Exploring Ethical and Legal Tensions in the Role of the School Psychologist in 2015

MASP Conference

October 26, 2015

Sharon LaPointe and Jeff Butler

LaPointe & Butler, P.C.

Issue #1

What role does RTI or MTSS play in Child Find, evaluation planning and eligibility determinations?

Clarifying the relationship between RTI and MTSS? RTI made its first “legal” appearance in

IDEA 2004 as part of an alternate process for determining SLD

Resulted in misunderstanding re Gen Ed’s role in its development/implementation

RTI/SLD connection resulted in under-focus on the importance of integrated academic and behavioral supports.

“Relabeled” in anticipation of ESEA reauthorization using “MTSS” terminology.

Definition of MTSS Scientifically validated, research-based

approach Proactively identifies students

– at risk of not achieving/not achieving to benchmark standards

– and/or whose behavior is affecting educational performance

Uses a problem solving framework to address learning needs

Elements of MTSSElement Definition

Universal Screening Systematic assessment of all students on academic and/or social-emotional indicators to ID students who are at-risk, and may require support that varies in terms of level, intensity and duration.

Data-based decision making and problem solving

Assessments and data used should be timely, matched to the learning targets, valid, and reliable. MTSS uses for 3 purposes: universal screening, diagnostics, and progress monitoring.

Continuous progress monitoring (CPM)

Monitoring that matches instruction and increases with frequency with student need is essential in maximizing student progress.

Continuum of evidence-based practices

High quality Tier 1 (Core) instruction, including clear learning expectations with brief reviews of previous learning; overt modeling; high student engagement and opportunities to respond; frequent incremental and descriptive feedback; follow-up instruction; distributed practice; differentiation.

Elements of MTSSElement Definition

Continuum of evidence-based practices

Target (Tier 2) and Intensive (Tier 3) instruction that increases in terms of intensity and duration as progress monitoring of student progress determines need.

Fidelity of implementation

Strong initial training and periodic fidelity checks of instructional implementation are critical

Potential interplay between MTSS and IDEA/§504/ADA Inadequate response to tiered supports

may – 1. Be a red flag for a suspected impairment– 2. Provide important data for the SLD

determination process– 3. Assist with documentation for ruling out lack

of appropriate instruction – 4. Provide data for determination of IDEA

adverse impact, 504 substantial limitation, and Title II effective communication inquiry for students with hearing/vision/speech disabilities

FAQ #1 MTSS uses assessment for three

purposes (universal screening, progress monitoring and diagnostic). Do any of these require parent consent?

Answer: It depends.– Universal screening of all students in a given

grade/school does not require parent consent. However, using the “wear the parent hat test” it does make sense that parents should be informed that the district is using the MTSS model to meet the educational (academic and behavioral) needs of all students, including universal screening several times/year.

FAQ #1, continued

Answer, continued– Individual screening to determine appropriate

instructional strategies for a particular student does not require parent consent, per IDEA and implementing regulation 34 CFR 300.302

– Progress monitoring typically involves repeated curriculum based measures or authentic formative assessments and, as such, would not require parental consent.

FAQ #1, continued Answer, continued

– Diagnostic assessment is individually performed to determine intervention strategies when the child is still not performing to benchmark standards after prior supports

• If the district suspects that a disability may be a factor in the continuing underperformance, then a request for evaluation would be initiated and parent consent would be obtained either under IDEA or Section 504.

• If the district does not suspect a disability, and the diagnostic assessment is being pursued to fine tune general education instruction, consent is not required, but it would be prudent to seek parent agreement.

FAQ #2: What is the difference between “consent” and “agree” ?

Consent (300.9)– Aka informed

consent, parental consent, and written informed consent

– Means informed and in writing

– Digital or electronic signatures permitted if district offers this option and parent opts to use

Agree– Not same as consent– Means an

understanding between the parent and district about a particular issue

– Only needs to be in writing if IDEA or regs say so

– See FR 46551, C-3

FAQ#3 Is there a minimum amount of time that

must be spent in the MTSS process before a child find obligation kicks in?

