special education eligibility: an analysis7 appropriate assessments complete picture review of past...

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Special Education Eligibility:Special Education Eligibility:An AnalysisAn Analysis

Prepared and Presented by Karen E. Samman

ACSA Conference 2013

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Agenda

Why Does it Matter

The Foundation:

Appropriate Assessment

Eligibility Categories

Definition of Eligible Student

The Analysis

Case Studies (ED, OHI, SLI, and Autism)

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Why Does It Matter?

Disproportionality

Race or Ethnicity

Corrective Actions

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Why Does It Matter?

FAPE Considerations

Educational

Financial

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Appropriate Assessments

Child Find

Identify in all areas of suspected disability

Assess identified suspected areas

A complete picture

Eligibility determination

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Use a variety of assessment tools and strategies to gather relevant functional and developmental information about the child, including information provided by the parent, and information related to enabling the child to be involved in and progress in the general curriculum (or for a preschool child, to participate in appropriate activities), that may assist in determining—

Whether the child is a child with a disability; and

The content of the child’s IEP

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Complete Picture Review of past and current student records Review of parent provided assessments Conduct standardized testing Conduct non-standardized testing Observe student in classroom Observe student in other relevant areas such as play

ground, lunch room, on the bus Conduct parent/teacher interviews Conduct student interview

All of which are analyzed to provide a comprehensive understanding of the student

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Distorted Picture

Failing to assess all areas of suspected disability

Poor choice of assessment instruments

Not following up on weaknesses identified during the assessment

Improperly administered test protocol

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Distorted Picture

Failing to observe student

Failing to interview and/or get information from Teachers

Parents

Student

Service providers

Failing in the analysis

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1. Autism, 34 CFR 300.8(c)(1); 5 CCR 3030(g)2. Deaf-Blindness, 34 CFR 300.8(c)(2); 5 CCR 3030(b)3. Deafness, 34 CFR 300.8(c)(3); 5 CCR 3030(a)4. Emotional Disturbance, 34 CFR 300.8(c)(4); 5 CCR 3030(i)5. Hearing Impairment, 34 CFR 300.8(c)(5); 5 CCR 3030(a)6. Intellectual Disability, 34 CFR 300.8(c)(6); 5 CCR 3030(h)7. Multiple Disabilities, 34 CFR 300.8(c)(7)8. Orthopedic Impairment, 34 CFR 300.8(c)(8); 5 CCR 3030(e) 9. Other Health Impairment, 34 CFR 300.8(c)(9); 5 CCR 3030(f)10. Specific Learning Disability, 34 CFR 300.8(c)(10); 5 CCR 3030(j)11. Speech or Language Impairment, 34 CFR 300.8(c)(11); 5 CCR 3030(c)12. Traumatic Brain Injury, 34 CFR 300.8(c)(12)13. Visual Impairment, including blindness, 34 CFR 300.8(c)(13); 5 CCR

3030(d)

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Adverse Effect on Education Performance Included in Definition

1. Autism 2. Deaf-Blindness 3. Deafness 4. Emotional Disturbance 5. Hearing Impairment 6. Intellectual Disability 7. Multiple Disabilities8. Orthopedic Impairment 9. Other Health Impairment

11. Speech or Language Impairment12. Traumatic Brain Injury13. Visual impairment, including

blindness

Adverse Effect on Education Performance Implicit in Definition

10. Specific Learning Disability

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Under IDEA 2004, the term "child with a disability" means a child evaluated in accordance with 34 CFR 300.304 through 34

CFR 300.311 as having mental retardation, a hearing impairment (including deafness), a speech or language impairment, a visual impairment (including blindness), an emotional disturbance, an orthopedic impairment, autism, traumatic brain injury, an other health impairment, a specific learning disability, deaf-blindness, or multiple disabilities, and

who, by reason thereof, needs special education and related services

34 CFR 300.8(a)(1)

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If a child has one of the disabilities identified at 34 CFR 300.8(a)(1), but only needs related services and not special education,

the child is not a child with a disability under the IDEA. 34 CFR 300.8(a)(2)(i)

However, if the related service that the child requires is considered "special education" under state standards, the child will be eligible under the IDEA. 34 CFR 300.8(a)(2)(ii)

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A child must not be determined to be a child with a disability

(1) If the determinant factor for that determination is: (i) Lack of appropriate instruction in reading, including the essential

components of reading instruction (as defined in Section 1208(3) of the Elementary and Secondary Education Act);

(ii) Lack of appropriate instruction in math; or

(iii) Limited English proficiency; and

(2) If the child does not otherwise meet the eligibility criteria under 34 CFR 300.8(a)

34 CFR 300.306(b)

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Students whose educational needs are due primarily to . . . temporary physical disabilities; social maladjustment; or environmental, cultural, or economic factors are not individuals with exceptional needs

Unless they otherwise meet eligibility requirements

Ed. Code § 56026(e)

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Remember:

A student with a disability must require special education by reason of such disability to receive related services under the IDEA

34 CFR 300.8(a)(1)

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What is special education?

