By Dr. Steve C. Imber

Inclusion is not in the IDEA.

Although the term ‘inclusion’ is not included within the Individuals with Disabilities Education Act (2004), inclusion has become a prominent strategy for educating children and youth with disabilities with non-disabled peers within a general education setting since the late 1980’s and 1990’s.

The concept of mainstreaming connotes placing a student with disabilities in a general education setting within minimal modifications of objectives, instructional strategies, evaluation procedures and grading strategies. However, that concept will also not be found within the federal regulations pertaining to educating children with disabilities.The term ‘least restrictive environment’ can be found in various federal and state regulations that pertain to students with disabilities. In 1975, when the United States Congress passed landmark legislation, P.L. 94-142, The Education for All Handicapped Children Act in 1975, the term least restrictive environment was addressed. Congress expressed a strong preference for educating children with disabilities with their non-disabled peers. Congress mandated that Individualized Education Program (IEP) teams include the parents and professionals with knowledge about the child. Congress also mandated that prior to exploring matters of placement in more restrictive settings than a general education classroom, the IEP team must first consider how the child might be supported through the necessary aides and supports.

Court cases that support inclusion. 

There are several well-known appellate court cases that have stressed that IEP teams must consider implementing a free appropriate public education within the least restrictive environment in which the child can succeed. The Daniel R.R. (189) 5th Circuit case (1989) set a test for inclusion of students with substantial disabilities within the general education classroom. Though the school district prevailed in that matter, the district was able to demonstrate that it not only considered how the child might be educated within the general education setting but actually implemented modifications within the general education setting. In Greer v. Rome City (1991) the 11th Circuit found that a school district failed to follow the requirements for LRE set forth by Congress and made a ruling favorable to the parents. Other appellate courts continued to demonstrate that even for children with substantial intellectual disabilities, such children should be included within the general education setting (Oberti, 3rd Circuit, 1993; Holland, 9th Circuit, 1994; Girty, 3rd Circuit, 2002).

Though Congress strongly favored the education of children with disabilities within the general education environment, recognized that school districts needed to offer a continuum of services in order to meet the unique needs of children with disabilities. In some cases, parents will advocate that their child should be given the opportunity to experience their education within the general education with the appropriate aides and supports, even if the benefit to their child is primarily social. However, other parents will advocate for their child to be provided with far more direct and intensive and highly structured education with a lower student-teacher ratio and specialized services for the development of reading skills (Orton-Gillingham, Wilson, etc.), Math skills (Touch Math), written language skills with specialized technology, oral language skills as well as social/behavioral skills based upon ABA and positive behavioral intervention support services.

How can an IEE help in matters of inclusion?

So, the question arises, what is the relevance and the role of independent educational evaluations (IEEs) as they pertain to issues of inclusion versus more restrictive placements, including unilateral placements within private special education programs?

When school departments conduct an evaluation relative to eligibility for special education services, some evaluations are thorough, comprehensive and quite useful. However, Congress anticipated that parents might not always agree that the school district’s evaluation was appropriate. Under procedural safeguards, Congress under P.L. 94-142 gave parents the right to obtain an independent educational evaluation if the parents disagreed (in any way) with the evaluation conducted by the school district under Part B regulations, 300.503 now 300.502. The term ‘independent educational evaluation’ refers to the concept that the evaluator(s) who the parent chooses in no way has any direct or indirect affiliation with the local educational agency (LEA) or local school department.

As long as the evaluator(s) is at least as qualified as the evaluators who the school district employs, it is the choice of the parents and not the district as to who is selected to perform the IEE. Furthermore, based upon federal regulations, when a parent requests an IEE based upon his/her disagreement with the district’s evaluation, the district can inquire as to the nature of the parent’s disagreement, but cannot ‘unreasonably delay’ its response to the request, even if the parent fails to specify the nature of his/her disagreement.

Unfortunately, some district administrators will be less than forthcoming about a parent’s right to an IEE. In some cases, school administrators will imply or state that if the district is to pay for an IEE, then the district gets to choose the evaluator. Districts may present a list of those who can perform an IEE; however, the district may limit the list of evaluators and imply that a parent may only select an independent educational; evaluator who is on the district’s list. Based upon a review of federal regulations and United States Department of Education policy letters from the Office of Special Education Programs (OSEP), a school district or state may not impose any conditions not already addressed with the federal regulations on IEEs. That has not stopped states and school districts from attempting to impose restrictions and conditions that go beyond those included with the federal regulations. OSEP has had to address numerous issues within several states to protect a parent’s rights to an unfettered right to an IEE.