Answer:– There are two wrinkles with this question.

• First, child find under both IDEA and Section 504 is triggered when the district first suspects a disability. This may occur at any time in any tier. It is a myth that “suspecting a disability” is triggered only when academic or behavioral deficits persist after providing interventions at Tier 1 and then a Tier 1/Tier 2 combo, or some equivalent exhaustion

• Second, a disability is not the only causal explanation for an inadequate response to MTSS

FAQ #4 What if a parent requests an IDEA or 504

eval mid-way through MTSS process where supports beginning to show some promise?

Answer: The parent may request an evaluation at any time. The question is how the district responds.– A. If the district suspects a disability, it must

process the request and develop eval plan.– B. If the district does not suspect a disability, it

must either grant the request (most likely), or to refuse the request and provide notice of refusal along with procedural safeguards.

FAQ #5 When a child transfers to a new district in

the same school year, after his previous school has begun but not completed an initial special education evaluation, may the receiving district delay or extend the evaluation timeline in order to implement its MTSS process?

Answer: No. See, Letter to State Directors of Special Education, 61 IDELR 202 (OSERS/ OSEP 2013). Attachment A.

FAQ #5 Answer, continued

– OSERS/OSEP comment: “While the new school may choose to provide interventions while it is in the process of completing the evaluation, it would be inconsistent with the evaluation provisions in 34 CFR §§300.301 through 300.311 for a school district to delay completing an initial evaluation because a child has not participated in an RTI process in the new school district.”

FAQ #6 Can a parent request an IEE before the

district completes its evaluation for a suspected SLD merely because the parent disagrees with the district’s decision to use data from the child’s response to MTSS as part of its evaluation process?

Answer: No. When a parent requests reimbursement for an IEE prior to the completion of the district’s evaluation, the district may deny the request without filing for a due process hearing. Letter to Zirkel, 52 IDELR 77, (OSEP 2008). Attach. B

FAQ #7 Does a district have to get parent consent

to implement Tier 1 or Tier 2 supports? Answer:

– This is a matter of local district policy. It is best practice to work collaboratively with parents when implementing a MTSS process

– It is important to document that the parent • was provided explanations of all available

interventions• was provided notice of right to request at any time

an evaluation for an eligibility determination under IDEA and/or Section 504

• was an active participant in the MTSS process

FAQ #8 Does MTSS cease once a request for

IDEA or 504 evaluation is initiated and implemented?

Answer: No. – Tiered supports may continue during the

pendency of the evaluation. In fact IDEA contemplates extended timelines by mutual agreement for SLD evaluation if needed to collect additional RTI data.

– Tiered supports may also continue after an eligibility determination and the creation of an IEP or 504 Plan. They support both LRE and value-added intensity of special education.

FAQ #9 Given all of the data generated in an

MTSS process, does the district still need to do a comprehensive evaluation to determine IDEA eligibility?

Answer:– MTSS does not replace the full and individual

evaluation requirement, i.e., the district must use a variety of data-gathering tools and strategies. See Questions and Answers on Response to Intervention (RTI) and Early Intervening Services, 47 IDELR 196 (OSERS 2007). Attachment C.

– Conduct REED to see what need.

FAQ #10

34 CFR 300.311(a)(7) states that if the child participates in a process that assessed his response to scientific, research-based intervention, the documentation of the determination of SLD eligibility must contain a statement of instructional strategies used and the student-centered data collected.

Is this required only when the district uses an RTI-based approach to determine SLD?

FAQ #10, continued Answer: Previously

– In M.M. and E.M. v Lafayette Sch. Dist., 58 IDELR 132 (N.D. CA 2012), the court rejected the parent’s claim that the district was wrongfully withholding RTI data in its documentation of SLD eligibility determination. While the district had implemented RTI strategies before referring the child for a special education evaluation, it based its eligibility determination on a severe discrepancy model. Thus the 300.311(a)(7) provision was not triggered.

