The decision to refer a child for assessment to determine if they qualify for special education isn’t one to take lightly. Do you err on the side of caution and assess, even if only to rule out the possibility of a special education need, or hope whatever is causing the child problems in school will somehow work itself out?
For a variety of reasons, it is often the case that general education staffs in a public school are hesitant to refer a child for special education evaluation, or don’t even know that they are required to do so if a child presents with signs of suspected disability. Many don’t know how to distinguish the signs of possible disabilities from other factors, so they don’t even realize what they are really looking at.
The implementing regulations of the Individuals with Disabilities Education Act (IDEA) make clear that parents also have the authority to refer their children for initial special education evaluations. Referral is the first step to determining if a child is eligible for special education and, if so, what an individualized educational program (IEP) will look like for that child.
Referral triggers an initial evaluation that is supposed to be conducted in all areas of suspected disability and unique student need. That evaluation is supposed to be sufficiently comprehensive to inform the IEP as to the student’s potential eligibility for special education and the student’s unique learning needs.
There are two prongs that have to be satisfied in order for a student to become eligible for special education: 1) the student has to have a disability, and 2) the disability has to create a negative educational impact of some kind that makes specialized instruction necessary that wouldn’t otherwise be provided to a general education student. It’s possible to meet the first prong, but not the second one.
If it turns out that the student has a disability, but not to such an extreme degree that specialized instruction becomes necessary, the student may still be eligible for accommodations pursuant to Section 504 of the Rehabilitation Act and the Americans with Disabilities Act (ADA). Unless the instruction has to be modified or supplemented in some way in order for the student to access and benefit from the instruction, an IEP may be overkill.
There are those kids who need just a smidge of help, not a full-blown program of individualized instruction. There are those kids who just need a smidge of special education. Some kids need more, and yet others need a whole lot more. What each kid needs can only be determined by competent, comprehensive-enough assessments.
The federal regulations leave the door open for a local education agency (LEA) to deny a parent referral for initial evaluation, but the denial must conform to the Prior Written Notice (PWN) requirements described by the federal regulations. If the parent referral is declined, the PWN is required to explain why, and it better be a really good reason or the LEA can set itself up for a lawsuit.
States have the authority to add protections for students that the IDEA does not require, however. For example, in California, State law simply states that an assessment plan must be remitted to the parents whenever a referral is received. There is no caveat that says, “Unless it’s from the parents, in which case the LEA can decline it with a PWN.” There is no option for declination. It’s a black-and-white matter of, “When a referral comes in, an assessment plan goes out within 15 calendar days.” California law lists parents as the first party authorized to make referrals for special education assessments.
Every school year, families totally new to the special education process find themselves bewildered and dazed as they try to navigate the system. It’s a journey unto itself just to come to the conclusion that special education may even be necessary, but it’s only the beginning.
Federal law mandates that each State require its public schools to have a system of “child find,” which must actively seek out, identify, and refer those student who may need special education. But, I have shouldered my fair share of “child find” cases over the years where kids went on failing year after year but being administratively passed from grade to grade without ever being referred for special education, only to prove to have disabilities and be due compensatory education.
Parents and taxpayers cannot rely on “child find” to help the kids who need special education. The burden often falls on the shoulders of parents who start doing research and discover they can refer their children for assessment, but then it becomes about learning how to do it, and then learning about what comes after that. It’s involved and exhausting.
So, we thought that anything we can do to streamline the process and help parents advocate more effectively and efficiently would be a valuable thing to add to the growing body of online resources out there to help families of children with special needs. Our first tiny contribution along these lines is a free tool for parents to create a referral letter for their children. Now that we have the means to create tools like this, we’ll be adding more in the future.
Honestly, it was exciting to find out that our site would support this kind of functionality without a whole lot of work. This opens up a lot of doors for us to help a lot of people who we otherwise wouldn’t be able to serve.
The referral letter we created is basic, sticks to language that is legally applicable throughout the United States, and flexible enough to account for each student’s unique circumstance. We will be creating additional customizable downloads like this for other special education situations in the future. We’ll announce them here, though the blog and our social media, when we add them to our site.
Once you’ve created and downloaded the PDF, just print and sign it. Then you can remit it to your LEA by some method that give you proof of delivery. We like Certified mail – you get a tracking number so you don’t need a return receipt and it’s the least expensive method we’ve found for getting proof of delivery on correspondence that trigger timelines or are otherwise important enough to need to remember when they were received.
Be sure to keep a copy of the signed version for your records, along with the proof of delivery. If mailing it Certified isn’t convenient, you can also print and sign it, then make a copy of the signed letter, and walk both copies into your child’s school. Have the person at the counter stamp yours received with the date and, if possible, their initials, and leave the original with the person at the counter. You can also deliver it this way to the LEA’s administrative offices.
So long as you have proof of when it was received, you’ve preserved your evidence. We wish you the best in your endeavors to advocate for your child and hope this tool proves to be useful to you.
Most people new to special education are quickly blindsided by the processes and procedures that have to be followed. Many parents new to the process don’t exactly understand that customizing school for their children with special needs is what special education is supposed to do. Often they will say that they don’t know what special education will be able to do for their children, in large part because they don’t understand what special education actually is or how it works.
