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PPA 2015 Evaluations and Assessments of Children

Under the IDEA and Section 504

Presented by: David T. Painter, PhD, JD

and

Marie McGrath, PhD

Topics Current Trends of Legal Disputes in Special Education

Statutory, Regulatory and Case Law Foundations for Appropriate Evaluations Under IDEA, Section 504 PA Chapters 14 & 15

Purposes, Requirements and Components

Independent Evaluations

Reporting results and recommendations

Trends Top 6 for DPH adjudications for 2006-2007 through 2011-2012: Puerto Rico, DC, New York, California, Pennsylvania, New Jersey - Zirkel, 2014

Per capita however: DC, Puerto Rico, Virgin Islands, Hawaii, New York (Pennsylvania #11)- Zirkel, 2014

ODR Annual Report 2013-2014

Total for PA – 742 (Remaining relatively steady)

Roughly 80% from Eastern PA

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According to ODR 2013-2014 Most frequent issues:

Compensatory Education Placement

IEP Disputes Evaluations

Of the 742 complaints:

429 Settled (Does not include pre-complaint settlements)

105 Withdrew or Dismissed

145 Active at time of Annual Report

63 Hearing Officer Decisions

Sources of Law �Illustration from Zirkel, P.A., The Legal Quality of Articles Published in School

Psychology Journals, School Psychology Review, Vol. 43 (3) 2014 318-339.

f

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Legal Framework

Legislative Congress and

State Legislatures

Courts – Federal and State

Executive Administrative

Federal and State

Legal Framework

SPECIAL EDUCATION-RELATED LAWS The Individuals with Disabilities Education Improvement Act (IDEIA of 2004, Reauthorized) effective July 1, 2005

Federal regulations, effective Oct. 13, 2006; 34 CFR §300

Section 504 of the Rehabilitation Act of 1973; 34 CFR §104

Americans with Disabilities Act (as amended, “ADA Amendments Act of 2008”); 42 USC 12101 et seq., effective January 1, 2009

No Child Left Behind (2002), ESSA 20 USC §6300 et seq. 34 CFR Part 200

Each state has regulations and guidelines

IDEA v. Section 504 and ADA IDEA applies only to public schools

Students with one or more of defined disabilities AND

By reason thereof, who are in need of Special Education and Related Services

Section 504 applies to recipients of Federal financial assistance and is an anti-discrimination/access statute

ADA is a statute to require public accommodations for persons with disabilities and applies to services by state and local governments and private schools, among others

Prohibits disparate treatment, does not require specially designed instruction

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Evaluation Scenario

Dr. Phil administers a series of tests as a school psychologist to Oprah.

Oprah’s parents don’t agree with Dr. Phil’s conclusions and get a 2nd opinion.

Are Oprah’s parents entitled to copies of Dr. Phil’s test protocols? What about Dr. Phil’s notes taken during testing?

Now Oprah’s parents file for due process. Are they entitled to protocols and notes now?

Family Educational Rights and Privacy Act (FERPA) Regulates the collection, dissemination and parents’ access to educational records.

Educational record is a recordation that contains personally identifiable information about a student and parents and is maintained by the district.

Parents have a right to access, not necessarily copies – but see also the IDEA.

It is well-established that test protocols are records.

No individual right to sue under FERPA but corrective action and federal funding is at stake.

Four Duties Under IDEA and 504

Child Find Evaluation

Program Placement

A party may file a due process

complaint on any matter relating

to the identification, evaluation,

provisions of FAPE, or

placement of a child with a

disability (Sec. 300.507) except LEAs may not use due process to force an initial placement or prevent withdrawal

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Evaluation Requirements

Respond to oral requests

Informed Parental Consent Required

Parent Request Letter is not informed consent

60 Calendar Days from District’s Receipt of PTE – excluding summer (when does the clock start for the beginning of the school term?)

Comprehensive to identify needs whether COMMONLY linked to the disability category or not

Document attempts to secure consent and parent input

Present levels of academic and functioanal performance – data or narrative?

What Makes an Evaluation Appropriate?

IDEA Requires:

Variety of “tools & strategies”

Technically sound

Qualified evaluator

Administered according to instructions

Tailored to needs of child

All areas related to disability

Sufficiently comprehensive and relevant to identify disability and needs

What Makes an Evaluation Useful? Answers the referral questions

Identifies disabilities, reviews progress in general curriculum & IEP, determines needs.

Rules out competing hypotheses.

Integrates data from various sources.

Understandable to lay audience.

Provides instructionally useful information.

Explains the meaning of test results in practical, useful terms.

