Deborah ettinger and christina keefe

PSYCHO-EDUCATIONAL ASSESSMENT:
THINGS THAT MAKE YOU GO HMMMMM
AND ANSWERS THAT MAY HELP
THE IEP PROCESS

Association of California School Administrators
January 16, 2014

Presented by:
Deborah U. Ettinger, Esq.
Lozano Smith
dettinger@lozanosmith.com
District
ckeefe@newark.org

Christina Keefe
School Psychologist
Newark Unified School

OVERVIEW
• Psycho-educational assessments
are the basis that form IEPs and
are critical to developing
appropriate IEPs.
• Review of interesting arguments
that come up in IEP meetings
and due process hearings
related to psycho-educational
assessments.

GENERAL REQUIREMENTS FOR
ASSESSMENTS
• An assessment of the student’s
educational needs shall be conducted
before any action is taken with respect
to the initial placement of a special
education student.
(34 C.F.R. § 300.301(a); Ed. Code § 56320.)

• An assessment under California law is
equivalent to an evaluation under
Federal law.
(Ed. Code § 56303.)

ASSESSMENTS
• A district must ensure that “the child is
assessed in all areas of suspected
disability.”
(20 U.S.C. § 1414(b)(3)(B); Ed. Code § 56320, subd.
(f).)

• The determination of what tests are
required is made based on information
known at the time.
(See Vasheresse v. Laguna Salada Union 20 School
District (N.D. Cal. 2001) 211 F. Supp. 2d 1150, 11571158.)

ASSESSMENTS
• No single procedure may be used
as the sole criterion for
determining:
– whether the student has a disability, or
– an appropriate educational program for
the student.

(20 U.S.C. § 1414(b)(2)(B); Ed Code § 56320,
subd. (e).)

ASSESSMENTS
• Assessments must be conducted by
individuals who are both:
– knowledgeable of the student’s disability,
and
– competent to perform the assessment, as
determined by the local educational
agency.

(Ed. Code § 56320, subd. (g), 56322; see
20 U.S.C. § 1414(b)(3)(A)(iv).)

ASSESSMENTS
• Tests and assessment materials must be
selected and administered so as not to be:
– racially,
– culturally, or
– sexually discriminatory;

• Tests and assessment materials must be
provided and administered in the student’s
primary language or other mode of
communication, unless clearly not feasible.
(20 U.S.C. § 1414 (a)(3)(A)(i)-(iii); Ed. Code § 56320,
subd. (a).)

ASSESSMENTS
• The assessment must be sufficiently
comprehensive to identify all of the
student’s special education and
related services needs, whether or not
commonly linked to the disability
category in which the child is
classified.
(34 C.F.R. § 300.304 (c)(6).)

SELECTION OF ASSESSEMENT
INSTRUMENTS
• Assessment tools must be “tailored to assess specific
areas of educational need” and “special attention
shall be given to the [child’s] unique educational
needs.”
(Ed. Code §§ 56320, subd. (c)(g).)

INSTRUMENTS
• Assessors must use
“technically sound
instruments that may
assess the relative
contribution of cognitive
and behavioral facts, in
addition to physical or
developmental factors.”
(20 U.S.C. § 1414(b)(2)(C); 34
C.F.R. § 300.304 (b)(3).)

INSTRUMENTS
• “Technically sound instruments”
generally refers to assessments that
have been shown through research to
be valid and reliable.
(Assistance to States for the Education of Children
With Disabilities and Preschool Grants for Children
With Disabilities, 71 Fed. Reg. 46540-46541, 46642
(Aug. 14, 2006).)

INSTRUMENTS
• Tests of a student with impaired
sensory, manual, or speaking skills
must be selected and administered
to best obtain results “that
accurately reflect the pupil’s
aptitude, achievement, level, or any
other facts the test purports to
measure.”
(Ed. Code § 56320, subd. (d).)

TEST RESULTS
• Districts are required to provide to
parents, upon request, an
explanation or interpretation of any
answer sheet or other education
records related to the tests a student
has completed.
(Letter to MacDonald (OSEP 1993) 20 IDELR 1159.)

OBSERVATION REQUIREMENT
• A district must ensure that the child
is observed in his/her learning
environment (including the regular
classroom setting) to document
his/her academic performance and
behavior in the areas of difficulty.
(34 C.F.R. § 300.310(a).)

