SES Fall 2010
All Things Considered:
Recent OAH Decisions on
Assessment
and Eligibility
Overview
 Konocti:
Justifying a lack of assessment
 Anaheim:
Analyzing a psychoeducational
assessment
 Lakeside:
Defending a finding of no
eligibility
 Garvey:
Keeping control of your case
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Student v. Konocti Unified
School Dist. (OAH 2010)
Justifying a lack of assessment
3
Student v. Konocti Unified
School Dist. (OAH 2010)
• The Bottom Line
– Good supports, programs, and interventions
matter
4
Student v. Konocti Unified
School Dist. (OAH 2010)
• Background
– Ten-year-old boy attended the same district
school through third grade
– Never assessed for special education
5
Issues
• During Student’s third grade year, did
District deny FAPE by failing to
– assess Student for special education?
– qualify Student for special education services
as OHI and provide special education?
6
Facts
• Student’s early school years
• Third grade year
– Disciplinary referrals
– Academic progress
– Classroom behavior
• Student Study Team (SST) Meeting
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Facts
• Social skills academy assessments
• Implementation of the 504 Plan and social
skills academy
• Student's ability to control his behavior
8
Law
•
Child Find
– Obligation applies even though student
advances from grade to grade
– Duty is not dependent on any action or
inaction by parents
– The threshold for suspecting a disability is
relatively low. (Dept. of Educ. v. Cari Rae S.
(D. Hawaii 2001) 158 F.Supp.2d 1190)
9
Law
• General education resources
– Students "shall be referred for special
educational instruction and services only after
the resources of the regular education
program have been considered and, where
appropriate, utilized"
(Ed. Code, § 56303.)
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Contentions
• Student contended
• District contended
– Student’s behavioral
problems put District
on notice to assess
– District did not have
any reason to assess
Student
• Student requested
compensatory
education
• He made adequate
educational progress
• District met his needs
with other educational
resources
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Decision
• The District prevailed on all issues … all of
Student's requests for relief were denied!
12
Rationale
• Student's academic progress and lack of
disciplinary referrals
• Student's demonstrated ability to control
his behaviors
• No obligation to find Student eligible for
special education because no obligation to
assess him
13
Tipping Points
• A program which addressed
ADHD behaviors rather than ignoring or
denying them
• Student was able to perform when
motivated and progressed in his
academics without special education and
related services
14
Lessons Learned
•
Following procedures pays off
–
–
•
The District met its procedural requirements
This built District credibility with the ALJ
Implementation pays off
–
It is one thing to develop a good
plan/program, but another to actually
implement it!
15
Lessons Learned
Setting Up Your Case
• Evidence is invaluable…
– Evidence of educational progress
– Evidence of district actions
– Evidence of student behavior
• Consistent testimony is key!
• Lack of counter-evidence
• Subsequent eligibility not relevant
16
Anaheim City School Dist. v.
Student (OAH 2010)
Analyzing a psychoeducational assessment
17
Anaheim City School Dist. v.
Student (OAH 2010)
• The Bottom Line
– Whatever you do, use a credentialed school
psychologist for a psychological assessment!
18
Anaheim City School Dist. v.
Student (OAH 2010)
• Background
– Eight-year-old girl with autism
– After Parent requested IEEs, District filed for
hearing to defend its assessments
19
Issues
• Was District's 2009 psychoeducational
assessment appropriate, and if not, is
District required to fund an IEE?
• Was District's 2009 functional behavioral
assessment (FBA) appropriate, and if not,
is District required to fund an IEE?
20
Facts
• Psychoeducational assessment by
District’s outside assessor
• IEP team meeting
• Functional Behavior Assessment Report
by District’s School Psychologist
• Testimony at hearing
21
Facts
• Student’s expert exposed that District’s
assessment failed to
– Convert raw scores
– Properly compute converted scores resulting in
incorrect scaled scores
– Follow the test instructions, resulting in incorrectly
scored test protocols
– Accurately compute the overall intelligence index
– Report results from all tests administered
– Select the appropriate theoretical model
22
Facts
• District’s assessor admitted errors but
stated they did not impact findings
• Student’s expert disagreed!