There is a huge need to demystify the special education process for those who don’t fully understand it. The process starts at the very beginning with a referral for assessment, but before I launch into a discussion of special education assessments, I first want to map out the special education process in general so the role that assessments play in that process becomes clear.
Because special education can only be given to students who meet specific eligibility criteria, a process had to be developed to determine who meets those criteria. The basis for a referral for a special education assessment is “suspected disability.” If the parents, teachers, or other involved professionals have a reason to suspect that a disability might be responsible for why a student is struggling in school academically, communicatively, socially, physically, and/or behaviorally, it’s enough to trigger the assessment process.
Sometimes, special education assessments end up ruling out disabilities and identifying other challenges that are interfering with student learning that require solutions other than special education. It is never a bad thing when a child who is struggling in school gets help, regardless of what types of help may be needed.
Federal law mandates that public education agencies conduct a process called “child find” in which they actively seek out and identify those students who can be suspected of possibly needing special education (34 CFR Sec. 300.111). A great many special education lawsuits have been filed over the years on behalf of students who were never identified through “child find,” but should have been.
I have worked as a paralegal on several cases in which there was enough evidence to suspect a disability was responsible for a student’s struggles but it failed to trigger the “child find” process. When students who are eligible for special education are denied eligibility, including from a failure to conduct “child find” that denies them the chance to be found eligible in the first place, they are usually due compensatory education to make up for the education they should have gotten but didn’t. “Child find” failures are no small things, but they occur systematically everywhere.
Very often, children of color, children from households with low incomes, children in single-parent families, and children who have immigrated here from other countries are the ones most often missed by “child find.” In many instances, they are instead blamed for their challenges and end up funneled into the juvenile justice system, thereby greasing the wheels of the School-to-Prison Pipeline.
It often takes a parent referral to see a student properly identified for special education. Struggles over homework, tears shed over grades, disciplinary problems at school, and other obvious signs of trouble will prompt many parents to look into their options for help from their local schools and some will stumble upon some basic information about special education and the referral process. If it makes enough sense to them, they will write a letter requesting that their child be tested for learning problems that might require special education, which triggers the assessment process.
Depending on what State parents are in, the laws vary as to whether their local education agencies are legally obligated to act on their referrals for special education assessment. Some States give parent referrals equal weight to those made by school personnel and other States do not. The federal laws leave it up to the States to decide, by default making it such that education agencies can decline parent referrals for assessment with Prior Written Notice (PWN) explaining why the referral is being declined (34 CFR Sec. 300.503).
California law, however, gives parent referrals equal weight to those made by education agency personnel (EDC 56029) and mandates that an assessment plan be provided to parents for their consent within 15 calendar days of any referral for assessment being made (EDC 56043(a)). States can add protections to the IDEA, they just can’t reduce them to anything below the minimum standards of the IDEA. Not all States provide the same kind of protection of parent referrals that California provides.
Even when a parent referral is accepted, many school districts will still limit assessment in a way the parents don’t realize is happening in order to prevent students from being found eligible for special education and thereby prevent special education expenditures and a host of additional legal obligations. For far too many families, just getting that initial evaluation can become a legal battle, but then the question becomes whether the assessment they got was any good.
I want to focus on what happens once the assessment process actually gets going, though. Eventually, most families of eligible children who are pushing for appropriate services will get an initial assessment that is used by the IEP team to determine whether the student is eligible for special education or not. If the student is found eligible, re-assessments will then occur at least once every three years, or triennially, to update the data available to the IEP team for ongoing IEP development.
The purpose of special education assessment is to determine 1) if the student is eligible for special education and, if so, 2) what the content of the student’s IEP should be. Needless to say that if the data gathered by the assessment is inaccurate, incomplete, or incompetently interpreted, things can go horribly wrong. And, they do. A lot of special education litigation arises over education agency failures to competently assess in all areas of suspected disability.
For example, if a child is verbal but can’t read people’s facial expressions or tone of voice, there still needs to be a speech-language evaluation that looks at not only articulation, receptive language, and expressive language, but also at pragmatic (social) language. Pragmatic language includes the ability to read nonverbal body language, facial expressions, and tone of voice.
Children with autism tend to be very literal with words and miss the nuances that tone of voice, facial expression, and body language can contribute to conveying someone else’s communicative intent, so they may misunderstand sarcasm or idioms and cliches. They can similarly struggle to make their own faces match what they are trying to say in a way that makes sense to most other people. Students with other types of handicapping conditions can also have similar challenges for various reasons related to their disabilities.
This isn’t all people with autism, of course, but pragmatic language deficits are commonly occurring features of autism. It stands to reason that any child assessed for autism should also have a comprehensive speech-language evaluation that includes pragmatics. I’ve lost count of the number of students on the autism spectrum I’ve represented over the last 28+ years who have had huge problems with interpersonal communication but had never had their pragmatic language tested until I asked for it. It’s one of those obvious things that shouldn’t have to be specifically requested, but I often end up having to request it, anyway.
And, this example goes to why it’s important that parents understand the critical nature of assessments and getting them done correctly the first time around, if at all possible. What happens if assessments are bad is that whatever IEPs are produced from them will also be bad. This can include an inappropriate denial of special education eligibility altogether at the initial IEP, as well as students being found eligible but then given weak IEPs that don’t actually address their needs.
