Exploring Ethical and Legal
Tensions in the Role of the
School Psychologist in 2015
MASP Conference
October 26, 2015
Sharon LaPointe and Jeff Butler
LaPointe & Butler, P.C.
Issue #1
What role does RTI or MTSS play in
Child Find, evaluation planning and
eligibility determinations?
Clarifying the relationship
between RTI and MTSS?
RTI made its first “legal” appearance in
IDEA 2004 as part of an alternate process
for determining SLD
 Resulted in misunderstanding re Gen Ed’s
role in its development/implementation
 RTI/SLD connection resulted in underfocus on the importance of integrated
academic and behavioral supports.
 “Relabeled” in anticipation of ESEA
reauthorization using “MTSS” terminology.

Definition of MTSS
Scientifically validated, research-based
approach
 Proactively identifies students
– at risk of not achieving/not achieving to

benchmark standards
– and/or whose behavior is affecting
educational performance

Uses a problem solving framework to
address learning needs
Elements of MTSS
Element
Definition
Universal Screening
Systematic assessment of all students on academic
and/or social-emotional indicators to ID students who
are at-risk, and may require support that varies in
terms of level, intensity and duration.
Data-based decision
making and problem
solving
Assessments and data used should be timely,
matched to the learning targets, valid, and reliable.
MTSS uses for 3 purposes: universal screening,
diagnostics, and progress monitoring.
Continuous progress
monitoring (CPM)
Monitoring that matches instruction and increases with
frequency with student need is essential in maximizing
student progress.
Continuum of
evidence-based
practices
High quality Tier 1 (Core) instruction, including clear
learning expectations with brief reviews of previous
learning; overt modeling; high student engagement
and opportunities to respond; frequent incremental
and descriptive feedback; follow-up instruction;
distributed practice; differentiation.
Elements of MTSS
Element
Definition
Continuum of
evidence-based
practices
Target (Tier 2) and Intensive (Tier 3) instruction that
increases in terms of intensity and duration as progress
monitoring of student progress determines need.
Fidelity of
implementation
Strong initial training and periodic fidelity checks of
instructional implementation are critical
Potential interplay between MTSS
and IDEA/§504/ADA

Inadequate response to tiered supports
may
– 1. Be a red flag for a suspected impairment
– 2. Provide important data for the SLD
determination process
– 3. Assist with documentation for ruling out lack
of appropriate instruction
– 4. Provide data for determination of IDEA
adverse impact, 504 substantial limitation, and
Title II effective communication inquiry for
students with hearing/vision/speech disabilities
FAQ #1
MTSS uses assessment for three
purposes (universal screening, progress
monitoring and diagnostic). Do any of
these require parent consent?
 Answer: It depends.

– Universal screening of all students in a given
grade/school does not require parent consent.
However, using the “wear the parent hat test”
it does make sense that parents should be
informed that the district is using the MTSS
model to meet the educational (academic and
behavioral) needs of all students, including
universal screening several times/year.
FAQ #1, continued

Answer, continued
– Individual screening to determine appropriate
instructional strategies for a particular student
does not require parent consent, per IDEA
and implementing regulation 34 CFR 300.302
– Progress monitoring typically involves
repeated curriculum based measures or
authentic formative assessments and, as
such, would not require parental consent.
FAQ #1, continued

Answer, continued
– Diagnostic assessment is individually
performed to determine intervention strategies
when the child is still not performing to
benchmark standards after prior supports
• If the district suspects that a disability may be a
factor in the continuing underperformance, then a
request for evaluation would be initiated and
parent consent would be obtained either under
IDEA or Section 504.
• If the district does not suspect a disability, and the
diagnostic assessment is being pursued to fine
tune general education instruction, consent is not
required, but it would be prudent to seek parent
agreement.
FAQ #2: What is the difference
between “consent” and “agree” ?

