7(Seattle School District No. 1 v. B.S. (9th Cir. 1996) 82 F.3d 1493.) 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.)
8Child 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 schoolsWho are homeless or wards of the stateAttending private schoolsHighly mobile and migrant childrenSuspected of having a disability even thoughthey are advancing in the curriculumNOTE: The obligation is not dependent upon a request from a parent
9Child 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 )
10Child findThe 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.
11Child 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.)
12Child find - Always Follow-Up On Assessment Plans for student: Tips:- Keep Copies Of All Correspondence Sent to Parents.- Always Follow-Up On Assessment Plans for student:attending a district school, andfor student who attend private school for who the District has the obligation to assess.- Document Your Efforts.
14AssessmentsWhy 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.
15assessmentsThe 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.”
16assessmentAn assessment is not just standardized testing; it is a comprehensive analysis of the student.Assessments must comply with Education Code secAn assessment may include, for example:review of records.standardized testing.nonstandardized testing.classroom observations.observations in other relevant areas.parent/teacher interview.student interview.
17assessmentWhen 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.
18assessment 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) andEduc. Code, § § and 56043(c).)
19assessmentReassessment: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.
20assessmentIt is important to assess all areas of suspected disability. Often overlooked areas:BehaviorAttentionMedicalEmotionalCommunicationCommunicationEmotionalMedicalAttentionBehaviorIt is important to assess all areas of suspected disability. Often overlooked areas:
21assessment 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.Properly-completed protocols can be strong evidence supporting the district’s position.Parents will use protocols to try to show that assessments did not comply with the instructions.Ed. Code § 56320, subd. (b)(3)Assessments must be administered in accordance with instructions provided by the producer of the assessments.Protocols:
22EC56320Before 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:
23EC 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.
24EC 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
25EC 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.
26EC 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 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
27assessmentObservations 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)
28assessment 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)
29assessment 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.
30assessmentAssessment 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.
31Assessment reports Assessment Reports: 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
32Eligibility 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).)
33eligibilityA 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) thatAdversely affects educational performance andrequires specialized support and instructionthat can’t be met with adaptations of a general education environment
34Eligibility Exclusionary Factors An assessment team must also rule out that the learning difficulty is not due to:Lack of instructionCultural DifferencesEconomic or Environmental FactorsEnglish Language Difference
35Eligibility 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).)
36Eligibility 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, § )
37Language disorder Expressive or receptive language disorder: 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:MorphologySyntaxSemanticspragmatics, ORMeets (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.
38EligibilityIt 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 FAPEis for that particular student, given their strengths, areas ofneed, and goals.Use an agenda to ensure that you are following the correct procedure
39Potential problem areas Failing to assess all areas of suspected disability.Poor choice of assessment instruments.Improperly completed protocols – check theFailing to observe student and consult with teachers and service providers.Unimpressive assessment reports.Failure of the assessor to provide an analysis
40Potential problem areas Lack of analysisEmbarrassing or substantive typos – confusing he/she, wrong name in report, listing a test with no scores, insertnameNot Providing the Entire PictureListing tests at the beginning of the report and then not reporting scores anywhere in the report.
41Potential 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.
42Potential 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.
43Potential 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.
44Potential 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.
45WHY YOU WANT EACH AND EVERY ASSESSMENT TO BE APPROPRIATE: INDEPENDENT EDUCATIONAL EVALUATIONS (IEE)
46IEEA 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 assessmentDistrict must either fund or fileTwo year statute of limitations
47IEEs Making the Decision to Fund or File: Sometimes the decision is complicatedReview 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.
48IEESUpon request for an IEE, the district must also provide the following to the parent:Information about where an IEE may be obtained, andAgency 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.
49IEEIf 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
50OAH Case Rocklin Unified vs Parent OAH decision released December 1, 2014One issue in the caseDid 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?
51OAH 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 languageThey will also have to pay for their own attorney fees and the parent attorney fees
52OAH rocklin Case What did the judge reference? Assessment plan was filled out correctly, and was compliantParents received copy of their procedural safeguardsThis 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.
53OAH Rocklin caseWhat the judge referred to as “errors in following test administration directions that were significant”Did not follow test instructionsScoring was inconsistentSummary results did not match the results on the test protocolsNo way to tell what the results actually wereMake 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
54OAH rocklin caseThe 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 reliableInaccuracies in the testing and the written reportResults that were reported were not explained or interpreted
56risks 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.
57EVERYTHING RIGHT, BUT STILL IN HEARING . . . testifyingI’VE DONEEVERYTHING RIGHT, BUT STILL IN HEARING . . .NOW WHAT?
58Testifying Be professional and courteous. Be prepared: Be honest. Testifying in Hearing:Be professional and courteous.Be prepared:Review testing, protocols and report.Review student’s records.Be honest.
59testifying 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
60testifying 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.
61Conclusion Find the children Assess them appropriately Write defensible reportsOffer FAPE