Simply giving a student a document that says “IEP” on it does not magically bestow educational benefits upon that student. The contents of the document matter and they should be informed by scientifically valid data in all areas of suspected disability and unique learning need. The IEP is supposed to be the blueprint by which the special education student’s education is delivered according to that student’s unique learning profile, which can only be ascertained through valid and sufficiently rigorous assessments that include teacher and parent input.
What tests should be administered to a given student depends on the student. Just as the special education program developed for each student must be individualized, so must the assessments conducted to inform that program. If a student doesn’t present with any evidence of hearing loss, it makes no sense to test in the area of hearing. However, if a student reports that the words swim on the page when the student attempts to read, an assessment of visual processing is entirely in order.
Similarly, if the primary areas of concern are social and classroom participation but the student’s grades are otherwise fine, you can conduct all the IQ and academic achievement tests in the world, but they will fail to give you relevant data about the actual source of the problem. At best, academic achievement testing may tell you the degree to which the social/behavioral challenges are interfering with classroom participation and work completion, but social/emotional and behavioral assessments are necessary to get to the bottom of social and classroom behavioral challenges, including lack of participation.
It is not uncommon for individuals with autism and/or anxiety disorders who are otherwise verbally and intellectually intact to do well in their academics, at least in the lower grades, but have a truly difficult time being a member of a classroom and/or being socially integrated with the rest of the students. School is supposed to teach more than academics; it’s also supposed to give students the opportunity to learn and rehearse social skills that will ultimately allow them to become gainfully employed and fully functional within society in adulthood.
The thing to understand, here, is that a student does not automatically have to be struggling academically to need special education. A student needs to be struggling in any aspect of school as a result of a disability to such a marked degree that individualizing the student’s educational experiences is necessary in order for the student to have opportunities to learn that are equal to the opportunities given to same-grade peers who do not have disabilities.
Our students with anxiety and depression will often miss a lot of school due to psychosomatic illnesses. This prevents them from accessing education altogether, but is not directly reflective of a specific challenge with academics. Very often, these kids can handle the academics okay, but they can’t handle all the other people at school. That’s a different special education problem to solve than accommodating dyslexia or an auditory processing disorder.
I can tell you that, as an educational psychologist and behavior analyst, there are student-specific lines of inquiry that an individualized assessment of each student should pursue. No two assessments should look exactly alike from one student to the next. The federally mandated requirement placed on schools is to assess in all areas of suspected disability and unique student need on an individualized basis (34 CFR Sec. 300.304).
That means social/emotional functioning, pragmatic language, and behavior are probably going to feature more prominently in an assessment of a student suspected of autism or certain types of social/emotional disorders. Measures of cognition and academic achievement, analysis of classroom work samples, parent and teacher interviews, and classroom observations are going to be more useful in troubleshooting a potential learning disability. Physical therapy, occupational therapy, and adaptive physical education evaluations are going to be important for a student with an orthopedic impairment that impacts how the student navigates the school campus.
There is no “one-size-fits-all” assessment procedure in special education. There should be no “one-size-fits-all” anything in special education. The whole point of it is individualized instruction, which can only be individualized to the student if the IEP is informed by individualized assessment data.
The importance of individualizing assessment cannot be overemphasized, and I have an example from my past to drive that point home: Many years ago, a couple of years or so after I first became a paralegal, I was working a due process case in which, between the testimony of the school psychologist and the district’s director of special education, it became clear that the only reason the school psychologist had used a particular verbal IQ test on our 7-year-old language delayed client with Down’s Syndrome was because the district kept those tests in bulk in the supply closet, and it would take longer than the 60-day assessment timeline to order a more appropriate test through the district’s purchase order process, as overseen by the special education director.
It is my recollection that the administrative law judge who tried the case had his own blistering line of questioning after those facts made it onto the record. He basically eviscerated the special education director for sneaky, underhanded abuses of the system to save a buck at the expense of assessment accuracy. The judge ended up ordering the school district to fund an outside assessment done by an expert who used the right kinds of tests.
The dad had already paid to have the outside expert assessment done, so we had it as evidence of how to do it right in hearing, plus the outside expert testified credibly as to his methods and findings. The district ended up having to reimburse the dad for the outside assessment and there was a huge training initiative throughout that district’s special education department shortly after that hearing decision was published. Heads rolled and policies changed for the better, but it took exposing what was really going on in a hearing to effect significant changes.
The function that assessments serve in the special education process is to set it all in motion and inform all the other steps that will follow. An IEP must include a statement of a student’s present levels of performance at the time the IEP was written, thereby establishing baselines. An IEP must also include annual, measurable goals that target learning outcomes to be achieved in one year’s time from the date the IEP is written that move the student forward from those baseline positions in each area of unique learning need.
There is no way to realistically identify the target outcomes to be met with one year’s worth of work in each area of unique student need without valid assessment data to inform that analysis. How much is realistic for an individual student to learn in a year’s time comes down to a combination of variables that should have all been measured and described by the assessment data.
Goals target the outcomes intended by a student’s IEP. What services are included in an IEP, including the frequency, duration, and location of those services, are determined on the basis of what will be necessary to meet the IEP goals. Placement is the last decision made by an IEP team and is determined by what is the least restrictive setting or combination of settings that allows the services to be delivered such that the goals are met without unnecessarily segregating the student away from the general education population.