Consent (300.9)
– Aka informed
consent, parental
consent, and written
informed consent
– Means informed and
in writing
– Digital or electronic
signatures permitted if
district offers this
option and parent
opts to use

Agree
– Not same as consent
– Means an
understanding
between the parent
and district about a
particular issue
– Only needs to be in
writing if IDEA or
regs say so
– See FR 46551, C-3
FAQ#3
Is there a minimum amount of time that
must be spent in the MTSS process before
a child find obligation kicks in?
 Answer:

– There are two wrinkles with this question.
• First, child find under both IDEA and Section 504
is triggered when the district first suspects a
disability. This may occur at any time in any tier. It
is a myth that “suspecting a disability” is triggered
only when academic or behavioral deficits persist
after providing interventions at Tier 1 and then a
Tier 1/Tier 2 combo, or some equivalent exhaustion
• Second, a disability is not the only causal
explanation for an inadequate response to MTSS
FAQ #4
What if a parent requests an IDEA or 504
eval mid-way through MTSS process where
supports beginning to show some promise?
 Answer: The parent may request an
evaluation at any time. The question is
how the district responds.

– A. If the district suspects a disability, it must
process the request and develop eval plan.
– B. If the district does not suspect a disability, it
must either grant the request (most likely), or
to refuse the request and provide notice of
refusal along with procedural safeguards.
FAQ #5
When a child transfers to a new district in
the same school year, after his previous
school has begun but not completed an
initial special education evaluation, may
the receiving district delay or extend the
evaluation timeline in order to implement
its MTSS process?
 Answer: No. See, Letter to State Directors
of Special Education, 61 IDELR 202
(OSERS/ OSEP 2013). Attachment A.

FAQ #5

Answer, continued
– OSERS/OSEP comment: “While the new
school may choose to provide interventions
while it is in the process of completing the
evaluation, it would be inconsistent with the
evaluation provisions in 34 CFR §§300.301
through 300.311 for a school district to delay
completing an initial evaluation because a
child has not participated in an RTI process in
the new school district.”
FAQ #6
Can a parent request an IEE before the
district completes its evaluation for a
suspected SLD merely because the parent
disagrees with the district’s decision to use
data from the child’s response to MTSS as
part of its evaluation process?
 Answer: No. When a parent requests
reimbursement for an IEE prior to the
completion of the district’s evaluation, the
district may deny the request without filing
for a due process hearing. Letter to Zirkel,
52 IDELR 77, (OSEP 2008). Attach. B

FAQ #7
Does a district have to get parent consent
to implement Tier 1 or Tier 2 supports?
 Answer:

– This is a matter of local district policy. It is
best practice to work collaboratively with
parents when implementing a MTSS process
– It is important to document that the parent
• was provided explanations of all available
interventions
• was provided notice of right to request at any time
an evaluation for an eligibility determination under
IDEA and/or Section 504
• was an active participant in the MTSS process
FAQ #8
Does MTSS cease once a request for
IDEA or 504 evaluation is initiated and
implemented?
 Answer: No.

– Tiered supports may continue during the
pendency of the evaluation. In fact IDEA
contemplates extended timelines by mutual
agreement for SLD evaluation if needed to
collect additional RTI data.
– Tiered supports may also continue after an
eligibility determination and the creation of an
IEP or 504 Plan. They support both LRE and
value-added intensity of special education.
FAQ #9
Given all of the data generated in an
MTSS process, does the district still need
to do a comprehensive evaluation to
determine IDEA eligibility?
 Answer:

– MTSS does not replace the full and individual
evaluation requirement, i.e., the district must
use a variety of data-gathering tools and
strategies. See Questions and Answers on
Response to Intervention (RTI) and Early
Intervening Services, 47 IDELR 196 (OSERS
2007). Attachment C.
– Conduct REED to see what need.
FAQ #10
34 CFR 300.311(a)(7) states that if the
child participates in a process that
assessed his response to scientific,
research-based intervention, the
documentation of the determination of SLD
eligibility must contain a statement of
instructional strategies used and the
student-centered data collected.
 Is this required only when the district uses
an RTI-based approach to determine SLD?

