PROVING FAPE IN A
DUE PROCESS HEARING
CALIFORNIA ASSOCIATION OF SCHOOL PSYCHOLOGISTS
February 18, 2006
By: Jonathan P. Read
IDEA 2004: Overview

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


The reauthorized IDEA (IDEIA or IDEA 2004) was
signed into law by President George W. Bush on
December 3, 2004.
Most provisions of the IDEA 2004 are effective as of
July 1, 2005.
Highly Qualified Teacher and some funding provisions
have been effective since January 1, 2005.
On October 7, 2005, the Governor signed Assembly
Bill 1662 bringing California law into conformity with
federal law.
Final federal regulations were expected by December
2005.
What is a Due Process Hearing?
Court-like proceeding
 Office of Administrative Hearings

What is a Due Process Hearing?
Witnesses, evidence
 Direct examination, cross-examination
 Rules of evidence don’t apply

What is a Due Process Hearing?
Initiated by parent or public education
agencies
 DMH, CCS, NPSs, and NPAs may be
called as parties

CDE Compliance Complaints
Alleged violations of federal or state special
education law
 If a complaint is filed with both OAH and CDE,
CDE investigation must be stayed

Reasons for a Hearing
Proposal to initiate or change assessment /
placement of a student
 Refusal to initiate or change assessment /
placement of a student
 Disagreements between parent and district,
SELPA, or County regarding availability of
program and financial responsibility

Reasons for a Hearing

School districts must file when
– Refusing to pay for IEE or
– Parent does not consent to portion of the IEP
necessary for FAPE
– Parent does not consent to the IEP
Reasons for a Hearing
OAH does not have jurisdiction over other issues,
including failing to comply with a settlement
agreement or a due process hearing decision
 OAH will hear issues of residency

Initiating the Hearing Process
Until October 2006, request must be filed within 3
years that parents had knowledge or should have
had knowledge of violation, if they agree to
mediation
 After October 2006, request must be filed within 2
years

After the Complaint

Notice of Insufficiency of Due Process
Complaint
– Within 15 calendar days of receipt of
Complaint

District Resolution Session with Parents
– Within 15 calendar days of receipt of
Complaint
After the Complaint

Response to Complaint
– Within 10 calendar days of receipt of
Complaint

Other Party Response
– Within 10 calendar days of receipt of
Complaint
Before the Due Process Hearing

Order Subpoenas/Subpoenas Duces Tecum
– 15 calendar days prior to due process hearing

Statutory/Rule 68 Offer
– 11 calendar days prior to due process hearing

Statement of Issues and Notice of
Representation
– 10 calendar days prior to due process hearing

Notice of Documentary Evidence
– 5 business days before due process hearing

Witness List
– 5 business days before due process hearing
Before the Due Process Hearing

Parents may review school records
During the Hearing
Fair, impartial, and knowledgeable hearing officer
 Student may be present
 May be accompanied by counsel or individuals with
special knowledge or expertise
 Right to compel attendance of witnesses

During the Hearing
Administrative Law Judge (“ALJ”) may call
witnesses
 ALJ may order assessment
 ALJ may order discussion between experts
 ALJ may ask questions

After the Hearing
Decision within 45 days
 Appeal of decision within 90 days

Remedies

Compensatory education
– When FAPE is denied
– To replace lost services or educational opportunity
– No obligation for day-to-day or hour –to- hour
replacement
Remedies
Reimbursement
 If school district failed to offer FAPE
 Private placement appropriate
Remedies
Reimbursement

May be reduced or denied if parents act
unreasonably or fail to provide notice
Remedies


Monetary damages are not available
Parents may recover attorneys’ fees and costs if
they prevail
The Role of Assessor
in the
Due Process Hearing
The Role of the Psychologist
Due process hearings often become a “battle of
experts”
 You are also likely a “percipient witness”
 You will be attacked for your bias and questioned
about your qualifications
 You are not required to have the same
credentials as the parent’s expert in order to
provide effective testimony

The Role of the Psychologist

Before the hearing:
– Make sure testing, protocols, and reports are
complete and accurate
– Identify strengths and areas of venerability
– Do not change documents
The Role of the Psychologist
Consultant to attorney: You may also assist by
reviewing parent’s evidence and developing
cross-examinations
The Role of the Psychologist
Preparation is the key
 Review evidence, reports, protocols, IEPs,
professional literature
 Review IEPs
 Review test manuals
Successful Testimony Begins With

Credibility:
– Legally compliant assessments
– Credentials/qualifications
– Experience/Knowledge
– Understanding eligibility
Be Prepared to
Discuss Your Credentials
Knowledge of skills required for state
credentials
 Knowledge of federal requirements for
credentials

