Transcript Legally Defensible Assessments

LEGALLY DEFENSIBLE
ASSESSMENTS IN THE ERA OF
COMMON CORE
B E T H N I S H I D A AN D R I C AR D O S I L V A, E S Q .
D I R E C T O R O F S P E C I AL E D U C A T I O N
H AC I E N D A L A P U E N T E U N I F I E D S C H O O L D I S T R I C T
M AR C H 2 0 1 5
LEVELS OF LAWS AND REGULATIONS
 Federal
◦ Public Law (IDEA 2004)
◦ Code of Federal
Regulations
 State
◦ Education Code
◦ Title V
 District
◦ School Board Policy
◦ Administrative
Regulations
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PROCEDURAL SAFEGUARDS
• Child Find processes
• Due process
• Timelines
• Right to appeal
• Parental Involvement
• Informed consent
• Right to request an Independent Educational Evaluation
(IEE)
• Right to attend meetings
• Tape recording
CHILD FIND
CHILD FIND
“The IDEA imposes an affirmative obligation
on the School District to identify and
evaluate children with disabilities.”
(Seattle School District No. 1 v. B.S. (9th Cir.
1996) 82 F.3d 1493.)
CHILD FIND
A District’s Obligation to Seek & Assess:
• IDEA requires states to identify, locate & evaluate all
children in need of special education – including
those:
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In public schools
Who are homeless or wards of the state
Attending private schools
Highly mobile and migrant children
Suspected of having a disability even though
they are advancing in the curriculum
• NOTE: The obligation is not dependent
upon a request from a parent
CHILD FIND
The Child Find Obligation is Triggered When –
There is a reason to suspect a disability and
reason to suspect that special education services
may be needed to address that disability.
(Student v. Newman-Crows Landing USD (July 15, 2008) OAH Case No. N2007080681
(citing Dept. of Educ., State of Hawaii v. Cari Rae S.
(D. Hawaii 2001) 158 F.Supp.2d 1190);
Student v. Clovis USD (Dec. 17, 2007) OAH Case No. N2007060634.)
CHILD FIND
The Threshold For Suspecting A Student Has A Disability
is Low:
• District must respond within a reasonable time after
receiving notice of a potential disability.
• District deemed to have notice if student’s behavior or poor
academic performance indicates a possible need for
special education.
CHILD FIND
Tips:
- Keep Copies Of All Correspondence Sent to
Parents.
- Always Follow-Up On Assessment Plans for
student:
1. attending a district school, and
2. for student who attend private school for who the District
has the obligation to assess.
- Document Your Efforts.
ASSESSMENTS
ASSESSMENTS
• Why all special educators should focus on
improving their assessments:
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The foundation for eligibility, services and placement.
A weak foundation compromises everything else.
A strong foundation sets the course for success.
Don’t pay for their expert.
ASSESSMENTS
• The IDEA Obligates Districts To Assess Students In All
Areas Of Suspected Disabilities.
(20 U.S.C. § 1414(b)(3)(B) and Educ. Code, § 56320(f).)
ASSESSMENT
• An assessment is not just standardized
testing; it is a comprehensive analysis of
the student.
• Assessments must comply with Education
Code sec. 56320.
• An assessment may include, for example:
• review of records.
• standardized testing.
• nonstandardized testing.
• classroom observations.
• observations in other relevant areas.
• parent/teacher interview.
• student interview.
ASSESSMENT
Timelines:
• Parents have 15 days (at least) to consider whether they will
provide consent.
• Obtain parental consent.
• Follow up if parents don’t provide consent.
• Complete assessment and hold IEP within 60 days of receipt
parental consent.
(20 U.S.C. § 1414(a)(1)(C) and
Educ. Code, § § 56302.1 and 56043(c).)
ASSESSMENT
Reassessment:
• Students eligible for special education
services, can only be reassessed once per
year:
• Unless district and parents agree in writing.
• District’s obligation to assess is not
extinguished by completion of a single initial
assessment:
• When a district has a reason to suspect all of student's
needs aren’t being met, it is required to reassess.
R
e
a
s
ASSESSMENT
Protocols:
• Assessments must be administered in accordance
with instructions provided by the producer of the
assessments.