FAQ #10, continued

Answer: On review by 9th Circuit– The 9th Circuit held that the documentation of

eligibility determination should have included a statement of the instructional strategies used and the student-centered data collected within the RTI framework so that the parents could meaningfully participate in the IEP.

FAQ #11 Can a district get into trouble if it fails to

implement MTSS with fidelity? Answer: Failure to implement with fidelity

might open the door to an alleged child violation on the basis of untimely identification.

FAQ # 12 How does MTSS affect what makes

special education special? Answer: The definition of special

education is “specially designed instruction…to meet the unique needs of a child with a disability.” – “Specially designed instruction means

adapting, as appropriate to the needs of the eligible child…the content, methodology, or delivery of instruction” to address unique needs and to ensure access to the general curriculum. 34 CFR 300.39.

FAQ #12 Answer, continued

– MTSS elements may impact decision making with regard to the following

• LRE• Pacing• Intervention delivery• Assistive technology

Issue #2

Evaluation/Eligibility Concerns

FAQ #13: How should districts respond to evaluation requests based on “niche” clinical diagnoses? Answer: Probably going to see more

diagnoses from private clinicians due to – autism insurance benefits– new conditions listed in DSM-5.

• Important to remember that DSM originally created as a classification system for research purposes.

• Subsequent usage for Dx for insurance purposes has resulted in confusion

– News flash: 10-23-15 USDOE Dear Colleague Letter on dyslexia, dyscalculia and dysgraphia.

FAQ #13, continued Distinction between impairment and

disability status under IDEA, 504 and ADA– DSM contains a cautionary statement that

inclusion of a category in the Manual does not imply legal disability

– Dx alone is a red flag. Should not ignore, but is not, as some parents believe, the “ticket” for IEP or 504 plan.

– Key is whether suspect• Characteristics associated with an IDEA eligibility

category, and adverse impact• Physical or mental impairment that substantially

limits a major life activity (504/ADA)

FAQ #13, continued

– A. If the district suspects a disability, it must process the request and develop eval plan.

– B. If the district does not suspect a disability, it must either grant the a parent request to evaluate (most likely), or refuse the request and provide written notice of refusal along with procedural safeguards.

FAQ #14: How do you handle the dueling criteria issue?

Answer: – One good example of dueling criteria is ASD.

The same “label” is used by AIB providers, DSM-5, and MARSE. Yet the criteria for this same label varies with each system.

– There is no simple way except to be transparent with the parent

• Show the parent the MARSE criteria (MET recommendation form works well for this)

• Go behind the label and plug into the REED all of the assessment data generated by and/or used by third party evaluators.

FAQ #15: Is it permissible for an evaluation plan to be developed without the input of a specified evaluator?

Answer:– Initial evaluation

• There is no language in either the IDEA regulations or in MARSE that details how the district develops its evaluation plan for the initial evaluation.

• Voluntary usage of REED/Evaluation Plan (see below)

FAQ #15: Continued Answer:

– Reevaluations• The “IEP Team” conducts the REED and develops

Eval Plan. IDEA regulation defining the IEP Team (300.321) requires the IEPT to include at least one individual who can interpret the instructional implications of evaluation results, but is silent on its composition specifically for REED/reevaluation planning purposes.

• Can be done via meeting or non-meeting • If “errors” can correct by amendment process

FAQ #16: Must districts honor parent evaluation requests for guardianship or post-secondary purposes? Answer: No.

– In response to increasing pressure on districts to perform “non-IDEA” evaluations, USDOE created alternative format that exiting student with disabilities could use to convey information to third party purposes. This is the Summary of Academic Achievement and Functional Performance document, which is to include recommendations on how to assist the child in meeting his/her postsecondary goals.