Discuss Your Qualifications
Post high school education
 Research and publishing
 Teaching at a college/university in a relevant field
 Honors and recognition
 Inservices and seminars

Discuss Your Knowledge
Special Education (specifics -age group,
particular disabilities)
 Knowledge of this disability
 Knowledge of this student

Discuss Your Experience
History with current employer
 Job duties
 Past employment history
 Research and publishing
 Volunteer experience
 Provide a current Curriculum Vitae

Discuss Your
Understanding of Eligibility
An appropriate assessment does not automatically
qualify a disabled student for a FAPE; that is a IEP
team decision
 Many private assessments focus on a diagnosis in a
clinical setting; this does not equate to eligibility in an
educational setting

Witness Preparation
Before and after the hearing:
 Review records
 Be familiar with subject of your testimony
 Don’t talk about the case
The Two Golden Rules
Tell the truth
 Take a sip of water

Testifying at the Hearing

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Tell the truth
Speak confidently
Don’t become angry/defensive
Be brief
Think before you speak
If you didn’t hear/understand, ask
Don’t speak over others
Do not guess or speculate
Dress professionally
Request for an
Independent Educational
Evaluation at Public Expense
Independent Educational Evaluations
Definition: an evaluation conducted by a
qualified examiner who is not employed
by the district.
– Parents have a right to an IEE
– IEE may be at public expense
– When can a parent request an IEE?
(1 year after district assessment?)
The Test
A parent has a right to an IEE at public
expense only if:
– The parent disagrees with an assessment
obtained by the educational agency, AND
– The educational agency is unable to show
at a due process hearing that its
assessment was appropriate.
Disagreement with the Assessment
Compare: Did the parents disagree with
the assessment or the IEP?
Education Code section 56320

Qualified individuals
– Interns?
Education Code section 56320
Tests selected and administered so as not to be
racially, culturally, or sexually discriminating
 Materials and procedures in native language
unless clearly not feasible

Education Code section 56320

Tests and other assessment materials are used
for purposes for which the assessment or
measurements are valid and reliable
Education Code section 56320

Are administered in accordance with any
instructions provided by the test producer
– Exception: Intellectual or emotional functioning shall
be administered by a school psychologist
Education Code section 56320

Tailored to assess specific area of educational
need and not merely a single general
intelligence quotient
Education Code section 56320
Selected and administered to best ensure that
when administered to a student with impaired
sensory manual or speaking skills, the tests
accurately reflect aptitude, achievement, or other
factors that the test purports to measure
 No single measure is used to determine eligibility
or educational program

Education Code section 56320
ALL AREAS OF SUSPECTED DISABILITY
Education Code section 56320
For students with low incidence of
disability, by persons knowledgeable of
that disability
Assessments
ADHD, specifically:
 Not an independent eligibility category
 However, student can still qualify as:
– ED (emotionally disturbed)
– OHI (other health impaired)
– SLD (specific learning disability)

Address all
Assessments

Are assistive technology, vision therapy,
music therapy, central auditory
processing disorder areas of suspected
disability?
The Written Assessment Report
A written report must be prepared for each
assessment performed
Issues to be Addressed in the Report
Does the student need Special Education?
 Does the student need Related Services?
 The basis for this determination
 Behavior of student during observation

Issues to be Addressed in the Report
Relationship of behavior to academic skills
 Relationship of behavior to social skills
 Relevant health, development and medical
findings

Issues to be Addressed in the Report
Discrepancy between achievement and ability can it be corrected with or without Special
Ed./Related Services?
 The impact the student’s disadvantage has:
– Environmentally
– Culturally
– Economically

Issues to be Addressed in the Report

Needs for students with low incidence disabilities
– Specialized services
– Specialized materials
– Specialized equipment
Protocols
If they contain personally identifiable information,
must be provided to parents upon request
(FERPA)
Reports
Must look professional
 Parents must have reasonable opportunity to
review
 Informed consent

Right to Observe: Parent
School district must provide
independent assessor equivalent
opportunity to evaluate the proposed
placement as part of an IEE, to the
same extent that the school district
allows its own assessor.
Right to Observe: District
If parents request public funding of a private
placement, they must allow
school district to observe.
Compensatory Education and
Reimbursement Request
for Private School and/or
Services
Portions of this presentation were developed by
Gerald M Zelin of Zelin & McCormack, PLLC.
Those portions are reprinted with permission.
Compensatory Education
Did the District offer FAPE?
 If so, how much educational benefit did the
student lose?

