Deborah ettinger and christina keefe

Association of California School AdministratorsJanuary 16, 2014

Presented by:

Deborah U. Ettinger, Esq. Christina KeefeLozano Smith School [email protected] Newark Unified School District [email protected]

PSYCHO-EDUCATIONAL ASSESSMENT: THINGS THAT MAKE YOU GO HMMMMM

AND ANSWERS THAT MAY HELP THE IEP PROCESS

mailto:[email protected]

mailto:[email protected]

OVERVIEW

• Psycho-educational assessments are the basis that form IEPs and are critical to developing appropriate IEPs.

• Review of interesting arguments that come up in IEP meetings and due process hearings related to psycho-educational assessments.

GENERAL REQUIREMENTS FOR ASSESSMENTS

• An assessment of the student’s educational needs shall be conducted before any action is taken with respect to the initial placement of a special education student. (34 C.F.R. § 300.301(a); Ed. Code § 56320.)

• An assessment under California law is equivalent to an evaluation under Federal law. (Ed. Code § 56303.)


• A district must ensure that “the child is assessed in all areas of suspected disability.”

(20 U.S.C. § 1414(b)(3)(B); Ed. Code § 56320, subd. (f).)

• The determination of what tests are required is made based on information known at the time.

(See Vasheresse v. Laguna Salada Union 20 School District (N.D. Cal. 2001) 211 F. Supp. 2d 1150, 1157-1158.)


• No single procedure may be used as the sole criterion for determining:– whether the student has a disability, or – an appropriate educational program for

the student.

(20 U.S.C. § 1414(b)(2)(B); Ed Code § 56320, subd. (e).)


• Assessments must be conducted by individuals who are both: – knowledgeable of the student’s disability,

and – competent to perform the assessment, as

determined by the local educational agency.

(Ed. Code § 56320, subd. (g), 56322; see 20 U.S.C. § 1414(b)(3)(A)(iv).)


• Tests and assessment materials must be selected and administered so as not to be:– racially, – culturally, or – sexually discriminatory;

• Tests and assessment materials must be provided and administered in the student’s primary language or other mode of communication, unless clearly not feasible.

(20 U.S.C. § 1414 (a)(3)(A)(i)-(iii); Ed. Code § 56320, subd. (a).)


• The assessment must be sufficiently comprehensive to identify all of the student’s special education and related services needs, whether or not commonly linked to the disability category in which the child is classified.

(34 C.F.R. § 300.304 (c)(6).)

SELECTION OF ASSESSEMENT INSTRUMENTS

• Assessment tools must be “tailored to assess specific areas of educational need” and “special attention shall be given to the [child’s] unique educational needs.” (Ed. Code §§ 56320, subd. (c)(g).)


• Assessors must use “technically sound instruments that may assess the relative contribution of cognitive and behavioral facts, in addition to physical or developmental factors.”

(20 U.S.C. § 1414(b)(2)(C); 34 C.F.R. § 300.304 (b)(3).)


• “Technically sound instruments” generally refers to assessments that have been shown through research to be valid and reliable.(Assistance to States for the Education of Children With Disabilities and Preschool Grants for Children With Disabilities, 71 Fed. Reg. 46540-46541, 46642 (Aug. 14, 2006).)


• Tests of a student with impaired sensory, manual, or speaking skills must be selected and administered to best obtain results “that accurately reflect the pupil’s aptitude, achievement, level, or any other facts the test purports to measure.”

(Ed. Code § 56320, subd. (d).)

TEST RESULTS

• Districts are required to provide to parents, upon request, an explanation or interpretation of any answer sheet or other education records related to the tests a student has completed.

(Letter to MacDonald (OSEP 1993) 20 IDELR 1159.)

OBSERVATION REQUIREMENT

• A district must ensure that the child is observed in his/her learning environment (including the regular classroom setting) to document his/her academic performance and behavior in the areas of difficulty.

(34 C.F.R. § 300.310(a).)

WRITTEN ASSESSMENT REPORT

• To aide the IEP team in determining eligibility, an assessor must produce a written report of each assessment that includes whether the student may need special education and related services and the basis for making that determination.

