Legal Issues in the

Educational Diagnosis of
Students with Disabilities
Mitchell L. Yell, Ph.D.
myell@sc.edu
The University of South Carolina
TEDA Annual Conference, 2015

Outline of Presentation

Background information

FAPE

Procedural & Substantive

Avoiding Procedural & Substantive errors

Recent litigation in assessment, diagnosis, &

evaluation

Free Appropriate Public

Education (FAPE)
The primary obligation of special educators
to is develop and implement a program of
special education and related services that
confers meaningful educational benefit

Meet Amy Rowley

The Rowley Standard

Has the school district complied with the

procedures set forth in the IDEA?

Was the resulting IEP reasonably

calculated to enable the student to
receive educational benefit?

Procedural Aspects of FAPE

Procedures refer to those aspects of the law that require that certain
practices be followed when located, identifying, programming,
providing special education services to a student with disabilities

Procedural errors are only a denial of a FAPE, and thus a violation of

the IDEA, when the infractions

Impede the students right to a FAPE

Impede the students parents from meaningfully participated in

aspects of their childs special education

Deprive a student of educational benefit (20 U.S.C.

115(f)(3)(E)(ii)

The Most Serious Procedural

Errors

Failing to provide prior written notice

Failing to obtain parental consent

Fielding an improper IEP team

Predetermining a students placement or program

Failing to maintain a continuum of alternative

placements

Failing to address the five special factors

Substantive Aspects of FAPE

Substantive requirements are sometimes referred to as the

content of the IEP

Is the IEP reasonable calculated to provide meaningful

educational benefit?

The bottom line is that if a school has data to show the

student benefitted from his or her educational program, the
IEP is virtually Bullet-Proof unless the school district
committed one of the fatal procedural errors

The IEPs similarity to a written contract

Substantive Aspects of
FAPE

The Most Serious

Substantive Errors
Failing to conduct a full and individualized
assessment of all of a students needs

Failing to link the assessment data to

programming

Failing to write measurable annual goals

Failing to collect data on student progress

Questions Answered by
Educational Diagnosis under
IDEA: Who
1.

Does the student have an IDEA eligible

disability?

2.

Because of that disability does the student

need special education & related services?

3.

Does the students disability adversely affect

his or her educational performance?

Questions Answered by
Educational Diagnosis under
IDEA: What
What are the students needs that need to be
addressed by the IEP team when they identify
the special education and related services to
be provided?

4.

Assessment/diagnosis must lead directly to

instructional programming

Questions Answered by
Educational Diagnosis under
IDEA: How
How effective are the educational services
that are being provided?

5.

Educational diagnosis as baseline

Progress monitoring

When should Educational

Diagnoses be conducted?

When school district personnel have reason to suspect or

believe that a student may have a disability and need
special education and related services

Child find activities including screening and referral

School district personnel must begin that evaluation

process with a reasonable amount of time following reason
to suspect

Educational Diagnosis &

Child Find

School districts (LEAs) have an affirmative duty to

locate all students with disabilities in the districts
jurisdiction

The purpose of a LEAs child find obligation is to

identify students who are suspected of having
disabilities and need special education services

An LEA must publicize their child find activities.

These activities usually include general screenings
and a referral system

A Common Child Find

Violation

School district personnel have a reason to

suspect or believe that a student may have a
disability and need special education services
but fail to identify & assess the student

Know referral red flags and react accordingly

Referral Red Flags

Academic problems, failing to learn

A student stands out academically or

behaviorally from his same age classmates

Numerous or increasing disciplinary referrals for

violating school rules

Truancy problems, excessive absences, skipping

classes

Signs of depression, anxiety, or withdrawal

Referral Red Flags

A student has received a diagnosis of a mental

heath related problem

Student is being seen by an outside counselor or

therapist

Hospitalization, especially for mental health

reasons

A students parents request a special education

evaluation

What if a Students Parents Refuses

Consent for Initial Evaluation?

School district can request a due process hearing to

override the lack of consent

The students parents may still refuse special education

services after the evaluation (no option for due process)

The problem is that the district may be out of compliance

with IDEAs child find and evaluation mandates

This should be handled on a case-by-case basis

Errors in Educational
Diagnosis
Using assessment tools that are
useful for eligibility determination
but not useful for instructional
planning

Kirby v. Cabell County Board

of Education (2006)

A students present levels statements did not

provide information in enough detail to allow the
IEP to plan the students special education program

Without a clear identification of [the students]

present levels, the IEP cannot set measurable goals,
evaluate the childs progress, and determine which
educational and related services are needed.

