Legal Issues in the
Educational Diagnosis of
Students with Disabilities
Mitchell L. Yell, Ph.D.
myell@sc.edu
The University of South Carolina
TEDA Annual Conference, 2015
Outline of Presentation
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Background information
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FAPE
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Procedural & Substantive
Avoiding Procedural & Substantive errors
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Recent litigation in assessment, diagnosis, &
evaluation
Free Appropriate Public
Education (FAPE)
The primary obligation of special educators
to is develop and implement a program of
special education and related services that
confers meaningful educational benefit
Meet Amy Rowley
The Rowley Standard
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Has the school district complied with the
procedures set forth in the IDEA?
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Was the resulting IEP reasonably
calculated to enable the student to
receive educational benefit?
Procedural Aspects of FAPE
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Procedures refer to those aspects of the law that require that certain
practices be followed when located, identifying, programming,
providing special education services to a student with disabilities
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Procedural errors are only a denial of a FAPE, and thus a violation of
the IDEA, when the infractions
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Impede the students right to a FAPE
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Impede the student’s parents from meaningfully participated in
aspects of their child’s special education
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Deprive a student of educational benefit (20 U.S.C. §
115(f)(3)(E)(ii)
The Most Serious Procedural
Errors
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Failing to provide prior written notice
Failing to obtain parental consent
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Fielding an improper IEP team
Predetermining a students placement or program
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Failing to maintain a continuum of alternative
placements
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Failing to address the five “special” factors
Substantive Aspects of FAPE
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Substantive requirements are sometimes referred to as the
content of the IEP
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Is the IEP reasonable calculated to provide meaningful
educational benefit?
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The bottom line is that if a school has data to show the
student benefitted from his or her educational program, the
IEP is virtually “Bullet-Proof” unless the school district
committed one of the fatal procedural errors
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The IEPs similarity to a written contract
Substantive Aspects of
FAPE
The Most Serious
Substantive Errors
Failing to conduct a full and individualized
assessment of all of a student’s needs
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Failing to link the assessment data to
programming
Failing to write measurable annual goals
Failing to collect data on student progress
Questions Answered by
Educational Diagnosis under
IDEA: Who
1.
Does the student have an IDEA eligible
disability?
2.
Because of that disability does the student
need special education & related services?
3.
Does the student’s disability adversely affect
his or her educational performance?
Questions Answered by
Educational Diagnosis under
IDEA: What
What are the student’s needs that need to be
addressed by the IEP team when they identify
the special education and related services to
be provided?
4.
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Assessment/diagnosis must lead directly to
instructional programming
Questions Answered by
Educational Diagnosis under
IDEA: How
How effective are the educational services
that are being provided?
5.
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Educational diagnosis as baseline
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Progress monitoring
When should Educational
Diagnoses be conducted?
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When school district personnel have reason to suspect or
believe that a student may have a disability and need
special education and related services
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Child find activities including screening and referral
School district personnel must begin that evaluation
process with a reasonable amount of time following reason
to suspect
Educational Diagnosis &
Child Find
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School districts (LEAs) have an affirmative duty to
locate all students with disabilities in the district’s
jurisdiction
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The purpose of a LEA’s child find obligation is to
identify students who are suspected of having
disabilities and need special education services
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An LEA must publicize their child find activities.
These activities usually include general screenings
and a referral system
A Common Child Find
Violation
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School district personnel have a reason to
suspect or believe that a student may have a
disability and need special education services
but fail to identify & assess the student
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Know referral red flags and react accordingly
Referral Red Flags
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Academic problems, failing to learn
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A student stands out ”academically” or
“behaviorally” from his same age classmates
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Numerous or increasing disciplinary referrals for
violating school rules
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Truancy problems, excessive absences, skipping
classes
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Signs of depression, anxiety, or withdrawal
Referral Red Flags
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A student has received a diagnosis of a mental
heath related problem
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Student is being seen by an outside counselor or
therapist
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Hospitalization, especially for mental health
reasons
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A student’s parents request a special education
evaluation
What if a Student’s Parents Refuses
Consent for Initial Evaluation?
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School district can request a due process hearing to
override the lack of consent
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The student’s parents may still refuse special education
services after the evaluation (no option for due process)
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The problem is that the district may be out of compliance
with IDEA’s child find and evaluation mandates
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This should be handled on a case-by-case basis
Errors in Educational
Diagnosis
Using assessment tools that are
useful for eligibility determination
but not useful for instructional
planning
Kirby v. Cabell County Board
of Education (2006)
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A student’s present levels statements did not
provide information in enough detail to allow the
IEP to plan the student’s special education program
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“Without a clear identification of [the student’s]
present levels, the IEP cannot set measurable goals,
evaluate the child’s progress, and determine which
educational and related services are needed.”