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The Analysis

Question 1: Does the student satisfy one of the 13 eligibility criteria?

Adverse effect on educational performance must be analyzed in answering this question

SLD

Discrepancy

RTI

Question 2: Does the student needs special education and related services?

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The Analysis

In interpreting evaluation data for the purpose of determining if a child is a child with a disability under 34 CFR 300.8, and the educational needs of the child, each public agency must: (i) Draw upon information from a variety of sources,

including aptitude and achievement tests, parent input, and teacher recommendations, as well as information about the child's physical condition, social or cultural background, and adaptive behavior; and

(ii) Ensure that information obtained from all of these sources is documented and carefully considered

34 CFR 300.306(c)(1)

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The Analysis

Adversely Affects Educational Performance

What does that mean?

Case-by case analysis

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Case Studies: Adverse Effect

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Student v. Tehachapi USDOAH Case No. 2005120939 (June 28, 2006)

Facts: Student was assessed in 8th grade and found ineligible In Student’s 9th grade year he was diagnosed with ADD In 10th grade he received poor grades because he did not

turn in homework, was frequently tardy and absent In 10th grade he passed both portions of the CAHSEE A 504 Plan was developed for student with only minor

accommodations recommended by a private psychologist Parents requested an assessment in September of

Student’s 11th grade year Student admitted homework was not a priority and he was

late at times because he would lose track of time Student loved soccer and was never late for soccer practice District again found student ineligible

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Student v. Tehachapi USD

OAH held that

Student’s attention deficit disorder ("ADD") did not adversely affect his educational performance because his motivation was the primary factor behind his failing grades, rather than his ADD

OAH determined that Student was capable of arriving to class on time and completing his work; but that he refused to do so

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Student v. Irvine USD, OAH Case No. 2009050088 (September 28, 2009)

Facts: Student was 16 years old and had Type 1 diabetes Student had history of tardiness, absences, failing to turn in

homework and long term assignments throughout elementary and middle school

In 9th grade Student failed almost all classes In previous years general education interventions had been

attempted Academic testing (WJIII) all in average range STAR scores proficient Student’s doctor provided input that his diabetes affects his

concentration because of blood sugar fluctuations In 10th grade student passed both sections of the CAHSEE

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Student v. Irvine USD

OAH held that

Student’s diabetes adversely affected his educational performance because it caused him to be:

absent or tardy from school, and

caused him to fail to, or have difficulty with, completing and/or turning in in-class and homework assignments

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Student v. Brea Olinda School District, OAH Case Nos. 2009050815 & 2009030124 (November 24, 2009)

Facts:

Student was a 12 year old student with ADHD

Became eligible for special education at 6 years old under OHI

Student was performing well in school, receiving all Bs and a C- in math

District assessment found that student’s academics were in the above average to high average range

Parents reported difficulty with homework and social skill related to student’s ADHD

STAR Testing in the advanced range

Parents reported that student would take 4 hours to complete hishomework

Student removed his ADHD medication patch when he went home because it adversely affected his appetite and cause insomnia

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Student v. Brea Olinda School District

Facts:

Assessment demonstrated a discrepancy between parent and teacher ratings on the Conner’s Rating Scale, which the assessor did not analyze and explain

Assessor reported parent input it report but did not analyze and eplain

District wanted to exit student from special education and filed for a due process hearing

Parents did not agree to the exit from special education

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Student v. Brea Olinda School District

OAH found that Student’s ADHD adversely affected his educational

performance because it prevented the student from focusing and attending to his work and from timely completing his homework Assessment report did not give proper weight to the above effects

of student’s ADHD

OAH stated that proper and timely completion of homework was an important aspect

of the student’s ability to access and benefit from his education because homework comprised 25% of his grade in one of his classes

the student’s difficulty focusing and paying attention prevented him from remaining in an advanced math class