Reimbursement for
Private School Placement
If the parents unilaterally placed the
student in a private school placement, a
District may be required to reimburse
the parents for the costs if:
the District did not offer a FAPE to the
student, AND
the private placement is appropriate.
Proving FAPE
Two Components:
 Procedural Issues
 Substantive Issues
Procedural Compliance is as Important as
Substantive Compliance
Procedural violations that result in:
 Loss of educational opportunity to the
student or
 Seriously infringe on the parents’
opportunity to participate may constitute
a denial of FAPE
Substantive Issues
TEST: In order to constitute a FAPE, a District’s
proposed program must:
 (1) be designed to meet the student’s unique
needs;
 (2) be reasonably calculated to provide him or
her with some educational benefit;
 (3) comport with his or her IEP; AND
 (4) be provided in the least restrictive
environment
(Board of Ed. of the Hendrick Hudson Central School District v. Rowley, (1982) 458
U.S. 176)
Substantive Issues
Analyzed from the perspective of the
IEP team at the time of the IEP
meeting/time the IEP was drafted
 What about NCLB?
 What about results?
Part 1: Substantive Issues

Was the District’s program designed to
meet the student’s unique needs?
– What were the student’s unique needs?
Part 2: Substantive Issues
Was the program reasonably calculated
to provide the student with some
educational benefit?
 Does not require the best education
available
 Does not require maximizing student’s
abilities
 Does not involve a comparison between
public offered and private placement

Start with the Grades

Is the child receiving passing grades?

Do they signify progress in the general
curriculum?
– IDEA 2004 emphasizes the general curriculum.

Are the grades bona fide?
– “Gifts” or “social promotions”?
– Based on a modified grading system? If so, what
is that modified grading system?

Was the curriculum sequential?
Inspect Teacher “Rank Books” to See What the
Grades Mean and to Place the Student in Context

These record each student’s grade on every
assignment – the raw material for report cards.

Did the student score high on tests while getting
zeroes for failure to hand in homework?

If the student received a D for the quarter, did
classmates receive D’s or failing grades?

SAVE THOSE RANK BOOKS!
Obtain Information From:

Regular ed. teachers.

Special ed. teachers.

Paraprofessional aides.

Related service providers.

Counselors.

School nurses.

Evaluators.

Principals and disciplinarians.

Tutors/specialists/consultants.
Inspect All of Their Records

Personal files.

Journals, notes or running records.
– One-on-one aides often keep logs.

Letters to and from the parents.

Charts or checklists recording reading and
math levels.

Home-school communication books.
– If the parents kept them, get them back.

Create report cards that distinguish progress
from lack of progress.

Create forms (report cards or other forms)
that encourage mainstream teachers to write
narrative reports:
– Addressing whether the child made
progress.
– Identifying specific areas or examples of
progress.
Look at the Child’s IEPs
Over Time

Do the “present levels of performance”
show progress?

Are the same goals and objectives
repeated year after year within an increase
in baselines?

Is the child demonstrating the same level
of mastery, but with increasing
independence or in progressively less
restrictive environments?
Review Recent IEP Progress Reports

Do they indicate progress on goals and objectives?

Do the codes used to report progress allow a
sufficient range of options?
– Is modest progress lumped together with no
progress?
– Do you have all copies of the IEP with progress
codes?

Remember that the IEP focuses on weaknesses.
– The child may be making progress in areas not
addressed in the IEP.
Other Evidence of
Academic Progress

Longitudinal achievement testing.

Portfolios and work samples.

Formal classroom observations.
– If they are repetitive.

Readability levels of books the child read or
papers the child wrote.
Chart the Longitudinal Testing,
to Assess Progress

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Group testing.
Individual testing.
Reading and math placement tests.
Special education evaluations.
Independent evaluations.
Entrance examinations for private schools.
Tests administered by private tutors or private
schools.
Two Types of Test Scores:

Raw scores.
– The number of correct answers.
– The source for all other scores.

Derived scores.
– Calculated by consulting the test publisher’s
scoring table to convert the raw score into a
derived score.
Two Types of Tests:

Norm-referenced.
– The most common.
– Derived scores compare the student with
other students in the “norm group.”

Criterion-referenced.
– Less common.
– Derived scores report whether the child
achieved certain criteria.
• E.g., comprehending a grade 5 passage with 95 percent
accuracy.
Two Categories of Derived Scores
on Norm-Referenced Tests
1.
Age-equivalent or grade-equivalent scores.
2.
Scores based on the bell curve (next slide):
•
Percentile ranks – line B.
•
T-scores – line C.
•
Standard scores – line D.
•
Subtest standard scores (a/k/a subtest
scaled scores) – line E.
•
Stanines – line F.
Scores on the Bell Curve:
Advantages of Age-Equivalent and
Grade-Equivalent Scores

Most sensitive to progress.
– If the raw score goes up, the AE or GE
score will almost certainly rise.