23
Law
• As filing party, District had the burden of
proof
• Psychological assessments require a
credentialed school psychologist,
including any individually administered
test of intellectual or emotional
functioning
• An FBA must meet the IDEA's legal
requirements for an assessment
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Contentions
• District contended
– Student was not entitled to IEEs at public
expense
– District’s psychoeducational assessment and
school psychologist’s FBA were properly
conducted and met all the necessary legal
and educational requirements
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Contentions
• Student contended
– District assessment not appropriate because
• District’s assessor was not a school psychologist
• multiple errors in use and scoring of assessment
tools
– District failed to evaluate and consider
Student's "on-task" issues thus making the
FBA inappropriate
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Decision
• District’s psychoeducational assessment
was not properly conducted
– District ordered to provide Student an IEE at
public expense
• District’s FBA was properly conducted
– District had no duty to fund an IEE
27
Rationale
• The Psychoeducational assessment
– The “scoring errors were numerous and
problematic and, therefore, invalidated the
overall assessment results”
– District did not use a credentialed school
psychologist
• The FBA
– District complied with the legal requirements
for conducting the FBA
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Tipping Points
• District’s assessor was not a
credentialed school psychologist
• Student’s expert thoroughly analyzed
assessments and had a credible critique of
District’s assessor’s work
• There were numerous errors in test
administration
29
Lessons Learned
• Use a credentialed
school psych!
– The failure to use a
credentialed school
psychologist
doomed the District
30
Lessons Learned
Setting Up Your Case
• Beware of overcompensating …
– ”No good deed goes unpunished!”
• Check and double check assessment reports
– Use a SELPA or other district psychologist to review
any reports critical to your case
– Find someone to play devil’s advocate with key
documents or witnesses
• Speculation: Why the independent assessor?
31
Student v. Lakeside Joint
School Dist. (OAH 2010)
Defending a finding of no eligibility
32
Student v. Lakeside Joint
School Dist. (OAH 2010)
• The Bottom Line
– Sometimes fear is an appropriate response
and not a sign of emotional disturbance … or,
just because the facts are crazy doesn’t mean
the student is ED!
33
Student v. Lakeside Joint
School Dist. (OAH 2010)
• Background
– 12 year-old student resided with his adoptive
parents, was diagnosed as having reactive
attachment disorder
– District had assessed Student for eligibility
under ED the year before but found not
eligible
– ALJ agreed not eligible
34
Facts
•
Events prior to seventh grade
– Summer camp
•
September 2008 IEP team meeting
–
–
–
–
Truancies
Review of assessments
Academic progress
Diagnosis of depression?
35
Facts
• Student’s behavior at school
– Student performed at grade level
– Student’s teachers reported Student did not
seem depressed
– Student had friends, was on task, was not a
behavior problem, and did not seem
withdrawn
36
Issue
• Should the District have found Student
eligible for special education and related
services under the disability category of
emotional disturbance (ED) at any time
from July 29, 2008 through March 9,
2009?
37
Law
• The “Snapshot Rule” -- an IEP is
evaluated in light of information available
to the IEP team at the time it was
developed; it is not judged in hindsight
(Adams v. Oregon (9th Cir. 1999).)
38
Law
• Emotional disturbance -- a condition
exhibiting one or more of five
characteristics over a long period of time
and to a marked degree that adversely
affects a child's educational performance
39
Law
• OSEP on a “long period of time” and to a
“marked degree"
– A “long period of time" is from two to nine
months
– A “marked degree" generally refers to the
frequency, duration or intensity of a student's
emotionally disturbed behavior in comparison
to the behavior of his peers and/or school and
community norms
(Letter to Anonymous, (OSEP 1989).)
40
Law
• Student claimed eligibility as ED under
– a general pervasive mood of unhappiness or
depression
– a tendency to develop physical symptoms or
fears associated with personal or school
problems
41
Contentions
• Student contended
– He qualified for special education and related
services as a student with ED
• “School authorities did not view Student as
depressed because he denies his depression and
is so skilled at hiding it that it was not readily
visible to District employees”
• Student’s fears, related to the Doe family, made
him eligible as ED
42
Contentions
• District Contended
– Student was not eligible for special education
and related services at any relevant time
43
Decision
• The District prevailed on all issues!
• Student was not eligible for special
education and related services under the
category of emotional disturbance at the
time in question
44
Rationale
Not Eligible Based on Depression
“Student's argument proves too much. If Student's
depression was invisible to school personnel, the
IEP team cannot be faulted for failing to act on it.
