|SPECIAL EDUCATION RIGHTS AND RESPONSIBILITIES|
Information on Evaluations/Assessments
From a 12-Chapter Manual - Available by Chapter and in Manual Form
Community Alliance for Special Education (CASE)
and Protection and Advocacy, Inc. (PAI)
Copyright © 1992 by CASE and PAI - Revised January 1998
Written permission of the Community Alliance for Special Education (CASE) and Protection and Advocacy, Inc. (PAI) must be obtained for duplication of the materials contained in Special Education Rights and Responsibilities.
These materials are based on special education laws and court decisions in effect at the time of publication. Federal and state special education law can change at any time. If there is any question about the continued validity of any information in the handbook, contact CASE, PAI or a legal authority in your community.
Community Alliance for Special Education (CASE), provides legal support, representation, technical assistance consultations, and training to parents throughout the greater San Francisco Bay Area whose children need appropriate special education services. Trained advocates and attorneys assist parents at IEP meetings, Mediation Conferences and Due Process Hearings. CASE also provides free consultations about special education rights and services to parents and professionals by telephone or face-to-face. CASE is a nonprofit organization serving all children with disabilities who need or may need special education services. For more information, contact:
Protection and Advocacy, Inc. (PAI), is a private, nonprofit organization that protects the legal, civil and service rights of Californians who have developmental or mental disabilities. PAI provides a variety of advocacy services, including information and referral, technical assistance, and direct representation. For information or assistance with an immediate problem, call:
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PAI receives funding under the Developmentally Disabled Assistance and Bill of Rights Act and the Protection and Advocacy for Mentally Ill Individuals Act. Any opinions, findings, recommendations or conclusions expressed in this publication are those of the authors and do not necessarily reflect the views of the organizations which fund PAI.
On June 4, 1997, the Individuals with Disabilities Education Act (IDEA) was amended by Congress and signed into law by President Clinton. Most of the new provisions in IDEA became effective on that date. Community Alliance for Special Education (CASE) and Protection & Advocacy, Inc. (PAI) have incorporated these amended IDEA provisions into the Seventh Edition of the Special Education Rights and Responsibilities (SERR)manual.
Because special education services in California are funded in part with federal money, these IDEA amendments take precedence over any prior inconsistent federal law or current state law, except where state law provides more protections or at least the same level of protections. In this edition of SERR, citations of federal law refer to the section numbers where these amendments appear in federal law at Title 20 of the United States Code. Citations of federal regulations refer to current, unrevised federal regulations at Title 34 of the Code of Federal Regulations. State citations refer to current California law and regulations.
New federal regulations must now be developed to implement the new federal statutes. The new federal regulations are supposed to be issued by July 1, 1998. However, this process may take longer. In addition, California special education law and implementing regulations will also be amended once federal regulations are issued. CASE and PAI will monitor the development of these final federal regulations, and state law and regulations, so that final federal and state laws and regulations can be incorporated into later supplements and editions of SERR.
It is important for you to know that the Individual Education Program (IEP) provisions of the IDEA amendments do not become effective until July 1, 1998. Since IEPs written for the 1998099 school year must meet the new IDEA IEP requirements, CASE and PAI have chosen to include these new IEP provisions in this edition of the SERR manual (Chapter 4). We hope that this information will help as you develop IEPs for the 1998-99 school year and beyond.
For further information on the development of federal and state law and regulation, or clarification about IDEA implementation, please contact CASE or PAI.
RIGHTS AND RESPONSIBILITIES
TABLE OF CONTENTS
TABLE OF CONTENTS
Chapter 1 Information on Basic Rights and Responsibilities
Chapter 2 Information on Evaluations/Assessments
Chapter 3 Information on Eligibility Criteria
Chapter 4 Information on IEP Process
Chapter 5 Information on Related Services
Chapter 6 Information on Due Process Hearings/Compliance Complaints
Chapter 7 Information on Least Restrictive Environment
Chapter 8 Information on Discipline of Students with Disabilities
Chapter 9 Information on Inter-Agency Responsibility for Related Services (AB 3632/882)
Chapter 10 Information on Vocational Education
Chapter 11 Information on Preschool Education Services
Chapter 12 Information on Early Intervention Services
NOTE: The text in each chapter refers to specific questions in other chapters by using the titles shown above.
RIGHTS AND RESPONSIBILITIES
Information on Evaluations/Assessments
TABLE OF CONTENTS
10. Can I ask for very specific kinds of assessments -- such as a neurological examination or a non-oral assessment? What if the district does not have appropriate trained personnel to do the testing?
RIGHTS AND RESPONSIBILITIES
Information on Evaluations/Assessments
1. How can I get the school district to evaluate or assess my child?
Contact your local school administrator (for example, the principal or special education program
consultant). Outline your areas of concern about your child's suspected disability and request an
evaluation. Follow up with a written, dated request in order to document time lines. Once the
school district receives your written request for assessment, the assessment process must begin.
[California Education Code (Cal. Ed. Code) Secs. 56029, 56302, and 56321(a); 5 California Code
of Regulations (Cal. Code Regs.) Sec. 3021.] School district personnel must help you put your
request in writing. See Sample Letter at the end of this chapter.
2.How long will it take for the district to complete my child's assessment?
By state law, your school district must give you an assessment plan within 15 days of their receipt of your written referral for special education services. [Cal. Ed. Code Sec. 56321(a).] The assessment plan shall:
(1) Be in language easily understood by the general public.
(2) Be provided in the primary language of the parent or other mode of communication used by the parent, unless to do so is clearly not feasible.
(3) Explain the types of assessments to be conducted.
(4) State that no individualized education program will result from the assessment without the consent of the parent. [Cal. Ed. Code Sec. 56321(b).]
(5) Include a description of any recent assessments conducted (including independent assessments and assessment information the parent requests to be considered).
(6) Include information stating the student's primary language and proficiency in that language. [5 Cal. Code Regs. Sec. 3022.]
(7) Include a copy of the notice of parent rights which includes an explanation of all of the procedural safeguards under state and federal special education law and a description of any optional dispute resolution mechanisms available under state law.
