PROVING FAPE IN A DUE PROCESS HEARING

1
PROVING FAPE IN A DUE PROCESS HEARING

• CALIFORNIA ASSOCIATION OF SCHOOL PSYCHOLOGISTS
• February 18, 2006
• 
  By Jonathan P.
  Read

2
IDEA 2004 Overview

• The reauthorized IDEA (IDEIA or IDEA 2004) was
  signed into law by President George W. Bush on
  December 3, 2004.
• Most provisions of the IDEA 2004 are effective as
  of July 1, 2005.
• Highly Qualified Teacher and some funding
  provisions have been effective since January 1,
  2005.
• On October 7, 2005, the Governor signed Assembly
  Bill 1662 bringing California law into conformity
  with federal law.
• Final federal regulations were expected by
  December 2005.

3
What is a Due Process Hearing?

• Court-like proceeding
• Office of Administrative Hearings

4
What is a Due Process Hearing?

• Witnesses, evidence
• Direct examination, cross-examination
• Rules of evidence dont apply

5
What is a Due Process Hearing?

• Initiated by parent or public education agencies
• DMH, CCS, NPSs, and NPAs may be called as parties

6
CDE Compliance Complaints

• Alleged violations of federal or state special
  education law
• If a complaint is filed with both OAH and CDE,
  CDE investigation must be stayed

7
Reasons for a Hearing

• Proposal to initiate or change assessment /
  placement of a student
• Refusal to initiate or change assessment /
  placement of a student
• Disagreements between parent and district, SELPA,
  or County regarding availability of program and
  financial responsibility

8
Reasons for a Hearing

• School districts must file when
• Refusing to pay for IEE or
• Parent does not consent to portion of the IEP
  necessary for FAPE
• Parent does not consent to the IEP

9
Reasons for a Hearing

• OAH does not have jurisdiction over other issues,
  including failing to comply with a settlement
  agreement or a due process hearing decision
• OAH will hear issues of residency

10
Initiating the Hearing Process

• Until October 2006, request must be filed within
  3 years that parents had knowledge or should have
  had knowledge of violation, if they agree to
  mediation
• After October 2006, request must be filed within
  2 years

11
After the Complaint

• Notice of Insufficiency of Due Process Complaint
• Within 15 calendar days of receipt of Complaint
• District Resolution Session with Parents
• Within 15 calendar days of receipt of Complaint

12
After the Complaint

• Response to Complaint
• Within 10 calendar days of receipt of Complaint
• Other Party Response
• Within 10 calendar days of receipt of Complaint

13
Before the Due Process Hearing

• Order Subpoenas/Subpoenas Duces Tecum
• 15 calendar days prior to due process hearing
• Statutory/Rule 68 Offer
• 11 calendar days prior to due process hearing
• Statement of Issues and Notice of Representation
• 10 calendar days prior to due process hearing
• Notice of Documentary Evidence
• 5 business days before due process hearing
• Witness List
• 5 business days before due process hearing

14
Before the Due Process Hearing

• Parents may review school records

15
During the Hearing

• Fair, impartial, and knowledgeable hearing
  officer
• Student may be present
• May be accompanied by counsel or individuals with
  special knowledge or expertise
• Right to compel attendance of witnesses

16
During the Hearing

• Administrative Law Judge (ALJ) may call
  witnesses
• ALJ may order assessment
• ALJ may order discussion between experts
• ALJ may ask questions

17
After the Hearing

• Decision within 45 days
• Appeal of decision within 90 days

18
Remedies

• Compensatory education
• When FAPE is denied
• To replace lost services or educational
  opportunity
• No obligation for day-to-day or hour to- hour
  replacement

19
Remedies

• Reimbursement
• If school district failed to offer FAPE
• Private placement appropriate

20
Remedies

• Reimbursement
• May be reduced or denied if parents act
  unreasonably or fail to provide notice

21
Remedies

• Monetary damages are not available
• Parents may recover attorneys fees and costs if
  they prevail