[Student’s therapist’s] letter…which does not
mention depression, suggests that Student's
depression was invisible even to him at that time.
The IEP team was not required to declare Student
eligible for special education based on a condition
no professional could perceive”
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Rationale
Not Eligible Based on Fear
• The degree of Student’s fear
– Was it to a marked degree?
• Student appeared happy
• The duration of Student’s fear
– Was it for a long period of time?
• Student continued to go to school after the
incident at summer camp
• The nature of Student's fear
– Was it reasonable?
• “[I]t was fear almost any student would have
in the circumstances”
46
Tipping Points
• The District had multiple witnesses with
consistent testimony
• District’s evidence showed that Student’s
fear was not unreasonable given the
circumstances
• The District looked carefully at the degree,
duration and nature of Student’s fear
47
Lessons Learned
• Criteria for ED may be strictly construed
– This case looked closely at the criteria for ED,
including a good analysis of the degree,
duration and nature of fear required for
eligibility
48
Lessons Learned
Setting Up Your Case
• Don’t be afraid to tell the whole story
– Without sensationalizing the remarkable facts,
the District did a great job of setting the entire
stage in this case
– Strategy at hearing included providing
information about Student’s past, Parent’s
motives, and Student's behavior and
academic performance at school
49
Student v. Garvey Elementary
School Dist. (OAH 2010)
Keeping control of your case
50
Student v. Garvey Elementary
School Dist. (OAH 2010)
• The Bottom Line
– Do not abdicate your
responsibilities in
favor of other
agencies!
51
Student v. Garvey Elementary
School Dist. (OAH 2010)
• Background
– Student, now in high school, was a dependent
child since 2 ½ years of age
– Student abused and neglected
– Student not previously eligible for special ed.
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Issues
• Was District's initial assessment of
Student and its determination of eligibility
invalid because it failed
– to develop an assessment plan; and
– to obtain consent from an individual
authorized to make educational decisions?
• Did the District fail to conduct an
appropriate assessment?
53
Facts
• Admission at Maryvale (LCI)
• Academic assessment by
Logsdon (NPS)
• Maryvale’s clinical
assessment
• IEP team meeting and
appointment of surrogate
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Law
•
•
•
Informed parental consent is required
before formal assessment and initial
special education placement
Parents are required members of the IEP
team
School districts convening an IEP team
meeting must take steps to ensure
parental participation
55
Law
• A pupil's interests and concerns must be
considered by the IEP team and,
whenever appropriate, the pupil should be
part of the IEP team meeting
• A school district's appointment of a
surrogate is limited by statute
56
Contentions
•
Student contended
– Maryvale's clinical evaluation was not a
special education assessment
– District's initial assessment of Student and
determination of eligibility for special
education was invalid
– Student was inappropriately identified as a
pupil with ED
57
Contentions
•
District contended
– It obtained the required consent for
assessment
– It obtained the required consent for special
education and consent to the IEP
– Any procedural violations that occurred did
not result in the denial of FAPE because
Legal Guardian understood what would
happen and did not object
58
Decision
• Student prevailed on all issues
– The assessments, determination of eligibility
for special education and IEP were developed
without the consent or participation of Legal
Guardian
– The District was ordered to expunge Student's
educational records of Student's IEP,
Maryvale’s clinical evaluation and Student's
identification as a pupil with ED
59
Rationale
•
Invalid initial assessment because of the
absence of an assessment plan
• Failure to obtain informed parental
consent resulted in the denial of FAPE
• Appointment of surrogate was improper
• Assessments were not appropriate
Remedy: Expungement of records!
60
Tipping Points
•
•
•
•
District improperly relied on other entities
No informed consent
Failure to complete a valid assessment
Student should have attended the IEP
team meeting
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Lessons Learned
•
•
•
•
•
Do not abdicate responsibility to nonpublic
agencies, overtly or in practice
Parent/Guardian contact is critical. Informed
consent is the basis for most special education
action
Pay attention to every student
Beware of informal practices and think about
putting them in writing
It’s not the thought that counts!
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Lessons Learned
Setting Up Your Case
•
•
•
•
Clean up procedural messes
Get it in writing!
Make sure you have your own witnesses
Obtain your own information
63
Conclusion
• Schools need to address behavioral
problems but not necessarily through
special education
• If you do assess -- assess carefully!
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Q&A
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Enjoy your lunch!
Presentations will resume at 1:00 p.m.
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