Ed. Code § 56320, subd. (b)(3)
• Parents will use protocols to try to show that
assessments did not comply with the instructions.
• Properly-completed protocols can be strong
evidence supporting the district’s position.
21ST CENTURY SKILLS
What skills have
been identified as
critical for success in
the twenty-first
century as students
enter the workplace?
Communication
Collaboration
Critical Thinking
Creativity
Source: Partnership for 21st Century Skills
COMMON CORE EMPHASIZES
• Learning that builds over time.
• Application of knowledge and skills.
• Active participation and interaction in learning
activities.
• Collaboration and communication.
• Ongoing comprehensive instruction in reading,
writing, speaking, listening and language.
From: Penelope Hatch, Ph.D., CCC-SLP Center for Literacy & Disability
Studies UNC, Chapel Hill
ASSESSMENT
• Observations in the education setting are critical to
an appropriate assessment:
• The public agency must ensure that the child is observed in
the child’s learning environment (including the regular
classroom setting) to document the child’s academic
performance and behavior in the areas of difficulty.
34 C.F.R. 300.310(a)
ASSESSMENT
• Observation: Child not school age or out of school:
• In the case of a child of less than school age or out of
school, a member of the IEP team must observe the child in
an environment appropriate for a child of the age.
300 C.F.R. 300.310(c)
ASSESSMENT
Observation:
• Easy access to the school setting and staff is a key
advantage that district assessments have over
private assessments.
• Conversely, failure to observe and consult with staff
can seriously weaken the credibility of a district
assessment.
ASSESSMENT
• Implementation of Common Core means that
observation of the student in the general education
environment as part of the assessment and
collaboration with the general education teacher
becomes even more important than it was
previously.
ASSESSING
LISTENING AND SPEAKING STANDARDS
• Participate in collaborative conversations with
diverse partners about kindergarten topics and
texts with peers and adults in small and larger
groups.
• CCSS.ELA-Literacy.SL.K.1.a
Follow agreed-upon rules for discussions (e.g.,
listening to others and taking turns speaking about
the topics and texts under discussion).
• CCSS.ELA-Literacy.SL.K.1.b
Continue a conversation through multiple
exchanges.
ASSESSMENT
LISTENING AND SPEAKING STANDARDS
• Engage effectively in a range of collaborative discussions (one-on-one, in
groups, and teacher-led) with diverse partners on grade 5 topics and
texts, building on others' ideas and expressing their own clearly.
• CCSS.ELA-Literacy.SL.5.1.a
Come to discussions prepared, having read or studied required material;
explicitly draw on that preparation and other information known about
the topic to explore ideas under discussion.
• CCSS.ELA-Literacy.SL.5.1.b
Follow agreed-upon rules for discussions and carry out assigned roles.
• CCSS.ELA-Literacy.SL.5.1.c
Pose and respond to specific questions by making comments that
contribute to the discussion and elaborate on the remarks of others.
• CCSS.ELA-Literacy.SL.5.1.d
Review the key ideas expressed and draw conclusions in light of
information and knowledge gained from the discussions.
ASSESSMENT – OBSERVATIONS AND
COLLABORATION
• Collaboration with general education teacher
• Choosing times to observe that will help pinpoint
what student is able to do or not do in general
education in light of Common Core expectations
• Write observational data in report. Observational
data can be key in determining eligibility.
• Can help substantiate formal testing.
• Formal testing can help tease out some of the skills
as well.
ASSESSMENT
Assessment Reports:
The personnel who assess the pupil shall
prepare a written report, or reports, as
appropriate, of the results of each assessment.
The report shall include, but not be limited to:
(1) Whether the pupil may need special education and
related services.
(2) The basis for making the determination.
(3) The relevant behavior noted during the observation
of the pupil in an appropriate setting.
ASSESSMENT REPORTS
Assessment Reports:
(4) The relationship of that behavior to the pupil’s academic and
social functioning.
(5) The educationally relevant health and development, and
medical findings, if any.
(6) For pupils with learning disabilities, whether there is such a
discrepancy between achievement and ability that it cannot
be corrected without special education and related services.
(7) A determination concerning the effects of environmental,
cultural, or economic disadvantage, where appropriate.
(8) The need for specialized services, materials, and equipment for
pupils with low incidence disabilities, consistent with legal
guidelines.