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Student v. Manteca Unified School District, Case No. 2009060164 (November 9, 2009)

Facts: Student is 14 years old with high-functioning autism, an

anxiety disorder, phobias regarding germs, a depressive disorder, and scoliosis of the spinal column

In 4th grade student moved into the District and was eligible as S and L

After 30 days, the IEP team in October 2004 found Student no longer needed speech and language services but was eligible under SLD

At the beginning of fifth grade, the District found that Student no longer needed special education and related services to benefit from his education and exited him

Parents consented to the exit

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Student v. Manteca Unified School District Facts:

Two year later, the District agreed to assess Student at Parents' request

Parents were concerned that, despite Student's academic success, he had problems including

an obsession with perfection and

deficient social skills that interfered with his ability to be successful in school and in the community.

Parents informed the District that they suspected that Student had Asperger's Syndrome

Student was placed on a Section 504 Plan

Student was academically successful in all of his classes, his speech and language skills were within the average range for his chronological age and development, and he did not demonstrate autistic-like behaviors in two or more areas as required by law

District found him ineligible Regional Center found student eligible for services under autism

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Student v. Manteca Unified School District Facts:

Parents presented the Regional Center assessment to the District

District reassessed student and again for the same reasons found ineligible

Private assessor found his eligible under autism

Parents filed for a due process hearing

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Student v. Manteca Unified School District OAH held that:

A child is eligible for special education services if an IEP team determines that the child meets one of the educational eligibility categories, and if the IEP team determines that the adverse effects of the disability cannot be corrected without special education and related services; that is, that the degree of impairment "requires instruction, services, or both, which cannot be provided with modification of the regular school program." (Ed. Code, §§ 56026, subd. (b); 56333, 56337; Cal. Code Regs., tit. 5, § 3030.)

Thus, if Student exhibited any combination of the above autistic-like behaviors during the relevant time frames and the disorder adversely affects his educational performance to the extent thatspecial education is required, Student would meet the eligibility criteria. (Cal. Code Regs., tit. 5 § 3030, subd. (g).)

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Student v. Manteca Unified School District OAH found that:

Student did not meet eligibility under autistic-like, and even if he did,

There was no adverse effect on educational performance, and He did not require special education Student was not eligible for special education

In determining adverse effect OAH examined: Standardized measure Grades over time which were As STAR testing which was advanced Section 504 accommodations and whether they caused an artificial

increase in grades or test scores Whether the content of the curriculum was modified in any way by

the Section 504 plan His ability to relate to and interact with his peers

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Adverse effect on educational performance may be found when Is not due to lack of motivation

Impacts school attendance

It causes the student to fail to complete, and/or turn-in, class work and homework, and

It results in difficulty with focusing and/or attending that prevents the student from attending classes and timely completing his homework

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Tips for Analyzing Adverse Effect Examine

all forms of academic performance (standardized measure, grades, STAR test, district-wide tests)

Work completion issues (homework or classwork) and determine why the work is not being completed

Truancy issues and absences (why?) and grades

Disciplinary issues (why?) and effect of educational performance

Inflation of grades through Section 504 Plan

Motivation of student

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Case Studies: Requires Special Education

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Hood v. Encinitas Union School District(9th Cir. 2007) 486 F.3d 1175

Facts: Student was 10 years old and performed at grade levels or

above in her classroom Student had difficulty with completing tasks, turning in

homework, and organization Student’s IQ tests show above average ability Student was diagnosed with a seizure disorder and ADD District conducted assessment District offered Student a 504 Plan, but determined Student

was ineligible for special education and related services Parents placed Student in an NPS Parents then filed for due process seeking reimbursement

for tuition and assessments

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Hood v. Encinitas Union School District

SEHO denied Student’s requested relief

Hearing Officer determined Student’s assessments revealed that Student did not have an SLD or OHI that required special education and related services

Student’s needs could be met in the general education classroom

Parents appealed to federal court

District court upheld Hearing Officer’s decision

Parents had not shown that Student’s needs could not be addressed with modifications to the regular classroom

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Hood v. Encinitas Union School District

SLD Student’s overall performance demonstrated that Student did not

require special education

Student does not qualify for special education because any severe discrepancy between ability and achievement appears correctable in the regular classroom

District not required to elicit optimum performance from Student

504 Plan accommodations were appropriate

OHI Even if Student had ADHD and seizure disorder, Student’s

impairments could be met in the general education classroom

9th Circuit affirmed district court’s judgment

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Student v. Riverside USD, OAH Case No.