FAQ #10, continued

Answer: Previously
– In M.M. and E.M. v Lafayette Sch. Dist., 58
IDELR 132 (N.D. CA 2012), the court rejected
the parent’s claim that the district was
wrongfully withholding RTI data in its
documentation of SLD eligibility determination.
While the district had implemented RTI
strategies before referring the child for a
special education evaluation, it based its
eligibility determination on a severe
discrepancy model. Thus the 300.311(a)(7)
provision was not triggered.
FAQ #10, continued

Answer: On review by 9th Circuit
– The 9th Circuit held that the documentation of
eligibility determination should have included
a statement of the instructional strategies
used and the student-centered data collected
within the RTI framework so that the parents
could meaningfully participate in the IEP.
FAQ #11
Can a district get into trouble if it fails to
implement MTSS with fidelity?
 Answer: Failure to implement with fidelity
might open the door to an alleged child
violation on the basis of untimely
identification.

FAQ # 12
How does MTSS affect what makes
special education special?
 Answer: The definition of special
education is “specially designed
instruction…to meet the unique needs of a
child with a disability.”

– “Specially designed instruction means
adapting, as appropriate to the needs of the
eligible child…the content, methodology, or
delivery of instruction” to address unique
needs and to ensure access to the general
curriculum. 34 CFR 300.39.
FAQ #12

Answer, continued
– MTSS elements may impact decision making
with regard to the following
•
•
•
•
LRE
Pacing
Intervention delivery
Assistive technology
Issue #2
Evaluation/Eligibility Concerns
FAQ #13: How should districts
respond to evaluation requests based
on “niche” clinical diagnoses?

Answer: Probably going to see more
diagnoses from private clinicians due to
– autism insurance benefits
– new conditions listed in DSM-5.
• Important to remember that DSM originally created
as a classification system for research purposes.
• Subsequent usage for Dx for insurance purposes
has resulted in confusion
– News flash: 10-23-15 USDOE Dear
Colleague Letter on dyslexia, dyscalculia and
dysgraphia.
FAQ #13, continued

Distinction between impairment and
disability status under IDEA, 504 and ADA
– DSM contains a cautionary statement that
inclusion of a category in the Manual does
not imply legal disability
– Dx alone is a red flag. Should not ignore, but
is not, as some parents believe, the “ticket”
for IEP or 504 plan.
– Key is whether suspect
• Characteristics associated with an IDEA eligibility
category, and adverse impact
• Physical or mental impairment that substantially
limits a major life activity (504/ADA)
FAQ #13, continued
– A. If the district suspects a disability, it must
process the request and develop eval plan.
– B. If the district does not suspect a disability,
it must either grant the a parent request to
evaluate (most likely), or refuse the request
and provide written notice of refusal along
with procedural safeguards.
FAQ #14: How do you handle the
dueling criteria issue?

Answer:
– One good example of dueling criteria is ASD.
The same “label” is used by AIB providers,
DSM-5, and MARSE. Yet the criteria for this
same label varies with each system.
– There is no simple way except to be
transparent with the parent
• Show the parent the MARSE criteria (MET
recommendation form works well for this)
• Go behind the label and plug into the REED all of
the assessment data generated by and/or used by
third party evaluators.
FAQ #15: Is it permissible for an
evaluation plan to be developed without
the input of a specified evaluator?

Answer:
– Initial evaluation
• There is no language in either the IDEA
regulations or in MARSE that details how the
district develops its evaluation plan for the initial
evaluation.
• Voluntary usage of REED/Evaluation Plan (see
below)
FAQ #15: Continued

Answer:
– Reevaluations
• The “IEP Team” conducts the REED and develops
Eval Plan. IDEA regulation defining the IEP Team
(300.321) requires the IEPT to include at least one
individual who can interpret the instructional
implications of evaluation results, but is silent on its
composition specifically for REED/reevaluation
planning purposes.
• Can be done via meeting or non-meeting
• If “errors” can correct by amendment process
FAQ #16: Must districts honor parent
evaluation requests for guardianship or
post-secondary purposes?