You have at least 15 days to respond to or approve the assessment plan. [Cal. Ed. Code Sec.
56321; see Question 3 below.] Once the district has received the signed assessment plan, the
district has 50 days (excluding days of school vacation in excess of five and days that school is
not in session) in which to complete the assessment and develop an Individualized Education
Program (IEP). [Cal. Ed. Code Sec. 56344.] No determination of ineligibility for special
education services can be made without assessment. [20 U.S.C. 1414(c)(5).]
3. My child's school is on a year-round schedule, but I was told that they didn't have to test my child in July or August. Is that true?
An IEP must be developed as the result of an assessment within 50 days from the date the district
receives your written consent for assessment (not counting days of school vacation in excess of
five and days between regular school sessions). However, assessments must be completed and
an IEP developed within 30 days after the subsequent regular school year begins (as determined
by each district's school calendar) for any student for whom a referral to special education was
made 20 days or less prior to the end of the prior regular school year. [Cal. Ed. Code Sec.
56344.] This exception would vary according to actual time between sessions -- not strictly by the
calendar. If the year-round schedule has three weeks between sessions, only 15 days would be
added to the time lines, so testing might be needed in July or August.
4.My child's school is on a traditional school calendar (September through June). Does the district have to assess during July and August?
Based on the answer given to Question 3 above, it appears that the district is not required to
assess a child from the end of the spring term until the beginning of the fall term because that is
the period of time "between regular school sessions." [Cal. Ed. Code Sec. 56344.] However, the
term "regular school sessions" is not defined in law, so it could be argued that summer school is a
"regular school session", during which assessment is required. Districts uniformly maintain that
assessments are not required during the summer in traditional calendar schools.
5.Does my child have to be referred to the student study team before assessment for special education?
No. A written request for assessment will initiate the assessment process and time lines regardless
of the student study team process. However, before referring the student for special education,
the school district must consider and utilize, where appropriate, the resources of the regular
education program. One way the district can ensure that it has considered regular education
modifications and support is by having the student study team review your child's case. If you
have requested a special education assessment, your child's study team referral cannot delay the
assessment and IEP time lines without your consent. [Cal. Ed. Code Sec. 56303, 56321(a).]
6.My child has been referred for special education, and I received an assessment plan with a long list of tests that might be administered. Shouldn't the district be more specific?
Prior to conducting any assessment, the district must provide you with an assessment plan. The
assessment plan must include the type of assessments to be conducted. Frequently, several tests
will be listed in each area to be assessed because the evaluator may have to determine which tests
are most appropriate during the actual assessment as the evaluator gets to know your child better.
If you do not understand the type of assessments that are being used, you should ask for
clarification. If you believe that certain test instruments are not appropriate for your child, you can
request that those instruments not be used and not sign the consent for assessment until you and
the district reach agreement on the assessments to be used. [34 C.F.R. Sec. 300-500, Cal. Ed.
Code Sec. 56321.]
7.How can I contribute to the assessment process?
As a parent, you know your child best. You can contribute by observing your child at home,
noting the areas of educational concern to you, writing them down, and pointing out those areas
to school personnel. See Patterns to Look For, later in this chapter. After you receive the
assessment plan, you should review it carefully to determine whether you want additional
information about the proposed assessments and/or want to request additional areas that need
assessment. No assessment may be done without your written approval unless the district seeks
and wins a due process hearing to compel assessment. [Cal. Ed. Code Secs. 56321(c), 56506.]
8.What questions should I ask when my child is scheduled for an assessment?
You may ask about any areas of the assessment that concern you. Specifically, you may want to
know who or how many people will be working with your child during the assessment. How long
will the assessment last? How many times will your child be seen? Can you be present during the
assessment? In addition, you should ask the school district to explain the assessments to be given
to your child if you do not understand why the assessments will be administered. The school
district should explain any tests that are to be given to your child.
9.What should an assessment cover?
The student is to be assessed in all areas related to the suspected disability including, where
appropriate, health and development, vision (including low vision), hearing, motor abilities,
language function, general ability, academic performance, self-help, orientation and mobility skills,
career and vocational abilities and interest, and social and emotional status. A developmental
history is obtained, when appropriate. [34 C.F.R. Sec. 300.532(f); Cal. Ed. Code Sec. 56320(f).]
10.Can I ask for very specific kinds of assessments -- such as a neurological examination or a non-oral assessment? What if the district does not have appropriate trained personnel to do the testing?
Yes, you can ask for specific assessments. The district has the responsibility for assessment in all
areas related to the suspected disability. If there is no district person competent to carry out
certain kinds of evaluation, the district may contract out for the service or may use the results of
any available independent assessment. See Sample Letter at the end of this chapter.
11.How can I ensure that the assessment covers emotional and behavioral areas?
The law specifies that your child must be assessed in all areas related to his suspected disability. If you or your child's teachers have observed that he has behaviors which adversely affect school performance (for example, has poor impulse control, has problems making friends, or is withdrawn), you should request assessment of your child's social and emotional status as part of any assessment plan you sign. You may ask for an assessment in this area even if the district has not identified it as an area for assessment on the assessment plan. The assessment may be done by the school district or by Community Mental Health under AB 3632/882. See Chapter 9, Information on Interagency Responsibility for Related Services (AB 3632/882).
In addition, the Hughes Bill [Cal. Ed. Code Sec. 56520, Cal. Code Regs. Sec. 3052] requires that
every special education student who demonstrates a serious behavior problem be given a
functional behavioral analysis assessment. The assessment is then used to develop a positive
behavior intervention plan. See Chapter 5, Information on Related Services.
12.I believe that my child has a learning disability. Does the school have to do anything different when assessing for a specific learning disability?
Federal law contains special procedures for assessing students suspected of having a learning disability. The interdisciplinary team that evaluates the child must include her teacher or a regular classroom teacher qualified to teach someone your child's age. A team member, other than your child's teacher, must make a classroom observation. The law also requires that the team's assessment report indicate if there is a severe discrepancy between ability and achievement in one or more specified areas: oral expression, listening comprehension, written expression, basic reading skills, reading comprehension, or math calculation or reasoning. The team must also determine whether or not the discrepancy is primarily the result of physical handicap, mental retardation, emotional disturbance, or environmental, cultural or economic disadvantage. The team's written assessment report must include the basis for its determination of whether or not there is a specific learning disability and its relationship to the child's academic functioning and observed behavior. [34 Code of Federal Regulations (C.F.R.) Secs. 300:540-300:543.]
