Season 2: Episode 14: Top Evaluation Team Report Mistakes

A district’s special education process typically begins with a request for an evaluation, either from a teacher or a parent. But even the best teams can miss requests, forget deadlines, and slack off in communicating with families. In this last episode of our second season, Lisa and Miriam take a good long look at the most common ETR/ MFE mistakes teams make and how to avoid the liability that comes along with these errors.

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Miriam: Welcome back to Class Act: Updates in Education Law. I’m Miriam.

Lisa: I’m Lisa.

Miriam: We’re attorneys at Walter | Haverfield in Cleveland, Ohio. We practice school law. Every few weeks, we get together. We talk about recent legal developments and education that are relevant to school boards, administrators and just anybody who works in education. Today, we wanted to take some time and talk about Child Find and evaluation mistakes that we’ve encountered. These are the top special education evaluation problems that trip up school districts and land them in litigation.

Lisa: Before we dive into the mistakes for our non-special education listeners and those just that need a little refresher, let’s talk about Child Find, specifically the IDEA. Individual Disabilities Education Act requires that public school districts identify locate and evaluate all children with disabilities that are residing within that district’s jurisdiction who are in need of special education and related services. Really, basically, any child who is suspected of being a child with a disability. Today, we are going to focus on a few of the key Child Find and evaluation issues that we seem to see come up on a more regular basis that do leave districts exposed to litigation. To get us started, let’s first start with conducting an evaluation in the first place. Often we see that districts sometimes wait too long to conduct the evaluation, or just deny the evaluation altogether. When we look at that, let’s go back to the initial request and obligations that you have as a district. When an evaluation request or a referral is made, keep in mind that it can be made either through a written document, or it can be a request that’s verbally made. I think the verbal requests are sometimes what throw districts for a loop and get them off track with timelines and getting the individuals involved that need to be. You need to make sure that all your staff know what to look for to interpret as a request. For an administrator, a teacher, you want to make sure that requests aren’t getting lost in emails or phone calls, and that every day teachers are those interacting with a child know what to do immediately when they receive a request, and that doesn’t have to be magic words, “I request an evaluation.”

Miriam:  Right.

Lisa: Keep in mind that it can be, “I have a concern about my child being able to attend in class and keep track of all their assignments. Get their work turned in.” That is likely going to be enough to be a flag that you need to be at least starting the referral process and kicking in those timelines.

Miriam: Yes. I think it’s also important to point out that school districts are also obligated to evaluate children who reside in that area but maybe going to a private school or a parochial school. That’s an area that I’ve personally seen where school districts forget the timelines.

Lisa: Absolutely.

Miriam: Because the child’s not there every day, so a parent might just send in a letter, and that letter might just go to a specific administrator. That administrator, while they may be responsible for private school children or non-public school kids, but they might not be aware of these pretty strict timelines. That’s an important area.

Lisa: Yes. In those situations, you’re just going to want to make sure you have a good, clear process for your internal staff, and also building good relationships with the private schools that are within your geographical boundaries will be helpful too so that those schools have a clear way of how to make a referral if they’re making it, or to guide the parents, so that it does get to the right person to keep the process going. You’re not going to be able to defend an excuse, “It went instead on administrator X’s desk for three months before anybody looked at it.”

Miriam: Yes. I’ve seen that. Another area that I’ve seen is when a parent sends in a bunch of different requests at the same time. I would like my child’s records, and I would like this and I would like that. Also, I think my kid needs an assessment or some testing for special education and also, please– Then that email or that letter might just get lost. I think it’s really important for school districts to know, as soon as you see a request from a parent for any kind of assessment or evaluation, that needs to immediately trigger those timelines for you.

Lisa: Yes, and keep in mind when we’re saying trigger timelines, it doesn’t necessarily mean you’re going to ultimately have to administer the evaluation, but it does mean your 30-day timeline for getting that team together has started. You’re going to get that team together and at least talk about the referral and determine if it’s necessary to do an evaluation. Basically, determine if the team suspects a disability that would thus require an evaluation.

Miriam: It’s important. This also applies to winter and summer breaks too.

Lisa: Yes, absolutely. Those don’t get you off the hook, so make sure you have personnel in place that can address those over those timeframes.

Miriam: Right. I’ve seen situations where a parent sends in a letter or an email on December 22nd, and everybody’s gone. Nobody’s looking at their email. Then by the time they come back and have started to sort through this, it’s already been 30 days.

Lisa: Yes, or the other ones I’ve seen frequently are the requests like the end of May or first week of June, right before you’re about to be out for a break. The team does go through the process and meets, and decides, “Well, we’re not going to evaluate because of the break. We’ll talk about this again in August or September.” Right there, you have a violation. You can’t just put it off if there’s enough evidence that you are suspecting and should be doing an eval. Yes, definitely keep those in mind. The other area that we see with the conducting of an evaluation or denying it, is denying a parent’s request and not really having any data to support that the district does not suspect a disability.