22

• The Role of Assessor
• in the
• Due Process Hearing

23
The Role of the Psychologist

• Due process hearings often become a battle of
  experts
• You are also likely a percipient witness
• You will be attacked for your bias and questioned
  about your qualifications
• You are not required to have the same credentials
  as the parents expert in order to provide
  effective testimony

24
The Role of the Psychologist

• Before the hearing
• Make sure testing, protocols, and reports are
  complete and accurate
• Identify strengths and areas of venerability
• Do not change documents

25
The Role of the Psychologist

• Consultant to attorney You may also assist by
  reviewing parents evidence and developing
  cross-examinations

26
The Role of the Psychologist

• Preparation is the key
• Review evidence, reports, protocols, IEPs,
  professional literature
• Review IEPs
• Review test manuals

27
Successful Testimony Begins With

• Credibility
• Legally compliant assessments
• Credentials/qualifications
• Experience/Knowledge
• Understanding eligibility

28
Be Prepared to Discuss Your Credentials

• Knowledge of skills required for state
  credentials
• Knowledge of federal requirements for
  credentials

29
Discuss Your Qualifications

• Post high school education
• Research and publishing
• Teaching at a college/university in a relevant
  field
• Honors and recognition
• Inservices and seminars

30
Discuss Your Knowledge

• Special Education (specifics -age group,
  particular disabilities)
• Knowledge of this disability
• Knowledge of this student

31
Discuss Your Experience

• History with current employer
• Job duties
• Past employment history
• Research and publishing
• Volunteer experience
• Provide a current Curriculum Vitae

32
Discuss Your Understanding of Eligibility

• An appropriate assessment does not automatically
  qualify a disabled student for a FAPE that is a
  IEP team decision
• Many private assessments focus on a diagnosis in
  a clinical setting this does not equate to
  eligibility in an educational setting

33
Witness Preparation

• Before and after the hearing
• Review records
• Be familiar with subject of your testimony
• Dont talk about the case

34
The Two Golden Rules

• Tell the truth
• Take a sip of water

35
Testifying at the Hearing

• Tell the truth
• Speak confidently
• Dont become angry/defensive
• Be brief
• Think before you speak
• If you didnt hear/understand, ask
• Dont speak over others
• Do not guess or speculate
• Dress professionally

36

• Request for an
• Independent Educational
• Evaluation at Public Expense

37
Independent Educational Evaluations

• Definition an evaluation conducted by a
  qualified examiner who is not employed by the
  district.
• Parents have a right to an IEE
• IEE may be at public expense
• When can a parent request an IEE?
• (1 year after district assessment?)

38
The Test

• A parent has a right to an IEE at public expense
  only if
• The parent disagrees with an assessment obtained
  by the educational agency, AND
• The educational agency is unable to show at a due
  process hearing that its assessment was
  appropriate.

39
Disagreement with the Assessment

• Compare Did the parents disagree with the
  assessment or the IEP?

40
Education Code section 56320

• Qualified individuals
• Interns?

41
Education Code section 56320

• Tests selected and administered so as not to be
  racially, culturally, or sexually discriminating
• Materials and procedures in native language
  unless clearly not feasible

42
Education Code section 56320

• Tests and other assessment materials are used for
  purposes for which the assessment or measurements
  are valid and reliable

43
Education Code section 56320

• Are administered in accordance with any
  instructions provided by the test producer
• Exception Intellectual or emotional functioning
  shall be administered by a school psychologist

44
Education Code section 56320

• Tailored to assess specific area of educational
  need and not merely a single general intelligence
  quotient

45
Education Code section 56320

• Selected and administered to best ensure that
  when administered to a student with impaired
  sensory manual or speaking skills, the tests
  accurately reflect aptitude, achievement, or
  other factors that the test purports to measure
• No single measure is used to determine
  eligibility or educational program

46
Education Code section 56320

• ALL AREAS OF SUSPECTED DISABILITY

47
Education Code section 56320

• For students with low incidence of disability, by
  persons knowledgeable of that disability

48
Assessments

• ADHD, specifically
• Not an independent eligibility category
• However, student can still qualify as
• ED (emotionally disturbed)
• OHI (other health impaired)
• SLD (specific learning disability)
• Address all

49
Assessments

• Are assistive technology, vision therapy, music
  therapy, central auditory processing disorder
  areas of suspected disability?