Finally, the evaluation is to be made by a multidisciplinary team or group of persons, including at
least one teacher or other specialist with knowledge in the area of suspected disability. The child
is to be assessed in all areas related to the suspected disability, including, where appropriate,
health, vision, hearing, social and emotional status, general intelligence, academic performance,
communicative status, and motor abilities. The eligibility determination must be made by a team of
qualified persons and the parent. [20 U.S.C. Sec. 1414(b)(4)(A).] See Chapter 3, Information on
13.Are there documents which I may have that would help in the assessment process?
Yes. Various professional reports which you may have received on your child from other sources
-- such as a regional center or doctors -- would help the assessment process. For example, speech
and language, occupational and physical therapy, neurological or ophthalmological reports;
current teachers' observations (from preschool or a different district); respite, recreational or camp
personnel observations; and special medical reports are often useful. School districts generally ask
you to share the other professional reports with them to assist in determining your child's needs.
14.How can I explain to my child why she is being assessed?
You may want to explain that you and your child's teachers believe that she is not learning as
much as she can. Then, you could individualize the explanation by giving a simple example of her
difficulty. You could point out that each child is unique and that everyone learns in a different
way. Some learn by hearing; some learn by seeing; and some learn through their sense of touch.
Explain to her that assessments will show how she learns best, so her teacher can help her learn
15.How can I prepare my child for assessment?
Keep your explanation short and simple. You may say something like this: "You will be working
with someone like a teacher who will have you look at pictures, play some games, do a little
reading and math, draw some designs and pictures." That will give your child a general idea of
what to expect.
16.What are the requirements for assessment tests?
Tests must be selected and administered so as not to be racially, culturally, or sexually
discriminatory; must be administered in the student's primary language or other mode of
communication; and must be validated for the specific purpose for which used. In addition, testing
must assess specific areas of educational need and not merely produce a single general intelligence
quotient. No single procedure can be used as the sole criterion for determining an appropriate
educational program for the student. Finally, when a student with impaired sensory, manual, or
speaking skills is being tested, the testing must ensure that the results accurately reflect the
student's aptitude or achievement level, and not the student's impaired skills, unless those skills are
to be measured by the testing. [20 United States Code (U.S.C.) Sec. 1412(a)(6) and 1414(b); 34
C.F.R. 300.530 and following; Cal. Ed. Code Sec. 56320.] See lists of commonly given tests and
what they test later in this chapter.
17.Who conducts the assessment?
Each test administered in the assessment must be administered by trained personnel in conformance with the test producer's instructions. The law requires that the assessment be conducted by persons knowledgeable about the disability being assessed, and competent to perform the assessment. Further, these persons must be competent in both the oral and written skills of the student's primary language or mode of communication, and must have knowledge and understanding of the student's cultural and ethnic background. California regulations require the use of an interpreter when necessary.
A psychological assessment must be conducted by a credentialed school psychologist trained and
prepared to assess cultural and ethnic factors appropriate to the student being assessed. A health
assessment must be conducted by a credentialed school nurse or physician with similar training.
Individually administered tests of intellectual or emotional functioning must be administered by a
psychometrist or credentialed school psychologist where available. [34 C.F.R. Secs. 300.530 and
following; Cal. Ed. Code Secs. 56320, 56322, 56324; 5 Cal. Code Regs. Sec. 3023.]
18.Does the assessment have to be provided in my child's primary language?
Yes. This is a requirement of both federal and state law, unless it is not feasible and is so stated on
the Assessment Plan. If the assessor is not bilingual, the district should provide an interpreter. In
addition, state law requires that testing and assessment material be selected so as not to be
racially, culturally, and sexually discriminatory. [20 U.S.C. Sec. 1412(a)(6) and 1414(b); 34
C.F.R. Secs. 300.530(b), 300.532(a)(1); Cal. Ed. Code Secs. 56320(a), (b).]
19.What are the most common tests used in the assessment of a child with suspected learning disabilities?
The law requires that the student be given an individually administered test of ability or intelligence, and tests of achievement in areas such as reading, math, and writing. The most commonly used test of intelligence is the Wechsler Intelligence Scale for Children-III (WISC-III). Sometimes the Wechsler Pre-School and Primary Scale of Intelligence-Revised (WPPSI-R) or the Stanford-Binet Intelligence Test: Fourth Edition (S-B IV) are used.
The most commonly used achievement tests are the Wide Range Achievement Test -Revision 3 (WRAT 3), the Peabody Individual Achievement Test (PIAT), and the Woodcock-Johnson Psycho Educational Battery-Revised (WJPEB-R). All of these are short tests designed to tell you the grade level at which the student is performing in reading, writing, spelling and math. In order for a student to be eligible for special education based on a learning disability, there must be a severe discrepancy between ability and achievement. See Chapter 3, Information on Eligibility Criteria.
Since Larry P. v. Riles prohibits districts from using intelligence tests to assess Black students,
more and more districts are moving away from the use of IQ tests and are relying instead on
measures of adaptive behavior. Districts may administer standardized instruments such as:
Adaptive Behavior Inventory for Children (ABIC); Adaptive Behavior Scales (ABS); Scales of
Independent Behavior-Revised (SIB-R-Woodcock, Johnson Battery, Part IV); or Vineland
Adaptive Behavior Scales. The districts will also use clinical observations and informal interviews
to gather data about daily living skills and functioning in the home and community. See Question
20.Are there public education facilities outside of the local education agency which can assess my child?
Yes. Students may be referred as appropriate for further assessments and recommendations to the California Schools for the Deaf or Blind or the Diagnostic Schools for Neurologically Handicapped Children. [Cal. Ed. Code Sec. 56326; 5 Cal. Code Regs. Sec. 3025.]