Miriam: Generally denied.

Lisa: Yes. A lot of times we see those come up where a parent asks for an evaluation and maybe the child wasn’t on the teacher’s radar as necessarily having a disability, but that doesn’t necessarily mean just because they weren’t on your radar that there isn’t enough information there to suspect. I would say a lot of times these might be the kids who are not a behavior problem. They’re just quiet but compliant and maybe just struggling a little bit, but is not necessarily an outward problem in the classroom. Maybe those fly under the radar, but just make sure if you are going to deny the evaluation, which you can do if you don’t suspect, you just really need to have that data to support why you’re denying it. They’re performing well in all of their classes. They’re achieving certain scores on standardized assessments. Keep in mind that it’s not, “They have A’s in every single class.” That is not going to be sufficient data to deny, in and of itself, an evaluation.

Miriam: I think you just also want to make sure that you document this. I just keep saying this in every single episode. Make sure that you document it. If you’re denying a parent’s request, you want to document that, as well as the reasons for that denial in a prior written notice.

Lisa: Yes. That prior notice is going to be your friend for a lot of these issues we’re going to talk about today in making sure just that you do have documentation for all the decisions that you’re making. The other area we see is response to intervention, and using RTI to elongate the time frame before you do an evaluation. Basically, waiting too long. Also, at times we see that interventions are being put in place, and they really do look like specially designed instruction, and yet the team didn’t do an evaluation, so that’s a good trigger. You want to make sure you’re getting credit for what you’re doing, right?

Miriam: Yes. I think that’s so important. Sometimes, I see this where school districts, they’re doing a lot. They’re doing a lot of interventions already and they’re not getting credit for them, like you said, Lisa.

Lisa: Right. Keep in mind too that really an evaluation can’t be delayed because the district is implementing interventions and collecting data. Sometimes you’re going to agree to do an evaluation and be implementing interventions and collecting data simultaneously, so there’s nothing to say you have to have the evaluation done tomorrow. You can still use your timeline. Once you have consent, you have that 60 days to do an evaluation. You can very much use those 60 days to gather more data. It’s going to help you make your eligibility determination ultimately.

Miriam: Sure.

Lisa: The other things we just want to highlight really quick with evaluations, is waiving reevaluations. Be really cautious about doing this, especially in light of our Andrew F decision that we’ve talked about in prior episodes where you really have to be able to talk about what the child’s circumstances are and develop IEPs that are reasonably calculated for the child to make appropriate progress. When you’re waiving an evaluation, make sure you really have enough information that’s current to be able to speak to that.

Miriam: I just want to explain what that means for our audience. Sometimes, if it’s a reevaluation, if the child is up for their annual three-year reevaluation, the team might say, “We already know. We already have enough information about this child’s academic progress. We already have enough information about this child’s intelligence ability. We don’t need to do all this testing again.” Parents sometimes like that. School districts also like that. It takes just more work off their plate, but we caution you against that because if that parent says, “You know what, my child should have been making more progress, I am now filing an administrative special education complaint or due process complaint.” You’re going to need to show that the child made appropriate progress in light of that child’s circumstances. If the child’s last IQ score, last ability level is from six years ago, you’re going to have a difficult time showing that you knew what that child’s circumstances were to prove that the child made appropriate progress. That’s going to be very challenging for your team.

Lisa: Right, and just keep in mind, and this is going to be the same for record reviews too, you have to show the circumstances so that you can show that they’re making progress in light of whatever those circumstances are for that child. Really gone are the days of your evaluation just being the tool just to say eligible or not. It really needs to be a tool used to identify needs and talk about what that means for the classroom and performance. If you can’t speak to those things from the data that you have, then you are probably going to need to be conducting some assessments. Let’s move on to another area.

Miriam: Meaningful parent participation.

Lisa: This one comes up quite frequently in the due process complaints that we see. Claims about whether or not the parent had a right to a meaningful participation in the IEP progress. This can come down to scheduling issues, making sure that you’re trying to find a mutually agreeable time. But the bigger area we see this come up in is, what we refer to as predetermination.

Miriam: Oh, I see that all the time.

Lisa: That really is a current trend with complaints where basically the concept is the district is making some type of decision outside of the IEP process, without parents’ participation or input into that decision. It’s kind of said to be a decision made in advance about the meeting.

Miriam: I think parents will often throw this out there when they don’t agree with the district’s decision. They’ll say, “Well, we didn’t agree with it, and you just decided that.” That’s predetermination, but that’s not accurate. Predetermination does not require a school district to just go along with whatever the parent wants.