Strategies for Compliance

Ensure that the assessment contains detailed
enough information that an IEP team is able
to determine the content of a students
special education program and thus his or her
FAPE

Errors in Educational
Diagnosis
Failing to include a students
parents in the assessment process

Amanda J. v. Clark County

School District (2001)

Because of the districts egregious procedural violations,

parents of student with autism are entitled to reimbursement for
independent assessments and the cost of an in-home program
funded by them, as well as compensation for inappropriate
language services during the students time within the district.
Where the district failed to timely disclose students records to
her parents, including records which indicated that student
possibly suffered from autism, parents were not provided
sufficient notice of condition and, therefore, were denied
meaningful participation in the IEP process. There is no need to
address whether the IEPs proposed by the district were
reasonably calculated to enable the student to receive educational
benefit because the procedural violations themselves were a
denial of FAPE.

Strategies for Compliance

The IEP meeting should not be the first time that a

students parents hear about their childs education
diagnosis

Contact the parents before the assessment and

involve them in the educational diagnosis (e.g.,
interviews) in addition to securing their permission

Use their knowledge in the diagnosis and document

their involvement

Errors in Educational
Diagnosis
Failing to consider an independent
education evaluation provided by
the parents

Federal Regulations, 2006

Parents have the right to an one independent

educational evaluation (IEE) at public expense if
the parent disagrees with the school districts
evaluation (IDEA Regulations 34 C.F.R. 300.552)

The results of the IEE must be considered by school

district personnel in any decision with respect to the
provision of a FAPE (IDEA Regulations 34 C.F.R.
300.502(c)(1)).

Lakeville Independent
School District #194 (2009)

, Districts mistaken belief that a test used by the

independent evaluator was not valid did not justify
the districts failure to consider it IEE when
determining eligibility. Because the district failed to
review existing evaluation data and draw upon a
variety of sources, the Minnesota ED ordered it to
make another eligibility determination.

Strategies for Compliance

Develop a formal procedure for a parents

to use when requesting an IEE

Discuss, consider, and document the results

of a parents IEE

Errors in Educational
Diagnosis
Failing to address all of a students
needs, irrespective of his or her
disability

D.B. v. Bedford County

School Board (2010)

Student with ADHD and found eligible for services

as OHI was denied FAPE where district did not
properly consider and evaluate him for learning
problems in reading. Despite the fact that the
evidence strongly suggested the student was SLD,
the IEP team failed to assess for SLD or even discuss
SLD. In addition and contrary to the hearing officers
finding, the students services might well have
changed had he been fully evaluated in all areas of
suspected disability.

Compton Unified School

District v. A.F. (2010)

A California districts efforts to assess a 6-year-old students eligibility for special

education services were not sufficient to comply with its obligation to provide
FAPE. The students grandparents indicated to his teacher in October that he might
have ADHD. In December, the student became extremely violent and engaged in
disruptive and aggressive behavior. His grandparents requested a functional
behavioral assessment in February. The school psychologist completed an initial
assessment in time for the first IEP meeting in May, but the district failed to
conduct the requested FAA. The students grandparents challenged the June IEP
and placement proposal, which did not contain any behavioral goals. The district
argued that it did not deny any request for assessment, but proceeded with due
diligence in conducting assessments and convening multiple IEP meetings before
proposing a placement. Contrary to the districts characterization of events, the
administrative record supports the finding that the district did not timely assess the
student in all areas of suspected disability. According to the court an FBA would
have enabled the IEP team to consider strategies to address the behavioral issues
that impeded the students learning,

Strategies for Compliance

When a students needs are evident, either

through parent information, teachers
observations, or student history these needs
must be addressed, irrespective of a students
disability

Errors in Educational
Diagnosis
Using a response to intervention
system to delay or deny special
education evaluation

Memorandum from
Musgrove (OSEP, 2011)

An RTI system is not intended to be a replacement for

a comprehensive special education evaluation

An RTI system does not diminish a school districts

obligation to obtain consent and evaluate any time
district personnel have reason to suspect that a student
may have a disability and need for special education

RTI cannot be used as a basis to delay or deny an

evaluation

Strategies for Compliance

If educational diagnosis is part of an RTI process or an

educational diagnostician is used to conduct RTI
screening, assessment for intervention, benchmarking,
or progress monitoring that is permissible as long as it
is done with all students (general & special education
students) in the RTI system and does not single out
students with disabilities

If there is reason to suspect that a student has a

disability and needs special education then an
assessment is in order, convene MDT and assess

If there is reason to suspect but data show that a student

is progressing, convene MDT team and discuss

Errors in Educational
Diagnosis
Failing to address a students needs
in a timely manner

Student v. School District

(SEA TX 2011)