Under state law, other state agencies also have responsibilities for providing assessments. County
Departments of Mental Health are responsible for conducting certain mental health assessments;
California Children Services (CCS) has responsibility for conducting assessments regarding
occupational and physical therapy. See Chapter 9, Information on Inter-Agency Responsibility for
Related Services (AB 3632/882).
21.How much detail should be included in my child's written assessment?
The written assessment should give you a clear picture of your child's functioning in all the areas tested. California Education Code Section 56327 requires that the report shall include, but it is not limited to, all of the following:
(1) Whether the student may need special education and related services.
(2) The basis for making the 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.
(5) The educationally relevant health and development and medical findings, if any.
(6) For students with learning disabilities, whether there is such a discrepancy between achievement and ability that cannot be corrected without special education and related services.
(7) A determination concerning the effects of environmental, cultural, or economic disadvantage, where appropriate.
(8) The need for specialized services, materials, and equipment for students with low incidence disabilities.
In addition, specific details should be included on areas of deficit (weakness or delay) and areas of
strength that can be used to assist the child in remedying those deficits. As a parent, you should be
able to understand how your child's learning style and learning deficits and strengths affect your
child's ability to learn. If this is not clear to you, ask school personnel to explain it to you. Do not
be afraid to ask them to explain technical terms in language you canunderstand.
Assessments must now determine not only eligibility, but also proposed content of your
child's IEP and information related to enabling the child to be involved and progress in the
general curriculum, or for preschoolers, appropriate activities. [20 U.S.C. Sec. 1414(b)(2).]
22.Can I get copies of written assessment reports before the IEP?
Yes. [Cal. Ed. Code Sec. 56329.] School districts are required by federal and state law to provide
copies of assessments before an IEP. [20 U.S.C. Sec. 1414(b)(4); 34 C.F.R. Sec. 300.562.] You
should request that the assessments be sent to you before the IEP, in writing, within a reasonable
time before the IEP.
23.Are formal tests the only kinds of assessment data the IEP team can use?
No. Parents, teachers and other adults who know your child are also good sources of
observational data that the IEP team can use to describe your child's current levels of functioning
and to n develop educational goals and objectives. [Cal. Ed. Code Sec. 56341(f).]
24.What if I disagree with an evaluation performed by the school? Can I get an independent evaluation from someone who is qualified but is not employed by the school?
Yes. If you feel that your child has been wrongly classified or inappropriately placed or the IEP is not a quality plan because the school district has made its decision based on an inaccurate or incomplete evaluation of your child, you can seek an independent evaluation at public expense which can then be used to obtain appropriate educational services for your child.
While there is nothing that indicates that parents must formally notify the school district of their intent to obtain an independent evaluation at district expense, it is strongly recommended that they do so. See Sample Letter at the end of this chapter. The district has but two options once they have been notified, and that is to pay the bill for the evaluation or to go to a hearing to prove that the district's evaluation is appropriate. If the district elects to go to a hearing and the hearing officer determines that the evaluation is appropriate, the parent has a right to the independent evaluation, but not at public expense. [34 C.F.R. Sec. 300.503; Cal. Ed. Code Sec. 56329(b).]
Regardless of who pays, and even if the district has not assessed your child in that particular area,
the local agency must consider the results of an independent evaluation in any decision regarding
the provision of a free appropriate public education to your child. The results may also be
presented as evidence at a due process hearing. [34 C.F.R. Sec. 300.503; Cal. Ed. Code Sec.
25.Is there any other way to obtain an independent evaluation if the district refuses to provide one and I am unable to pay for one?
During the mediation process, parents and school districts will often agree to an independent
assessment. A hearing officer at a due process hearing may also order an independent evaluation
as part of the hearing. In this case, the independent evaluation is at public expense. [20 U.S.C.
Sec. 1415(b)(1)(A); 34 C.F.R. Sec. 300.503; Cal. Ed. Code Sec. 56505.1(e).]
26.How often must assessments be completed?
Complete re-evaluation must be conducted at least every three years for individuals with
exceptional needs. In addition, re-evaluation must be conducted whenever the student's parents or
teacher request, and when re-evaluation appears to be needed for program planning. (Informed
consent is required by federal and state law before a re-evaluation can be conducted.)
Re-evaluation requires a re-examination of areas related to a suspected disability, not necessarily
repetition of an identical test battery and procedures conducted initially. [20 U.S.C. Sec.
1414(a)&(c); 34 C.F.R. Sec. 300.534.] Under State law, an assessment for the development or
revision of an IEP requires written parental consent after the parent has been provided with a
written assessment plan. [Cal. Ed. Code Sec. 56321(a)&(c).]
27.Can the district determine that my child continues to be eligible for special education without re-assessment?
Yes. As part of any re-evaluation, the IEP team must review existing data on the student, including evaluations and information provided by the parent; current classroom-based assessments and observations; and teacher and related services providers observations to identify what additional data, if any, are needed to determine whether the student continues to have an eligible disability, the education needs of the student, whether the student continues to need special education and related services, and whether any additions or modifications to the special education and related services are needed to enable the student to meet the measurable annual goals set out in the student's IEP. [20 U.S.C. Sec. 1414(c)(1).]
If the IEP team decides that no additional data are needed to determine whether the
student continues to have an eligible disability, the school district is not required to conduct
that assessment unless requested to by the parent. If the IEP team takes this action, the school
district must notify the parents of that determination and the reasons for it and inform the parents
of their right to request an assessment to determine whether the student continues to have an
eligible disability. [20 U.S.C. Sec. 1414(c)(4).] A school district cannot find a student ineligible
for special education without conducting an evaluation. [20 U.S.C. Sec. 1414(c)(5).]
28.Is parental consent needed for re-evaluation of my child?
Yes. Parental consent is needed for any re-evaluation of your child, not just the initial evaluation.
[20 U.S.C. Sec. 1414(c)(3); Cal. Ed. Code Sec. 56321(a)&(c).]
29.What recourse do I have if I believe that a psychological assessment is done superficially just to meet the legal mandate that it be done every three years?