Strategies for Compliance
Ensure that the assessment contains detailed
enough information that an IEP team is able
to determine the content of a student’s
special education program and thus his or her
FAPE
Errors in Educational
Diagnosis
Failing to include a student’s
parents in the assessment process
Amanda J. v. Clark County
School District (2001)
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Because of the districts “egregious” procedural violations,
parents of student with autism are entitled to reimbursement for
independent assessments and the cost of an in-home program
funded by them, as well as compensation for inappropriate
language services during the students time within the district.
Where the district failed to timely disclose students records to
her parents, including records which indicated that student
possibly suffered from autism, parents were not provided
sufficient notice of condition and, therefore, were denied
meaningful participation in the IEP process. There is no need to
address whether the IEPs proposed by the district were
reasonably calculated to enable the student to receive educational
benefit because the procedural violations themselves were a
denial of FAPE.
Strategies for Compliance
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The IEP meeting should not be the first time that a
student’s parents hear about their child’s education
diagnosis
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Contact the parents before the assessment and
involve them in the educational diagnosis (e.g.,
interviews) in addition to securing their permission
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Use their knowledge in the diagnosis and document
their involvement
Errors in Educational
Diagnosis
Failing to consider an independent
education evaluation provided by
the parents
Federal Regulations, 2006
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Parents have the right to an one independent
educational evaluation (IEE) at public expense if
the parent disagrees with the school districts
evaluation (IDEA Regulations 34 C.F.R. § 300.552)
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The results of the IEE must be considered by school
district personnel in any decision with respect to the
provision of a FAPE (IDEA Regulations 34 C.F.R.
§ 300.502(c)(1)).
Lakeville Independent
School District #194 (2009)
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, District’s mistaken belief that a test used by the
independent evaluator was not valid did not justify
the district’s failure to consider it IEE when
determining eligibility. Because the district failed to
review existing evaluation data and draw upon a
variety of sources, the Minnesota ED ordered it to
make another eligibility determination.
Strategies for Compliance
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Develop a formal procedure for a parents
to use when requesting an IEE
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Discuss, consider, and document the results
of a parent’s IEE
Errors in Educational
Diagnosis
Failing to address all of a student’s
needs, irrespective of his or her
disability
D.B. v. Bedford County
School Board (2010)
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Student with ADHD and found eligible for services
as OHI was denied FAPE where district did not
properly consider and evaluate him for learning
problems in reading. Despite the fact that the
evidence strongly suggested the student was SLD,
the IEP team failed to assess for SLD or even discuss
SLD. In addition and contrary to the hearing officers
finding, the students services might well have
changed had he been fully evaluated in all areas of
suspected disability.
Compton Unified School
District v. A.F. (2010)
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A California district’s efforts to assess a 6-year-old student’s eligibility for special
education services were not sufficient to comply with its obligation to provide
FAPE. The student’s grandparents indicated to his teacher in October that he might
have ADHD. In December, the student became extremely violent and engaged in
disruptive and aggressive behavior. His grandparents requested a functional
behavioral assessment in February. The school psychologist completed an initial
assessment in time for the first IEP meeting in May, but the district failed to
conduct the requested FAA. The student’s grandparents challenged the June IEP
and placement proposal, which did not contain any behavioral goals. The district
argued that it did not deny any request for assessment, but proceeded with due
diligence in conducting assessments and convening multiple IEP meetings before
proposing a placement. “Contrary to the district’s characterization of events, the
administrative record supports the finding that the district did not timely assess the
student in all areas of suspected disability.” According to the court an FBA would
have enabled the IEP team to consider strategies to address the behavioral issues
that impeded the student’s learning,
Strategies for Compliance
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When a student’s needs are evident, either
through parent information, teachers
observations, or student history these needs
must be addressed, irrespective of a students
disability
Errors in Educational
Diagnosis
Using a response to intervention
system to delay or deny special
education evaluation
Memorandum from
Musgrove (OSEP, 2011)
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An RTI system is not intended to be a replacement for
a comprehensive special education evaluation
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An RTI system does not diminish a school district’s
obligation to obtain consent and evaluate any time
district personnel have reason to suspect that a student
may have a disability and need for special education
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“RTI cannot be used as a basis to delay or deny an
evaluation”
Strategies for Compliance
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If educational diagnosis is part of an RTI process or an
educational diagnostician is used to conduct RTI
screening, assessment for intervention, benchmarking,
or progress monitoring that is permissible as long as it
is done with all students (general & special education
students) in the RTI system and does not single out
students with disabilities
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If there is reason to suspect that a student has a
disability and needs special education then an
assessment is in order, convene MDT and assess
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If there is reason to suspect but data show that a student
is progressing, convene MDT team and discuss
Errors in Educational
Diagnosis
Failing to address a student’s needs
in a timely manner
Student v. School District
(SEA TX 2011)
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Facts of the Case
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Year 1-Student was identified as having a learning disability
and was served in the category of SLD
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Year 2-The student began exhibiting problem behavior
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Year 3-Problem behaviors worsened. FBA completed and
BIP prepared
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Year 4-Student assessed and found to be emotionally
disturbed
Student v. School District
(SEA TX 2011)