WRITTEN ASSESSMENT REPORT
• To aide the IEP team in determining
eligibility, an assessor must produce
a written report of each assessment
that includes whether the student
may need special education and
related services and the basis for
making that determination.
(Ed. Code § 56327, subds. (a),(b).)

• The personnel who assess the student shall
prepare a written report that shall include,
without limitation, the following:
– (1) whether the student may need special
education and related services;
– (2) the basis for making that determination;
– (3) the relevant behavior noted during the
observation of the student in an appropriate
setting;
– (4) the relationship of that behavior to the
student's academic and social functioning;
(Cont’d.)

– (5) the educationally relevant health,
development and medical findings, if any;
– (6) if appropriate, a determination of the effects
of environmental, cultural or economic
disadvantage; and
– (7) consistent with superintendent guidelines for
low incidence disabilities (those effecting less
than one person of the total statewide
enrollment in grades K through 12), the need for
specialized services, materials, and equipment.
(Ed. Code § 56327.)

• The report must be provided to the
parent at the IEP team meeting
regarding the assessment.
(Ed. Code § 56329, subd. (a)(3).)

DETERMINATION OF ELIGIBILITY
• It is the duty of the IEP team, not
the assessor, to determine whether a
student is eligible for special
education and related services.
(20 U.S.C. § 1414(b)(4)(A); 34 C.F.R. §§
300.305(a)(iii)(A); 300.306(a)(1).)

CASE ANALYSIS – 1
Panama-Buena Vista Union School District
v. Parent on Behalf of Student (2013) OAH
Case No. 2013060838
• Six-year-old boy had difficulty concentrating, behavior
incidences, and was frequently removed from class and
disciplined.
• Parent asked district to assess student to determine
whether he was eligible for special education. District
conducted a psycho-educational assessment and found
student was not eligible.
• The district denied Parent’s request for an Independent
Educational Evaluation (IEE) and district filed for due
process.
• ALJ ruled in favor of student.

CASE ANALYSIS – 1
v. Parent on Behalf of Student (Cont’d.)
• The court concluded that the District’s assessment
of the student’s academic performance and
behavioral difficulties were insufficient to determine
student’s eligibility for special education.
• Assessment tools used:
– Woodcock-Johnson III Tests of Achievement
(“WJ-III”)
– Behavior Assessment System for Children
(Second Edition) (“BASC-2”)

CASE ANALYSIS – 1
• Problems with WJ-III Assessment:
– WJ-III used exclusively, even though a substantial
majority of the subtests were inappropriate for the
student’s age and grade.
– Assessor only used the District’s standard, preselected subtests for students.
• Assessor administered math calculation subtest,
which was inappropriate for student’s age group.
• Assessor failed to administer appropriate subtests,
such as the story recall subtest, because it was not
included in the District’s standard list.

CASE ANALYSIS – 1
• Problems with WJ-III Assessment (cont’d):
– No evidence assessor considered using other tools.
– No evidence test or subtest was selected in response
to the individual student’s unique needs or
characteristics.

CASE ANALYSIS – 1
• Problems with scoring WJ-III:
– Some scores missing, without explanation.
– Certain scores were calculated by WJ-III software, the
results of which could not be explained by the
assessor.
– No explanation regarding a severe discrepancy
between student’s ability and achievement in brief
math.

CASE ANALYSIS – 1
• Problems with BASC-2:
– Assessor unconcerned regarding discrepancy between
the Parent and Teacher’s rating of student. Assessor
simply concluded that the teacher’s ratings were more
accurate.
• Parent’s answers yielded “clinically significant”
scores in six areas and “at risk” scores in three
areas.
• Teacher’s answers yielded no “clinically significant”
scores and “at risk” scores in three areas.

CASE ANALYSIS – 1
• Problems with BASC-2 (cont’d):
– Assessor's classroom observations were not reliable.
• First observation discarded because substitute
teacher was in charge of class.
• Second observation did not include date or time of
observation, making it impossible to determine
whether student’s behavior was typical or unusual.

CASE ANALYSIS – 1
– Method of testing student’s attention span included
comparing student with another random student, by
looking at both students every 15 seconds to see
whether they were on task. This method is not known
to have any scientific or technical validity.
– Assessor admitted classroom observation was not
sufficiently reliable to determine whether it
represented student’s behavior under similar
circumstances.

