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BETH NISHIDA DIRECTOR OF SPECIAL EDUCATION HACIENDA LA PUENTE UNIFIED SCHOOL DISTRICT JANUARY 2015 LEGALLY DEFENSIBLE ASSESSMENTS.

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Presentation on theme: "BETH NISHIDA DIRECTOR OF SPECIAL EDUCATION HACIENDA LA PUENTE UNIFIED SCHOOL DISTRICT JANUARY 2015 LEGALLY DEFENSIBLE ASSESSMENTS."— Presentation transcript:

1 BETH NISHIDA DIRECTOR OF SPECIAL EDUCATION HACIENDA LA PUENTE UNIFIED SCHOOL DISTRICT JANUARY 2015 LEGALLY DEFENSIBLE ASSESSMENTS

2 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.

3 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?

4 4 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

5 PROCEDURAL SAFEGUARDS Child Find processes Due process Timelines Right to appeal Parental Involvement Informed consent Right to request an Independent Educational Evaluation (IEE)

6 CHILD FIND

7 “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. (9 th Cir. 1996) 82 F.3d 1493.)

8 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

9 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. N (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. N )

10 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.

11 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.)

12 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.

13 ASSESSMENTS

14 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.

15 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.”

16 ASSESSMENT An assessment is not just standardized testing; it is a comprehensive analysis of the student. Assessments must comply with Education Code sec 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.

17 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.

18 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, § § and 56043(c).)

19 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. 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.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.

20 ASSESSMENT It is important to assess all areas of suspected disability. Often overlooked areas: Behavior Attention Medical Emotional Communication I t i s i m p o r t a n t t o a s s e s s a l l a r e a s o f s u s p e c t e d d i s a b i l i t y. O f t e n o v e r l o o k e d a r e a s : B e h a v i o r A t t e n t i o n M e d i c a l E m o t i o n a l C o m m u n i c a t i o n

21 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. Protocols:Assessments must be administered in accordance with instructions provided by the producerofthe assessments.Ed.Code § 56320,subd.(b)(3)Parents willuse 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.Protocols:Assessments must be administered in accordance with instructions provided by the producerofthe assessments.Ed.Code § 56320,subd.(b)(3)Parents willuse 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.

22 EC 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:

23 EC (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.

24 EC (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

25 EC (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.

26 EC (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 In assessing each pupil under this article, the assessment shall be conducted in accordance with Sections and 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

27 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 (a)

28 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 (c)

29 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.

30 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.

31 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

32 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).)

33 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

34 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

35 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).)

36 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, § )

37 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.Morphology ii.Syntax iii.Semantics iv.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.

38 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

39 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

40 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.

41 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.

42 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.

43 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.

44 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.

45 WHY YOU WANT EACH AND EVERY ASSESSMENT TO BE APPROPRIATE: INDEPENDENT EDUCATIONAL EVALUATIONS (IEE)

46 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

47 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.

48 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.

49 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

50 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?

51 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 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

52 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.

53 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

54 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

55 RISKS OF ASSESSING INAPPROPRIATELY

56 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.

57 TESTIFYING I’VE DONE EVERYTHING RIGHT, BUT STILL IN HEARING... NOW WHAT?

58 TESTIFYING Testifying in Hearing: Be professional and courteous. Be prepared: Review testing, protocols and report. Review student’s records. Be honest.

59 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

60 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.

61 CONCLUSION Find the children Assess them appropriately Write defensible reports Offer FAPE

62

63 Questions?


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