You can’t decide where a special education student can be most appropriately educated until you first determine what you’re going to have to do in that setting or combination of settings. What needs to be done is determined by what you want to make happen. You don’t know what to make happen until you understand where things already stand and what you are still missing. You don’t know what is already intact and available, or what is missing, without first doing an assessment.
So, everything in the IEP process depends on the assessments being done right in the first place, or the entire IEP process falls apart from the outset. If an assessment is done badly, there aren’t adequate baseline data to inform an IEP’s present levels of performance or inform decisions about how aggressive each measurable annual goal should be in terms of its targeted outcomes. Further, if it’s done badly, there’s no guarantee there’s enough data to identify all the areas in which goals are actually needed.
“What can the student already do in a given area of need?” and “What is realistic to expect from this student after one year’s worth of work in this given area of need?” are the two key questions that have to be answered by special education assessment reports. That’s because those two very questions have to be answered when crafting a new IEP.
If you can’t get that far with the data from the assessments, you’re off to a really, really bad start. If you can’t lay a proper foundation, your whole construct will fall down. Competent, reasonably thorough assessment is the very foundation of a sound IEP, so it is important for parents to take this step of the IEP process very seriously and hold everyone else on the team to their respective professional standards.
Federal law mandates the application of the peer-reviewed research and the professional standards of any experts involved to the delivery of special education (34 CFR Sec. 300.320(a)(4)). That includes during the special education assessment process. Any standardized tests used must be administered and scored according to the instructions provided by the producers of each test, which must be scientifically valid for the purposes for which they are used (34 CFR Sec. 300.304(c)(1)). The enforceable law does not skirt the applicable science, and there is no legally justifiable reason why any publicly funded education agency and/or any of its contractors should be skirting it.
This can be difficult for many parents who have no background in science or law. However, an interesting phenomenon is starting to occur on a societal level that is worth noting.
Millennials are becoming an increasingly represented generational cohort among parents of children with special needs. They use their smartphones ubiquitously to call BS on a host of issues by looking up the truth, and collaborate with each other to address shared concerns. Special education advocacy today is becoming something entirely different than what it was when I started 28 years ago.
When I was a young, beginning advocate, I represented a number of housewives who could bake some mean cupcakes but would nearly faint at the presentation of a bell curve graph and deferred to their husbands on any big decisions. Now, I’ve got young moms and dads taking their own behavior data, charting it, and presenting it to their kids’ IEP teams with a written list of questions, concerns, and requests, all based on their own common sense with no formal prior exposure to the applicable sciences or law.
Where things get interesting is how school district administrations are currently configured. Many of the old-timers that I’ve been dealing with over the last two decades or more have retired and run off with their pension money before there isn’t any pension money to be had, anymore. Millennials are now starting to take the retired old-timers’ vacant job positions and, where that has happened, I’ve found that I don’t have such an uphill battle when making scientifically research-based requests in conformity with the regulations on behalf of my students and their families.
When knowledgeable parents go up against cronyistic old-timers, the old-timers resort to their familiar bag of power-mongering tricks. But, trying to intimidate a mom who was educated under the Common Core to use math and science to solve real-life problems is a world apart from trying to intimidate a housewife whose science and math skills are limited to following recipes in a cookbook and balancing a checkbook.
I’m watching old-timers retire in droves nowadays because their weapons of choice against parents aren’t effective anymore and the courts are increasingly relying on the applicable science to inform how the law applies to each special education student on an individual basis. Law is supposed to be evidence-based, as is science. Education science allows special education law to be as black-and-white as possible. Everything else, particularly in a cronyistic system, is subjective opinion and hearsay. The environment no longer reinforces the old-timers’ behaviors like it used to, and their behaviors are starting to become extinct.
So, parents going forth into special education, especially those of you who know how to use your smartphones to look things up and fact-check, fall back on the science and lean on it hard, starting with the assessment process. When you are first given that assessment plan to sign, don’t sign anything until you understand what it means and the language of it is clear.
Very often, assessment plans will say vague things like “social/emotional evaluation by psychologist,” which can sound a whole lot like a mental health evaluation by a clinician to a lay person. In reality, what it usually means is rating scales filled out by parents, teachers, and sometimes the student that are scored and interpreted by a credentialed school psychologist, not a licensed clinician. Rating scales scored and interpreted by a school psychologist is not the same thing as a mental health evaluation by a licensed clinician.
But, how is a parent unfamiliar with the process supposed to know that? Would any reasonable layperson just assume this language meant a mental health evaluation by a clinician? I’ve seen this happen more than once involving youth with significant mental health issues for which consideration was being requested by the parent of the rest of the IEP team of residential placement via the student’s IEP. The parents would be given an assessment plan that said “social/emotional evaluation by psychologist,” think they were getting an evaluation to explore residential placement, and only find out 60 days later that they had been given the run-around while their child continued to fall apart. Residential placement is the most restrictive placement possible through the special education system, but it is possible for those students whose needs are that dire.
In these cases, the students’ needs were absolutely that dire and the responsible school districts attempted to delay the costs of residential placement by first doing rating scales by their school psychologist as part of a 60-day evaluation process, who then recommended a mental health evaluation, sometimes including a residential placement evaluation but sometimes not, thereby triggering a new 60-day assessment timeline. If a residential placement evaluation was not included with the mental health evaluation, the mental health evaluation could then conclude that the student should be considered for residential placement, triggering yet another new 60-day evaluation timeline.
