All Things Considered : Recent OAH Decisions on

1. SES Fall 2010 All Things Considered:Recent OAH Decisions on Assessment and Eligibility

2. Overview • Konocti: Justifying a lack of assessment • Anaheim: Analyzing a psychoeducational assessment • Lakeside: Defending a finding of no eligibility • Garvey: Keeping control of your case

3. Student v. Konocti Unified School Dist. (OAH 2010) Justifying a lack of assessment

4. Student v. Konocti Unified School Dist. (OAH 2010) • The Bottom Line • Good supports, programs, and interventions matter

5. Student v. Konocti Unified School Dist. (OAH 2010) • Background • Ten-year-old boy attended the same district school through third grade • Never assessed for special education

6. Issues • During Student’s third grade year, did District deny FAPE by failing to • assess Student for special education? • qualify Student for special education services as OHI and provide special education?

7. Facts • Student’s early school years • Third grade year • Disciplinary referrals • Academic progress • Classroom behavior • Student Study Team (SST) Meeting

8. Facts • Social skills academy assessments • Implementation of the 504 Plan and social skills academy • Student's ability to control his behavior

9. Law • Child Find • Obligation applies even though student advances from grade to grade • Duty is not dependent on any action or inaction by parents • The threshold for suspecting a disability is relatively low. (Dept. of Educ. v. Cari Rae S. (D. Hawaii 2001) 158 F.Supp.2d 1190)

10. Law • General education resources • Students "shall be referred for special educational instruction and services only after the resources of the regular education program have been considered and, where appropriate, utilized" (Ed. Code, § 56303.)

11. Student contended Student’s behavioral problems put District on notice to assess Student requested compensatory education District contended District did not have any reason to assess Student He made adequate educational progress District met his needs with other educational resources Contentions

12. Decision • The District prevailed on all issues … all of Student's requests for relief were denied!

13. Rationale • Student's academic progress and lack of disciplinary referrals • Student's demonstrated ability to control his behaviors • No obligation to find Student eligible for special education because no obligation to assess him

14. Tipping Points • A program which addressedADHD behaviors rather than ignoring or denying them • Student was able to perform when motivated and progressed in his academics without special education and related services

15. Lessons Learned • Following procedures pays off • The District met its procedural requirements • This built District credibility with the ALJ • Implementation pays off • It is one thing to develop a good plan/program, but another to actually implement it!

16. Lessons LearnedSetting Up Your Case • Evidence is invaluable… • Evidence of educational progress • Evidence of district actions • Evidence of student behavior • Consistent testimony is key! • Lack of counter-evidence • Subsequent eligibility not relevant

17. Anaheim City School Dist. v. Student (OAH 2010) Analyzing a psychoeducational assessment 3 + 1 = 5

18. Anaheim City School Dist. v. Student (OAH 2010) • The Bottom Line • Whatever you do, use a credentialed school psychologist for a psychological assessment!

19. Anaheim City School Dist. v. Student (OAH 2010) • Background • Eight-year-old girl with autism • After Parent requested IEEs, District filed for hearing to defend its assessments

20. Issues • Was District's 2009 psychoeducational assessment appropriate, and if not, is District required to fund an IEE? • Was District's 2009 functional behavioral assessment (FBA) appropriate, and if not, is District required to fund an IEE?

21. Facts • Psychoeducational assessment by District’s outside assessor • IEP team meeting • Functional Behavior Assessment Report by District’s School Psychologist • Testimony at hearing

22. Facts • Student’s expert exposed that District’s assessment failed to • Convert raw scores • Properly compute converted scores resulting in incorrect scaled scores • Follow the test instructions, resulting in incorrectly scored test protocols • Accurately compute the overall intelligence index • Report results from all tests administered • Select the appropriate theoretical model

23. Facts • District’s assessor admitted errors but stated they did not impact findings • Student’s expert disagreed!

24. Law • As filing party, District had the burden of proof • Psychological assessments require a credentialed school psychologist, including any individually administered test of intellectual or emotional functioning • An FBA must meet the IDEA's legal requirements for an assessment

25. Contentions • District contended • Student was not entitled to IEEs at public expense • District’s psychoeducational assessment and school psychologist’s FBA were properly conducted and met all the necessary legal and educational requirements

26. Contentions • Student contended • District assessment not appropriate because • District’s assessor was not a school psychologist • multiple errors in use and scoring of assessment tools • District failed to evaluate and consider Student's "on-task" issues thus making the FBA inappropriate

27. Decision • District’s psychoeducational assessment was not properly conducted • District ordered to provide Student an IEE at public expense • District’s FBA was properly conducted • District had no duty to fund an IEE

