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Georgia Special Education Law Blog

Assessment Validity

on Fri, 06/07/2013 - 19:58

It might seem obvious that assessments used in an evaluation should not be skewed by irrelevant factors or administered incorrectly.1 Using assessments incorrectly creates a misleading impression of a student’s current level of performance and needs, which can lead to an ineffective special education plan. Yet some school districts do use assessments in obviously incorrect ways. Fortunately, statutes and regulations under the Individuals with Disabilities Education Act (IDEA) prohibit many improper assessment procedures.  

An assessment can be misleading if the student does not understand the assessment. Thus, a student who is not a proficient speaker of English should not be evaluated by English-language assessments. Likewise, an assessment that relies on verbal responses is not appropriate for children who are nonverbal or semi-verbal.2  

Even if an assessment is not inherently misleading, the assessment is not useful if it is not performed correctly. Most formal assessments were created by high-level experts in the field and have significant research describing the circumstances in which the results are valid. For that reason, designers and publishers of the assessments have fairly specific rules for how to administer the assessment and how to interpret the results. The IDEA requires that the person administering the assessment must follow the instructions of the designers and publishers of the assessment.3 Sometimes, the designer or publisher of an assessment lists required methodological background needed to be qualified to administer the assessment (like how an MD is generally required to formally diagnose a particular infection). Thus, the IDEA requires that the person administering the assessment for the school district be “trained and knowledgeable personnel.”It can be very useful to link the requirement that the assessor by knowledgeable with membership of the IEP team. Although a parent cannot generally pick particular members of the IEP team, there must be a member “who can interpret the instructional implications of evaluation results.”5  

There are two basic ways to prevent these problems with the assessment from adversely affecting your child. First, you can be explicit about the qualifications of the required team member. The person who describes the instructional implications of an assessment can be a valuable ally in using those results to create a useful special education plan. By asking that person open-ended questions about the educational implications of assessment results, you can make sure that the data collected during the evaluation is valid and used productively to provide educational benefit to your child. If the person with the most expertise on the assessments thinks something is necessary or likely to make the plan more successful, other team members are unlikely to disagree.  

Second, you can try to proactively control what assessments are used during the evaluation. For example, some advocates recommend trying to prevent the IQ test being given to children who are autistic. An autistic child’s skill deficits can distort the IQ test scores to understate the cognitive ability of the child. The distorted test results can create a misleading impression, causing teachers to inadvertently underestimate the student’s capability. Keep in mind that close parental control of the contents of an evaluation is very difficult to accomplish. Because this is a very difficult and confrontational course of action, it should be approached carefully with close assistance from a legal and / or medical expert.  

1 Remember, an evaluation is a legal term and an assessment is a medical term. One evaluation is made of many assessments.  

2 34 C.F.R. § 300.304(c)(1)(ii).  

3 20 U.S.C. § 1414(b)(3)(A)(v).  

4 20 U.S.C. § 1414(b)(3)(A)(iv).  

5 20 U.S.C. § 1414(d)(1)(B)(v).  

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Interesting Links

What to Do While Waiting for an Assessment (Autism Speaks blog)  

Letter to the Editor: “Dyslexia and the Poor” (New York Times)  

Upcoming Events

I will be speaking at the Reach Enrichment Center’s monthly meeting on Saturday, August 3 at 10:00 am.  

Additionally, I will be speaking at the SPECTRUM parent support group monthly meeting on Thursday, October 3 at 6:30 pm.  

Have your own event for children with special needs? Submit it here for inclusion in future events lists.

Evaluation v. Assessments

on Tue, 05/28/2013 - 18:39

Often, school districts are confused by the difference between an evaluation, which is a legal term, and an assessment, which is a medical term. An evaluation is a task that a school district is obligated to perform under the Individuals with Disabilities Education Act (“IDEA”). A student receives only one evaluation at a time under the IDEA, and that evaluation must cover “all areas of suspected disability.”1 I have previously discussed how often a student is entitled to an evaluation, but the brief answer is that a school district probably cannot be required to evaluate more frequently than once per year, and may not be required to evaluate more frequently than once every three years. The purpose of the evaluation is twofold. First, evaluations exist to determine if a student is a “child with a disability,” which is to the technical way of saying that the student is eligible for an IEP. The other purpose of an evaluation is to guide the creation of the IEP by figuring out the child’s needs.2  

By contrast to an evaluation, an assessment is something that an expert like a psychologist does to try and figure out a child’s capabilities in some area. There are many types of assessments, based on particular areas of weakness – examples include, but are not limited to cognitive function, hearing, behavior problems, need for assistive technology, or functional life skills. In practice, this means that your child may undergo evaluation from several different experts in order to complete the evaluation and determine your child’s needs. Although not every student will need assessment in every possible area of need, an evaluation must cover a student’s behavioral issues, social skills, and the emotional status of the student if those issues could interfere with educational success.3  

Because the evaluation must address all areas of the student’s suspected disability, a school district’s failure to notice a particular disability or need of a student violates the law, even if the school district identified other disabilities and needs. Failing to notice a particular problem is essential equivalent to failing to effectively evaluate the student. For example, a school district that notices a child has hearing problems but fails to notice that the child is also dyslexic has fallen short of its legal obligation.  