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Decision
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The school district failed to assess the student for an
emotional disturbance in a timely manner
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The district should have suspected the child of having
an emotional disturbance as early as year 2
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The student was denied FAPE and entitled to
compensatory services
Strategies for Compliance
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Understand and follow the Texas special
education timelines
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The evaluation must be completed within 45
days of receiving the parents’ consent for
evaluation
Errors in Educational
Diagnosis
Narrowly defining “educational
performance” as academic
performance only
Mr. & Mrs. I. v. Maine
School District (2007)
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Facts of the Case
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Student with Asperger syndrome, an anxiety
disorder, & depression
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Student attempted suicide
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School found the student was not eligible
because no adverse effect on the students
grades
Mr. & Mrs. I. v. Maine
School District (2007)
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Decision
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Hearing officer found for school district because
of good academic performance
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District court and circuit court found that the
student’s emotional problems affected her ability
to communicate and interact
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She was eligible for services under the IDEA
despite being well-behaved and receiving good
grades
Strategies for Compliance
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Weatherly (2013) suggested that school personnel
not limit their definition of educational performance
to academic performance only
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When a student is being evaluated for eligibility the
educational diagnostician must examine all areas of
need and the multidisciplinary team must determine
how the problems negatively affect his/her
performance in academic areas and nonacademic
areas (e.g., socialization, behavior, communication)
Errors in Educational
Diagnosis
Failing to to link the present levels
of academic achievement and
functional performance to the
annual goals and special education
services.
IDEA Regulations, Appendix C
(1997)
“There should be a direct relationship between
the present levels of performance and the other
components of the IEP. Thus, if the statement
describes a problem with the child’s reading
level and points to a deficiency in reading skills,
the problem should be addressed under both (1)
goals and (2) specific special education and
related services provided to the child.” (Question
36)
Strategies for Compliance
Ensure that all needs identified in educational
diagnosis are addressed in
a)
The measurable annual goals
b)
The special education services
c)
The method used to monitor student
progress
Error in Educational
Diagnosis
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Predetermining placement or programming prior to
the IEP meeting
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Effectively excludes a student’s parent from
meaningfully participating in their child’s special
education program development
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Making definitive statements about a student’s
placement (e.g., “We always...”; “We never...”)
made before or during the meeting could constitute
predetermination
H.B. v. Las Virgenes
(2007)
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Predetermination occurs when an educational
agency has made its determination prior to the
IEP meeting, including when it presents one
placement option at the meeting and is
unwilling to consider other alternatives.
Deal v. Hamilton County
Board of Education (2006)
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“[a] procedural violation can cause substantive harm when it
seriously infringes upon the parents' opportunity to participate in
the IEP process,”
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“The clear implication is that no matter how strong the
evidence presented by the Deals, the School System still
would have refused to provide the services. This is
predetermination
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“...Because the School System deprived the Deals of a
meaningful opportunity to participate, the predetermination
amounts to denial of a FAPE for Zachary.”
Strategies for Compliance
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Prepare but don’t predetermine; informal &
preparatory activities, and draft IEPs are ok
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“School officials must come to the IEP table
with an open mind. But this does not mean
that they should come…with a blank mind”
(Doyle v. Arlington, 1992)
Strategies for Compliance
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Take precautions to ensure predetermination
does not occur
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Keep an open mind at the meeting
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Follow an agenda
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Discuss parental suggestions
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Keep good documentation
Essential Points in Diagnosis
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A relevant educational diagnosis is the first step to
program planning
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A complete, individualized, and relevant educational
diagnosis is the path to effective programming
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All elements of the IEP are linked to the educational
diagnosis
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An appropriate educational diagnosis depends on
everyone’s input
References
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Amanda J. v. Clark County School District (2001)
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Compton Unified School District v. A.F. (2010)
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D.B. v. Bedford County School Board (2010)
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Deal v. Hamilton County Board of Education, 46 IDELR 45 (E.D. TN 2006).
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Doyle v. Arlington, 1992)
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H.B. v. Las Virgenes (2007)
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Kirby v. Cabell County Bd. of Educ., 46 IDELR 156 (S.D. W.V. 2006).
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Lakeville Independent School District no. 194, 53 IDELR 206 (SEA Minn. 2009).
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Memorandum from Melody Musgrove, OSEP 2011, available at
https://www2.ed.gov/policy/speced/guid/idea/memosdcltrs/osep11-07rtimemo.pdf
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Mr. & Mrs. I. v. Maine School District (2007)
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Student v. School District (SEA TX 2011)
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Weatherly, J. (2015). Avoiding special education litigation. Paper presented to the Tristate Regional Special Education Law Conference. Omaha, NE.