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Purpose of a Report �(Sattler, 2008)

To provide accurate assessment-related information to the referral source and other appropriate parties

To serve as a source of clinical hypotheses and appropriate interventions

To furnish meaningful baseline information for evaluating further progress/change

TO SERVE AS A LEGAL DOCUMENT

Qualities of a Good Report �(Sattler, 2008)

Write in a professional style

Avoid jargon and “psychobabble”

Be concise

Avoid generalities and opinions

Be as specific and definitive as possible, but approporiately qualify interpretations

Be very careful with “find” and “replace” and/or using report templates

Avoid overreliance on computerized reports

Above all, answer the referral question to the best of your ability

PROOFREAD!

Eligibility Categories •  Autism

•  Emotional Disturbance

•  Orthopedic Impairment

•  Blind/Visually Impaired

•  Hearing Impairment

•  Other Health Impairment

•  Traumatic Brain Injury

•  Multiple Disabilities

•  Specific Learning Disabilities

•  Speech or Language Impairment

•  Deaf-Blindness

•  Intellectual Disability (formerly known as Mental Retardation)

•  Developmental Disabilities

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Eligibility Criteria •  Two-Pronged Decision –”who, by reason thereof, requires special education and related services.”

•  Local Decision-Making

•  What is “adverse affect on educational performance?” It’s more than academics.

•  In Pennsylvania, Primary and Secondary Disability Categories

IDEA’s 2nd Prong Special Education is specially designed instruction designed to meet a child’s individual learning needs

Adapting, the content, methodology or delivery of instruction.

to address unique needs;

to ensure access to general curriculum to meet standards

Replacement instruction, modification of outcomes, pace, modality, accommodations

IDEA & 504 Appropriate education encompasses behavioral, social and emotional domains as well as academic.

Supreme Court: a child advancing from grade to grade is not necessarily receiving FAPE

Mental health or other diagnosis does not equate to IDEA or 504 eligibility

FAPE is substantively the same under IDEA & 504 – Ridgewood; Lower Merion v. Doe

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Take Note of These Evaluation Issues Firm or Qualified Conclusions?

Recommending Further Evaluation

To FBA or Not to FBA? (Level?)

What information to summarize?

To quote or to paraphrase?

Comprehensive?

To dissent or not to dissent?

Follow up on recommendations

What about 504?

Courts’ and Hearing Officers’ Opinions About Evaluation

Appropriateness Preponderance of the Evidence

Hearing Officer Authority

Courts’ Deference to Hearing Officers

Statutory/Regulatory Criteria

Is there a role for DSM?

IEEs – private and publicly funded

Procedural, Substantive or Both? Kathryn F. v. West Chester, 2013 WL 6667773 ED Pa

“while the evaluation…was flawed [district] did not deprive K.F. of a FAPE…was only the starting point.”

- evaluator did not closely scrutinize previous IEPs

- evaluator focused on whether K.F. qualified for IDEA

- identification of a SLD in reading without more

information does not satisfy IDEA standards

- RR was “flawed” but not only source of information

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DIBELS, GMADE Technically Sound? Timothy F. v. Antietam Sch. Dist., 63 IDELR 70, 2014

2 math subtests & a writing subtest were borderline

Psychologist used DIBELS and GMADE results to assist in ruling out SLD

Psychologist “visual motor assessments” including Bender to rule out OT needs

Court: “It would have been acceptable for the psychologist to make a call on the borderline discrepancy areas based merely on her own judgment and experience; factoring in additional technical tools such as DIBELS and GMADE serves to inform and improve that judgment call rather than detract from it.”

“Fatal Flaw” ODR File No. 01346-0910 JS

Student had history of off-task, disruptive, violent outbursts.

District’s RR recommended psychiatric evaluation

Parent requested IEE

Fatal flaw of District’s RR was devoting just two paragraphs concerning parent’s and student’s

rating scale results; no ratings from teachers; no reporting of any scores or data.

RR “useless for school-based programming”

Evaluating English Language Learners K.A.B. v. Downingtown, 2013 WL 3742413

Did district violate Child Find in failing to identify SLD rather than an academic delay secondary to ELL?