(Ed. Code § 56327, subds. (a),(b).)


• The personnel who assess the student shall prepare a written report that shall include, without limitation, the following:– (1) whether the student may need special

education and related services;– (2) the basis for making that determination;– (3) the relevant behavior noted during the

observation of the student in an appropriate setting;

– (4) the relationship of that behavior to the student's academic and social functioning;

(Cont’d.)


– (5) the educationally relevant health, development and medical findings, if any;

– (6) if appropriate, a determination of the effects of environmental, cultural or economic disadvantage; and

– (7) consistent with superintendent guidelines for low incidence disabilities (those effecting less than one person of the total statewide enrollment in grades K through 12), the need for specialized services, materials, and equipment.

(Ed. Code § 56327.)


• The report must be provided to the parent at the IEP team meeting regarding the assessment.

(Ed. Code § 56329, subd. (a)(3).)

DETERMINATION OF ELIGIBILITY

• It is the duty of the IEP team, not the assessor, to determine whether a student is eligible for special education and related services.

(20 U.S.C. § 1414(b)(4)(A); 34 C.F.R. §§ 300.305(a)(iii)(A); 300.306(a)(1).)

CASE ANALYSIS – 1

Panama-Buena Vista Union School District v. Parent on Behalf of Student (2013) OAH Case No. 2013060838

• Six-year-old boy had difficulty concentrating, behavior incidences, and was frequently removed from class and disciplined.

• Parent asked district to assess student to determine whether he was eligible for special education. District conducted a psycho-educational assessment and found student was not eligible.

• The district denied Parent’s request for an Independent Educational Evaluation (IEE) and district filed for due process.

• ALJ ruled in favor of student.

CASE ANALYSIS – 1

Panama-Buena Vista Union School District v. Parent on Behalf of Student (Cont’d.)

• The court concluded that the District’s assessment of the student’s academic performance and behavioral difficulties were insufficient to determine student’s eligibility for special education.

• Assessment tools used: – Woodcock-Johnson III Tests of Achievement (“WJ-

III”)– Behavior Assessment System for Children

(Second Edition) (“BASC-2”)

CASE ANALYSIS – 1


• Problems with WJ-III Assessment:– WJ-III used exclusively, even though a substantial

majority of the subtests were inappropriate for the student’s age and grade.

– Assessor only used the District’s standard, pre-selected subtests for students.

• Assessor administered math calculation subtest, which was inappropriate for student’s age group.

• Assessor failed to administer appropriate subtests, such as the story recall subtest, because it was not included in the District’s standard list.

CASE ANALYSIS – 1


• Problems with WJ-III Assessment (cont’d):– No evidence assessor considered using other tools.

– No evidence test or subtest was selected in response to the individual student’s unique needs or

characteristics.

CASE ANALYSIS – 1


• Problems with scoring WJ-III: – Some scores missing, without explanation. – Certain scores were calculated by WJ-III software, the

results of which could not be explained by the assessor.

– No explanation regarding a severe discrepancy between student’s ability and achievement in brief math.

CASE ANALYSIS – 1


• Problems with BASC-2:– Assessor unconcerned regarding discrepancy between

the Parent and Teacher’s rating of student. Assessor simply concluded that the teacher’s ratings were more accurate.

• Parent’s answers yielded “clinically significant” scores in six areas and “at risk” scores in three areas.

• Teacher’s answers yielded no “clinically significant” scores and “at risk” scores in three areas.

CASE ANALYSIS – 1


• Problems with BASC-2 (cont’d):– Assessor's classroom observations were not reliable.

• First observation discarded because substitute teacher was in charge of class.

• Second observation did not include date or time of observation, making it impossible to determine whether student’s behavior was typical or unusual.

CASE ANALYSIS – 1


• Problems with BASC-2 (cont’d):– Method of testing student’s attention span included

comparing student with another random student, by looking at both students every 15 seconds to see whether they were on task. This method is not known to have any scientific or technical validity.

– Assessor admitted classroom observation was not sufficiently reliable to determine whether it represented student’s behavior under similar circumstances.

