Special Education Eligibility: An Analysis. Prepared and Presented by Karen E. Samman ACSA Conference 2013

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1 Special Education Eligibility: An Analysis Prepared and Presented by Karen E. Samman ACSA Conference

2 Agenda Why Does it Matter The Foundation: Appropriate Assessment Eligibility Categories Definition of Eligible Student The Analysis Case Studies (ED, OHI, SLI, and Autism) 2

3 Why Does It Matter? Disproportionality Race or Ethnicity Corrective Actions 3

4 Why Does It Matter? FAPE Considerations Educational Financial 4

5 Appropriate Assessments Child Find Identify in all areas of suspected disability Assess identified suspected areas A complete picture Eligibility determination 5

6 Appropriate Assessments Use a variety of assessment tools and strategies to gather relevant functional and developmental information about the child, including information provided by the parent, and information related to enabling the child to be involved in and progress in the general curriculum (or for a preschool child, to participate in appropriate activities), that may assist in determining Whether the child is a child with a disability; and The content of the child s IEP 6

7 Appropriate Assessments Complete Picture Review of past and current student records Review of parent provided assessments Conduct standardized testing Conduct non-standardized testing Observe student in classroom Observe student in other relevant areas such as play ground, lunch room, on the bus Conduct parent/teacher interviews Conduct student interview All of which are analyzed to provide a comprehensive understanding of the student 7

8 Appropriate Assessments Distorted Picture Failing to assess all areas of suspected disability Poor choice of assessment instruments Not following up on weaknesses identified during the assessment Improperly administered test protocol 8

9 Appropriate Assessments Distorted Picture Failing to observe student Failing to interview and/or get information from Teachers Parents Student Service providers Failing in the analysis 9

10 Eligibility Categories 1. Autism, 34 CFR 300.8(c)(1); 5 CCR 3030(g) 2. Deaf-Blindness, 34 CFR 300.8(c)(2); 5 CCR 3030(b) 3. Deafness, 34 CFR 300.8(c)(3); 5 CCR 3030(a) 4. Emotional Disturbance, 34 CFR 300.8(c)(4); 5 CCR 3030(i) 5. Hearing Impairment, 34 CFR 300.8(c)(5); 5 CCR 3030(a) 6. Intellectual Disability, 34 CFR 300.8(c)(6); 5 CCR 3030(h) 7. Multiple Disabilities, 34 CFR 300.8(c)(7) 8. Orthopedic Impairment, 34 CFR 300.8(c)(8); 5 CCR 3030(e) 9. Other Health Impairment, 34 CFR 300.8(c)(9); 5 CCR 3030(f) 10. Specific Learning Disability, 34 CFR 300.8(c)(10); 5 CCR 3030(j) 11. Speech or Language Impairment, 34 CFR 300.8(c)(11); 5 CCR 3030(c) 12. Traumatic Brain Injury, 34 CFR 300.8(c)(12) 13. Visual Impairment, including blindness, 34 CFR 300.8(c)(13); 5 CCR 3030(d) 10

11 Eligibility Categories Adverse Effect on Education Performance Included in Definition 1. Autism 2. Deaf-Blindness 3. Deafness 4. Emotional Disturbance 5. Hearing Impairment 6. Intellectual Disability 7. Multiple Disabilities 8. Orthopedic Impairment 9. Other Health Impairment Adverse Effect on Education Performance Implicit in Definition 10. Specific Learning Disability 11. Speech or Language Impairment 12. Traumatic Brain Injury 13. Visual impairment, including blindness 11

12 Definition of Eligible Student Under IDEA 2004, the term "child with a disability" means a child evaluated in accordance with 34 CFR through 34 CFR as having mental retardation, a hearing impairment (including deafness), a speech or language impairment, a visual impairment (including blindness), an emotional disturbance, an orthopedic impairment, autism, traumatic brain injury, an other health impairment, a specific learning disability, deafblindness, or multiple disabilities, and who, by reason thereof, needs special education and related services 34 CFR 300.8(a)(1) 12

13 Definition of Eligible Student If a child has one of the disabilities identified at 34 CFR 300.8(a)(1), but only needs related services and not special education, the child is not a child with a disability under the IDEA. 34 CFR 300.8(a)(2)(i) However, if the related service that the child requires is considered "special education" under state standards, the child will be eligible under the IDEA. 34 CFR 300.8(a)(2)(ii) 13