California Education Code section 56327
ELIGIBILITY
California law:
• An individual with exceptional needs is one who, because of
a disability requires instruction and services which cannot be
provided with modification of the regular school program in
order to ensure that the individual is provided a free and
appropriate public education…” (Educ. Code § 56026(b).)
ELIGIBILITY
• A student is eligible as a student with a disability
under IDEA when:
• The multidisciplinary assessment demonstrates that:
• the student meets the definition of one or more of the
categories of disabilities, and
• Needs special education and related services as a result of
his/her disability or disabilities
• (34 CFR300.8(a)(1); EC 56026
ELIGIBILITY
• Exclusionary Factors
• An assessment team must also rule out that the
learning difficulty is not due to:
• Lack of instruction
• Cultural Differences
• Economic or Environmental Factors
• English Language Difference
POTENTIAL PROBLEM AREAS
Problem Areas:
• Failing to assess all areas of suspected disability.
• Poor choice of assessment instruments.
• Improperly completed protocols – check the
• Failing to observe student and consult with teachers
and service providers.
• Unimpressive assessment reports.
• Failure of the assessor to provide an analysis
POTENTIAL PROBLEM AREAS
Problem Areas:
• Lack of analysis
• Embarrassing or substantive typos – confusing
he/she, wrong name in report, listing a test with no
scores, insertname
• Not Providing the Entire Picture
• Listing tests at the beginning of the report and then
not reporting scores anywhere in the report.
POTENTIAL PROBLEM AREAS
Common Errors In Selection of Assessment
Instruments:
• Standardized cognitive assessments for African-American
students.
• Outdated assessment instruments.
• Using same instrument less than a year after previous
administration.
• Screening assessments, instead of full-scale, standardized
assessments.
• Using instrument outside normed ages.
POTENTIAL PROBLEM AREAS
Problem Areas:
• Assessment reports that only list test scores, without
explaining what they mean, provide little useful
information, and arguably prevent parents from
meaningfully participating.
IEE
• A parent may request an Independent Educational
Evaluation (IEE) at public expense if the parent
disagrees with a school district’s evaluation.
• Only one IEE for each assessment
• District must either fund or file
• Two year statute of limitations
IEE
• If an IEE is conducted, the IEP team must meet after
it is completed to consider the results, conclusions,
and recommendations of the assessor.
• At this point, you may find that you have further
disagreements
OAH CASE
ROCKLIN UNIFIED VS PARENT
• OAH decision released December 1, 2014
• One issue in the case
• Did Rocklin’s May 2014 speech and language
assessment of Student meet all legal requirements
such that Student is not entitled to an independent
speech and language evaluation at Rocklin’s
expense?
OAH ROCKLIN CASE
• IEE Case
• Five-year-old girl with Down Syndrome
• Started receiving services from the school district
when she turned three.
• School district conducted a comprehensive
assessment in April – May 2014.
• School district lost the case and must fund the IEE in
the area of speech and language
• They will also have to pay for their own attorney
fees and the parent attorney fees
OAH ROCKLIN CASE
• What did the judge reference?
• Assessment plan was filled out correctly, and was
compliant
• Parents received copy of their procedural safeguards
• This judge specifically looked at the protocols and whether
or not they were completed according to the directions on
the protocol.
• There were a number of errors, and the judge divided them
into errors that were insignificant and those that were
significant.
OAH ROCKLIN CASE
• What the judge referred to as “errors in following test
administration directions that were significant”
Did not follow test instructions
Scoring was inconsistent
Summary results did not match the results on the test protocols
No way to tell what the results actually were
Make sure that you have the utterances that you use for your
language sample.
• The judge also commented on areas that were left blank and
should have been marked “N/A” if they were truly not
applicable.
• Percentages were incorrect
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OAH ROCKLIN CASE
• The judge refers to the assessment report as
uninformative. The assessor refers to technical
words and “jargon” without a good explanation of
what they mean or how they apply to the student.
• Bottom line –
• Data was not reliable
• Inaccuracies in the testing and the written report
• Results that were reported were not explained or
interpreted
OAH ROCKLIN CASE
• In the instant case, the Rocklin speech and language assessment report
was fundamentally flawed. Statements in the assessment report about
Student’s intelligibility were not supported by the evidence and were
contradictory in different places in the report. Student’s articulation errors
listed in the report differed from ones noted on the test protocols.