50
The Written Assessment Report

• A written report must be prepared for each
  assessment performed

51
Issues to be Addressed in the Report

• Does the student need Special Education?
• Does the student need Related Services?
• The basis for this determination
• Behavior of student during observation

52
Issues to be Addressed in the Report

• Relationship of behavior to academic skills
• Relationship of behavior to social skills
• Relevant health, development and medical findings

53
Issues to be Addressed in the Report

• Discrepancy between achievement and ability - can
  it be corrected with or without Special
  Ed./Related Services?
• The impact the students disadvantage has
• Environmentally
• Culturally
• Economically

54
Issues to be Addressed in the Report

• Needs for students with low incidence
  disabilities
• Specialized services
• Specialized materials
• Specialized equipment

55
Protocols

• If they contain personally identifiable
  information, must be provided to parents upon
  request (FERPA)

56
Reports

• Must look professional
• Parents must have reasonable opportunity to
  review
• Informed consent

57
Right to Observe Parent

• School district must provide independent assessor
  equivalent opportunity to evaluate the proposed
  placement as part of an IEE, to the same extent
  that the school district allows its own assessor.

58
Right to Observe District

• If parents request public funding of a private
  placement, they must allow
• school district to observe.

59

• Compensatory Education and
• Reimbursement Request
• for Private School and/or Services

Portions of this presentation were developed by
Gerald M Zelin of Zelin McCormack, PLLC.
Those portions are reprinted with permission.
60
Compensatory Education

• Did the District offer FAPE?
• If so, how much educational benefit did the
  student lose?

61
Reimbursement for Private School Placement

• If the parents unilaterally placed the student
  in a private school placement, a District may be
  required to reimburse the parents for the costs
  if
• the District did not offer a FAPE to the student,
  AND
• the private placement is appropriate.

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Proving FAPE

• Two Components
• Procedural Issues
• Substantive Issues

63
Procedural Compliance is as Important as
Substantive Compliance

• Procedural violations that result in
• Loss of educational opportunity to the student or
• Seriously infringe on the parents opportunity to
  participate may constitute a denial of FAPE

64
Substantive Issues

• TEST In order to constitute a FAPE, a Districts
  proposed program must
• (1) be designed to meet the students unique
  needs
• (2) be reasonably calculated to provide him or
  her with some educational benefit
• (3) comport with his or her IEP AND
• (4) be provided in the least restrictive
  environment
• (Board of Ed. of the Hendrick Hudson Central
  School District v. Rowley, (1982) 458 U.S. 176)

65
Substantive Issues

• Analyzed from the perspective of the IEP team at
  the time of the IEP meeting/time the IEP was
  drafted
• What about NCLB?
• What about results?

66
Part 1 Substantive Issues

• Was the Districts program designed to meet the
  students unique needs?
• What were the students unique needs?

67
Part 2 Substantive Issues

• Was the program reasonably calculated to provide
  the student with some educational benefit?
• Does not require the best education available
• Does not require maximizing students abilities
• Does not involve a comparison between public
  offered and private placement

68
Start with the Grades

• Is the child receiving passing grades?
• Do they signify progress in the general
  curriculum?
• IDEA 2004 emphasizes the general curriculum.
• Are the grades bona fide?
• Gifts or social promotions?
• Based on a modified grading system? If so, what
  is that modified grading system?
• Was the curriculum sequential?