28. Rationale • The Psychoeducational assessment • The “scoring errors were numerous and problematic and, therefore, invalidated the overall assessment results” • District did not use a credentialed school psychologist • The FBA • District complied with the legal requirements for conducting the FBA

29. Tipping Points • District’s assessor was not acredentialed school psychologist • Student’s expert thoroughly analyzed assessments and had a credible critique of District’s assessor’s work • There were numerous errors in test administration

30. Lessons Learned • Use a credentialed school psych! • The failure to use a credentialed school psychologist doomed the District

31. Lessons LearnedSetting Up Your Case • Beware of overcompensating … • ”No good deed goes unpunished!” • Check and double check assessment reports • Use a SELPA or other district psychologist to review any reports critical to your case • Find someone to play devil’s advocate with key documents or witnesses • Speculation: Why the independent assessor?

32. Student v. Lakeside JointSchool Dist. (OAH 2010) Defending a finding of no eligibility

33. Student v. Lakeside JointSchool Dist. (OAH 2010) • The Bottom Line • Sometimes fear is an appropriate response and not a sign of emotional disturbance … or, just because the facts are crazy doesn’t mean the student is ED!

34. Student v. Lakeside JointSchool Dist. (OAH 2010) • Background • 12 year-old student resided with his adoptive parents, was diagnosed as having reactive attachment disorder • District had assessed Student for eligibility under ED the year before but found not eligible • ALJ agreed not eligible

35. Facts • Events prior to seventh grade • Summer camp • September 2008 IEP team meeting • Truancies • Review of assessments • Academic progress • Diagnosis of depression?

36. Facts • Student’s behavior at school • Student performed at grade level • Student’s teachers reported Student did not seem depressed • Student had friends, was on task, was not a behavior problem, and did not seem withdrawn

37. Issue • Should the District have found Student eligible for special education and related services under the disability category of emotional disturbance (ED) at any time from July 29, 2008 through March 9, 2009?

38. Law • The “Snapshot Rule” -- an IEP is evaluated in light of information available to the IEP team at the time it was developed; it is not judged in hindsight (Adams v. Oregon (9th Cir. 1999).)

39. Law • Emotional disturbance -- a condition exhibiting one or more of five characteristics over a long period of time and to a marked degree that adversely affects a child's educational performance

40. Law • OSEP on a “long period of time” and to a “marked degree" • A “long period of time" is from two to nine months • A “marked degree" generally refers to the frequency, duration or intensity of a student's emotionally disturbed behavior in comparison to the behavior of his peers and/or school and community norms (Letter to Anonymous, (OSEP 1989).)

41. Law • Student claimed eligibility as ED under • a general pervasive mood of unhappiness or depression • a tendency to develop physical symptoms or fears associated with personal or school problems

42. Contentions • Student contended • He qualified for special education and related services as a student with ED • “School authorities did not view Student as depressed because he denies his depression and is so skilled at hiding it that it was not readily visible to District employees” • Student’s fears, related to the Doe family, made him eligible as ED

43. Contentions • District Contended • Student was not eligible for special education and related services at any relevant time

44. Decision • The District prevailed on all issues! • Student was not eligible for special education and related services under the category of emotional disturbance at the time in question

45. RationaleNot Eligible Based on Depression “Student's argument proves too much. If Student's depression was invisible to school personnel, the IEP team cannot be faulted for failing to act on it. [Student’s therapist’s] letter…which does not mention depression, suggests that Student's depression was invisible even to him at that time. The IEP team was not required to declare Student eligible for special education based on a condition no professional could perceive”

46. RationaleNot Eligible Based on Fear • The degree of Student’s fear • Was it to a marked degree? • Student appeared happy • The duration of Student’s fear • Was it for a long period of time? • Student continued to go to school after the incident at summer camp • The nature of Student's fear • Was it reasonable? • “[I]t was fear almost any student would have in the circumstances”

47. Tipping Points • The District had multiple witnesses with consistent testimony • District’s evidence showed that Student’s fear was not unreasonable given the circumstances • The District looked carefully at the degree, duration and nature of Student’s fear

48. Lessons Learned • Criteria for ED may be strictly construed • This case looked closely at the criteria for ED, including a good analysis of the degree, duration and nature of fear required for eligibility

49. Lessons LearnedSetting Up Your Case • Don’t be afraid to tell the whole story • Without sensationalizing the remarkable facts, the District did a great job of setting the entire stage in this case • Strategy at hearing included providing information about Student’s past, Parent’s motives, and Student's behavior and academic performance at school

50. Student v. Garvey Elementary School Dist. (OAH 2010) Keeping control of your case