Answer: No.
– In response to increasing pressure on districts
to perform “non-IDEA” evaluations, USDOE
created alternative format that exiting student
with disabilities could use to convey
information to third party purposes. This is
the Summary of Academic Achievement and
Functional Performance document, which is
to include recommendations on how to assist
the child in meeting his/her postsecondary
goals.
FAQ#16, continued

However, if a student is up for
redetermination of eligibility during the last
year prior to exit (via graduation or
otherwise), the parent may exercise their
right to a full reevaluation for the
redetermination of eligibility for the
remaining time in school.
FAQ#17: How does an IEPT
determine whether a student with
ADHD is IDEA eligible?
This really boils down to adverse impact
and whether the impact is such that the
student needs special education.
 A 2003 guidance document from the
USDOE describes an ADHD evaluation as
including the following components:

– Behavioral
– Educational
– Medical (depending on the state requirement)
FAQ#17, continued

The 2003 USDOE guidance document lists
the following targets for the educational
evaluation
– Behavior observation of student as compared
with random peer re frequency, intensity,
duration of problems with
•
•
•
•
Inattention
Hyperactivity
Impulsivity
More challenging behaviors
– Productivity in completing classwork and other
academic assignments, both % and accuracy
– Assessing for possible comorbid impairments
FAQ#17, continued
From an adverse impact standpoint,
districts should consider doing a functional
accommodation assessment as part of the
evaluation to assist in teasing out whether
supplementary aids and services may be
sufficient intervention to address needs,
versus special education and/or related
services.
 Remember, Michigan defines related
services as constituting special education.
 If the student is determined IDEA ineligible,
504 eligibility should be considered.

Issue #3
The FAPE/LRE Balancing Act
FAQ#18: How does the IEPT find the appropriate legal
balance between FAPE and LRE when parents of
students with significant special education needs want
full/extensive inclusion?

Answer:
– While each student has the right to be
educated in the LRE,
• an individualized calculation for each student
• not synonymous with full inclusion
– The determination of the FAPE/LRE balance
requires the IEPT to
• focus on the child, and not the label
• avoid the pitfall of being the other side of the
teeter-totter (over-focusing on the multitude of
special needs)
FAQ #18, continued

Take note:
– In a conflict between FAPE and LRE, FAPE
trumps.
– It should be a rare situation where there is no
opportunity for interaction with nondisabled
peers.
– There is renewed activism and interest by the
US Departments of Education, Labor, and
Justice in “LRE” in postsecondary outcomes
FAQ#18, continued

With that backdrop:
– 1. Try to get consensus on the student’s goals
and objectives. These set the parameters for
the ed benefit that the IEP will need to support.
– 2. Starting with parent suggestions for LRE
opportunities, grid out the day and the various
opportunities for specially designed instruction
– 3. Is it possible to achieve the goals and
objectives over the course of the year with this
paradigm?
– 4. If not, what adjustments in the grid of
programs and services can be made to get to
that balance point?
Issue #4
Record Concerns
Issue #5
Pattern of Removals
Triggering MDR
Pattern of Exclusion
No bright line, but at some point a change
in placement occurs
 Requires a judgment call
 Criteria=

– More than 10 cumulative suspensions plus
two additional criteria:
– Similarity to behavior that caused prior
removals (pattern of behavior)
– Additional factors (one or more contribute to
pattern of time)
• Length of each removal
• Proximity of removals to one another
• Total time of removal
Post-2006 Behavior/Time Cases
Example #1: A Pattern

Lewiston Public Schools, 110 LRP
17745, SEA ME 2009)
– 58 days of suspension in one school year,
in close proximity
– Case reported that suspensions were for
similar behavior, but did not describe the
behavior in question
Example #2: A B/T Pattern

Sage Academy Charter School #4087
– Behavior =inability to follow direction, cell
phone violation, and insubordination. State
complaint investigator found behavior
substantially similar because challenges to
people in authority
– Time
• On November 11, 2009, removals exceeded 10
cumulative days.
• Student suspended for above behavior 23 of 65
days between 9-8-09 and 12-9-09
• Each behavior for more than one day and in close
proximity
Example #3: A Pattern of B/T
District of Columbia Pub. Schs.
#Days
Suspension dates
Infraction
5
September 9-15
Walking hallways and
disrespecting staff
4
November 11-14
Out of the classroom and walking
the halls
4
December 16-January 5
Disorderly in the girls’ locker room
5
February 12-18
Disobedience and walking the
hallways
Example #4: A Pattern
MM v. Special SD #1 (8thCir.2008)
DATE
BEHAVIOR
SUPENSION DAYS
10-18
Disruptive behavior
1
10-26
Disruptive behavior
1
11-14
Fighting
1
1-4
Hit student with disability in face
5
1-21
Fighting
3
2-1
Assaulting teacher trying to take
mace from the student
4
2-15
Assaulting another student
4
2-28
Disruptive behavior
3
3-7
Threatening to throw chair at peer
3
3-17
Fighting
3
4-?
Using mace while fighting with peer
5
Example #5: A Pattern
Springfield (MA) Pub. Schs.
19 days of removal total
 1 day of ISS, 9 days of OSS, 9 days of bus
suspension (student allowed to attend
school, but did not make it to school)
 14 of 19 removal days in April and May
 Behavior all centered on physical or verbal
altercations and name calling