Assessment test results were calculated incorrectly and the incorrect
percentages were listed in the written report. Finally, there was no
explanation or interpretation for some of the results and much of the
results listed in the tables in the report were undecipherable by the
average IEP team member. This information, according to the report and
testimony in the case, were used to make the recommendations in the
report, which led to the recommendation for services for Student. In this
case, the aggregation of the incorrect results, incorrect statements about
Student’s intelligibility and mean length of utterance, and failure to
explain or interpret assessment test results, rendered the data, from which
any recommendations were made, based upon faulty information.
Therefore, for this reason as well, the assessment and the associated
report were not legally compliant.
RISKS OF ASSESSING
INAPPROPRIATELY
RISKS
• Failure to identify needs.
• Loss of education because needs not properly
identified.
• Denials of FAPE.
• Loss of credibility of assessor.
• Payment of IEEs.
• Payment of attorney fees.
•Questions?
APPENDIX
ELIGIBILITY – TITLE 5
Speech and Language impairment:
• (c) A pupil has a language or speech disorder as defined in
Section 56333 of the Education Code, and it is determined that
the pupil’s disorder meets one or more of the following criteria:
• (1) Articulation disorder.
• (A) The pupil displays reduced intelligibility or an inability to use
the speech mechanism which significantly interferes with
communication and attracts adverse attention. Significant
interference in communication occurs when the pupil’s
production of single or multiple speech sounds on a
developmental scale of articulation competency is below that
expected for his or her chronological age or developmental
level, and which adversely affects educational performance.
TITLE 5 ELIGIBILITY
• (B) A pupil does not meet the criteria for an articulation
disorder if the sole assessed disability is an abnormal
swallowing pattern.
• (2) Abnormal Voice. A pupil has an abnormal voice
which is characterized by persistent, defective voice
quality, pitch, or loudness.
• (3) Fluency Disorders. A pupil has a fluency disorder
when the flow of verbal expression including rate and
rhythm adversely affects communication between the
pupil and listener.
• (4) Language Disorder. The pupil has an expressive or
receptive language
TITLE 5 ELIGIBILITY
• (4) Language Disorder. The pupil has an expressive or
receptive language disorder when he or she meets one
of the following criteria:
• (A) The pupil scores at least 1.5 standard deviations
below the
• mean, or below the 7th percentile, for his or her
chronological age or developmental level on two or
more standardized tests in one or more of the following
areas of language development: morphology, syntax,
semantics, or pragmatics.
• When standardized tests are considered to be invalid for
the specific pupil, the expected language performance
level shall be determined by alternative means as
specified on the assessment plan, or
TITLE 5 ELIGIBILITY
• (B) The pupil scores at least 1.5 standard deviations below the
mean or the score is below the 7th percentile for his or her
chronological age or developmental level on one or more
standardized tests in one of the areas listed in subsection (A)
and displays inappropriate or inadequate usage of expressive
or receptive language as measured by a representative
spontaneous or elicited language sample of a minimum of
fifty utterances. The language sample must be recorded or
transcribed and analyzed, and the results included in the
assessment report. If the pupil is unable to produce this
sample, the language, speech, and hearing specialist shall
document why a fifty utterance sample was not obtainable
and the contexts in which attempts were made to elicit the
sample. When standardized tests are considered to be invalid
for the specific pupil, the expected language performance
level shall be determined by alternative means as specified in
the assessment plan.
ELIGIBILITY
Speech and Language impairment:
• “…demonstrated difficulty understanding or using spoken
language, to such an extent that it adversely affects his or
her educational performance and such difficulty cannot be
corrected without special education services.” (Ed. Code, §
56333.)
LANGUAGE DISORDER
• Expressive or receptive language disorder:
A. Scores at least 1.5 standard deviations below the
mean (or below the 7th percentile) for chronological
age or development level on two or more
standardized tests in one or more of the following
developmental areas:
i.
ii.
iii.
iv.
Morphology
Syntax
Semantics
pragmatics, OR
B. Meets (A) above and displays inappropriate or
inadequate usage of expressive or receptive
language as measured by a representative
spontaneous or elicited language sample of a
minimum of 50 utterances.