14 Definition of Eligible Student A child must not be determined to be a child with a disability (1) If the determinant factor for that determination is: (i) Lack of appropriate instruction in reading, including the essential components of reading instruction (as defined in Section 1208(3) of the Elementary and Secondary Education Act); (ii) Lack of appropriate instruction in math; or (iii) Limited English proficiency; and (2) If the child does not otherwise meet the eligibility criteria under 34 CFR 300.8(a) 34 CFR (b) 14

15 Definition of Eligible Student Students whose educational needs are due primarily to... temporary physical disabilities; social maladjustment; or environmental, cultural, or economic factors are not individuals with exceptional needs Unless they otherwise meet eligibility requirements Ed. Code 56026(e) 15

16 Definition of Eligible Student Remember: A student with a disability must require special education by reason of such disability to receive related services under the IDEA 34 CFR 300.8(a)(1) 16

17 Definition of Eligible Student What is special education? 17

18 The Analysis Question 1: Does the student satisfy one of the 13 eligibility criteria? Adverse effect on educational performance must be analyzed in answering this question SLD Discrepancy RTI Question 2: Does the student needs special education and related services? 18

19 The Analysis In interpreting evaluation data for the purpose of determining if a child is a child with a disability under 34 CFR 300.8, and the educational needs of the child, each public agency must: (i) Draw upon information from a variety of sources, including aptitude and achievement tests, parent input, and teacher recommendations, as well as information about the child's physical condition, social or cultural background, and adaptive behavior; and (ii) Ensure that information obtained from all of these sources is documented and carefully considered 34 CFR (c)(1) 19

20 The Analysis Adversely Affects Educational Performance What does that mean? Case-by case analysis 20

21 Case Studies: Adverse Effect 21

22 Student v. Tehachapi USD OAH Case No (June 28, 2006) Facts: Student was assessed in 8th grade and found ineligible In Student s 9th grade year he was diagnosed with ADD In 10th grade he received poor grades because he did not turn in homework, was frequently tardy and absent In 10th grade he passed both portions of the CAHSEE A 504 Plan was developed for student with only minor accommodations recommended by a private psychologist Parents requested an assessment in September of Student s 11th grade year Student admitted homework was not a priority and he was late at times because he would lose track of time Student loved soccer and was never late for soccer practice District again found student ineligible 22

23 Student v. Tehachapi USD OAH held that Student s attention deficit disorder ("ADD") did not adversely affect his educational performance because his motivation was the primary factor behind his failing grades, rather than his ADD OAH determined that Student was capable of arriving to class on time and completing his work; but that he refused to do so 23

24 Student v. Irvine USD, OAH Case No (September 28, 2009) Facts: Student was 16 years old and had Type 1 diabetes Student had history of tardiness, absences, failing to turn in homework and long term assignments throughout elementary and middle school In 9th grade Student failed almost all classes In previous years general education interventions had been attempted Academic testing (WJIII) all in average range STAR scores proficient Student s doctor provided input that his diabetes affects his concentration because of blood sugar fluctuations In 10th grade student passed both sections of the CAHSEE 24

25 Student v. Irvine USD OAH held that Student s diabetes adversely affected his educational performance because it caused him to be: absent or tardy from school, and caused him to fail to, or have difficulty with, completing and/or turning in in-class and homework assignments 25

26 Student v. Brea Olinda School District, OAH Case Nos & (November 24, 2009) Facts: Student was a 12 year old student with ADHD Became eligible for special education at 6 years old under OHI Student was performing well in school, receiving all Bs and a C- in math District assessment found that student s academics were in the above average to high average range Parents reported difficulty with homework and social skill related to student s ADHD STAR Testing in the advanced range Parents reported that student would take 4 hours to complete his homework Student removed his ADHD medication patch when he went home because it adversely affected his appetite and cause insomnia 26

27 Student v. Brea Olinda School District Facts: Assessment demonstrated a discrepancy between parent and teacher ratings on the Conner s Rating Scale, which the assessor did not analyze and explain Assessor reported parent input it report but did not analyze and eplain District wanted to exit student from special education and filed for a due process hearing Parents did not agree to the exit from special education 27

28 Student v. Brea Olinda School District OAH found that Student s ADHD adversely affected his educational performance because it prevented the student from focusing and attending to his work and from timely completing his homework Assessment report did not give proper weight to the above effects of student s ADHD OAH stated that proper and timely completion of homework was an important aspect of the student s ability to access and benefit from his education because homework comprised 25% of his grade in one of his classes the student s difficulty focusing and paying attention prevented him from remaining in an advanced math class 28