Example #6: “Not a Pattern”

East Metro, 110 LRP 34370 (SEA MN
2010) found that the following did not
constitute a pattern of behavior
– 4 suspension days for theft
– 3 suspension days for theft
– 8 suspension days for possession of
weapon on school premises
Issue #6
-504 Decision Making
-ADA Title II “Effective
Communication” Requirements
FAQ #19: Can a student have a
disability under Section 504 and
not have a 504 Plan?

Answer: Yes.
– This is confusing because of our experience
in special education. In special education
land, we decide whether the student is eligible
for special education. The eligibility equation
is that the adverse impact of the student’s
impairment is such that the student needs
special education. Thus the eligibility decision
is a package deal. We know that we will be
writing an IEP.
FAQ #19, continued

Answer, continued:
– In 504-land we make two separate
determinations
• 1. Whether the student has a physical or mental
impairment that substantially limits a major life
activity.
– The pivot point here is substantial limitation. We must
factor out all mitigating measures (except ordinary
eyeglasses and corrective lenses), including medication
and accommodations; and look at the impact when the
impairment is active versus in remission.
– A substantial limitation is one that is important and
material when looking at the condition, manner and
duration of the performance of the affected major life
activity(ies) in comparison to the performance of an
average person in the population.
FAQ #19, continued

Answer, continued
• 2. if the answer to question 1 is “Yes”, we then ask
whether the student requires the provision of regular
or special education and related aids and services
that are designed to meet the individual educational
needs of the student as adequately as the needs of
nondisabled students are met.
– At this point we are looking at whether the student needs
accommodations, services, or modifications to school
policies, practices or procedures to address disability
related needs in the school context
– OCR gives the example of a high school student with
asthma who needs the occasional use of a broncho-inhaler
that she carries with her and self-administers. She
participates in all school activities without assistance,
including physical education and extracurricular. While she
is a person with a disability, she would not need a 504
plan.
Three Federal Laws Address
Meeting Communication Needs
LAW
Requirement
IDEA
Requires public schools to make available a free appropriate
education (FAPE), consisting of special education and related
services, to all eligible children with disabilities (including those with
disabilities that result in communication needs). IDEA does not restrict
or limit rights, procedures, remedies under US Constitution, ADA,
§504 or other laws, except IDEA exhaustion if IDEA relief available.
ADATitle II
Requires public schools to ensure that students with disabilities
receive communication that is as effective as communication with
others through the provision of appropriate auxiliary aids and services.
These SWDs may or may not be IDEA eligible.
§ 504
“Because compliance with the IDEA can satisfy § 504’s requirement to
provide FAPE to a student with a disability for the vast majority of
students covered by the FAQs, and because, in general, a violation of
§504 is a violation of Title II, the focus of the FAQs is on the IDEA and
the specific Title II regulatory requirements for effective
communication.” Compliance with T-II effective communication is
compliance with 504 general nondiscrimination provisions.
Interplay between IDEA and Title II
Public schools must apply both IDEA and
Title II to determine how to meet the
communication needs of IDEA-eligible
students with a hearing, vision, or speech
disability.
 In many cases an IDEA IEP will also meet
Title II requirements
 But cannot count on that, i.e., sometimes
may have to provide Title II auxiliary aids
and services not IDEA required. See KM
v. Tustin Unified SD (9th Cir. 2013)