All assessments, including the three-year evaluation, must be conducted in accordance with state
and federal law. The school district's Assessment Plan should give you enough information to
determine the appropriateness of the evaluation. If the plan is not comprehensive enough, you
may suggest that additional tests be administered and/or may ask to postpone the IEP meeting
until a comprehensive re-evaluation can be done. The thoroughness of the re-evaluation can also
be the subject of a due process hearing.
30.My child is temporarily placed in a psychiatric hospital that is located in another county. Who is responsible for conducting a special education assessment or re-evaluation?
Individuals with exceptional needs who are placed in a public hospital, state licensed children's hospital, psychiatric hospital, proprietary hospital or a health facility for medical purposes are the educational responsibility of the district, special education local plan area, or county office of education in which the hospital or facility is located. [Cal. Ed. Code Sec. 56167.] Therefore, the community mental health agency of the county in which the facility is located is responsible for conducting an AB 3632 service evaluation.
If your child is placed in a hospital (as described above), this section indicates that the LEA does not have to assess or re-evaluate your child until she returns to the home district. Unfortunately, this could result in delays or postponement of the assessment/re-evaluation process.
The position of the authors of this manual is that your local school district has responsibility for
assessment during this temporary or short-term hospitalization. A temporary or short-term stay in
a hospital should not preclude or delay assessment by your school. Contact your local district to
request an assessment of your child and indicate that the stay in the hospital is temporary.
31.Is a doctor the only professional who can provide an ADD/ADHD diagnosis as part of the special education assessment process?
No. Other qualified personnel can conduct the evaluation for Attention Deficit Disorder (ADD)
and Attention Deficit Hyperactive Disorder (ADHD) as long as all of the protections of the
evaluation requirements in federal and state law are met. [OSEP Clarification Letter, February 18,
1992, 18 IDELR 963; 34 C.F.R. Secs. 300.530-300-534; Cal. Ed. Code Sec. 56320(b)(3).] The
school staff selected to conduct an ADD evaluation must be trained to do so.
32.If the school district requires a doctor's diagnosis of ADD/ADHD as a condition of special education eligibility, who pays for the doctor's diagnosis?
A federal Office of Special Education and Rehabilitative Services clarification letter makes it clear that:
If a public agency (school district) believes that a medical evaluation by a licensed physician is needed as part of the evaluation to determine whether a child ... suspected of having ADD meets the eligibility criteria of the Other Health Impaired category, the school district must ensure that this evaluation is conducted and is at no cost to parents.
Therefore, if a school district requires a doctor's diagnosis, the school district must pay the cost of
the doctor's diagnosis if the parent does not already have such a diagnosis. [34 C.F.R. 300.16;
OSEP Clarification Letter, February 18, 1992, 18 IDELR 963.
33.What is the assessment process for Section 504? Is it the same as the special education assessment process?
No specific assessment process is outlined in Section 504. However, 504 regulations require that school districts "conduct an evaluation ... of any person who, because of disability, needs or is believed to need special education or related services ..." The school district must establish standards and procedures for 504 evaluation and ensure that:
(1) Tests and other evaluation materials have been validated for the specific purpose for which they are used and are administered by trained personnel in conformance with the instructions provided by their producer;
(2) Tests and other evaluation materials include those tailored to assess specific areas of educational need and not merely those which are designed to provide a single general intelligence quotient; and
(3) Tests are selected and administered so as best to ensure that, when a test is administered to a student with impaired sensory, manual, or speaking skills, the test results accurately reflect the student's aptitude or achievement level or whatever other factor the test purports to measure, rather than reflecting the student's impaired sensory, manual, or speaking skills (except where those skills are the factors that the test purports to measure).
Section 504 evaluation standards and procedures may be different for each school district. The
district may choose to use the special education assessment process or develop a separate process
for Section 504 evaluation. Contact your local school district to determine how your district has
chosen to operate the Section 504 evaluation process. [34 C.F.R. Sec. 104.35.]
34.If I request an assessment for Section 504 eligibility, does the school district have to assess my child to determine his eligibility for accommodations and/or service?
No. If you request a Section 504 assessment, and the school district agrees that there is reason to
believe your child needs special education or related services, the school district must
evaluateher to see if she qualifies for accommodations and/or services under Section 504.
However, if the school district does not agree that your child may need special education and
related services, the school district may refuse to evaluate her. You would therefore have to
utilize the Section 504 fair hearing process to require the district to evaluate your child for
Section 504 eligibility. [OCR Memorandum April 29, 1993; 19 IDELR 876.]
35.Should my child be included in the school's regular performance assessments?
Yes. Special education pupils must be included in regular assessments, with accommodations
where necessary. Also, the state must develop guidelines for determining when alternative
assessments have to be used. [20 U.S.C. Sec. 1412(a)(17).]
36.What are the federal requirements that ensure appropriate and accurate special education assessment for multicultural students?
Federal law requires:
(1) Tests must be selected and administered so as not to be racially, culturally, or sexually discriminatory;
(2) Tests must be administered in the student's primary language or other mode of communication;
(3) Tests must be validated for the specific purpose for which they are used;
(4) Testing must assess specific areas of educational need and not merely produce a single general intelligence quotient. No single procedure can be used as the sole criterion for determining an appropriate educational program for a student;
(5) When a student with impaired sensory, manual, or speaking skills is being tested, the testing must ensure that the results accurately reflect the student's aptitude or achievement level, and not the student's impaired skills, unless those skills are to be measured by the testing; and
(6) A student must be assessed in all areas related to a suspected disability, including, where appropriate, health and development, vision (including low vision), hearing, motor abilities, general ability, academic performance, self-help, orientation and mobility skills, career and vocational abilities and interests, and social and emotional status.
In addition, Public Law 105-17 requires that parents give informed consent for student
evaluation procedures and student placement. Informed consent means that you, as a parent, have
been fully informed of all information relevant to the activity for which consent is sought, in your
native language or other mode of communication. [20 United States Code (U.S.C.) Secs.
1412(a)(6), 1412(b)(4); 34 Code of Federal Regulations (C.F.R.) Sec. 300.500(a), Secs. 300.530
37.Does state special education law have such requirements?