Or, worse, the mental health evaluation could be silent on the issue of residential placement, leaving it to the parents to know to keep asking for such an evaluation; but, by this point, most parents erroneously conclude that residential placement isn’t an option so they drop it. There are youth in immediate crises who need instant mental health services, and their school districts are stalling the process by adding an unnecessary layer of assessment that gives it another 60 to 120 days before it has to act on the data (i.e., foot the tab for services).
Each of the students from my caseload who have shared this experience, in different school districts mind you, ended up either hospitalized and/or incarcerated at some point before finally getting the help that they needed. In most of those cases, the issue had to be forced with lawsuits that ultimately resulted in confidential settlement agreements. In each instance, the unnecessary delays in receiving immediate help contributed to self-injurious behavior, attempted suicide, and unlawful conduct that could have otherwise been avoided.
In my first case like this, I actually took it to due process myself back in the day when advocates could do that in California, and prevailed. In that case’ decision, the hearing officer made it clear that it defies the entire purpose of the IDEA, which requires that children with qualifying disabilities be identified and served via IEPs in all areas of need as quickly as possible, to subject our most vulnerable children to double or triple the amount of assessment time of a normal special education evaluation before getting the help they need.
I don’t know of any authority that has come out since then that contradicts this interpretation, though it was a long time ago and I’m not an attorney, but I think most people will agree, that it was not likely Congress’ intent to make our most severely impacted students suffer without appropriate supports and services for months longer than it takes other special education students to get what they need. These include, but are not exclusively, students with tendencies towards violence, running away, property destruction, self-injurious behaviors, and other non-social behaviors that require a great deal of expert intervention. These are not the students who should be waiting twice to triple the time to get the services they need to keep themselves and everyone else safe and focused on learning at school.
If it looks like a critical area of need is being excluded from your child’s assessment, don’t sign the assessment plan until the public education agency adds what is missing. If the agency refuses to add it, note on the assessment plan that you are consenting to what is offered, but you still think the assessment is deficient based on what they are excluding, which you should list in your note. That way, the record is clear that you aren’t delaying the other testing by withholding your consent, but you’re also not agreeing it was appropriate to leave out what you requested.
If the matter ever goes to hearing, the fact that you documented your disagreement with the exclusions on the actual assessment plan will become part of the evidence and the agency will have to explain its refusals of your requests to a judge or hearing officer. I’ve seen agencies change their minds after parents have written such feedback on assessment plans because the agencies don’t want to have to explain those documents to judges or hearing officers down the line.
Often, the best way to prevent litigation is to prepare for it. The parents who understand the value of making the record in the right way are the most successful self-advocates out there. But, there are still enough cronyistic old-timers still entrenched in the system who think they can still get away with intimidation tactics, lies, and subterfuge. It’s getting harder and harder for them to get away with these behaviors, and parents who push for the truth from the very beginning, starting with the assessment process, have a greater chance of getting appropriate services for their children than not.
On December 12, 2008, we originally published “Present Levels of Performance – What They Are & Why We Need Them”. Throughout this school year, KPS4Parents is recording many of our past text-only articles as podcasts so that busy parents, educators, and interested taxpayers can download them and listen to them at their convenience.
As always, feel free to comment on our content. We appreciate the input of our readers and listeners to bring you the information you seek. You can either comment below or email us at info@kps4parents.org.
Click here to download the podcast, “Present Levels of Performance – What They Are & Why We Need Them.”
On December 7, 2008, we originally published “Understanding Who Is and Who Is Not Eligible for Special Education.” As we move through the beginning of the new school year, KPS4Parents is recording many of our past text-only articles as podcasts so that busy parents, educators, and interested taxpayers can download them and listen to them at their convenience.
As always, feel free to comment on our content. We appreciate the input of our readers and listeners to bring you the information you seek. You can either comment below or email us at info@kps4parents.org.
Click here to download the podcast, “Understanding Who Is and Who Is Not Eligible for Special Education.”
Today’s posting will hopefully lay to rest a misunderstanding that seems to plague special education in California. I can only presume that, like many other “urban myths” that root themselves in special education lore, at some point in time, somebody somewhere in California conducted a training seminar on speech-language assessment and services within special education and miscommunicated something that has now led to speech-language specialists throughout the state making improper conclusions to the detriment of some children in need of speech-language services.
The problem is this: the distinction between who is found eligible for special education on the basis of a speech-language impairment (“SLI”) and who qualifies for speech-language services as a student already eligible for special education under any other category. Eligibility for special education as SLI is not required in order for a child otherwise eligible for special education to receive speech-language services in order to benefit from his/her IEP.
The critical piece of legislation, which gets erroneously cited in speech-language assessment reports all the time, is 5 CCR 3030(c). Title 5 of the California Code of Regulations Section 3030 describes all of the criteria for each of the eligibility categories under which a student may qualify for special education and related services. These categories include Specific Learning Disability (“SLD”), Other Health Impaired (“OHI”), Emotionally Disturbed (“ED”), and many others, including SLI. The critical thing to understand here is that the 3030s describe who can receive special education and on what basis, not what services they will get.