Rising scores impress hearing officers
and judges.
– Especially when presented graphically.
• See next slide.
Woodcock-Johnson Achievement Tests:
Broad Reading Subtest
10.0
9.0
8.0
7.0
6.0
5.0
4.0
3.0
2.0
1.0
0.0
8.2
7.8
6.3
Age equivalent
score
March-97
April-99
Sept.-Oct.
1999
Disadvantages of Age-Equivalent and
Grade-Equivalent Scores

Many statistical problems.
–

Interpolations, etc.
Commonly misunderstood.
–
If a fourth grader obtains a GE score of 6 in math,
this does not mean that the student has mastered
fifth or sixth grade math.
–
It means that the student’s score is about the same
as what the average sixth grader would have earned
on that test.
•
Which might be a test of fourth grade skills.
Disadvantages of AE and GE
Scores (cont’d)

Cannot be compared with I.Q.

May unduly alarm parents.
–
If a seventh grader earns a GE score of 5, this does
not signify that the student is “two years behind.”
–
It means that the student is achieving below the mean
for seventh graders. But half of all students score
below the mean.
–
To identify the degree of deficit, look at the percentile
rank or standard score.
•
A percentile rank of 5 is poor. A percentile rank of 40 is not.
Advantages of Bell Curve Scores

They are interchangeable.

Percentile ranks are easily understood.

Standard scores on achievement tests can be
compared with I.Q. scores (which are always
reported as standard scores).

Standard scores can be used with standard
deviations to measure discrepancies.

Test publishers usually report the standard error
of measurement (SEM) for bell curve scores, not
GE or AE scores.
John Doe v. Rockland School District
Woodcock-Johnson Achievement Tests
Broad Reading Standard Scores
(using age norms, SEM +/- 3)
IQ 90
(+/-3)
100
90
80
70
60
Mar-97
Apr-99
Sep-99
Disadvantages of
Bell Curve Scores

Aside from percentile ranks, hard to understand.

If raw scores rise, but do not rise enough, bell
curve scores may remain stable or fall.
– See next slide.

Difficult to persuade parents or tribunals that
static bell curve scores indicate progress.
– Even more difficult to persuade them that the student
is progressing when bell curve scores fall (unless you
also report grade-equivalent or age-equivalent
scores).
The “Racing Pack” Analogy:
Student X in Grade 4 in 1995
GE 3.0
PR 40
1995
1
2
3
4
5
6
7
8
9
10
11
Range of classmates' grade equivalent scores
12
Student X in 1999, Grade 8:
GE Rose (Advanced Down the Track);
PR Fell (Fell Back in the Pack).
GE 3.0
PR 50
GE 6.0
PR 30
1999
1995
1
2
3
4
5
6
7
8
9
10
11
Range of classmates' grade equivalent scores
12
Houston Indep. Schl. Dist. v. Bobby R.,
200 F.3d 341, 31 IDELR ¶ 185 (5th Cir., 2000)

Child received passing grades. Percentile ranks
declined, but grade equivalent scores increased.

Held: school district offered a FAPE.

“Declining percentile scores do not necessarily
represent lack of educational benefit.” Maintaining
percentile scores “may be an unrealistic goal.”

“[A] disabled child’s development should be
measured not by his relation to the rest of the class,
but rather with respect to the individual student.”
Advice: Report All Types of Scores

Grade equivalent or age equivalent scores.
– To communicate progress.
– Not to measure the severity of a deficit.

Percentile ranks.
– To place the student in context relative to peers.

Standard scores.
– To compare achievement with I.Q.

IF ASSESSMENTS ARE MORE THAN ONE YEAR
OLD, REASSESS
Footnotes
1.
2.
A grade-level score on a criterion-referenced test is
not the same thing as a grade-equivalent score on
a norm-referenced test.
On norm-referenced tests, identify the “norm
group” with whom you are comparing the student.
–
3.
Age-peers or grade-peers? That makes a
difference if the student is older or younger than
the average student in his/her grade.
When reporting GE or AE scores, explain what they
mean and do not mean, so they are not
misunderstood.
Watch Out for Confounding Factors

Test performance may be affected by factors
unrelated to whether the child was learning.
– Student/tester rapport.
– Stressors.
– Illness or fatigue.
– Failure to wear eyeglasses.
– Medication changes.
– Pre-testing in an individual setting and posttesting in a group setting.
– Timed testing or handwriting demands.
Inconsistent Progress?
60
50
40
30
20
10
0
Percentile rank
1997
1998
1999
2000
On Ritalin:
60
50
40
30
20
10
0
Percentile rank
1997
1999
Off Ritalin:
60
50
40
30
20
10
0
Percentile rank
1998
2000
Dr. Jekyl and Mr. Hyde,
but Each is Making Progress.
PR on Ritalin
60
50
40
30
20
10
0
PR off Ritalin
1997
1998
1999
2000
Suggestions for Academic Testing

Test each spring.
– California law does not require parental consent for
screening students to determine appropriate instructional
strategy

Use the same instrument for pre- and posttesting.
– And report scores in the same format each time.