FAQ#16, continued

However, if a student is up for redetermination of eligibility during the last year prior to exit (via graduation or otherwise), the parent may exercise their right to a full reevaluation for the redetermination of eligibility for the remaining time in school.

FAQ#17: How does an IEPT determine whether a student with ADHD is IDEA eligible?

This really boils down to adverse impact and whether the impact is such that the student needs special education.

A 2003 guidance document from the USDOE describes an ADHD evaluation as including the following components:– Behavioral– Educational – Medical (depending on the state requirement)

FAQ#17, continued The 2003 USDOE guidance document lists

the following targets for the educational evaluation– Behavior observation of student as compared

with random peer re frequency, intensity, duration of problems with

• Inattention• Hyperactivity• Impulsivity• More challenging behaviors

– Productivity in completing classwork and other academic assignments, both % and accuracy

– Assessing for possible comorbid impairments

FAQ#17, continued From an adverse impact standpoint,

districts should consider doing a functional accommodation assessment as part of the evaluation to assist in teasing out whether supplementary aids and services may be sufficient intervention to address needs, versus special education and/or related services.

Remember, Michigan defines related services as constituting special education.

If the student is determined IDEA ineligible, 504 eligibility should be considered.

Issue #3

The FAPE/LRE Balancing Act

FAQ#18: How does the IEPT find the appropriate legal balance between FAPE and LRE when parents of students with significant special education needs want full/extensive inclusion?

Answer:– While each student has the right to be

educated in the LRE, • an individualized calculation for each student• not synonymous with full inclusion

– The determination of the FAPE/LRE balance requires the IEPT to

• focus on the child, and not the label• avoid the pitfall of being the other side of the

teeter-totter (over-focusing on the multitude of special needs)

FAQ #18, continued Take note:

– In a conflict between FAPE and LRE, FAPE trumps.

– It should be a rare situation where there is no opportunity for interaction with nondisabled peers.

– There is renewed activism and interest by the US Departments of Education, Labor, and Justice in “LRE” in postsecondary outcomes

FAQ#18, continued With that backdrop:

– 1. Try to get consensus on the student’s goals and objectives. These set the parameters for the ed benefit that the IEP will need to support.

– 2. Starting with parent suggestions for LRE opportunities, grid out the day and the various opportunities for specially designed instruction

– 3. Is it possible to achieve the goals and objectives over the course of the year with this paradigm?

– 4. If not, what adjustments in the grid of programs and services can be made to get to that balance point?

–

Issue #4

Record Concerns

Issue #5

Pattern of Removals Triggering MDR

Pattern of Exclusion No bright line, but at some point a change

in placement occurs Requires a judgment call Criteria=

– More than 10 cumulative suspensions plus two additional criteria:

– Similarity to behavior that caused prior removals (pattern of behavior)

– Additional factors (one or more contribute to pattern of time)

• Length of each removal• Proximity of removals to one another• Total time of removal

Post-2006 Behavior/Time Cases Example #1: A Pattern

Lewiston Public Schools, 110 LRP 17745, SEA ME 2009)– 58 days of suspension in one school year,

in close proximity– Case reported that suspensions were for

similar behavior, but did not describe the behavior in question

Example #2: A B/T Pattern Sage Academy Charter School #4087

– Behavior =inability to follow direction, cell phone violation, and insubordination. State complaint investigator found behavior substantially similar because challenges to people in authority

– Time• On November 11, 2009, removals exceeded 10

cumulative days.• Student suspended for above behavior 23 of 65

days between 9-8-09 and 12-9-09 • Each behavior for more than one day and in close

proximity

Example #3: A Pattern of B/TDistrict of Columbia Pub. Schs.#Days Suspension dates Infraction

5 September 9-15 Walking hallways and disrespecting staff

4 November 11-14 Out of the classroom and walking the halls

4 December 16-January 5 Disorderly in the girls’ locker room

5 February 12-18 Disobedience and walking the hallways

Example #4: A PatternMM v. Special SD #1 (8thCir.2008)

DATE BEHAVIOR SUPENSION DAYS

10-18 Disruptive behavior 1

10-26 Disruptive behavior 1

11-14 Fighting 1

1-4 Hit student with disability in face 5

1-21 Fighting 3

2-1 Assaulting teacher trying to take mace from the student

4

2-15 Assaulting another student 4

2-28 Disruptive behavior 3

3-7 Threatening to throw chair at peer 3

3-17 Fighting 3

4-? Using mace while fighting with peer 5

Example #5: A PatternSpringfield (MA) Pub. Schs.