29 Student v. Manteca Unified School District, Case No (November 9, 2009) Facts: Student is 14 years old with high-functioning autism, an anxiety disorder, phobias regarding germs, a depressive disorder, and scoliosis of the spinal column In 4 th grade student moved into the District and was eligible as S and L After 30 days, the IEP team in October 2004 found Student no longer needed speech and language services but was eligible under SLD At the beginning of fifth grade, the District found that Student no longer needed special education and related services to benefit from his education and exited him Parents consented to the exit 29

30 Student v. Manteca Unified School District Facts: Two year later, the District agreed to assess Student at Parents' request Parents were concerned that, despite Student's academic success, he had problems including an obsession with perfection and deficient social skills that interfered with his ability to be successful in school and in the community. Parents informed the District that they suspected that Student had Asperger's Syndrome Student was placed on a Section 504 Plan Student was academically successful in all of his classes, his speech and language skills were within the average range for his chronological age and development, and he did not demonstrate autistic-like behaviors in two or more areas as required by law District found him ineligible Regional Center found student eligible for services under autism 30

31 Student v. Manteca Unified School District Facts: Parents presented the Regional Center assessment to the District District reassessed student and again for the same reasons found ineligible Private assessor found his eligible under autism Parents filed for a due process hearing 31

32 Student v. Manteca Unified School District OAH held that: A child is eligible for special education services if an IEP team determines that the child meets one of the educational eligibility categories, and if the IEP team determines that the adverse effects of the disability cannot be corrected without special education and related services; that is, that the degree of impairment "requires instruction, services, or both, which cannot be provided with modification of the regular school program." (Ed. Code, 56026, subd. (b); 56333, 56337; Cal. Code Regs., tit. 5, 3030.) Thus, if Student exhibited any combination of the above autistic-like behaviors during the relevant time frames and the disorder adversely affects his educational performance to the extent that special education is required, Student would meet the eligibility criteria. (Cal. Code Regs., tit , subd. (g).) 32

33 Student v. Manteca Unified School District OAH found that: Student did not meet eligibility under autistic-like, and even if he did, There was no adverse effect on educational performance, and He did not require special education Student was not eligible for special education In determining adverse effect OAH examined: Standardized measure Grades over time which were As STAR testing which was advanced Section 504 accommodations and whether they caused an artificial increase in grades or test scores Whether the content of the curriculum was modified in any way by the Section 504 plan His ability to relate to and interact with his peers 33

34 Case Studies: Adverse Effect Adverse effect on educational performance may be found when Is not due to lack of motivation Impacts school attendance It causes the student to fail to complete, and/or turn-in, class work and homework, and It results in difficulty with focusing and/or attending that prevents the student from attending classes and timely completing his homework 34

35 Case Studies: Adverse Effect Tips for Analyzing Adverse Effect Examine all forms of academic performance (standardized measure, grades, STAR test, district-wide tests) Work completion issues (homework or classwork) and determine why the work is not being completed Truancy issues and absences (why?) and grades Disciplinary issues (why?) and effect of educational performance Inflation of grades through Section 504 Plan Motivation of student 35

36 Case Studies: Requires Special Education 36

37 Hood v. Encinitas Union School District (9th Cir. 2007) 486 F.3d 1175 Facts: Student was 10 years old and performed at grade levels or above in her classroom Student had difficulty with completing tasks, turning in homework, and organization Student s IQ tests show above average ability Student was diagnosed with a seizure disorder and ADD District conducted assessment District offered Student a 504 Plan, but determined Student was ineligible for special education and related services Parents placed Student in an NPS Parents then filed for due process seeking reimbursement for tuition and assessments 37

38 Hood v. Encinitas Union School District SEHO denied Student s requested relief Hearing Officer determined Student s assessments revealed that Student did not have an SLD or OHI that required special education and related services Student s needs could be met in the general education classroom Parents appealed to federal court District court upheld Hearing Officer s decision Parents had not shown that Student s needs could not be addressed with modifications to the regular classroom 38

39 Hood v. Encinitas Union School District SLD Student s overall performance demonstrated that Student did not require special education Student does not qualify for special education because any severe discrepancy between ability and achievement appears correctable in the regular classroom District not required to elicit optimum performance from Student 504 Plan accommodations were appropriate OHI Even if Student had ADHD and seizure disorder, Student s impairments could be met in the general education classroom 9th Circuit affirmed district court s judgment 39