Lisa: Right. I think sometimes when the parent just doesn’t even feel like you’re considering what they’re asking for, that kind of leads to this claim as well. That definitely is not to say that the staff can’t have prepared reports, can’t come with preformed opinions, and have discussions prior to a meeting about ideas and concepts that would work for the child. But it does mean that you need to ultimately include parents in those discussions and in the decision making process. You need to stay open-minded. We do have a few tips that we can give you for trying to avoid these types of claims.

Miriam: Yes, and of course it’s very important that you document everything that you’re doing specifically to avoid that charge of predetermination.

Lisa: Right. As you’re moving through your evaluation process, make sure you really are actively soliciting parent input that might be including rating scales, including parent questionnaires, asking questions, interview about their child, what they’re looking for, and making sure that not only you do those things, but those that they get documented into your evaluation and into the documents that are about your discussions like your prior written notices. Just because it happened, certainly should we get into litigation about it, we could have you testify to it. We would definitely need the documentation to help support what you’re testifying about.

Miriam: Right. If your ETR says, or whatever you call the document in your state, whether it’s an evaluation team report or a multifactor team report, if your report says, ‘Parent was asked about Johnny’s needs, and this is what she said’, that’s evidence that you considered her input.

Lisa: And definitely don’t rely on parent’s silence, equating to acceptance of something as well. You may need to do some follow up with them. Certainly if they’re silent, you can document that though. If they’re not giving you input, that’s important to include as well.

Miriam: Sometimes it’s a good idea to see if you can meet parents halfway. I think this is particularly difficult with litigious parents or hostile parents. Sometimes the school district is just annoyed and angry. They’re like, “This is how it is.” Then the parent asks for something, and try to see, even if you’re in that tense moment, try to see if you can say, “We’re not going to put that in there. We’re not going to do this whole thing or whatever. But this is what we can do.” Meet the parents halfway, if at all possible, and document that to show that you’ve considered the parents.

Lisa: Right. An application for this for an evaluation, specifically, make sure you can include, ‘Parent provided the following input and the following recommendations.’ You can include that in your evaluation. It doesn’t necessarily mean that you’re going to provide every single thing. It’s the parent’s input and what they’re looking for. Also, make sure you’re open-minded in the meeting to talk about these things and talk about the child. Don’t forget the parents do know their child. They may be able to bring things to light that you aren’t seeing on a everyday basis, or give some insight as to why you are seeing certain things. The other thing to not forget is that you do need to allow participation by other people that the parent brings to the meeting. If they bring a family friend or an advocate, you need to allow that person to participate in your discussions as well. Now, as we move through the evaluation process, you are generally starting with a review of existing data. There’s a few things you want to keep in mind there as you review the data that you do have. Definitely make sure that you are considering outside evaluation results.

Miriam: That’s when a parent gets some kind of assessment from another place.

Lisa: Right. That might be information provided by a doctor, it might be an actual evaluation from another facility. For our younger children, it maybe early intervention services. It really can take a wide range of how it looks like, but you do want to make sure that the team is considering any of that information that the parent’s providing. It doesn’t necessarily mean you have to accept it word for word, but you do need to have discussions about it and review it. It’s really going to be important in your evaluations that you do document what you do or review, so that you have that evidence that you are considering that information. It’s certainly going to help you with your planning process and what you consider that you need to update when you do have to do testing.

Miriam: Just on that point, I think we do caution our districts not to accept outside evaluations verbatim, like you said, word for word. You don’t necessarily want to take that outside assessment and just attach it to your ETR. You might want to paraphrase it or summarize what those assessments found.

Lisa: Yes, definitely pulling out the highlights. It definitely helps to indicate too if there’s specific things your team is accepting and does agree with, and if there’s specific things your team does not agree with, and why you don’t agree? Your evidence, your data supports something contrary because, and include that. Also, when you are considering your plan for your evaluation, make sure you’re considering a wide range of assessments. You don’t have a cookie cutter plan just because you’re looking at all learning disability, you gave A and B. Make sure you’re looking at the whole child, and be sure that you’re documenting on your planning form, what information you do have, and what information you need to get. That’s going to include past records. If you’re doing a re-eval, you very much better be looking at that evaluation that was current up to that point before you do that planning meetings. Keep those things in mind. Also, let’s talk about some consent issues.

Miriam: Oh, consent, this is a good one. Yep.

Lisa: You do have an obligation to make sure that you do get informed consent for evaluations. That includes for assessments, that also includes for classroom observations. You’re going to make sure you want to go through those steps and making sure also that you also document your attempts to obtain that consent when you do have parents that maybe don’t respond at all. You can move forward with testing, unless your state has other laws contrary to that.

Miriam: For a re-evaluation.