Parents’ expert testified it could take 7-10 years to develop academic English proficiency

ASHA – should wait 2-3 years for Spec Ed evaluation

The District’s evaluation fell within that time frame

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Evaluating English Language Learners ODR File Nos. 14540, 14578, 14579, 2014

3 adopted siblings with varying but minimal English language proficiency

Parent requested evaluations relatively soon after enrollment

District evaluations could not rule out language or cultural factors to explain academic achievement

Parent requested IEEs by native language evaluators

District’s approach using translator and cross battery methodology ruled appropriate

Cattell-Horn-Carroll Theory/Cross Battery Assessment

  * a hierarchical model of intelligence that classifies cognitive ability into narrow abilities, broad abilities, and general ability. Why use the CHC/Cross Battery Approach?  * based on a valid theory of cognitive abilities * defensible interpretive method for identifying strengths

and weaknesses * psychometrically sound * allows for flexibility in designing assessment batteries * systematic in its approach and allows for evaluation of

CLD individuals

Flanagan & Ortiz Cross-Battery Method for ELL Evaluation

For any test given, the examiner must be aware of:

Degree of linguistic demand

The degree to which the task requires receptive and expressive language skills in order for the examinee to comprehend the assessor’s instructions and provide an appropriate response; includes tasks for which some error patterns that might be related simply to linguistic difference would render an answer incorrect

Degree of cultural content

The degree to which the task requires specific knowledge of and experience with mainstream U.S. culture

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Flanagan & Ortiz Cross-Battery Method for ELL Evaluation

C-LIM (Culture-Language Interpretive Matrix)

Scores from the tasks that are administered are placed into the matrix in the appropriate spot

Expert ratings and statistical analyses used to determine level of linguistic/cultural loading

These classifications are insufficient by themselves to comprehensively assess diverse individuals

You would generally expect that children with cultural or linguistic differences would do best on “low”/“low” tasks, and worst on “high”/“high” tasks

However, you may see some difficulty even on “low”/ “low” tasks… because “low”/“low” doesn’t mean “no”/ “no”!

Flanagan & Ortiz Cross-Battery Method for ELL Evaluation Degree of Linguistic Demand

Deg

ree

of C

ultu

ral L

oadi

ng

Low Medium High

Low

LESS IMPACT

INCREASING IMPACT

Med

ium

Hig

h INCREASING IMPACT

MOST IMPACT

Flanagan & Ortiz Cross-Battery Method for ELL Evaluation Degree of Linguistic Demand

LOW

Degree of Linguistic Demand

MODERATE

Degree of Linguistic Demand

HIGH

Degree Of Cultural DemandLOW

UNIT Spatial Memory 75 UNIT Cube Design 100 UNIT Mazes 85

WJ-III Vis Matching 67 WJ-III # Reversed 77

Degree Of Cultural DemandMODERATE

UNIT Symbolic Memory 85 CTONI2 Pict. Analogies 70 CTONI2 Pict Categories 90 CTONI2 Pict Sequences 90

WJ-III Vis-Aud Learn 19

WJ-III Sound Blending 78

Degree Of Cultural DemandHIGH

UNIT Object Memory 70 UNIT Analogic Reasoning 85

BVAT Pict Vocab 27

WJ-III General Info 11

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Flanagan & Ortiz Cross-Battery Method for ELL Evaluation Caveats:The scores themselves are not any more valid when interpreted in this way

On the contrary, the existence of this pattern of results indicates that the scores are not valid measures of cognitive ability, and should not be reported as such!

The existence of this matrix should never be used as an excuse to assess a linguistically or culturally different individual using inappropriate instruments.

Knowing how culture and language affect test results is just one piece of working with individuals with diverse backgrounds.

The “general guidelines” are estimates drawn from research; they are not precise and may not be accurate for use with every individual.

Functional Assessment of Behavior Functional Behavioral Assessment (FBA) is a process for identifying problem behaviors and developing interventions to improve or eliminate those behaviors.

•  information-gathering procedures that result in a hypothesis about the function(s) that the behavior is serving

•  identification of environmental antecedents (what happened before the behavior occurred) and consequences (what happened after the behavior occurred) that are maintaining the behavior.

•  The information gathered is used to develop an effective and efficient behavior plan.

•  PATTAN

The Three Flavors of PaTTAN FBAs

Behavior strategies are present as part of best practice across the setting (e.g., in all classrooms) and are sufficient for addressing behavior

Behaviors impede learning or that of others; universal strategies are not effective enough

Behaviors impede learning or that of others; behavior is more complex and may require the use of physical restraintComplex

Indirect/Simple

Informal

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What makes an IEE useful?

Useful for what?

Independent is not the same as fair or even objective.

Is it instructionally useful?

Does it provide new information?

Does it confirm/refute existing data?

IEEs Failure to disagree with a ER/RR will generally not bar an IEE, but expressly agreeing with a ER/RR might.

Must parents disagree in a timely manner?

(apparently only in some states)

Policy guidance from U.S. DOE is that parents would not be entitled to an IEE based on parents’ disagreement with District’s RTI model.

A district’s reliance on a parent-presented IEE could obligate the district to pay for the IEE.