What ends up happening, though, is a child will be assessed for special education purposes and a speech-language assessment will be conducted. In the course of the overall assessment, even though the child is found eligible under some category other than SLI, because he did not score below the 7th percentile on two or more speech-language assessments, the speech-language specialist will determine that he doesn’t qualify for speech-language services according to 5 CCR 3030(c). It is a complete and utter misapplication of this Code, which deals strictly with eligibility under SLI and not what services an otherwise eligible child should receive.
A typical example of this would be a child who is eligible for special education pursuant to 5 CCR 3030(g) for autistic-like behaviors (in special education in California, a medical or psychological diagnosis cannot be made by the school psychologist, so this section of the code provides alternative language and defines the criteria by which a special education eligibility category can be identified for a child exhibiting the symptoms of autism), but who is relatively verbal. While his scores may hover just above the 7th percentile on the speech-language tests he was administered, they are still very low and his low language functioning compounds his other problems arising from the other needs arising from his handicapping condition.
In this example, anyone in their right mind can see that the child needs pragmatic (social) language intervention and help with idiomatic and figurative (non-literal) language. He doesn’t have any friends, he doesn’t get jokes, and he doesn’t understand clichs and colorful sayings, such as “Clear as mud.” This makes it difficult for him to participate in group projects with peers and understand the writings of Mark Twain. He needs goals that address these areas of need and speech-language services in order to benefit from his IEP.
No subsection of 5 CCR 3030 drives the selection of services that any child gets, only whether or not a particular child is eligible and, if so, under what category. The IDEA mandates that children who are eligible for special education, regardless of what category they qualify under, receive whatever supports and services are necessary in order to afford them a FAPE.
Specifically, the federal regulations found at 34 CFR 300.320(a)(2) state that IEPs must include for each child measurable annual goals, including academic and functional goals designed to meet the child’s needs that result from the child’s disability to enable the child to be involved in and make progress in the general education curriculum and meet each of the child’s other educational needs that results from the child’s disability.
An eligible child is a child who requires, as a result of one or more handicapping conditions, special education and related services in order to receive educational benefit. 34 CFR 300.39 “Related services” is described at 34 CFR 300.34. In none of this is there anything that suggests that the only way that an otherwise eligible child can receive speech-language services is if he is also found eligible as SLI.
In fact, 34 CFR 300.304(c)(6) states that, when evaluations are conducted for special education purposes, they must be “sufficiently comprehensive to identify all of the child’s special education and related services needs, whether or not commonly linked to the disability category in which the child has been classified.” Congress understood when it crafted the IDEA that you don’t individualize a child’s program by resorting to “cookie-cutter” strategies that are based on a kid’s eligibility category.
The IDEA is the skeleton of special education law. It establishes the basic framework and minimal standards. It is left to the states, if they want any federal special education dollars, to add the flesh to the bones by creating their own state-level legislation that explains how each state will implement the requirements of the IDEA. While states are free to add more obligations to their schools than what the IDEA requires, they are prohibited from reducing the protections offered to students and parents under the IDEA lest they sacrifice their funding.
What this means for speech-language services to special education students in California is that the IDEA basically says each eligible child must get whatever he/she needs in order to receive educational benefit, regardless of what type of services are required and regardless of the applicable eligibility categories. That’s the whole concept of individualizing a child’s education plan based on his/her unique educational needs.
There is nothing at the state-level that reduces this federal mandate, nor could there be unless California were to choose to go it alone to cover its special education costs and we all already know that California can’t pay its bills even with the federal funding it receives. It absolutely cannot afford to give up its federal special education funding.
We’re curious to know if there are any other state-level debacles involving misinterpretations of the law happening elsewhere. Readers are encouraged to post comments to this posting about such misinterpretations that may be occurring where they live.
Eligibility is a very confusing concept for most parents trying to negotiate their ways through the bureaucracy of special education. It’s an unfortunate reality that special education has to be regulated in order to make objective determinations as to whether students benefitted from their services or not, but the regulations create what is to some parents seemingly insurmountable barriers to entry.
This is further compounded by an industry-wide (and I am considering public education an industry, here) initiative to intervene before students are so far gone that they actually need special education. On the surface, this sounds like a good idea. If acted upon in good faith, it’s a great idea. Why wait until a child is so far behind that he/she may never catch up Why resort to labeling the child as “disabled” when what’s closer to the truth is that he/she was never taught the way he/she actually learns?
However, far too often, in the name of preventing an unnecessary referral for special education, strategies are attempted in the name of “regular education accommodations” and “Response to Intervention” that aren’t successful. In the end, it becomes apparent in these instances that these “strategies” were nothing more than bad faith delay tactics used in the hopes that the parents would reach the conclusion that their children were beyond help and simply give up.
After all, teaching children who are struggling to master certain concepts is really, really hard. It’s a lot easier simply to not. The employees of the education system get their paychecks either way. This is a deplorable situation for parents and educators who truly care, alike. Good teachers are constantly fighting an uphill battle to do the right things. After a while, it’s easy to burn out and give up, leaving behind all the people who are inclined to take the easy path and just not do much of anything.
That said, when it comes right down to it, who is really eligible for special education? It is a misconception that the presence of disability automatically qualifies a child for special education. It does not. A disability must be present in an eligible child, but that by itself is not enough.
There must be a negative educational impact caused by the disability – it must interfere with the child’s learning or participation at school to a significant enough degree that specialized instruction, modifications, accommodations, and possibly related services such as speech-language services and occupational therapy are necessary in order for the child to receive educational benefit.