Yes. State law requires the same protections that are included in federal law. In addition, state law requires:
(1) That the Assessment Plan be provided in the primary language of the parent unless to do so is clearly not feasible;
(2) That any psychological assessment of students be conducted by a credentialed school psychologist who is trained and prepared to assess cultural and ethnic factors appropriate to the student being assessed; and
(3) That for students whose primary language is other than English, linguistically appropriate
goals, objectives, programs and services be included in a student's Individualized Education
Program (IEP). [California Education Code (Cal. Ed. Code) Secs. 56320 and following, and Secs.
56321(b)(2), 56324(a) and 56345(b)(4).]
38.What is the Larry P. v. Riles case? How did it originate?
The Larry P. v. Riles (Larry P.) case began when in 1971 five African-American children who had been placed in special education classes for the educable mentally retarded (EMR) in the San Francisco Unified School District (SFUSD) filed suit in the Federal District Court of Northern California. The students claimed that they had been wrongly placed in the EMR classes based on their performance on intelligence tests that were racially biased and discriminatory. The suit also claimed that a disproportionate number of African-American students were placed in EMR classes compared to the number of African-American students in the school system. At the time, 28.5% of all SFUSD students were African-American, while 66% of the students in the EMR classes were African-American. The case also involved the policies and procedures of the California Department of Education (CDE) since about 10% of all California school students were African-American, while 25% of the students in the EMR classes were African-American.
The Court decided in favor of the students in 1979. SFUSD was prohibited from using IQ tests to identify or place African-American students in EMR-type classes. The decision was upheld on appeal in 1984. Recently, the Court expanded its ruling in the case by banning the use of IQ testing for all African-American students who have been referred for special education services. The ruling applies to all states within the jurisdiction of the Federal District Court. [Prasse, Reschly, 1986.]
NOTE: The federal case of Crawford v. Honig is causing a reexamination of the rights of multicultural children in special education. This case has challenged the Larry P. ruling banning the use of IQ tests for African-American children and has, preliminarily, resulted in three African-American children being allowed to take IQ tests because their parents wish to have them do so. Specifically, in the 1979 Larry P. decision, the court ruled that standardized IQ tests could not be used in identifying African-American students for placement in Educably Mentally Regarded (EMR) classrooms or their "substantial" equivalent. Between 1979 and 1986, the term "EMR class" had been completely eliminated. In 1986, the same court expanded the ban on the use of standardized IQ tests for placement of African-American students in any special education program. In the 1992 Crawford case, the same court vacated its 1986 expansion of the ban, reaffirmed its 1979 ban on using IQ tests for placing African-American students in EMR classes or their substantial equivalent, and indicated that it would hold further hearings on the issue of what is a class that is "substantially equivalent" to the former EMR designation. Crawford was appealed to the Ninth Circuit Court by both CDE and the original plaintiffs in Larry P. The Ninth Circuit Court affirmed the decision of the lower court in an opinion rendered on September 30, 1994.
To date, the court has not provided any further definition of the term "substantially equivalent to EMR." On September 10, 1992, after the Crawford opinion was published by the Federal District Court and while the appeal to the Ninth Circuit Court was pending, CDE issued a Legal Advisory which discouraged the use of IQ tests to African-American children, regardless of the suspected disability. Nevertheless, several school districts, relying on Crawford, gave IQ tests to African-American children, upon the request of their parents.
At least one district took a more proactive approach and actively sought the "informed consent" of African-American parents to IQ testing for their children. This practice resulted in the filing of a Compliance Complaint and the issuance of a Compliance Report by CDE on January 28, 1993. This report produced a definitive ruling by CDE that the IQ testing of African-American children is discriminatory and in violation of Larry P., IDEA, and Section 504 -- as well as the Civil Rights Act of 1964 and both the U.S. and California Constitutions. This Compliance Report was widely distributed by CDE and appears to have resulted in the complete cessation of IQ testing of African-American children in our public schools.
After the Ninth Circuit Court affirmed Crawford, CDE issued a new Legal Advisory on October
11, 1994. The Legal Advisory stated that, regardless of whether the Ninth Circuit Court's opinion
is construed as partially lifting the District Court's prohibition on IQ testing of African-American
children, CDE is exercising its statutory authority to continue to ban such testing. The authors of
this manual will continue to monitor the litigation and any subsequent CDE action.
39.Does the Larry P. case affect all children who may need special education assessments?
No. The ruling applies only to African-American students who may need special education
services. However, some local districts have, on their own, expanded the ruling to include all
40.Has the CDE taken specific action to implement Larry P.?
On December 3, 1986, the CDE issued a statewide directive to all state special educators to clarify the use of IQ tests in the assessment of African-American students for special education services. The key components of the directive are:
(1) School districts are not to use intelligence tests in the assessment of African-American students who have been referred for special education services;
(2) In lieu of IQ tests, districts should use alternative means of assessment to determine identification and placement;
(3) An IQ test may not be given to an African-American student even with parental consent;
(4) When a school district receives records containing test protocols from other agencies ... or independent assessors, these records shall be forwarded to the parent. IQ scores contained in the records shall not become a part of the student's current school records;
(5) There are no special education related purposes for which IQ tests shall be administered to African-American students;
(6) IQ tests shall not be used to determine whether an African-American student is learning disabled, because it is possible that the resulting score could subsequently result in the student's being identified as mentally retarded;
(7) The prohibition on IQ testing applies even though students are no longer placed in special day classes designated EMR;
(8) This directive supersedes all previous notices as to the meaning and effect of the Court's
decision in Larry P. v. Riles. [CDE, Larry P. Directive, 1986.]
41.What was the Diana v. State Board of Education Case? What impact does the Diana case have on Spanish-speaking students?
The Diana v. State Board of Education (Diana) case originated when a group of Spanish-speaking students were inappropriately assigned to EMR classes based on an assessment by an unqualified assessor. The case, filed in 1969, was settled out of court in 1970. The stipulated settlement agreement required that the CDE: (1) monitor schools for racial imbalance, (2) correct any imbalance, (3) collect data annually, and (4) use representatives of the Hispanic community when audits are performed in school districts. At the time of the order, California had not passed the Master Plan for Special Education and did not have bilingual education legislation. Consequently, many Spanish-speaking children in need of educational assistance were placed into special education classes because other programs did not exist. Hispanics were over-represented in EMR classes, constituting 26% of the total statewide EMR population but only 14% of the statewide school-age population in 1967.
