Tag: qualified

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California SLPs Sometimes Confuse Legal Requirements

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.

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Understanding the Initial Assessment Process

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.

So, given that there is so much variation from state to state in how the federal regulations are implemented, I’m going to start at the top with the federal regulations. I’ll touch on a couple of the states’ regulations, but there’s no way to fit them all into one posting. You can research your own state’s regulations by going to its web site. The U.S. Department of Education has all the states’ web sites here: . If you can’t find it on their site, there’s a phone number for the special education division listed somewhere on their site and you can call and ask what the timelines are.

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).

I’ve seen schools say the same thing in California despite the State laws that prevent it, but in this instance, it’s the Georgia Department of Education that’s taking this stance (see the Georgia Department of Education Special Education Implementation Manual

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.