copyright © 2012 lozano smith defensible assessments and avoiding legal blindspots january 17, 2013...

Copyright © 2012 Lozano SmithCopyright © 2012 Lozano Smith

Defensible Assessments and Avoiding Legal Blindspots

January 17, 2013ACSA

Presented by:

Beth Nishida, M.A.Hacienda La Puente Unified School District

and Ricardo R. Silva, Esq.Lozano Smith

Copyright © 2012 Lozano SmithCopyright © 2012 Lozano Smith

• Why Special Education Administrators should focus on improving LEA 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.

Copyright © Lozano Smith 2012Copyright © 2013 Lozano Smith

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CHILD FINDObligation or Opportunity?


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Child Find - Obligation

“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.)


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Child Find - Opportunity

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.


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Child Find – Opportunity

Child Find: It is also an opportunity to:• Lay the foundation for appropriate

eligibility and services.• Set course for the IEP team.• Preserve the right to defend your

assessments.


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ASSESSMENTS


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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.”

(Seattle SD No. 1 v. B.S. (9th Cir. 1996) 82 F.3d 1493, 1500.)


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Assessments

• An assessment is not just standardized testing; it is a comprehensive analysis of the student.

• An assessment should include, for example:– review of records.– standardized testing.– observations in multiple settings.– parent/teacher interview.– student interview.

• When assessing non-academic needs, standardized tests alone are not likely to be sufficient.


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Assessments

Timelines:– Are District’s responsibility / obligation.– Staff must know timelines. – Can make or break a case.– Follow-up is key.

(20 U.S.C. § 1414(a)(1)(C) andEduc. Code, § § 56302.1 and 56043(c).)


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Assessments – Potential Blind Spot

It is important to assess all areas of suspected disability. Often overlooked areas:• Behavior• Attention• Medical• Social / Emotional• Communication

http://images.clipartof.com/small/75384-Royalty-Free-RF-Clipart-Illustration-Of-An-Orange-Man-Doctor-Examining-A-Child.jpg


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Assessments

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.


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Assessments

Observation:

• 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)


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Assessments

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)


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Assessments

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.


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Assessments

Assessment Reports:The personnel who assess the pupil shall prepare a written report, 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.


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Assessments

Assessment Reports:(3) The relevant behavior noted during the observation

of the pupil in an appropriate setting.(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.


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Assessments

Assessment Reports:(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.

(Educ. Code, § 56327.)


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Reassessment:• Students eligible for special education

services can only be reassessed once per year:– Unless district and parents agree in

writing.


2020


Reassessment:• 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 the student's needs aren’t being met, it is required to reassess.


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“Child with a Disability” is a two-pronged analysis: • Does the child meet the criteria associated with

one of the disability categories under the law (e.g., speech-language impairment); AND

• Does the child need special education and related services as a result of this disability?


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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).)


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Potential Blind Spots

Problem Areas:• Failing to assess all areas of suspected disability.• Poor choice of assessment instruments.• Improperly completed protocols – basal/ceiling,

added incorrectly• Failing to observe student and consult with

teachers and service providers.• Unimpressive assessment reports.• Lack of analysis.


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Problem Areas:• Appearance of bias.• Embarrassing or substantive typos – confusing

he/she, wrong name in report, listing a test with no scores.

• Not providing the entire picture.


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Example:• Private assessment report included 19 incorrect

test scores. Assessor blamed her secretary, but the hearing officer accorded very little weight to the report, and found the assessor to not be a credible witness.

Manteca Unified Sch. Dist. (SEHO 2002), SEHO SN 02-01151


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Common Errors In Selection of Assessment Instruments:– 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

inappropriately.


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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.


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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.


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Problem Areas:• Appearance of bias can significantly diminish the

effectiveness of a report.• Test scores should be interpreted objectively,

and not ‘spun’ to support a particular narrative.


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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.


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Why You Want Each and Every Assessment to be Appropriate:

Independent Educational Evaluation (IEE)


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IEEs

• A parent may request an IEE at public expense if the parent disagrees with a school district’s evaluation.


3333

IEEs

• In response to a parent request for an IEE, the district must without undue delay:– Initiate due process, and demonstrate at

the due process hearing its assessments were appropriate;

OR– Provide an IEE at public expense.

Request for IEEs are time sensitive! Why?


34

IEEs

• “Timelines for school districts to decide how to act when a parent request an IEE are [purposely] short.” – Act promptly in order to ensure that information about

the child is current and accurate.• Failure to promptly and properly respond to a

request may entitle the parents to an IEE at the district’s expense, regardless of whether the assessment itself was appropriate.

(Fullerton Unified School District, OAH Case No. 2011061318 (January 30, 2012).)


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IEEs

• Even if the parents delay in requesting an IEE:– District must still respond without undue delay– OAH may still order district to fund IEE

• However, parents must request an IEE within two years of the district’s assessment with which they disagree.

(Placentia-Yorba Linda Unified School District, OAH Case No. 2012051153 (August 7, 2012).)


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IEEs

• Making the Decision to Fund or File:– Review the assessment that the parent

disagrees with, including protocols.– 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.


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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

• The district may ask for the parent’s reasons for objecting to the district’s assessment, but the parent is not required to respond.


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IEEs

• IEE Agency Criteria– Cost containment.– Geographic limitations.– Exceptions – options - _____ criteria.– File for Due Process Hearing.


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IEEs

• If the parent obtains an IEE at private expense, the results of that IEE:– Must be considered, and– May be presented as evidence at a due

process hearing.• Districts must allow assessors “an

equivalent opportunity” to observe current placements and proposed placements.


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RISKS OF ASSESSING INAPPROPRIATELY


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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.


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Testifying

WE’VE DONE EVERYTHING RIGHT, BUT

THERE IS STILL A DISPUTE... NOW WHAT?


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Testifying

Testifying in a Hearing:• Evaluate your assessment and

circumstances (Facts):– Look at Assessment Report.– Evaluate witnesses:

• Weak Witnesses.• Strong Witnesses.

– Evaluate Risks:• FAPE.• Financial.


44

Testifying

Testifying in a Hearing:• Prepare Staff:

– Human Resources impact.– Emotional toll.


4545

Testifying

Testifying in a Hearing:• Do not to take it personally.• Be professional and courteous.• Be prepared:

– Review testing, protocols and report.– Review student’s records.

• Be honest.


4646

Testifying

Testifying in a Hearing:• Things to discuss with Staff:

– Okay to be nervous.– Managing the human aspect.


4747

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.


4848

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.• Remember, the ALJ is very interested in hearing

from you!


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Thank you for attending!


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