40 Student v. Riverside USD, OAH Case No. N (November 2, 2007) Facts: Student was 8 years old and had autism He was initially found eligible under IDEA in preschool and placed in an SDC, without related services Upon transition to kindergarten, the district recommended exit from special education Mother did not agree so student remained in special education His placement was general education with an IA In kindergarten, he require very little support for academic work and no support for socialization In first grade, he occasionally needed assistance with writing tasks but none for socialization 40

41 Student v. Riverside USD Facts: At recess student appropriately played with other children His grades were proficient or advanced in all areas Student was found GATE eligible in second grade In the GATE class student was describe as a student who could write well, followed directions, worked well with other students, and showed no frustration or signs of being overwhelmed In the GATE class student had no issues with social interactions District assessed student to determine whether he continued to be eligible for special education District assessment found him ineligible for special education District filed for a due process to exit student from special education 41

42 Student v. Riverside USD OAH found that Student with Autism Spectrum Disorder was not eligible for services under the IDEA because he did not require special education and related services OAH based its conclusion on the fact that Student was able to succeed in the general education classroom and in the GATE program, his classroom behavior was appropriate, and his social interactions with peers were appropriate Student was able to work independently and in groups, follow teacher directions, and interact with peers during class and recess Student s needs could be met in a general education classroom and he did not qualify for special education services 42

43 Student v. La-Mesa Spring Valley, OAH Case No (August 20, 2009) Facts: Student attended preschool and had problems with socialization and impulse control He was enrolled in a private kindergarten but had many difficulties Parents then enrolled him in another private school, which did not have kindergarten so he was enrolled in the first grade Homework was eliminated because he refused to do any Parents requested an assessment but indicated that they did not believe that public school was appropriate for student Student was functioning at first grade level academically He had issues with transitions, was inflexible, would tantrum, and become frustrated 43

44 Student v. La-Mesa Spring Valley Facts: District conducted an assessment of student Mother indicated that student had difficulty with transitions, was inflexible, did not follow directions, refused to do homework or anything repetitive Student was observed in his private school where he interacted appropriate and was able to appropriately attend to classroom tasks District found that he was not eligible for special education A private assessment found that he was eligible as a student with Asperger s Disorder 44

45 Student v. La-Mesa Spring Valley OAH found that Autistic-like characteristics Student experienced outside of school did not make him eligible for special education under the category of Autism The evidence did not demonstrate Student required specialized instruction and services which could not be provided by modifying the regular school program because he received excellent grades and was able to excel in the classroom OAH explained Student was able to function appropriately at school For example, Student remained on task, worked independently, followed directions, maintained appropriate eye contact with his teacher and peers, was not distracted by the frequent loud noises or unruly classmates, and attempted social interactions with other children Based on this, OAH concluded that he did not require special education services 45

46 Student v. Tustin USD, OAH Case No (May 12, 2009) Facts: Student was 9 years old and eligible for special education under speech and language impairment Initial eligibility was at 3 years old On an assessment in kindergarten, student met criteria for SLD In second grade student was at grade level STAR testing proficient Triennial conducted in third grade No discrepancy was found All language scores in the average range, except he could not pronounce r 46

47 Student v. Tustin USD OAH found that Student was no longer eligible for special education under the category of SLI because Student s mild articulation deficit was not impacting his education Student did not require specialized instruction or the related service of speech therapy because the District s general education program included a speech articulation clinic to address mild issues like Student s mild articulation deficit Student s classroom performance was in the average range and he showed strength in reading and reading comprehension Accommodations such as repeating instructions or providing instructions visually or in writing, could be implemented in the general education environment without modification of the general education program. Student did not require special education 47

48 Student v. Tustin USD OAH further found that Student did not meet the eligibility criteria for the category of SLD, despite a weakness in one area of auditory processing OAH determined Student s academic performance was not significantly impacted by this weakness Student made great progress in special education to the point that he could be educated in a general education classroom without modification and without related services Consequently, OAH found that student did not require special education due to a SLD 48

49 Information in this presentation, including but not limited to PowerPoint handouts and the presenters' comments, is summary only and not legal advice. We advise you to consult with legal counsel to determine how this information may apply to your specific facts and circumstances. 49

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