CASE ANALYSIS – 1


• Problems with BASC-2 (cont’d):– Playground observation was not dated, thus making it

impossible to determine whether student’s behavior was typical.

– Assessor concluded student behaved well despite only observing him for 20 minutes and occasionally observing when walking by the playground on unspecified days.

CASE ANALYSIS – 1


• The ALJ found the district’s assessment “inadequate as the principal tool for determining student’s eligibility for special education and inappropriate for the purpose of denying student’s request for an IEE.”

CASE ANALYSIS – 2

Parent on Behalf of Student v. Capistrano Unified School District (2013) OAH Case No. 2012120545 (Primary)

• District filed for due process hearing on 12/5/12; student filed for due process hearing on 12/13/12 and requested consolidation of the two matters.

• 18 year old male student, diagnosed with Attention Deficit Hyperactivity Disorder (ADHD), attended Residential Treatment Center (RTC) in Ogden, Utah.

• District denied student a FAPE by, among other things, failing to perform an adequate triennial assessment because the assessors did not observe student in his classes while school was in session.

• Student prevailed on all issues.• ALJ order district to reimburse the student’s parents

$91,000.00 to cover tuition and travel costs.

CASE ANALYSIS – 3

M.P. v. Santa Monica-Malibu Unified School District (C.D. Cal. 2008) 633 F. Supp. 2d 1089

• 11-year-old general education student with ADHD was getting bad grades and lacked motivation.

• As a result, his parents requested a special education assessment.

• The IEP team found him ineligible under the categories of specific learning disability (“SLD”) and other health impairment (“OHI”).

• Parents filed for due process.

CASE ANALYSIS – 3

M.P. v. Santa Monica-Malibu Unified School District (Cont’d.)

• The ALJ found that ADHD was a processing disorder for student but there was no evidence to support a severe discrepancy between ability and achievement. The ALJ held student’s academic problems were a result of his lack of motivation rather than a learning disability.

• The ALJ also concluded student was not eligible under OHI because there was no adverse educational impact.

• Parents appealed to federal district court.

CASE ANALYSIS – 3


• The district court reversed the ALJ’s decision even though the court concluded most of the ALJ’s findings were thorough and careful.

• The court found the ALJ ignored the undisputed testimony in the record by concluding student’s problems were due to lack of motivation.

• The district court found credible the testimony of student’s expert, Dr. Philip Levin, who stated student’s lack of motivation was caused by his ADHD.

CASE ANALYSIS – 3


• The court held the ADHD was “the very definition of a discrepancy between ability and achievement.” Notably, the decision did not mention the criteria for a discrepancy under California law.

• The court reasoned the evidence showed that because of student’s ADHD, he is not capable, without help, of being motivated.

CASE ANALYSIS – 3


• The court also found him eligible under OHI because general education interventions were not helping him. Thus, the court concluded the evidence did not support the ALJ’s findings that modification of the general education curriculum would alleviate student’s academic problems.

Case Analysis – 4

Los Angeles Unified School District v. Parent on Behalf of Student (2010) OAH Case No. 2009110472

• Since 2004, 15-year-old student was eligible for special education services under the category of SLD.

• In spring of 2009, student requested re-evaluation to determine whether he continued to meet the SLD eligibility for special education.

• After conducting a psycho-educational assessment, the IEP team recommended that student was no longer eligible for special education as a student with SLD.

Case Analysis – 4

Los Angeles Unified School District v. Parent on Behalf of Student (Cont’d.)

• IEP team offered placement at a general education

high school class, taught by a general education teacher. Parents did not consent to the IEP.

• Parents disagreed with district’s psycho-educational assessment and requested an IEE.

• District filed for due process claiming its assessment was appropriate.

Case Analysis – 4


• District psychologist conducted several assessments, which included: – Record review,– Interviews,– Standardized tests, and – Observation.

Case Analysis – 4


• Specifically, the district psychologist reviewed student’s: – Special education history, – Previous assessments, – Educational history from pre-kindergarten

through 10th grade, and– Ninth grade records with teacher comments.