Include instruments that measure progress in
the general curriculum and on the IEP goals.
– That is the most relevant progress.
Suggestions for Testing (cont’d)

Test areas of strength as well as areas of
weakness.
– E.g., for a dyslexic child, do not test reading alone.
Include testing for math, science and social studies.

Always test for silent reading comprehension.
– It is arguably the most important skill and is certainly the
most important reading skill.

Save test protocols.
– They come in handy for item analyses, when
reconstructing scores so that they are expressed in a
consistent manner, to check for scoring errors, etc.
Proving Social & Behavioral Progress

Teacher opinions and anecdotal information.

Report card grades for conduct and social skills.

Formal periodic classroom observations.

Counselors’ records and impressions.

Psychological testing and behavior rating scales.

Discipline records.

Data collected for functional behavior
assessments or behavior management plans.

Opinions of people outside the school.
One Suggestion for Students with
Severe Social or Behavioral Deficits

Target specific social and behavioral skills
in the IEP.

Describe in the IEP how progress in those
skills will be measured.

Argue that those are the only social and
behavioral skills for which you must prove
progress.
What If Parents Unilaterally Place
the Child in a Private School?

Get information on the child’s performance and
progress at the private school.

Have school district personnel who know the
student observe him/her at the private school.

Get copies of all records maintained by the
private school.

Get scores for all tests administered by the private
school, plus testing by other schools to which the
student applied.
Do the Parents and Their Experts
Dispute Progress?

Parents sometimes admit to teachers or third
parties that their child made progress.

Many experts want a disabled student to “catch
up” with nondisabled peers or to achieve at a level
commensurate with I.Q. (full potential).
– They sometimes admit that the student made “some”
progress.
– If they fail to address whether the student made
progress, chances are they do not care and they are
using the wrong legal standard.
Be Careful When Writing the IEP

Are the goals and objectives too ambitious?
– They are the team’s vision of appropriate
progress.
– If the student does not attain them, parents may
later seek more intensive services.
– If school district personnel are skeptical that the
child can attain a goal in the IEP, say so and
record it.
• In the team meeting minutes or written prior notice.
Conclusion

Think longitudinally.
– Look for evidence of progress.

Establish procedures that encourage the creation
and preservation of evidence that is useful in
assessing progress.

Hunt down all facts necessary to determine
whether the child made progress.

Create charts illustrating the amount of progress.

Identify gaps in the measurement of progress and
fill them in.
Conclusion (cont’d)

Look at the student’s progress in all domains.
– The general curriculum and the IEP.
– Academics, behavior and social skills.

Place the student in context.
– Compare the student’s progress with the progress of
disabled and nondisabled peers.
– Compare the student’s achievement with the student’s
abilities.

Respond to insufficient progress by promptly
reviewing and improving the IEP.
Part 3: Substantive Issues

Did the program comport with the IEP?
Part 4: Substantive Issues

Did the District offer placement in the
least restrictive environment?
– Districts must ensure that students with
disabilities receive their education in the
regular classroom environment to the
maximum extent possible or to the extent
such placement is not appropriate in an
environment with the least amount of
segregation from the student’s nondisabled peers and community.
Least Restrictive Environment Analysis
An IEP team should review the following
four factors to ensure that a special
education student receives a FAPE in
the LRE . . .
Least Restrictive Environment Analysis
Factor 1:
The educational benefits available to
the student in the general education
classroom, supplemented with
appropriate aids and services, as
compared with the educational benefits
of a special education classroom.
Least Restrictive Environment Analysis
Factor 2:
The non-academic benefits to the
special education student interacting
with students who are not disabled.
Least Restrictive Environment Analysis
Factor 3:
The effect of the special education
student’s presence on the teacher and
other children in the classroom as
measured by: (1) disruption to the
education of the non-disabled children
and (2) the burden on the general
education teacher’s time.
Least Restrictive Environment Analysis
Factor 4:
The cost of educating a special
education student in the general
education setting.
THANK YOU
FOR YOUR ATTENTION