For more than two decades, everyone has been carrying on about the abysmal standard established by Rowley. Or, more accurately, Rowley has been misrepresented by public schools as meaning they don’t have to do a whole lot. Amy Rowley was passing her classes without the sign language interpreter her parents wanted and could get around school just fine, in spite of her hearing loss. That really doesn’t speak to the circumstances of a child with learning disabilities and ADHD who is reading three grade levels below his current grade.
There is another case, Mercer Island, in which the appellate decision declared that the Rowley standard of “some educational benefit” and “a basic floor of opportunity” is dead. Rowley was decided in 1982 in light of the predecessor of the Individuals with Disabilities Education Act (“IDEA”), the Education of Handicapped Children Act of 1975 (“EHA”). The EHA was meant simply to give children with disabilities access to the public schools. Prior to the EHA, at least a million children with disabilities were denied enrollment and there was often no programming to meet their educational needs even when they were permitted to attend school. They simply stayed home or spent pointless hours in regular classrooms with no supports waiting for the day when they could drop out.
In 1997, the EHA was replaced with the IDEA. With it came much stronger language about what kinds of outcomes are to be expected. I concur with the findings in Mercer Island for the very obvious reason that the purpose of any education system is to teach students what they need to know so they can take care of themselves as much as is reasonably possible when they grow up. That’s what benefits the children and their families the most. That’s what benefits society the most. (See our posting, “The Big Picture – Special Ed Issues Impact Everyone“.)
The need for specialized instruction in order to receive educational benefit (setting aside for the moment how “educational benefit” is exactly defined) on the basis of a handicapping condition is what drives eligibility for special education. This could be something as relatively benign as an articulation disorder that prevents the student from speaking clearly enough to participate effectively in group learning activities with peers, read aloud in class, and/or effectively communicate personal needs or lack of understanding to instructors. It could be something as severe as quadriplegia that prevents the student from independently navigating a school campus. There are a million ways to be disabled.
However, let’s say we have a child with quadriplegia who has mastered the use of his electric wheelchair and can get anywhere on campus he wants, is intellectually intact without any learning disabilities or emotional problems, and is able to hold his head upright and turn it sufficiently to follow instruction in the classroom. He grasps what the teacher is saying. And, at most all he needs in his academic classes are accommodations, such as a set of books at home, a set of books at school, note-takers in class, access to a computer with dictation software on it, and assistance using his materials in the school setting in order to participate. Does this child require special education?
I’d argue that for a kid like this, PE is the only part of the curriculum he can’t participate in without specialized instruction and he would qualify on that basis alone, requiring Adaptive PE as his specialized instruction. I’d also argue that for self-help needs such as eating and toileting, he would probably need a properly qualified 1:1 aide as a related service.
For a child with a disability that impacts his/her receipt of an education and/or participation at school, but who does not need specialized instruction, the solution is a 504 Plan. That’s another blog posting in and of itself. I’m not going to explain 504 right now.
The point I’m trying to make here, particularly to parents, is that special education really is meant for a specific group of kids.The federal regulations are found at 34 CFR 300.8.? Each state has its own additional language, as well. In California, for example, it’s 5 CCR 3030.
There are some parents who think that getting their child into special education will solve everything. That may not be so. I’ve encountered parents who were simply looking for something to blame- a defect in their child – rather than their own incompetence as parents for their child’s problems. Sometimes children are just responding to, or role modeling themselves after, the adults around them.
I’ve also encountered parents whose children did have mild problems that fell just short of qualifying them for special education. That’s the thing with the regulations. Somebody is invariably going to almost, but not quite, qualify for special education. The line has to be drawn somewhere. Those are the kids whose parents need to turn to Section 504 and learn as much about it as they can.
But, I’ve also encountered education agencies that didn’t want to admit that they had failed to conduct “child find” for years running, resulting in a failure to find a child eligible who should have been found eligible long ago, thereby denying the child a Free and Appropriate Public Education (“FAPE”). Because these agencies didn’t want to admit fault and were hoping to avoid being held responsible for providing compensatory education to these children, they lied and said these kids weren’t eligible at all and never had been.
A fair amount of litigation arises over eligibility issues. The important thing for parents to understand is that the regulations spell out who and who is not eligible for special education. You need to understand the rules before you go charging off on a mission. State law usually hones the federal law on this issue.
For example, if a clinical psychologist has given a child a DSM-IV diagnosis of dyslexia, that doesn’t mean the child will qualify for special education as having a learning disability, even though dyslexia is a type of learning disability; what matters is that there is a discrepancy between achievement and ability or the child has failed to respond to scientifically research-based interventions in the regular education setting because of the dyslexia, which is a processing disorder. On that basis, the child can qualify for special education as having a learning disability.
Educators need to appreciate that parents often don’t understand this subtle distinction and be kind and helpful to them as they try to navigate the system. Mocking them for not knowing this is simply inappropriate. Being compassionate to the needs of the student and the angst of the parents who are worried about their child’s academic performance is very appropriate.
The way special education law generally works is that the implementing regulations of the Individuals with Disabilities Act (“IDEA”) set the basic framework at the federal level and each state’s laws speak to how the federal requirements of the IDEA will be implemented within its respective state. Similarly, U.S. Territories, the District of Columbia, etc. have their own equivalents of state laws speaking to the implementation of the federal regulations within their respective jurisdictions. For the purposes of today’s posting, when I say “state,”? I’m also referring to the other types of American soil.