N2007020300 (November 2, 2007)

Facts: Student was 8 years old and had autism

He was initially found eligible under IDEA in preschool and placed in an SDC, without related services

Upon transition to kindergarten, the district recommended exit from special education

Mother did not agree so student remained in special education

His placement was general education with an IA

In kindergarten, he require very little support for academic work and no support for socialization

In first grade, he occasionally needed assistance with writing tasks but none for socialization

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Student v. Riverside USD

Facts: At recess student appropriately played with other children

His grades were proficient or advanced in all areas

Student was found GATE eligible in second grade

In the GATE class student was describe as a student who could write well, followed directions, worked well with other students, and showed no frustration or signs of being overwhelmed

In the GATE class student had no issues with social interactions

District assessed student to determine whether he continued to be eligible for special education

District assessment found him ineligible for special education

District filed for a due process to exit student from special education

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Student v. Riverside USD

OAH found that

Student with Autism Spectrum Disorder was not eligible for services under the IDEA because he did not require special education and related services

OAH based its conclusion on the fact that Student was able to succeed in the general education classroom

and in the GATE program, his classroom behavior was appropriate,and his social interactions with peers were appropriate

Student was able to work independently and in groups, follow teacher directions, and interact with peers during class and recess

Student’s needs could be met in a general education classroom and he did not qualify for special education services

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Student v. La-Mesa Spring Valley, OAH

Case No. 2009050311 (August 20, 2009)

Facts:

Student attended preschool and had problems with socialization and impulse control

He was enrolled in a private kindergarten but had many difficulties

Parents then enrolled him in another private school, which did not have kindergarten so he was enrolled in the first grade

Homework was eliminated because he refused to do any

Parents requested an assessment but indicated that they did not believe that public school was appropriate for student

Student was functioning at first grade level academically

He had issues with transitions, was inflexible, would tantrum, and become frustrated

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Student v. La-Mesa Spring Valley

Facts:

District conducted an assessment of student

Mother indicated that student had difficulty with transitions, was inflexible, did not follow directions, refused to do homework or anything repetitive

Student was observed in his private school where he interacted appropriate and was able to appropriately attend to classroom tasks

District found that he was not eligible for special education

A private assessment found that he was eligible as a student with Asperger’s Disorder

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Student v. La-Mesa Spring ValleyOAH found that Autistic-like characteristics Student experienced outside of school

did not make him eligible for special education under the category of Autism

The evidence did not demonstrate Student required specialized instruction and services which could not be provided by modifying the regular school program because he received excellent grades and was able to excel in the classroom

OAH explained Student was able to function appropriately at school For example, Student remained on task, worked

independently, followed directions, maintained appropriate eye contact with his teacher and peers, was not distracted by the frequent loud noises or unruly classmates, and attempted social interactions with other children

Based on this, OAH concluded that he did not require special education services

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Student v. Tustin USD, OAH Case No.

2008120809 (May 12, 2009)

Facts:

Student was 9 years old and eligible for special education underspeech and language impairment

Initial eligibility was at 3 years old

On an assessment in kindergarten, student met criteria for SLD

In second grade student was at grade level

STAR testing proficient

Triennial conducted in third grade

No discrepancy was found

All language scores in the average range, except he could not pronounce “r”

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Student v. Tustin USD

OAH found that Student was no longer eligible for special education under the

category of SLI because Student’s mild articulation deficit was not impacting his education

Student did not require specialized instruction or the related service of speech therapy because the District’s general education program included a speech articulation clinic to address mild issues like Student’s mild articulation deficit

Student’s classroom performance was in the average range and he showed strength in reading and reading comprehension

Accommodations such as repeating instructions or providing instructions visually or in writing, could be implemented in thegeneral education environment without modification of the general education program.

Student did not require special education

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Student v. Tustin USD

OAH further found that Student did not meet the eligibility criteria for the category of SLD, despite a weakness in one area of auditory processing

OAH determined Student’s academic performance was not significantly

impacted by this weakness Student made great progress in special education to the

point that he could be educated in a general education classroom without modification and without related services

Consequently, OAH found that student did not require special education due to a SLD

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Information in this presentation, including but not limited to PowerPoint handouts and the presenters' comments, is summary only and not legal advice. We advise you to consult with legal counsel to determine how this information may apply to your specific facts and circumstances.

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