Today, the CDE must still comply with the 1971 court order to monitor the representation of
special education to ensure proportionate representation for Spanish-speaking students. Because
of Diana, state law now contains provisions for testing in the child's native language so that no
child will be placed into special education only because of a limited ability to speak English. [CDE
42.What is the effect of Diana and Larry P. on special education assessments for Asian-American students?
Although neither Diana nor Larry P. was initiated specifically on behalf of Asian-American
students, both cases have direct impact on the education of Asian-American students. As in
Diana, no Asian-American student being assessed for special education eligibility and services
should be discriminated against or assigned to special education classes based on his limited ability
to speak English. As in Larry P., the tests administered to an Asian-American student must be
non-biased and culturally valid. Therefore, the rulings in Diana and Larry P., coupled with federal
and state assessment protections, reinforce the obligation of school districts to meet the linguistic
and cultural needs of Asian-American students in the assessment process, as well as in the
provision of special education services.
43.Has Larry P. resulted in a review of how intelligence is defined and assessed? Is there a difference between intelligence and ability?
Yes. Larry P. has resulted in a statewide review of special education assessment procedures by state agencies, local education agencies, and psychological associations. They are examining dependency on and validity of IQ scores. Larry P.has fostered an emphasis on learning processes rather than "intelligence." This emphasis provides more specific educational information that can be used to remediate a student's learning problems.
In psychology, practitioners and theoreticians alike often use a number of different words and phrases to refer to similar concepts. Therefore, intelligence, ability, learning potential, cognitive skills, etc., are all terms that might refer to the same thing. However, the concept called "intelligence" has itself never been clearly defined, nor is it used in a consistent manner.
For many, it is the sum total of a number of processes that have been mastered by an individual both as a result of his experience (environment) and from his natural growth and development (innate potential). Researchers indicate that intelligence as measured on tests is clearly related to achievement, since most intelligence tests were developed to predict school success. It is also highly correlated with linguistic ability and perceptual skills. It has been suggested that there are three different meanings associated with intelligence:
(1) The individual's innate capacity (which cannot be measured directly);
(2) The individual's ability to learn, think, and problem solve (resulting from the interaction between potential and environment); and
(3) The individual's performance on a test that samples a variety of specialized abilities.
Others have viewed intelligence more broadly -- to include learning styles, specialized talents and child development.
If there is a distinction to be made between ability and intelligence, this distinction must be based upon clear definitions for the two terms. For example, the term "intelligence" could be defined as the end result of performance on a test that samples a variety of special abilities; and the term "ability" could be defined as any one of those special abilities seen separately. In this case, "intelligence" is seen as a single product that combines results from performance on several different tasks and "ability" is seen as one of those indicators. Then, a list of single abilities or a cluster of closely related abilities could be designated for consideration (for example, linguistic abilities, memory, perceptual abilities, attention, problem solving abilities, number skills, etc.). In this manner, a more varied and interesting view of an individual's competencies might be examined.
What is critical to consider, in any case, is the experience and background of the individual in the
ability area being examined. Lacking the opportunity to learn specific skills, performance in
those skill areas will usually be depressed, whether we call it ability or intelligence. [Salvia and
Ysseldyke, 1985; Settler, 1982; Sternberg, 1979; Gardner, 1983; Piaget, 1952.]
44.What is the effect of Larry P. on the special education eligibility criteria?
The criteria for special education eligibility are established by federal law and state mandate and regulation. These in turn are influenced (sometimes differently) by court rulings. Federal eligibility criteria under Public Law 105-17 have not been affected by the Larry P. court ruling and have remained the same. Likewise, state eligibility criteria have not changed.
However, Larry P. has affected which testing instruments school districts can use to assess a student to determine if the eligibility criteria have been met. The latest court ruling in Larry P. was to extend the prohibition of IQ tests to ALL categories of special education for African-American children. Previously, the IQ testing prohibition applied only to African-American students in mildly mentally retarded (EMR) programs. This extension has meant that the single eligibility area affected most by the Larry P. decision is the specific learning disability.
The state eligibility criteria for a student with learning disabilities require that there be a severe discrepancy between intellectual ability and achievement in academic areas. This implied requirement for a measure of intellectual ability was previously interpreted generally as being results from an IQ test. Now, the court prohibits the use of such a general measure of intelligence for African-American children. Therefore, according to state regulations, "when standardized tests are considered invalid for a specific student, the discrepancy shall be measured by alternative means as specified on the assessment plan."
State guidelines explain:
If it is determined that the use of standardized tests would be or is an invalid assessment tool, the assessment personnel staff will have to use professional judgment, based on such data as the results of informal or criterion-referenced assessments, analysis of student work samples, classroom performance and observations to determine the evidence of a severe discrepancy. The need for professional judgment will apply to the areas of written expression and listening comprehension since there are few, if any, standardized tests which measure these skill areas. Special attention should be given in the assessment of students whose primary language is other than English, or whose cultural background might mitigate against the use of a certain standardized test.
The latest court decision has had greatest impact on district policies in urban areas. In several districts, the prohibition of IQ tests has been extended to ALL students in the district rather than to only African-American students as called for by the Larry P. Court order. This means that even those students who most closely resemble the normed samples of IQ test takers cannot be given an IQ test. As a result, "alternative means" are utilized for all students within those particular districts.
Traditionally, intelligence was a prominent feature in most definitions of mental retardation. With
the prohibition of IQ testing, adaptive behavior scales have become important assessment tools
for African-American students who may be mentally retarded.
45.What tests can districts use to assess students referred for special education services assess the intellectual abilities of African-American students?
The CDE has stated:
In lieu of IQ tests, districts should use alternative means of assessment to determine identification
and placement. Such techniques should include, and would not be limited to, assessment of the
student's personal history and development, adaptive behavior, classroom performance, academic
achievement, and evaluative instruments designed to point out specific information relative to a
student's abilities and inabilities in specific skill areas. [CDE, Larry P. Directive, 1986.]