69
Inspect Teacher Rank Books to See What the
Grades Mean and to Place the Student in Context

• These record each students grade on every
  assignment the raw material for report cards.
• Did the student score high on tests while getting
  zeroes for failure to hand in homework?
• If the student received a D for the quarter, did
  classmates receive Ds or failing grades?
• SAVE THOSE RANK BOOKS!

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Obtain Information From

• Regular ed. teachers.
• Special ed. teachers.
• Paraprofessional aides.
• Related service providers.
• Counselors.
• School nurses.
• Evaluators.
• Principals and disciplinarians.
• Tutors/specialists/consultants.

71
Inspect All of Their Records

• Personal files.
• Journals, notes or running records.
• One-on-one aides often keep logs.
• Letters to and from the parents.
• Charts or checklists recording reading and math
  levels.
• Home-school communication books.
• If the parents kept them, get them back.

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• Create report cards that distinguish progress
  from lack of progress.
• Create forms (report cards or other forms) that
  encourage mainstream teachers to write narrative
  reports
• Addressing whether the child made progress.
• Identifying specific areas or examples of
  progress.

73
Look at the Childs IEPs Over Time

• Do the present levels of performance show
  progress?
• Are the same goals and objectives repeated year
  after year within an increase in baselines?
• Is the child demonstrating the same level of
  mastery, but with increasing independence or in
  progressively less restrictive environments?

74
Review Recent IEP Progress Reports

• Do they indicate progress on goals and
  objectives?
• Do the codes used to report progress allow a
  sufficient range of options?
• Is modest progress lumped together with no
  progress?
• Do you have all copies of the IEP with progress
  codes?
• Remember that the IEP focuses on weaknesses.
• The child may be making progress in areas not
  addressed in the IEP.

75
Other Evidence of Academic Progress

• Longitudinal achievement testing.
• Portfolios and work samples.
• Formal classroom observations.
• If they are repetitive.
• Readability levels of books the child read or
  papers the child wrote.

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Chart the Longitudinal Testing, to Assess
Progress

• Group testing.
• Individual testing.
• Reading and math placement tests.
• Special education evaluations.
• Independent evaluations.
• Entrance examinations for private schools.
• Tests administered by private tutors or private
  schools.

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Two Types of Test Scores

• Raw scores.
• The number of correct answers.
• The source for all other scores.
• Derived scores.
• Calculated by consulting the test publishers
  scoring table to convert the raw score into a
  derived score.

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Two Types of Tests

• Norm-referenced.
• The most common.
• Derived scores compare the student with other
  students in the norm group.
• Criterion-referenced.
• Less common.
• Derived scores report whether the child achieved
  certain criteria.
• E.g., comprehending a grade 5 passage with 95
  percent accuracy.

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Two Categories of Derived Scores on
Norm-Referenced Tests

• Age-equivalent or grade-equivalent scores.
• Scores based on the bell curve (next slide)
• Percentile ranks line B.
• T-scores line C.
• Standard scores line D.
• Subtest standard scores (a/k/a subtest scaled
  scores) line E.
• Stanines line F.

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Scores on the Bell Curve
81
Advantages of Age-Equivalent and Grade-Equivalent
Scores

• Most sensitive to progress.
• If the raw score goes up, the AE or GE score will
  almost certainly rise.
• Rising scores impress hearing officers and
  judges.
• Especially when presented graphically.
• See next slide.

82
Woodcock-Johnson Achievement Tests Broad
Reading Subtest
83
Disadvantages of Age-Equivalent and
Grade-Equivalent Scores

• Many statistical problems.
• Interpolations, etc.
• Commonly misunderstood.
• If a fourth grader obtains a GE score of 6 in
  math, this does not mean that the student has
  mastered fifth or sixth grade math.
• It means that the students score is about the
  same as what the average sixth grader would have
  earned on that test.
• Which might be a test of fourth grade skills.