To start out, let’s define what exactly an initial assessment is. I will tell you that it is not necessarily the first special education assessment the child has ever taken. An initial assessment or initial evaluation (“assessment” and “evaluation” are used interchangeably in special education) is the assessment that determines if a child is eligible for special education. Sometimes children are tested at parent request every few years and are found ineligible. It doesn’t matter how many times the child was tested before; if the child’s fifth assessment finds him eligible for special education, then it is the initial assessment of his special education program that begins with his first IEP in which he is found eligible.
Sometimes kids exit special education only to later qualify again years later. Even under a circumstance like that, if the child wasn’t in special education at the time he/she was assessed and was in special education after the assessment, then the assessment that “re-found” the child eligible for special education would be considered an initial assessment.
This use of the term is meant to distinguish it from re-evaluations and triennial evaluations. We’ll talk more about those in future blogs, but for the purposes of distinguishing among these different assessments enough for the present discussion, a re-evaluation is any assessment conducted subsequent to the initial evaluation. It could be a year later, three years later, or ten years later. A triennial assessment is also called a three-year evaluation.
All evaluations are supposed to be sufficiently comprehensive in all areas of suspected disability to properly inform the IEP team. For initial evaluations, this is paramount because a child’s eligibility determination needs to be based on a rich body of data that includes scores on standardized testing and actual school work, as well as feedback from the adults interacting with the child throughout the day. The parents play a huge role in informing the IEP process.
But, initial evaluations aren’t supposed to be all about finding kids eligible. That’s only half of what initial assessment is supposed to achieve. The other half of the initial assessment is to identify the student’s present levels of performance. If the child is eligible for special education, this information is used to create the measurable annual goals.
If the child is not eligible for special education, he/she may still be eligible for a 504 Plan, in which case the present levels data would drive the content of that document. If the child is not eligible for a 504 Plan, then the local education agency would still have to provide regular education accommodations. In the very least, the child’s teacher should know about the assessment findings so that he/she can provide regular education accommodations to the degree they are needed.
Once a referral has been made for special education assessment, an assessment plan must be provided to the parents. While many school districts rely on 34 CFR Sec. 300.503 to issue denials of assessment referrals, in California, for example, whether or not school districts must conduct an assessment once a referral has been made is non-negotiable.
5 CCR Sec. 3021(a) states that all referrals for special education assessment <em”>shall initiate the assessment process. According to EC 56029, a referral for assessment is any written request by a parent, teacher, other service provider, or foster parent of the student to have the student tested for special education.
Georgia, to the contrary, has a very curious practice that I’d like to know more about. Its stance is apparently that while parents have the right to make referrals pursuant to the federal regulations at 34 CFR Sec. 300.301(b), local education agencies have the right to refuse those referrals pursuant to 34 CFR Sec. 300.503(a)(2).
Gwinnett County (Georgia) Public Schools conveniently leaves out of its public information anything about how parents can make referrals for assessment as well. With the State Department of Education taking the position that it has apparently taken, at least based on what I could find, I have to wonder if there are local education agencies in Georgia that simply ignore parent referrals altogether without any consequence. I’d be interested in hearing from folks in Georgia about this. I really couldn’t find anything to help me out looking at the that have come out of Georgia.
Regardless of what state you’re in, once the referral has been made and assessment has been consented to by the parents in writing, under the newest IDEA regulations, local education agencies can’t take more than 60 days to conduct the assessment, write the reports, and hold the IEP meeting to go over the data. However, some states have imposed even shorter timelines. It is 30 days in Minnesota for the evaluation process to take place. While state law cannot diminish the protections offered to students under the IDEA, it can add to them.
The same federal law that specifies the maximum deadline also mandates that initial assessments be comprehensive enough in all areas of suspected disability to allow the IEP team make informed decisions about whether a child qualifies for special education services and, if so, what those services should entail. This is where things can get dicey.
There can be a great variation of opinions as to what constitutes as “reasonably sufficient” when it comes to assessments. At minimum, the assessors should be qualified for the types of assessments they are respectively performing, follow the instructions of the producers of any standardized assessments, and follow the “best practices” of their respective professions.
It is also important to know that, while those areas that were tested may have been done so sufficiently, that doesn’t mean that all areas of suspected disability were assessed. I can’t even begin to tell you how many children I’ve come across with huge red flags in the area of auditory processing who have never been properly assessed for it. Auditory Processing Disorder (“APD”) can only be diagnosed by an audiologist.
The quality of any evaluation is important, but the initial evaluation is the one that’s opening the Pandora’s Box of the child, the way he/she learns, and the nature of his/her disability. You need to go into that situation equipped to contend with whatever you may find because, typically, you have very little to go on regarding a child’s educational needs at the time of the initial assessment, other than the fact that the child is not being successful in school.
Our next posting will be devoted to understanding assessment data. If I can, I think I’d like to put it together as a screencast for you because there are statistics involved and, personally, I need visual aids to understand concepts like that. I can’t presume I’m the only one.
Please do post your comments, particularly parents and educators in Georgia. We’d like to hear people’s feedback regarding how long these assessments take in their experience.