Corroborating IEEs generally do not cause district liability

Independent Educational Evaluations Districts have two choices if parents request an IEE:

Agree to fund IEE under “agency criteria;” or, file for DPH to defend District’s evaluation.

Districts may ask parents for a reason why they “disagree” with the district’s evaluation but cannot require an answer;

Criteria may include location and qualifications of the evaluator, but must be the same criteria used by the District in conducting its evaluations;

Except for criteria, a district cannot impose a condition or timeline;

District may not have to reimburse for IEE if it shows the IEE is not appropriate.

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DPH Survival Skills

District witnesses are both fact and expert witnesses

District witnesses know the child and the school program, social norms and developmental standards

Courts give deference to expertise of educators and hearing officers

Be prepared but not too rehearsed. Know your document(s) and your data.

Listen to the question. Take your time, but not too much time.

Scientist-practitioner approach. Try to stay current with research. Know the research relevant to the case.

Be confident, but not cocky, in your judgments and conclusions.

Preparing for & Testifying at a Due Process Hearing

Disagree without being disagreeable.

You do not need to memorize anything.

Keep your CV reasonably current.

Be sure you understand the question – don’t speculate.

Answer the question and only the question.

Be certain – reasonably certain. If you don’t know, say so.

The standard is NOT 20/20 hindsight,

Credibility and Weight Hearing officers have the plenary responsibility to make “express, qualitative determinations regarding the relative credibility and persuasiveness of the witnesses”. Blount v. Lancaster-Lebanon Intermediate Unit, 2003 LEXIS 21639 at *28 (2003)

Courts defer to hearing officers on determinations of witness credibility and weight of testimony unless the record as a whole supports a different conclusion.

“I found the personnel of the District to be knowledgeable in their areas of expertise, noted that they refrained from speculation and from going beyond their areas of expertise and also noted that they were respectful under cross-examination, being able to disagree without rancor. Accordingly I accorded significant weight to their testimony” ODR 14998-1314

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Response to Intervention Issues •  Must have PDE/BSE approval to use RTII for SLD

eligibility determination.

•  “OSEP has heard that some LEAs may be using RTI to delay or deny a timely initial evaluation to determine if a child is a child with a disability and, therefore, eligible for special education and related services pursuant to an individualized education program…It is critical that this identification occur in a timely manner and that no procedures or practices result in delaying or denying this identification.” OSEP Policy Letter 1-21-2011.

•  9th Cir. case: districts must report RTI data if used to determine eligibility even if severe discrepancy model is used for SLD determination

RTI Issues Cont. •  V.M. v. Sparta Twp. (NJ) 2014 – court found

district’s adherence to severe discrepancy violated state law and IDEA in failing to consider other data

•  Daniel P. v. Downingtown 2011 – 1st gr. child identified SLD but not in need of sp. ed. b/c RTI met his needs. End of 2nd RR found eligible. HO ordered Comp Ed and tuition; Appeals Panel Reversed; Court upheld.

•  ODR 13618 – 2013 – HO held that 1.5 years of RTI intervention, and no progress at times and slow progress at other times was too long and a denial of FAPE

Potential Ethical Conflicts Sources of Ethical Principles – Professional Associations, State Law and Sometimes Both Together.

NASP Principles for Professional Ethics

“School psychologists consider children and other clients to be their primary responsibility, acting as advocates for their rights and welfare.” Sec. IV A 2

With conflicts of interest, the psychologist supports conclusions in the best interests of the child – taking into account the rights of each individual and the duties of school personnel

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Potential Ethical Conflicts Concerns about protecting the rights and welfare of children are communicated to school administration and staff.

School psychologists understand the public policy process to assist them in their efforts to advocate for children, parents and systems.

School psychologists use current assessment and intervention strategies. Sec. IV C 7

Use methods that are “responsible research-based practice.” Sec. IV C 6

Professional Educator Discipline Act 24 P.S. 2070.1(a) – creates the Professional Standards and Practices Commission.

To discipline any professional educator or charter school staff member found guilty upon hearings before the commission of immorality, incompetency, intemperance, cruelty or negligence or for violation of any provision of the act of May 29, 1931 (P.L. 210, No. 126 )

Preventing Complaints •  Be smart and knowledgeable about the child and the

child’s program. Don’t convey confusion and uncertainty. Have data and use behavioral terms.

•  Don’t blame the child or the parents.

•  Don’t ignore problems. Listen carefully & actively.

•  Tell ‘em where you are, where you’re going, and how you’re going to get there, and then do what you write. Don’t overpromise and under–deliver.

•  Absence of proof is, in fact, proof of absence

•  Never, ever, ever say “never,” or “we don’t do that here.”