools have not done a particularly good job of training their people on how those rules work, which makes it that much harder on parents who understand special education procedure even less.

Click here to download the podcast version of this article.

Parents in Crisis Can Be Vulnerable to Predators

There has been a tremendous movement among a group of special education lay advocates across the United States and beyond to get to the bottom of a very troubling situation involving an individual who claims to be a highly successful and renowned special education advocate but whose claims cannot be substantiated and, in fact, appears to have defrauded a number of parents of children with special needs, particularly targeting high-profile autism-related seclusion and restraint cases. This individual, who goes by the name of Michael E. Robinson, Sr., is suspected of being located in Redding, California, based on the physical location where the phone numbers he gives out are installed.

Robinson was previously located in Hawaii, so it seems. He claims to be located in Washington, DC, Arizona, Hawaii, and California. He has claimed to be a lobbyist (not registered); a special education lay advocate and/or attorney (he’s claimed both) with years of experience with due process cases and litigation going all the way to federal court (no record of him involved in any special education due process or court cases could be found); a medical doctor (there is an autism specialist also named Michael Robinson whose work Michael E. Robinson, Sr. has attempted to claim as his own); and, of all things, a NASCAR racer.

He’s also claimed that he has epilepsy and was given a wolf as a service animal because wolves can allegedly detect the onset of a seizure before it happens, thereby making them superior service animals – forget the fact that it’s not legal to have a wolf as a service animal. And on and on. His behavior seems indicative of a narcissistic personality disorder and an absolute disregard for the consequences of what he is doing.

It’s easy now that so many people have come out of the woodwork to share their Michael E. Robinson, Sr. stories and much of his story has now been pieced together to look at the big picture and reach the conclusion that Robinson is up to no good. He’s solicited money from several parents, apparently. He’s also requested copies of legal documents in individual student’s cases from parents to allegedly use for his “lobbying” efforts, only to turn around and copy and paste from these documents to attempt to misrepresent the work of other advocates and attorneys as his own to his next set of victims.

His M.O. is apparently to collect enough information from past cases to be able to initially convince parents in newly developing cases – usually horrific situations in which the parents are in dire need of technical assistance – that he is experienced and can help them. He commiserates with them over the injustices they have suffered and tells them not to worry because he’s going to take care of things for them. Then he takes whatever money they’ve given him and copies of their records and is never heard from by them again. He seems to particularly seek out single mothers who are emotionally vulnerable as they fight to protect their children with disabilities from harm and have little to no support from their children’s fathers.

As a special education lay advocate for over 18 years and a paralegal in special education-related litigation for the last 5 years, I have to say that the prospect of someone using special education lay advocacy as a vehicle for running a con is particularly disturbing. While it’s expected that different advocates have different styles and ways of going about things, this is well beyond anything like that.

What is so damaging is that the child who was in such dire need that his/her case caught Robinson’s eye continues to go unserved. Robinson’s advocacy, such as it is, fails to achieve appropriate outcomes, based on the reports coming in from families who claim to have been taken advantage of by him.

This hurts children with special needs overall by undermining the credibility of lay advocates everywhere. Every time I go into a school district in which I’ve never advocated before, I find myself having to prove that I’m not some crazy person or someone with an axe to grind. The expectation maintained by many school districts is that all advocates are adversarial jerks and a righteous pain in the keister. It usually takes months of working with an IEP team in a district to which I am new before people finally figure out that I’m just trying to solve problems and facilitate a rebuilding of trust between the school district and the student’s family and that I’m only going to pursue accountability if the school district personnel keep failing to perform their mandated duties.

But, when I have to follow behind someone calling him- or herself an advocate who has behaved disreputably, demonstrated a clear lack of knowledge regarding what constitutes an appropriate IEP, and antagonized the situation to such an extent that a power struggle has ensued between him/her and the school district, I am put at a tremendous disadvantage. The time I have to invest in proving that I’m not going to do the same thing is time that could have otherwise been invested in properly educating my client.

I want to make clear, though, that very few advocates are so lacking in knowledge and so adversarial that they do more harm than good. Mr. Robinson is the exception, not the rule. Nonetheless, parents need to be diligent about making sure that whoever represents them is on the up and up. When I meet with parents for the first time, they will often tell me that they Googled me beforehand. I’m totally okay with that; there’s a pretty good chance that I Googled them, too. Advocates have to protect themselves from shiesters, as well.

To read more about the evidence compiled against Michael E. Robinson, Sr., see: