Transcript Legally Defensible Assessments

LEGALLY DEFENSIBLE
ASSESSMENTS
B E T H N I S H I D A
D I R E C T O R O F S P E C I A L E D U C A T I O N
H A C 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
J A N U A R Y 2 0 1 5
DISCLAIMER
• I am a volunteer within CSHA. Currently, I am the
Commissioner of Association Services, for which I
receive no salary.
• I am receiving a fee for speaking today.
LEGALLY DEFENSIBLE
• What does it mean?
• Why do I need to be legally defensible?
• Who defines what legally defensible means?
• What are the laws that govern what we do in
special education?
LEVELS OF LAWS AND REGULATIONS
 Federal
◦ Public Law (IDEA 2004)
◦ Code of Federal
Regulations
 State
◦ State Law
◦ Education Code/Title V
 District
◦ School Board Policy
◦ Administrative
Regulations
4
PROCEDURAL SAFEGUARDS
• Child Find processes
• Due process
• Timelines
• Right to appeal
• Parental Involvement
• Informed consent
• Right to request an Independent Educational Evaluation
(IEE)
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:
•
•
•
•
•
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
CASE-IN-POINT: Low Threshold/Time Period:
• Parent advised District at enrollment Student had
medical conditions.
• Student fell behind due to excessive absences,
although still performing academically at grade
level.
• SST Team failed to inquire whether absences were
related to medical condition and did not refer
student for special education services.
• OAH  District violated child find obligations by
waiting over a year to assess Student.
(Newman-Crows Landing USD (citing Cari Rae S. at 1195.)
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:
•
•
•
•
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).)
“A child’s unique needs are to be broadly
construed to include the child’s academic, social,
health, emotional, communicative, physical, and
vocational needs.”
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
• When assessing non-academic needs,
standardized tests alone are not likely to be
sufficient.
• Use Alternate Measures, such as:
•
•
•
•
•
Observations.
Interviews.
Non-standardized rating scales.
Records review.
Play-based assessments.
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
It is important to assess all areas of suspected
disability. Often overlooked areas:
•
•
•
•
•
Behavior
Attention
Medical
Emotional
Communication
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.
EC56320
• 56320. Before any action is taken with respect to the
initial placement of an individual with exceptional
needs in special education instruction, an individual
assessment of the pupil's educational needs shall be
conducted, by qualified persons, in accordance
with requirements including, but not limited to, all of
the following:
EC 56320
• (a) Testing and assessment materials and
procedures used for the purposes of assessment
and placement of individuals with exceptional
needs are selected and administered so as not to
be racially, culturally, or sexually discriminatory.
Pursuant to Section 1412(a) (6)(B) of Title 20 of the
United States Code, the materials and procedures
shall be provided in the pupil's native language or
mode of communication, unless it is clearly not
feasible to do so.
EC 56320
• (b) Tests and other assessment materials meet all of the
following requirements:
• (1) Are provided and administered in the language and form
most likely to yield accurate information on what the pupil
knows and can do academically, developmentally, and
functionally, unless it is not feasible to so provide or administer
as required by Section 1414(b) (3)(A)(ii) of Title 20 of the United
States Code.
• (2) Are used for purposes for which the assessments or
measures are valid and reliable.
• (3) Are administered by trained and knowledgeable
personnel and are administered in accordance with any
instructions provided by the producer of the assessments,
except that individually administered tests of intellectual or
emotional functioning shall be administered by a credentialed
school psychologist
EC 56320
• (c) Tests and other assessment materials include those tailored
to assess specific areas of educational need and not merely
those that are designed to provide a single general
intelligence quotient.
• (d) Tests are selected and administered to best ensure that
when a test administered to a pupil with impaired sensory,
manual, or speaking skills produces test results that accurately
reflect the pupil's aptitude, achievement level, or any other
factors the test purports to measure and not the pupil's
impaired sensory, manual, or speaking skills unless those skills
are the factors the test purports to measure.
• (e) Pursuant to Section 1414(b)(2)(B) of Title 20 of the United
States Code, no single measure or assessment is used as the
sole criterion for determining whether a pupil is an individual
with exceptional needs or determining an appropriate
educational program for the pupil.
EC 56320
• (f) The pupil is assessed in all areas related to the suspected disability
including, if appropriate, health and development, vision, including low
vision, hearing, motor abilities, language function, general intelligence,
academic performance, communicative status, self-help, orientation
and mobility skills, career and vocational abilities and interests, and social
and emotional status. A developmental history shall be obtained, when
appropriate. For pupils with residual vision, a low vision assessment shall
be provided in accordance with guidelines established pursuant to
Section 56136. In assessing each pupil under this article, the assessment
shall be conducted in accordance with Sections 300.304 and 300.305 of
Title 34 of the Code of Federal Regulations.
• (g) The assessment of a pupil, including the assessment of a pupil with a
suspected low incidence disability, shall be conducted by persons
knowledgeable of that disability. Special attention shall be given to the
unique educational needs, including, but not limited to, skills and the
need for specialized services, materials, and equipment consistent with
guidelines established pursuant to Section 56136.
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
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:
• There is an identified disability (one of the 13 under IDEA)
that
• Adversely affects educational performance and
• requires specialized support and instruction
• that can’t be met with adaptations of a general education
environment
•
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
ELIGIBILITY
Speech and Language impairment:
• Speech-language impairment means a communication
disorder, such as stuttering, impaired articulation, a language
impairment, or a voice impairment that adversely affects a
child’s educational performance. (34 C.F.R. §
300.8(c)(11).)
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.
ELIGIBILITY
• It is important to note that a student is NOT eligible for a
service (students are not eligible for RSP, speech-language,
SDC, etc)
• A student may be eligible for special education because they
have a specific learning disability, but they do not qualify for
RSP.
At the end of the meeting, theIEP team decides what FAPE
is for that particular student, given their strengths, areas of
need, and goals.
Use an agenda to ensure that you are following the correct
procedure
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
If an assessment must include any of those issues, the
assessment report should:
• Explain why the assessment instrument was used.
• Explain that the validity of the results are potentially
unreliable.
• Have alternative data supporting any conclusions based in
any part upon the problematic assessment instruments.
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.
POTENTIAL PROBLEM AREAS
Problem Areas:
• An assessment can be substantively outstanding,
but typographical and grammatical errors will
impact its credibility. (E.g., use of “its” and “it’s”.)
• Substantive errors, such as incorrect test scores, can
call the entire assessment report into question.
WHY YOU WANT EACH AND
EVERY ASSESSMENT TO BE
APPROPRIATE:
INDEPENDENT EDUCATIONAL
EVALUATIONS (IEE)
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
IEES
• Making the Decision to Fund or File:
• Sometimes the decision is complicated
• Review the assessment that the parent disagrees with,
including looking at protocol. Score it more than once!
• All components of an appropriate assessment must be
present if the District wants to file for due process.
• Failure to conduct an appropriate assessment eliminates
the ability to defend your assessments.
IEES
• Upon request for an IEE, the district must also
provide the following to the parent:
• Information about where an IEE may be
obtained, and
• Agency criteria for IEEs.
• The district may ask for the parent’s reasons
for objecting to the district’s assessment, but
the parent is not required to respond.
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
•
•
•
•
•
OAH ROCKLIN CASE
• The judge refers to the assessment report as
uninformative. She 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
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.
TESTIFYING
I’VE DONE
EVERYTHING RIGHT, BUT STILL IN
HEARING . . .
NOW WHAT?
TESTIFYING
Testifying in Hearing:
• Be professional and courteous.
• Be prepared:
• Review testing, protocols and report.
• Review student’s records.
• Be honest.
TESTIFYING
Testifying in a Hearing:
• Speak confidently, answering questions carefully
and professionally.
• Your tone, demeanor, body language and
appearance assist you in conveying to the ALJ that
your testimony is accurate and truthful.
• The judge wants to hear from you
TESTIFYING
Testifying in a Hearing:
• Do not become angry or defensive.
• Listen to the questions carefully and be brief in your
responses.
• Think before speaking.
• Do not guess or speculate.
CONCLUSION
• Find the children
• Assess them appropriately
• Write defensible reports
• Offer FAPE
•Questions?