84
Disadvantages of AE and GE Scores (contd)

• Cannot be compared with I.Q.
• May unduly alarm parents.
• If a seventh grader earns a GE score of 5, this
  does not signify that the student is two years
  behind.
• It means that the student is achieving below the
  mean for seventh graders. But half of all
  students score below the mean.
• To identify the degree of deficit, look at the
  percentile rank or standard score.
• A percentile rank of 5 is poor. A percentile
  rank of 40 is not.

85
Advantages of Bell Curve Scores

• They are interchangeable.
• Percentile ranks are easily understood.
• Standard scores on achievement tests can be
  compared with I.Q. scores (which are always
  reported as standard scores).
• Standard scores can be used with standard
  deviations to measure discrepancies.
• Test publishers usually report the standard error
  of measurement (SEM) for bell curve scores, not
  GE or AE scores.

86
John Doe v. Rockland School District
Woodcock-Johnson Achievement TestsBroad Reading
Standard Scores(using age norms, SEM /- 3)
IQ 90 (/-3)
87
Disadvantages of Bell Curve Scores

• Aside from percentile ranks, hard to understand.
• If raw scores rise, but do not rise enough, bell
  curve scores may remain stable or fall.
• See next slide.
• Difficult to persuade parents or tribunals that
  static bell curve scores indicate progress.
• Even more difficult to persuade them that the
  student is progressing when bell curve scores
  fall (unless you also report grade-equivalent or
  age-equivalent scores).

88
The Racing Pack Analogy Student X in Grade 4
in 1995
GE 3.0 PR 40
89
Student X in 1999, Grade 8GE Rose (Advanced
Down the Track) PR Fell (Fell Back in the Pack).
GE 3.0 PR 50
GE 6.0 PR 30
90
Houston Indep. Schl. Dist. v. Bobby R., 200 F.3d
341, 31 IDELR 185 (5th Cir., 2000)

• Child received passing grades. Percentile ranks
  declined, but grade equivalent scores increased.
• Held school district offered a FAPE.
• Declining percentile scores do not necessarily
  represent lack of educational benefit.
  Maintaining percentile scores may be an
  unrealistic goal.
• A disabled childs development should be
  measured not by his relation to the rest of the
  class, but rather with respect to the individual
  student.

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Advice Report All Types of Scores

• Grade equivalent or age equivalent scores.
• To communicate progress.
• Not to measure the severity of a deficit.
• Percentile ranks.
• To place the student in context relative to
  peers.
• Standard scores.
• To compare achievement with I.Q.
• IF ASSESSMENTS ARE MORE THAN ONE YEAR OLD,
  REASSESS

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Footnotes

• A grade-level score on a criterion-referenced
  test is not the same thing as a grade-equivalent
  score on a norm-referenced test.
• On norm-referenced tests, identify the norm
  group with whom you are comparing the student.
• Age-peers or grade-peers? That makes a
  difference if the student is older or younger
  than the average student in his/her grade.
• When reporting GE or AE scores, explain what they
  mean and do not mean, so they are not
  misunderstood.

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Watch Out for Confounding Factors

• Test performance may be affected by factors
  unrelated to whether the child was learning.
• Student/tester rapport.
• Stressors.
• Illness or fatigue.
• Failure to wear eyeglasses.
• Medication changes.
• Pre-testing in an individual setting and
  post-testing in a group setting.
• Timed testing or handwriting demands.

94
Inconsistent Progress?
95
On Ritalin
96
Off Ritalin
97
Dr. Jekyl and Mr. Hyde, but Each is Making
Progress.
98
Suggestions for Academic Testing

• Test each spring.
• California law does not require parental consent
  for screening students to determine appropriate
  instructional strategy
• Use the same instrument for pre- and
  post-testing.
• And report scores in the same format each time.
• Include instruments that measure progress in the
  general curriculum and on the IEP goals.
• That is the most relevant progress.