CASE ANALYSIS – 1
– Playground observation was not dated, thus making it
impossible to determine whether student’s behavior
was typical.
– Assessor concluded student behaved well despite only
observing him for 20 minutes and occasionally
observing when walking by the playground on
unspecified days.

CASE ANALYSIS – 1
• The ALJ found the district’s assessment “inadequate
as the principal tool for determining student’s
eligibility for special education and inappropriate for
the purpose of denying student’s request for an
IEE.”

CASE ANALYSIS – 2
Parent on Behalf of Student v. Capistrano
Unified School District (2013) OAH Case
No. 2012120545 (Primary)
•

•

•

•
•

District filed for due process hearing on 12/5/12; student filed
for due process hearing on 12/13/12 and requested
consolidation of the two matters.
18 year old male student, diagnosed with Attention Deficit
Hyperactivity Disorder (ADHD), attended Residential Treatment
Center (RTC) in Ogden, Utah.
District denied student a FAPE by, among other things, failing
to perform an adequate triennial assessment because the
assessors did not observe student in his classes while school
was in session.
Student prevailed on all issues.
ALJ order district to reimburse the student’s parents
$91,000.00 to cover tuition and travel costs.

CASE ANALYSIS – 3
M.P. v. Santa Monica-Malibu Unified
School District (C.D. Cal. 2008) 633 F.
Supp. 2d 1089
• 11-year-old general education student with ADHD
was getting bad grades and lacked motivation.
• As a result, his parents requested a special
education assessment.
• The IEP team found him ineligible under the
categories of specific learning disability (“SLD”)
and other health impairment (“OHI”).
• Parents filed for due process.

CASE ANALYSIS – 3
M.P. v. Santa Monica-Malibu Unified School
District (Cont’d.)
• The ALJ found that ADHD was a processing disorder
for student but there was no evidence to support a
severe discrepancy between ability and
achievement. The ALJ held student’s academic
problems were a result of his lack of motivation
rather than a learning disability.
• The ALJ also concluded student was not eligible
under OHI because there was no adverse
educational impact.
• Parents appealed to federal district court.

CASE ANALYSIS – 3
• The district court reversed the ALJ’s decision even
though the court concluded most of the ALJ’s
findings were thorough and careful.
• The court found the ALJ ignored the undisputed
testimony in the record by concluding student’s
problems were due to lack of motivation.
• The district court found credible the testimony of
student’s expert, Dr. Philip Levin, who stated
student’s lack of motivation was caused by his
ADHD.

CASE ANALYSIS – 3
• The court held the ADHD was “the very definition of
a discrepancy between ability and achievement.”
Notably, the decision did not mention the criteria for
a discrepancy under California law.
• The court reasoned the evidence showed that
because of student’s ADHD, he is not capable,
without help, of being motivated.

CASE ANALYSIS – 3
• The court also found him eligible under OHI
because general education interventions were not
helping him. Thus, the court concluded the
evidence did not support the ALJ’s findings that
modification of the general education curriculum
would alleviate student’s academic problems.

Case Analysis – 4
Los Angeles Unified School District v.
Parent on Behalf of Student (2010) OAH
Case No. 2009110472
• Since 2004, 15-year-old student was eligible for
special education services under the category of
SLD.
• In spring of 2009, student requested re-evaluation
to determine whether he continued to meet the SLD
eligibility for special education.
• After conducting a psycho-educational assessment,
the IEP team recommended that student was no
longer eligible for special education as a student
with SLD.

Case Analysis – 4
Parent on Behalf of Student (Cont’d.)
• IEP team offered placement at a general education
high school class, taught by a general education
teacher. Parents did not consent to the IEP.
• Parents disagreed with district’s psycho-educational
assessment and requested an IEE.
• District filed for due process claiming its
assessment was appropriate.

Case Analysis – 4
• District psychologist conducted several
assessments, which included:
– Record review,
– Interviews,
– Standardized tests, and
– Observation.

Case Analysis – 4
• Specifically, the district psychologist reviewed
student’s:
– Special education history,
– Previous assessments,
– Educational history from pre-kindergarten
through 10th grade, and
– Ninth grade records with teacher comments.
• After reviewing records, district psychologist
concluded student was doing well academically with
a current GPA of 3.28.