46.What are some commonly used tests for Spanish-speaking students who may need special education services?
What is most important in identifying Spanish-speaking students is the ASSESSOR, not the test. This is what makes Dianadifferent from Larry P. Diana occurred because a monolingual psychologist tested Spanish speakers in English and used this data to place students. The tests themselves were found to be discriminatory in Larry P. Any parent or community person who works with Spanish-speaking students should examine carefully the bilingual training, assessment training, and cultural sensitivity of the person doing special education testing. Test translation should be avoided at all cost, as translation invalidates the results.
Listed in the two-column table below are general areas of assessment and tests that are commonly used with Spanish speakers. The tests are not valid for every student in all situations. Remember -- each assessment plan should be tailored to meet each student's individual educational assessment needs.
(This two-column table sets out skills in column one and appropriate tests for that skill in column two.)
For more comprehensive resources on bilingual assessments, contact Resources in Special
Education, (916) 492-9990.
47.Are there assessment tools specially designed to assess Asian-American students who may need special education services?
Currently, there are no specially designed special education assessments for Asian-American
students. Special education assessment is usually conducted with the common tests that most
students are administered. However, for the limited-English-speaking Asian-American student, it
is essential that the assessor be proficient in the student's native or primary language.
48.How can I ensure that my child has an appropriate assessment?
Parents of children with special education needs are too often intimidated by the language used by assessment staff who administer assessments to their child. Tests are not as complex as they may first appear. A competent psychologist, speech clinician, learning specialist, or other assessment staff in the public schools and can easily explain the tests to you. You have the right to ask about tests, how they are put together, and what the results of a test battery mean in clear and plain language. Never hesitate to exercise this right; your child's future may be decided on the results of such assessments. Here are some questions you can ask, especially if you are or your child is a member of a multicultural population:
(1) How reliable and valid is the test? That is, if given again, is it likely that the results will be about the same (reliability)? Does this test measure adequately the ability it is supposed to measure (validity)?
(2) Are the norms for this test based on a representative sample of the population of which the child is a part? That is, if the child is Asian-American, are Asian-Americans included in the normative sample?
(3) Is the response format of the test appropriate to the child? That is, if the child is non-verbal, can he respond without giving a verbal response? If your child is visually impaired, can the test be given without visual material? If your child speaks only Spanish ... is physically handicapped ... is hearing impaired ... etc., can he take the test without interference from physical or linguistic limitations?
(4) Is the examiner skilled in administrating the test, knowledgeable about normal and abnormal patterns of development, capable of observing qualitative features of test performance, and proficient in interpreting results?Your child has the right to receive assessment services from a competent, qualified examiner.
(5) Has the examiner provided a setting and developed a procedure that will assure the student's maximum performance so that results will not be skewed by extraneous circumstances? Such circumstances might include, for example, illness, anxiety, hunger, trauma, motivation, confidence, temperature, lighting, etc. A good assessment must acknowledge the influence of such variables and estimate their impact on assessment results.
Overall, first and foremost, tests must be selected on the basis of the referral problem and according to the specific needs of the individual child. You should always question the practice of assessing all children on the same test (or same test battery) since each student is a special and unique individual. [Oakland, 1981; 34 C.F.R. Sec. 300.500; Cal. Ed. Code Sec. 56321.]
RE: John Blue
Dear Mr. Green:
I request that the Local Unified School District (your District) conduct the following evaluations of my son, John:
(1) A psychological evaluation to determine his learning potential, using instruments designed for non-oral children such as the Leiter International Performance Scale-Revised or the Hiskey Nebraska Test of Learning Aptitude;
(2) An evaluation by a non-oral communications specialist. To my knowledge, the district does not have on staff any experts in this field. I have been recommended to Barbara Brown, Ph.D. in non-oral communication, and unless the district has a comparable expert, I am requesting that you contract with Dr. Brown to do the non-oral communication evaluation of my son.
(3) An occupational therapy assessment.
Note: In every request for initial assessment, you should include a paragraph requesting that your child also be evaluated under the provisions of Section 504 for any "disabling condition" which would require service accommodations and/or services that will allow the child to benefit from public education to the extent that students without disabilities do. Such a paragraph might read as follows:
I also request that my son be evaluated under Section 504 of the Rehabilitation Act of 1973 for the presence of any educational service need which may require any accommodation or program modification not available under special education. I also request that the Section 504 Coordinator for Local Unified School District be present at the initial IEP meeting to discuss the results and recommendations of the Section 504 Evaluation.
I look forward to receiving an assessment plan in 15 days. I hope that these evaluations can be completed promptly. Thereafter, we can have an IEP meeting to discuss the results of these evaluations and plan for John's continued education. Please ensure that I get copies of the assessment reports one week before the IEP meeting.
RE: John Blue
Dear Mr. Green:
We have just received the psychological and occupational therapy evaluations of our son, John, which were completed by district personnel. Since we believe that both evaluations are inadequate and do not show an accurate picture of our son's intellectual or fine motor functioning, we plan to obtain independent assessments at public expense.
After the independent assessments are completed, we will submit bills for the assessors' services to you. Further, we would like to postpone the upcoming IEP meeting for three weeks so that the independent assessments are available for the team's review.
If you believe an independent evaluation of your child is needed, give a brief description of current functioning and suspected disability when you write your request. Then state the rationale for having an outside evaluation at public expense.
Some of the reasons why an independent evaluation is necessary may be:
(1) There is no one on the district staff who is qualified to perform the evaluation.
(2) You believe the district relied on insufficient testing when it made recommendations at the IEP meeting.
(3) The school district results are at odds with other testing done on your child, so clarification is needed.
All children exhibit some of the following behaviors at times. It is important to separate occasional from persistent behavior, and not to worry about an isolated incident which could be totally insignificant for the child as a whole.
IN PRE-SCHOOL YEARS:
IN SCHOOL YEARS:
(Following is a three-column table. Column one sets out a learning process; column two has a definition of that process; column three lists tests which give information about that process.)
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