• After reviewing records, district psychologist concluded student was doing well academically with a current GPA of 3.28.

Case Analysis – 4


• District psychologist also interviewed the parents who described student’s difficulties as being “visual perception, processing difficulty, unusual spelling in the visual context area.”

Case Analysis – 4


• District psychologist assessed student. – Tools and administration were not racially,

culturally, or sexually discriminatory.

– IQ tests were not used in accordance with district

policy.

Case Analysis – 4


• District administered the following tests to determine student’s emotional/social health:

– Conners-Wells’ Parent-Report Scale (Conners),– Achenbach Parent Report (Achenbach), – BASC-2, and– School Motivation and Learning Strategies Inventory

(SMALSI). • Parents reported student did not have conduct,

attention or social problems and was not depressed or anxious.

• Student’s scores on BASC-2 were not in the clinically significant range.

• SMALSI revealed student was highly motivated to do well in school, had superior study, reading, note-taking, and listening strategies and skills.

Case Analysis – 4


• District psychologist tested student’s cognitive/ processing abilities using: – Matrix Analogies Test (MAT); – The Learning Efficiency Test, Second Edition (LET-II);– The Wide Range Achievement Test, Third Edition (WRAT3); – The Receptive One-Word Picture Vocabulary Test (RO-PVT);

and– The Beery-Buktenica Developmental Test of Visual-Motor

Integration, Fourth Edition (VMI-4).• District psychologist had administered these tests

hundreds of times and the court concluded she was qualified to perform the assessments.

Case Analysis – 4


• The cognitive/processing tests revealed student was average to markedly above average in many areas, including memory, math computation, vocabulary, and language skills.

• Student, however, had difficulties in spatial visualization and functioned below average in fine

visual-motor integration ability.

Case Analysis – 4


• District special education teacher administered the WJ-III, including numerous test clusters and subtests and used a standard score rating.

• Student scored in the average to very superior range in all levels. Scores demonstrated that student’s academics are not negatively affected by his learning disability.

• Based on student’s WJ-III scores, review of teacher reports, and June 2009 grades, the special education teacher found that student did not continue to be eligible for special education.

Case Analysis – 4


• ALJ concluded psycho-educational assessment was properly conducted and the district need not provide an IEE. – Conducted by highly qualified assessor.– Student was assessed using a variety of instruments, ranging

from record review, interviews, standardized tests, and observations.

– Instruments were appropriate and valid to determine whether student required special education.

– Assessment was not racially or culturally biased.– Assessment resulted in comprehensive written report,

making a recommendation that student did not require special education services.

Case Analysis – 5

Anaheim City School District v. Parent on Behalf of Student (2010) OAH Case No. 2010010357

• Eight-year-old student qualified for special education services under the category of autistic-like behaviors.

• In preparation for student’s annual IEP, district retained Lauren Franke, Psy.D, to conduct a psycho-educational assessment.

Case Analysis – 5

Anaheim City School District v. Parent on Behalf of Student (Cont’d.)

• Assessment consisted of: – Interviews of parents and teacher.– Review of student’s educational records, medical

records, background, previous assessments and reports.

– Observations of student.– Cognitive, memory and language tests. – Evaluation of student’s social competence and

narrative skills.

Case Analysis – 5


• ALJ found psycho-educational assessment was not properly conducted.– District failed to meet the legal requirement that a

psycho-educational assessment be conducted by a credentialed school psychologist. Dr. Franke is a clinical psychologist, not a credentialed school psychologist.

– Dr. Franke failed to follow the Kaufman Assessment Battery for Children, Second Edition (KABC-II) test instructions regarding selection and application of theoretical models.

– Dr. Franke failed to follow test protocols in scoring, resulting in an incorrect cognitive profile of student.

Case Analysis – 5


• ALJ concluded district must provide student an IEE at public expense because of District’s failure to properly conduct the psycho-educational assessment.

QUESTIONS

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THE LEGAL STUFF

These materials are for instructional purposes only. This information is not legal advice. If you need legal assistance, contact your trusty legal counsel on the specific problem at hand.

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Deborah ettinger and christina keefe

Education

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