Case Analysis – 4
• District psychologist also interviewed the parents
who described student’s difficulties as being “visual
perception, processing difficulty, unusual spelling in
the visual context area.”

Case Analysis – 4
• District psychologist assessed student.
– Tools and administration were not racially,
culturally, or sexually discriminatory.
– IQ tests were not used in accordance with
district policy.

Case Analysis – 4
•
–
–
–
–

•
•
•

District administered the following tests to determine
student’s emotional/social health:
Conners-Wells’ Parent-Report Scale (Conners),
Achenbach Parent Report (Achenbach),
BASC-2, and
School Motivation and Learning Strategies Inventory
(SMALSI).

Parents reported student did not have conduct,
attention or social problems and was not depressed or
anxious.
Student’s scores on BASC-2 were not in the clinically
significant range.
SMALSI revealed student was highly motivated to do
well in school, had superior study, reading, note-taking,
and listening strategies and skills.

Case Analysis – 4
• District psychologist tested student’s cognitive/
processing abilities using:
–
–
–
–

Matrix Analogies Test (MAT);
The Learning Efficiency Test, Second Edition (LET-II);
The Wide Range Achievement Test, Third Edition (WRAT3);
The Receptive One-Word Picture Vocabulary Test (RO-PVT);
and
– The Beery-Buktenica Developmental Test of Visual-Motor
Integration, Fourth Edition (VMI-4).

• District psychologist had administered these tests
hundreds of times and the court concluded she was
qualified to perform the assessments.

Case Analysis – 4
• The cognitive/processing tests revealed student was
average to markedly above average in many areas,
including memory, math computation, vocabulary,
and language skills.
• Student, however, had difficulties in spatial
visualization and functioned below average in fine
visual-motor integration ability.

Case Analysis – 4
• District special education teacher administered the
WJ-III, including numerous test clusters and
subtests and used a standard score rating.
• Student scored in the average to very superior
range in all levels. Scores demonstrated that
student’s academics are not negatively affected by
his learning disability.
• Based on student’s WJ-III scores, review of teacher
reports, and June 2009 grades, the special
education teacher found that student did not
continue to be eligible for special education.

Case Analysis – 4
• ALJ concluded psycho-educational assessment was
properly conducted and the district need not
provide an IEE.

– Conducted by highly qualified assessor.
– Student was assessed using a variety of instruments, ranging
from record review, interviews, standardized tests, and
observations.
– Instruments were appropriate and valid to determine
whether student required special education.
– Assessment was not racially or culturally biased.
– Assessment resulted in comprehensive written report,
making a recommendation that student did not require
special education services.

Case Analysis – 5
Anaheim City School District v. Parent on
Behalf of Student (2010) OAH Case No.
2010010357
• Eight-year-old student qualified for special
education services under the category of autisticlike behaviors.
• In preparation for student’s annual IEP, district
retained Lauren Franke, Psy.D, to conduct a
psycho-educational assessment.

Case Analysis – 5
Behalf of Student (Cont’d.)
• Assessment consisted of:
– Interviews of parents and teacher.
– Review of student’s educational records, medical
records, background, previous assessments and
reports.
– Observations of student.
– Cognitive, memory and language tests.
– Evaluation of student’s social competence and
narrative skills.

Case Analysis – 5
• ALJ found psycho-educational assessment was not
properly conducted.
– District failed to meet the legal requirement that a
psycho-educational assessment be conducted by a
credentialed school psychologist. Dr. Franke is a
clinical psychologist, not a credentialed school
psychologist.
– Dr. Franke failed to follow the Kaufman Assessment
Battery for Children, Second Edition (KABC-II) test
instructions regarding selection and application of
theoretical models.
– Dr. Franke failed to follow test protocols in scoring,
resulting in an incorrect cognitive profile of student.

Case Analysis – 5
• ALJ concluded district must provide student an IEE
at public expense because of District’s failure to
properly conduct the psycho-educational
assessment.

THE LEGAL STUFF
These materials are for
instructional purposes only.
This information is not legal
advice. If you need legal
assistance, contact your trusty
legal counsel on the specific
problem at hand.

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©2014 Lozano Smith

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