B E T H N I S H I D A A N D R I C A R D O S I L V A , E S Q .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 TM A R C H 2 0 1 5

LEGALLY DEFENSIBLE ASSESSMENTS IN THE ERA OF

COMMON CORE

2

LEVELS OF LAWS AND REGULATIONS

Federal◦ Public Law (IDEA 2004)◦ Code of Federal

RegulationsState

◦ Education Code◦ Title V

District◦ School Board Policy◦ Administrative Regulations

PROCEDURAL SAFEGUARDS

• Child Find processes • Due process

• Timelines• Right to appeal

• Parental Involvement• Informed consent• Right to request an Independent Educational Evaluation

(IEE)• Right to attend meetings• Tape recording

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

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).)

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

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.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.

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.

21ST CENTURY SKILLS

What skills have been identified as critical for success in the twenty-first century as students enter the workplace?

Communication

Collaboration

Critical Thinking

Creativity Source: Partnership for 21st Century Skills

COMMON CORE EMPHASIZES

• Learning that builds over time.• Application of knowledge and skills.• Active participation and interaction in learning

activities.• Collaboration and communication.• Ongoing comprehensive instruction in reading,

writing, speaking, listening and language.

From: Penelope Hatch, Ph.D., CCC-SLP Center for Literacy & Disability Studies UNC, Chapel Hill

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

• Implementation of Common Core means that observation of the student in the general education environment as part of the assessment and collaboration with the general education teacher becomes even more important than it was previously.

ASSESSING LISTENING AND SPEAKING STANDARDS

• Participate in collaborative conversations with diverse partners about kindergarten topics and texts with peers and adults in small and larger groups.

• CCSS.ELA-Literacy.SL.K.1.aFollow agreed-upon rules for discussions (e.g., listening to others and taking turns speaking about the topics and texts under discussion).

• CCSS.ELA-Literacy.SL.K.1.bContinue a conversation through multiple exchanges.

ASSESSMENTLISTENING AND SPEAKING STANDARDS

• Engage effectively in a range of collaborative discussions (one-on-one, in groups, and teacher-led) with diverse partners on grade 5 topics and texts, building on others' ideas and expressing their own clearly.

• CCSS.ELA-Literacy.SL.5.1.aCome to discussions prepared, having read or studied required material; explicitly draw on that preparation and other information known about the topic to explore ideas under discussion.

• CCSS.ELA-Literacy.SL.5.1.bFollow agreed-upon rules for discussions and carry out assigned roles.

• CCSS.ELA-Literacy.SL.5.1.cPose and respond to specific questions by making comments that contribute to the discussion and elaborate on the remarks of others.

• CCSS.ELA-Literacy.SL.5.1.dReview the key ideas expressed and draw conclusions in light of information and knowledge gained from the discussions.

ASSESSMENT – OBSERVATIONS AND COLLABORATION

• Collaboration with general education teacher• Choosing times to observe that will help pinpoint

what student is able to do or not do in general education in light of Common Core expectations

• Write observational data in report. Observational data can be key in determining eligibility.

• Can help substantiate formal testing.• Formal testing can help tease out some of the

skills as well.

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:

• the student meets the definition of one or more of the categories of disabilities, and

• Needs special education and related services as a result of his/her disability or disabilities

• (34 CFR300.8(a)(1); EC 56026

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

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

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.

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

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. The assessor 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

OAH ROCKLIN CASE

• In the instant case, the Rocklin speech and language assessment report was fundamentally flawed. Statements in the assessment report about Student’s intelligibility were not supported by the evidence and were contradictory in different places in the report. Student’s articulation errors listed in the report differed from ones noted on the test protocols. Assessment test results were calculated incorrectly and the incorrect percentages were listed in the written report. Finally, there was no explanation or interpretation for some of the results and much of the results listed in the tables in the report were undecipherable by the average IEP team member. This information, according to the report and testimony in the case, were used to make the recommendations in the report, which led to the recommendation for services for Student. In this case, the aggregation of the incorrect results, incorrect statements about Student’s intelligibility and mean length of utterance, and failure to explain or interpret assessment test results, rendered the data, from which any recommendations were made, based upon faulty information. Therefore, for this reason as well, the assessment and the associated report were not legally compliant.

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.

•Questions?

APPENDIX

ELIGIBILITY – TITLE 5

Speech and Language impairment:• (c) A pupil has a language or speech disorder as defined in

Section 56333 of the Education Code, and it is determined that the pupil’s disorder meets one or more of the following criteria:

• (1) Articulation disorder.• (A) The pupil displays reduced intelligibility or an inability to use

the speech mechanism which significantly interferes with communication and attracts adverse attention. Significant interference in communication occurs when the pupil’s production of single or multiple speech sounds on a developmental scale of articulation competency is below that expected for his or her chronological age or developmental level, and which adversely affects educational performance.

TITLE 5 ELIGIBILITY

• (B) A pupil does not meet the criteria for an articulation disorder if the sole assessed disability is an abnormal swallowing pattern.

• (2) Abnormal Voice. A pupil has an abnormal voice which is characterized by persistent, defective voice quality, pitch, or loudness.

• (3) Fluency Disorders. A pupil has a fluency disorder when the flow of verbal expression including rate and rhythm adversely affects communication between the pupil and listener.

• (4) Language Disorder. The pupil has an expressive or receptive language

TITLE 5 ELIGIBILITY

• (4) Language Disorder. The pupil has an expressive or receptive language disorder when he or she meets one of the following criteria:

• (A) The pupil scores at least 1.5 standard deviations below the

• mean, or below the 7th percentile, for his or her chronological age or developmental level on two or more standardized tests in one or more of the following areas of language development: morphology, syntax, semantics, or pragmatics.

• When standardized tests are considered to be invalid for the specific pupil, the expected language performance level shall be determined by alternative means as specified on the assessment plan, or

TITLE 5 ELIGIBILITY

• (B) The pupil scores at least 1.5 standard deviations below the mean or the score is below the 7th percentile for his or her chronological age or developmental level on one or more standardized tests in one of the areas listed in subsection (A) 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 fifty utterances. The language sample must be recorded or transcribed and analyzed, and the results included in the assessment report. If the pupil is unable to produce this sample, the language, speech, and hearing specialist shall document why a fifty utterance sample was not obtainable and the contexts in which attempts were made to elicit the sample. When standardized tests are considered to be invalid for the specific pupil, the expected language performance level shall be determined by alternative means as specified in the assessment plan.

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. Morphologyii. Syntaxiii. Semanticsiv. 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.