19 days of removal total 1 day of ISS, 9 days of OSS, 9 days of bus

suspension (student allowed to attend school, but did not make it to school)

14 of 19 removal days in April and May Behavior all centered on physical or verbal

altercations and name calling

Example #6: “Not a Pattern”

East Metro, 110 LRP 34370 (SEA MN 2010) found that the following did not constitute a pattern of behavior– 4 suspension days for theft– 3 suspension days for theft– 8 suspension days for possession of

weapon on school premises

Issue #6

-504 Decision Making

-ADA Title II “Effective Communication” Requirements

FAQ #19: Can a student have a disability under Section 504 and not have a 504 Plan? Answer: Yes.

– This is confusing because of our experience in special education. In special education land, we decide whether the student is eligible for special education. The eligibility equation is that the adverse impact of the student’s impairment is such that the student needs special education. Thus the eligibility decision is a package deal. We know that we will be writing an IEP.

FAQ #19, continued Answer, continued:

– In 504-land we make two separate determinations

• 1. Whether the student has a physical or mental impairment that substantially limits a major life activity.

– The pivot point here is substantial limitation. We must factor out all mitigating measures (except ordinary eyeglasses and corrective lenses), including medication and accommodations; and look at the impact when the impairment is active versus in remission.

– A substantial limitation is one that is important and material when looking at the condition, manner and duration of the performance of the affected major life activity(ies) in comparison to the performance of an average person in the population.

FAQ #19, continued Answer, continued

• 2. if the answer to question 1 is “Yes”, we then ask whether the student requires the provision of regular or special education and related aids and services that are designed to meet the individual educational needs of the student as adequately as the needs of nondisabled students are met.

– At this point we are looking at whether the student needs accommodations, services, or modifications to school policies, practices or procedures to address disability related needs in the school context

– OCR gives the example of a high school student with asthma who needs the occasional use of a broncho-inhaler that she carries with her and self-administers. She participates in all school activities without assistance, including physical education and extracurricular. While she is a person with a disability, she would not need a 504 plan.

Three Federal Laws Address Meeting Communication Needs

LAW Requirement

IDEA Requires public schools to make available a free appropriate education (FAPE), consisting of special education and related services, to all eligible children with disabilities (including those with disabilities that result in communication needs). IDEA does not restrict or limit rights, procedures, remedies under US Constitution, ADA, §504 or other laws, except IDEA exhaustion if IDEA relief available.

ADA-Title II

Requires public schools to ensure that students with disabilities receive communication that is as effective as communication with others through the provision of appropriate auxiliary aids and services. These SWDs may or may not be IDEA eligible.

§ 504 “Because compliance with the IDEA can satisfy § 504’s requirement to provide FAPE to a student with a disability for the vast majority of students covered by the FAQs, and because, in general, a violation of §504 is a violation of Title II, the focus of the FAQs is on the IDEA and the specific Title II regulatory requirements for effective communication.” Compliance with T-II effective communication is compliance with 504 general nondiscrimination provisions.

Interplay between IDEA and Title II Public schools must apply both IDEA and

Title II to determine how to meet the communication needs of IDEA-eligible students with a hearing, vision, or speech disability.

In many cases an IDEA IEP will also meet Title II requirements

But cannot count on that, i.e., sometimes may have to provide Title II auxiliary aids and services not IDEA required. See KM v. Tustin Unified SD (9th Cir. 2013)