99
Suggestions for Testing (contd)

• Test areas of strength as well as areas of
  weakness.
• E.g., for a dyslexic child, do not test reading
  alone. Include testing for math, science and
  social studies.
• Always test for silent reading comprehension.
• It is arguably the most important skill and is
  certainly the most important reading skill.
• Save test protocols.
• They come in handy for item analyses, when
  reconstructing scores so that they are expressed
  in a consistent manner, to check for scoring
  errors, etc.

100
Proving Social Behavioral Progress

• Teacher opinions and anecdotal information.
• Report card grades for conduct and social skills.
• Formal periodic classroom observations.
• Counselors records and impressions.
• Psychological testing and behavior rating scales.
• Discipline records.
• Data collected for functional behavior
  assessments or behavior management plans.
• Opinions of people outside the school.

101
One Suggestion for Students with Severe Social or
Behavioral Deficits

• Target specific social and behavioral skills in
  the IEP.
• Describe in the IEP how progress in those skills
  will be measured.
• Argue that those are the only social and
  behavioral skills for which you must prove
  progress.

102
What If Parents Unilaterally Place the Child in
a Private School?

• Get information on the childs performance and
  progress at the private school.
• Have school district personnel who know the
  student observe him/her at the private school.
• Get copies of all records maintained by the
  private school.
• Get scores for all tests administered by the
  private school, plus testing by other schools to
  which the student applied.

103
Do the Parents and Their Experts Dispute
Progress?

• Parents sometimes admit to teachers or third
  parties that their child made progress.
• Many experts want a disabled student to catch
  up with nondisabled peers or to achieve at a
  level commensurate with I.Q. (full potential).
• They sometimes admit that the student made some
  progress.
• If they fail to address whether the student made
  progress, chances are they do not care and they
  are using the wrong legal standard.

104
Be Careful When Writing the IEP

• Are the goals and objectives too ambitious?
• They are the teams vision of appropriate
  progress.
• If the student does not attain them, parents may
  later seek more intensive services.
• If school district personnel are skeptical that
  the child can attain a goal in the IEP, say so
  and record it.
• In the team meeting minutes or written prior
  notice.

105
Conclusion

• Think longitudinally.
• Look for evidence of progress.
• Establish procedures that encourage the creation
  and preservation of evidence that is useful in
  assessing progress.
• Hunt down all facts necessary to determine
  whether the child made progress.
• Create charts illustrating the amount of
  progress.
• Identify gaps in the measurement of progress and
  fill them in.

106
Conclusion (contd)

• Look at the students progress in all domains.
• The general curriculum and the IEP.
• Academics, behavior and social skills.
• Place the student in context.
• Compare the students progress with the progress
  of disabled and nondisabled peers.
• Compare the students achievement with the
  students abilities.
• Respond to insufficient progress by promptly
  reviewing and improving the IEP.

107
Part 3 Substantive Issues

• Did the program comport with the IEP?

108
Part 4 Substantive Issues

• Did the District offer placement in the least
  restrictive environment?
• Districts must ensure that students with
  disabilities receive their education in the
  regular classroom environment to the maximum
  extent possible or to the extent such placement
  is not appropriate in an environment with the
  least amount of segregation from the students
  non-disabled peers and community.

109
Least Restrictive Environment Analysis

• An IEP team should review the following four
  factors to ensure that a special education
  student receives a FAPE in the LRE . . .

110
Least Restrictive Environment Analysis

• Factor 1
• The educational benefits available to the
  student in the general education classroom,
  supplemented with appropriate aids and services,
  as compared with the educational benefits of a
  special education classroom.

111
Least Restrictive Environment Analysis

• Factor 2
• The non-academic benefits to the special
  education student interacting with students who
  are not disabled.

112
Least Restrictive Environment Analysis

• Factor 3
• The effect of the special education students
  presence on the teacher and other children in the
  classroom as measured by (1) disruption to the
  education of the non-disabled children and (2)
  the burden on the general education teachers
  time.

113
Least Restrictive Environment Analysis

• Factor 4
• The cost of educating a special education
  student in the general education setting.

114

• THANK YOU
• FOR YOUR ATTENTION