In short, a school district cannot defend its evaluation by saying that it performed some assessments, relevant to some of a student’s needs, and any additional assessments can be requested in the next evaluation, in a year’s time. Quite simply, if you need more experts or more tests to figure out a student’s needs, the evaluation is not complete. That does not necessarily mean that particular assessments (such as all the assessments necessary to identify auditory processing disorder) must be administered, but it does mean that a school district cannot close its eyes to a particular areas of need of a student simply because it has investigated other, unrelated needs of that student.  

1 20 U.S.C. § 1414(b)(3)(B)  

2 20 U.S.C. § 1414(b)(2)(A)  

3 34 C.F.R. §§ 300.304(b)(3), 300.304(c)(4).  

For those interested, here is a link to Prof. Weber’s article “All Areas of Suspected Disability,” that discusses the legal issue in greater detail.  

 

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Upcoming Events:  

I will be speaking at the Reach Enrichment Center’s monthly meeting on Saturday, August 3 at 10:00 am.  

Additionally, I will be speaking at the SPECTRUM parent support group monthly meeting on Thursday, October 3 at 6:30 pm.  

Have your own event for children with special needs? Submit it here for inclusion in future events lists.

Transition Planning and Dating

on Fri, 05/10/2013 - 21:06

I recently ran across this excellent article from Autism Speaks about helping children with autistism deal with potential dating and relationship pitfalls. It is both a blessing and a curse that the issues our children face become more complex as our children get older. And the IDEA recognizes that the school district will not always be involved in a child’s life.  

That’s why one component of an IEP is a transition plan to address what will happen when the child is no longer in school. Starting in the IEP to be in place when the child turns 16, the plan needs to include (a) goals related to post-secondary education, employment, and / or living skills, and (b) services to be provided to help the student reach those goals.1  

The most important point to make about this statutory requirement is what it does not require. Specifically, nothing in the statute prohibits transition planning services before a student turns 16. Some children have severe impairments and need to learn multiple life skills, such as taking the bus, cooking, cleaning, or other independent living skill. It might take a year to teach just one skill. If the school district waits until the child is 16 to start teaching the skills, there might not be enough time to teach all the skills the child needs before the child ages out of public schools. In those circumstances, the school district is obligated to start transition planning earlier than the statutory minimum at age 16.  

But what made me think of transition planning after reading the relationship blog post was uncomfortable topic of relationships and sex. As children get older ang go through puberty, decisions about sex will inevitably become part of their life. We would like all children to make the appropriate choices, but it is an uncomfortable fact that many children with special needs do not always have the capacity to think through all the implications of a particular decision. And this shortfall will continue even after the child is old enough to be an adult under the law.   

It would be awful if others took advantage of a special needs person’s poor decision-making – even if the consent was legally given, the decision to give consent could be poorly reasoned or pressured by others. Worse, it would be a tragedy if a person’s lack of understanding led them to do or appear to do something that violated the law. For example, some people with special needs might seek a partner with similar cognitive capacity, yet the typically developed person with that capacity is not age appropriate.  

For that reason, transition planning needs to consider all the future life skills a person will need after leaving the public schools. If a student is not able to understand and apply the information from a tradition sex education class, then the school district is obligated to provide the information in a way that the child will understand.2 Otherwise, a school district fails its obligation to prepare the students under its care for life after schooling.  

1 20 U.S.C. § 1414(d)(1)(A)(i)(VII).  

2See David D. v. Dartmouth School Committee, 775 F.2d 411 (1st Cir. 1985), Mohawk Trail Regional School Dist. v. Shaun D., 35 F.Supp.2d 34 (D. Mass 1999).  

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Upcoming Events:  

I will be speaking at the SPECTRUM parent support group monthly meeting on Thursday, October 3 at 6:30 pm.  

Have your own event for children with special needs? Submit it here for inclusion in future events lists.

Confirmation Letter

on Fri, 03/29/2013 - 18:31

Today I want to talk about the practical application of some advice you’ve probably already heard: “Get it in writing.” In other words, whenever the school agrees to do something you asked for, refuses to do something you asked for, or described how it will provide a service it has agreed to provide, you should try to get that in writing instead of relying on your memory or the memory of the school employee who told school district’s position. This is excellent advice, and you don’t need an official form or a mailed letter. For example, an email is a written statement because it is recorded in a way that some third party could later see the content of the message.  

Unfortunately it is sometimes very hard to get school officials to give you a written statement. There are many reasons for this fact, including that school officials are very busy folks have a lot of drains on their time. Even when they have agreed to do something and want to help your child, they may not be able to find time to prepare a written description of what they already said. In that circumstance, I recommend that you write what I call a confirmation letter. The essential ingredients of a confirmation letter are:

• Thanking the recipient for the conversation

• Polite list of what the other person said

• Description of when the conversation occurred

• Request for clarification  

For example:

Dear Principal Smith,

Thank you so much for your conversation on Friday, March 1, 2013. You told me that the school would be providing a math tutor during study hall and would be changing which gym class my child was placed in. Additionally, the school will not be providing additional occupational therapy time because the school did not feel it was necessary given the current levels of performance. Thank you again for taking the time to talk with me. If I have misunderstood you in any way, please let me know.