Why should you request an IEE?

Why do parents seek an IEE? Parents seek an IEE because a school district’s evaluation concludes that a child has no disability and is not entitled to special education services. In some cases, a school district will identify a child as having a disability, but the parents do not agree. Parents may believe that the school’s evaluation was not thorough or failed to evaluate their child in all areas of the suspected disabilities. Parents may also believe that school district personnel are not qualified or experienced enough to evaluate their child’s skills given the child’s disabilities. And, in some cases, what we have is a failure to communicate, i.e. school personnel and parents are not on the same page.

With regard to matters of inclusion, some parents have exercised their right to have an IEE when the district’s evaluation demonstrates little or no progress within a general education setting and proposes a more restrictive environment. Parents may disagree with the results of the school’s evaluation and obtain a second, independent opinion in the hopes of demonstrating that further progress has been achieved than is indicated by the school’s evaluation.

In some cases, parents may believe that their child will not be successful in a class of 24 students for a variety of reasons. The parents may seek an IEE to assess the general education program as well as a proposed special education setting.

It is important for parents to understand their rights to an IEE but also to appreciate that a school district also has some rights as well.

There are some restrictions with an IEE.

The parent has the right to select an independent educational evaluator as long as the evaluator(s) is at least as qualified as school personnel who conduct evaluations. The parent is not limited to only those evaluators who are on the school department’s list. There are OSEP policy letters on this subject that make it clear that it is the parent who selects the person(s) to conduct an IEE. States may restrict the parent’s choice of evaluator by criteria of geographic region. For example, In Maine, evaluators must have certification or license by the Maine Department of Education or Health in order to be utilized as independent educational evaluators. Thus, the evaluator may practice in Boston, but need to be certified in Maine for a school district to pay for evaluation services. An exception may occur if no evaluator in Maine is qualified to evaluate the unique needs of a child. Under such unique circumstances, a parent could petition the school department to use the services of an out of state evaluator. The parent may have to initiate a due process hearing in order to prove their case.

The parent who seeks an independent educational evaluator to address questions about whether his/her child should be given the opportunity to learn in an inclusive environment needs to consider the specific qualifications of the evaluator(s). Reviewing the credentials and education of the evaluator for competence in one’s field is only part of the process. Ideally, the parent would also consider the degree to which the evaluator has worked within school-based settings, whether the evaluator has national publications and presentations in his field and whether the person has held state, regional or national office in his field. In addition, the parent would be wise to select an evaluator who is willing, capable and experienced in testifying at a due process hearing should such testimony be needed.

The results of an IEE by a qualified evaluator must be considered by a school district; however, school personnel are not required to agree with the results, conclusions or recommendations of the IEE (IDEIA 300.502). Thus, in some cases, parent may need to proceed to a due process hearing. Such action is likely to prove financially expensive and emotionally draining. Parents need to be prepared to appreciate that even when the IEE is especially well done, that a hearing officer may not rule against a school department.

Parents should also appreciate that obtaining a thorough IEE may prove to be rather expensive.

Getting an IEE is critical if parent/school district are “not on the same page”.

Fortunately, in many cases, parents and school departments are able to work cooperatively to provide a free appropriate public education for the child within the least restrictive setting. When the parents and the school department’s IEP, members are not on the same page, an obtaining an IEE is a critical component of the process of analysis.

Some school district and states have attempted to undermine a parent’s unfettered right to an IEE. Fortunately, the United States Department of Education has labored to insure that the right to an IEE is an enduring procedural safeguard.

Dr. Steve C. Imber is completing his 40th year as a Professor of Special Education at Rhode Island College. He has been a full professor since 1982 and especially after dinner!
He has published many articles in national journals and magazines including: Behavior Disorders, Exceptional Children, Exceptional Parent Magazine, the Journal of Learning Disabilities and LRPs 15th National Annual Convention Proceedings.
He has worked on behalf of students with ADHD, Autism, Behavioral and Emotional Disorders, Developmental Delays, Intellectual Deficits, Learning Disabilities, Multiple and Severe Disabilities and Traumatic Brain Injuries.
Dr. Imber has been in private practice as an advocate, consultant, expert witness and independent educational evaluator for more than 35 years. You can find out more about Steve and his work at www.dr-imber.com.

Photo Credit: lazha