Facts of the Case

Year 1-Student was identified as having a learning disability

and was served in the category of SLD

Year 2-The student began exhibiting problem behavior

Year 3-Problem behaviors worsened. FBA completed and

BIP prepared

Year 4-Student assessed and found to be emotionally

disturbed

Student v. School District

(SEA TX 2011)

Decision

The school district failed to assess the student for an

emotional disturbance in a timely manner

The district should have suspected the child of having

an emotional disturbance as early as year 2

The student was denied FAPE and entitled to

compensatory services

Strategies for Compliance

Understand and follow the Texas special

education timelines

The evaluation must be completed within 45

days of receiving the parents consent for
evaluation

Errors in Educational
Diagnosis
Narrowly defining educational
performance as academic
performance only

Mr. & Mrs. I. v. Maine

School District (2007)

Facts of the Case

Student with Asperger syndrome, an anxiety

disorder, & depression

Student attempted suicide

School found the student was not eligible

because no adverse effect on the students
grades

Mr. & Mrs. I. v. Maine

School District (2007)

Decision

Hearing officer found for school district because

of good academic performance

District court and circuit court found that the

students emotional problems affected her ability
to communicate and interact

She was eligible for services under the IDEA

despite being well-behaved and receiving good
grades

Strategies for Compliance

Weatherly (2013) suggested that school personnel

not limit their definition of educational performance
to academic performance only

When a student is being evaluated for eligibility the

educational diagnostician must examine all areas of
need and the multidisciplinary team must determine
how the problems negatively affect his/her
performance in academic areas and nonacademic
areas (e.g., socialization, behavior, communication)

Errors in Educational
Diagnosis
Failing to to link the present levels
of academic achievement and
functional performance to the
annual goals and special education
services.

IDEA Regulations, Appendix C

(1997)
There should be a direct relationship between
the present levels of performance and the other
components of the IEP. Thus, if the statement
describes a problem with the childs reading
level and points to a deficiency in reading skills,
the problem should be addressed under both (1)
goals and (2) specific special education and
related services provided to the child. (Question
36)

Strategies for Compliance

Ensure that all needs identified in educational
diagnosis are addressed in
a)

The measurable annual goals

b)

The special education services

c)

The method used to monitor student

progress

Error in Educational
Diagnosis

Predetermining placement or programming prior to

the IEP meeting

Effectively excludes a students parent from

meaningfully participating in their childs special
education program development

Making definitive statements about a students

placement (e.g., We always...; We never...)
made before or during the meeting could constitute
predetermination

H.B. v. Las Virgenes

(2007)

Predetermination occurs when an educational

agency has made its determination prior to the
IEP meeting, including when it presents one
placement option at the meeting and is
unwilling to consider other alternatives.

Deal v. Hamilton County

Board of Education (2006)

[a] procedural violation can cause substantive harm when it

seriously infringes upon the parents' opportunity to participate in
the IEP process,

The clear implication is that no matter how strong the

evidence presented by the Deals, the School System still
would have refused to provide the services. This is
predetermination

...Because the School System deprived the Deals of a

meaningful opportunity to participate, the predetermination
amounts to denial of a FAPE for Zachary.

Strategies for Compliance

Prepare but dont predetermine; informal &

preparatory activities, and draft IEPs are ok

School officials must come to the IEP table

with an open mind. But this does not mean
that they should comewith a blank mind
(Doyle v. Arlington, 1992)

Strategies for Compliance

Take precautions to ensure predetermination

does not occur

Keep an open mind at the meeting

Follow an agenda

Discuss parental suggestions

Keep good documentation

Essential Points in Diagnosis

A relevant educational diagnosis is the first step to

program planning

A complete, individualized, and relevant educational

diagnosis is the path to effective programming

All elements of the IEP are linked to the educational

diagnosis

An appropriate educational diagnosis depends on

everyones input

References

Amanda J. v. Clark County School District (2001)

Compton Unified School District v. A.F. (2010)

D.B. v. Bedford County School Board (2010)

Deal v. Hamilton County Board of Education, 46 IDELR 45 (E.D. TN 2006).

Doyle v. Arlington, 1992)

H.B. v. Las Virgenes (2007)

Kirby v. Cabell County Bd. of Educ., 46 IDELR 156 (S.D. W.V. 2006).

Lakeville Independent School District no. 194, 53 IDELR 206 (SEA Minn. 2009).

Memorandum from Melody Musgrove, OSEP 2011, available at

https://www2.ed.gov/policy/speced/guid/idea/memosdcltrs/osep11-07rtimemo.pdf

Mr. & Mrs. I. v. Maine School District (2007)

Student v. School District (SEA TX 2011)

Weatherly, J. (2015). Avoiding special education litigation. Paper presented to the Tristate Regional Special Education Law Conference. Omaha, NE.