Sincerely, Concerned Parent

The most important part of this letter is that it is written towards agreement. In other words, you should describe the facts so that the person receiving the letter will agree that you have accurately described the conversation. Do not write a description that the district could think was spinning or twisting the facts. It does not matter whether someone from the school district responds to your letter because if the district later claims that you misunderstood the conversation, you can always note that no one said anything at the time you sent the letter.  

In a confirmation letter, you should try as much as you can not to ask for things or accuse the school district of doing anything wrong. The purpose of a confirmation letter is not to change the school district’s mind but simply to show them that you are paying attention and that you are trying to engage with the school district. You should ask for what you think are appropriate services for your child, but the confirmation letter is probably not the right time to do so.  

There are two benefits to writing a confirmation letter. First, your calm tone and ability to agree on the facts shows that you willing and capable of actively collaborating with the school district to prepare your child’s IEP. This is very important because judges will look for parents to collaborate with the school district whether the school district deserves collaboration or not. Second, if a case is in front of the judge, neither you nor the person you spoke with will remember the conversation clearly because the conversation will have been some time in the past. Further, both the school official and you will have strong incentives to remember the conversation favorably to your own side and the judge will recognize that when evaluating and deciding who to believe. By contrast, a written statement made at about the time of the conversation is very helpful for the judge in deciding what was or was not communicated or promised to you as part of your child’s special education plan.

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Upcoming Events:

April 19: I will be presenting “Understanding the Basics of Special Education Law” at the Art it Out Therapy Center in Marietta at 10 am. The presentation is free, but please RSVP to 770‑726‑9589.

Have your own event for children with special needs? Submit it here for inclusion in future events lists.

Medicaid Rule Change

on Tue, 02/26/2013 - 20:44

Earlier this month, the U.S. Department of Education issued revised regulations on school district use of Medicaid funds, which will go into effect on in the middle of March. For those who did not know, Medicaid is a program that provides medical insurance to those with financial need. Additionally, children with severe medical need can receive a waiver to be accepted into the program (commonly known as the Katie Beckett Deeming Waiver).  

Anyway, the regulations require that a child’s parents consent to use of Medicaid to pay for services in school.1 Further, the use of Medicaid benefits may not:  

(A) Decrease available lifetime coverage or any other insured benefit;  

(B) Result in the family paying for services that would otherwise be covered by the public benefits or insurance program and that are required for the child outside of the time the child is in school;  

(C) Increase premiums or lead to the discontinuation of benefits or insurance; or  

(D) Risk loss of eligibility for home and community-based waivers, based on aggregate health-related expenditures;2  

Under the old version of the rule, the school district was required to get parental consent each time the public benefit (i.e. Medicaid) was used to pay for something. Under the new rule, parental consent is only required the first time Medicaid is used.  

Now, I represent children with special needs who are dealing with the public schools. In short, I am an IEP lawyer and a Section 504 plan lawyer, not a Medicaid lawyer. I do not know how likely it is that school district use of a child’s Medicaid benefit could screw up that child’s health insurance in the future. But if it were impossible for school districts to mess things up, no regulation would be required to tell school districts not to mess things up.  

Most importantly, the school district is obligated to provide a free, appropriate, public education whether or not you authorize use of Medicaid. The school district is expressly prohibited from conditioning services in school on your authorization to use Medicaid benefits.3  

My readers whose children receive Medicaid should be informed advocates. As a practical matter, I suggest you ask the school district (a) whether they are using your child’s Medicaid benefits, and (b) what services are being paid for with Medicaid. Perhaps the school district is providing services above the basic “floor of opportunity”4 required by law, and you want to continue providing those services in school.  

But if those services are necessary for providing a free, appropriate, public education, then consider revoking your consent to use up your child’s Medicaid benefit and save your child’s benefits for medical services that are not provided by the public schools. The school district is required to do what is necessary, and the whole point of free appropriate education is that you are not required to help pay, even indirectly.  

 

1 34 C.F.R. § 300.154(d)(2)(iv)(A) 

2 34 C.F.R. § 300.154(d)(2)(iii

3 34 C.F.R. § 300.154(d)(2)(i

JSK v. Hendry County Sch. Bd., 941 F.2d 1563 (11th Cir. 1991)  

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Upcoming Events:  

February 27-28: I will be among the speakers at the “Across the Spectrum” Autism / Asperger Conference and Expo. Information here.  

March 7: Allison Vrolijk, a special education attorney colleague of mine, will be presenting “Parental Rights in Special Education: Advocating for Your Child in the Public Schools” at Kids R Kids in Johns Creek. More information here.  

April 19: I will be presenting “Understanding the Basics of Special Education Law” at the Art it Out Therapy Center in Marietta at 10 am. The presentation is free, but please RSVP to 770‑726‑9589.  

Have your own event for children with special needs? Submit it here for inclusion in future events lists.

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