Lisa: For a re-eval, yes.

Miriam: For an initial evaluation, always need.

Lisa: Yes, always consent. But for a re-eval, there maybe ways you’re moving forward if you are getting no response. That’s not the situation when you have a parent say, “No, I just won’t give you my consent to do that.” That’s very different. Also keep in mind too condition consent can be tricky. When a parent wants you only to give certain assessments, or only administer with certain conditions on the testing like, the parents in the room or–

Miriam: Yes, those can be tricky because sometimes what the parent is demanding is inconsistent with what the school psychologists preferences or best practices or obligations.

Lisa: Right. For these situations, we just recommend that you are talking to administrators, you are including your legal counsel when you have these tricky issues because some of it may be things to agree to, and some of it, you may not.

Miriam: You can think outside the box and propose other alternatives, if what the parent is asking for is not tenable. Ultimately, if the parent is demanding, is insisting on some kind of condition that the school district doesn’t feel is appropriate for legal or ethical reasons, then you can indicate that the parent has not given their consent.

Lisa: There are times when conditioned consent does not equate to consent, really. Again, it’s really nuanced and facts specific. You’ll want to include others in that discussion. Now, let’s just move on to really the content of your evaluation and where we see problems. An evaluation must really be sufficiently comprehensive to identify all the students special education and related service needs. We need to make sure that these evaluations really are individualized, and that you are including individualized identification of needs and implications. Make sure you’re not just including a laundry list of your go to list for a child may benefit from. Really make sure it’s individualized to the specific student, and then assessment results you are obtaining. That’s not just going to be your norm-referenced assessments. That’s going to be what do you see in the classroom? What other curriculum-based measures do you have? You’re going to be looking at having comprehensive testing that looks at different settings and different measures that you can get a good picture of the whole child. It’s also going to be really important that you’re explaining those results and your interpretation of the results in a way, in your report, that a reader can understand. You’re really going to want to try to get away from the-

Miriam: Jargon.

Lisa: -jargon, yes, that educators might understand but a parent doesn’t understand what does that mean.

Miriam: I think even educators, this is related to the school psychologists listening here. If you’re a school psychologist and you’re writing that evaluation piece, don’t use the jargon. Just make it very simple and interesting and easy to understand. If you’re using jargon that might come across as professional to you, but if it’s not readable and understandable, it’s not worth anybody’s time.

Lisa: Yes, and another thing too with your assessments, if you are getting inconclusive results, don’t be afraid to conduct additional testing. Don’t think just because you normally give a certain cognitive assessment or a certain achievement assessment, that you can’t give another one if you need to clarify some of the results. Keep that in mind too, and make sure that you are including all areas of need, and all related service providers that the child may need involved because of their needs, and that that’s not specific just to whatever disability label or identification you’re suspecting, you could definitely have a child with a specific learning disability that may still have social-emotional or executive functioning needs. You’ll want to make sure that you’re including those, or if they need to look at communication or fine motor skills, just really making sure you are taking a comprehensive approach. Also when you get to re-evaluations, especially in middle school, high school, be sure that you’re still keeping that open-minded view and not getting narrow just because the last evaluation only looked at A and B. Get information and know these kids, it’s really going to help you in doing a comprehensive evaluation.

Then the last tip I have with the comprehensive testing, is to make sure you’re including relevant background in your report. I can’t tell you how many evaluations I review, and it’s just assumed that the reader knows the background, but this is going to be another way, one, to get the picture of what the kid needs, but also a good way for you to easily document what you really did review. That you reviewed the last ETR, that you reviewed the private evaluations.

Miriam: I love seeing evaluations, Lisa, where the background is all laid out, and I can just read as a new person coming in. I just see what the district did. It just makes me feel so good about my clients when I see all that relevant background.

Lisa: Yes, I agree. Please keep in mind, this is like a summary. This isn’t to say you shouldn’t be copying and pasting an entire other evaluation into yours, but do give us the picture of what has gone on previously. Last big issue that I want to touch on is eligibility and making your eligibility determinations. I want you to keep in mind that determining whether a child is eligible really is a team decision. Be careful that not just one person is deciding, that only one view is being discussed. Make sure you’re really including all team members. This may mean that you need to discuss in more than one meeting.

Miriam: It might go forward to another meeting.

Lisa: Right. This is where with your timelines, maybe be careful you’re not meeting on the very last day where your timeline is up, especially if you suspect that your school-based team may have a different opinion than the parents, or if you even have team members that might have some different opinions, you’re going to want to give ample time to talk, but it’s going to be important that you realize that the school district is the one responsible for ensuring a free and appropriate public education, so ultimately–

Miriam: We’re not going to vote on this. It’s not going to be a majority vote.

Lisa: Correct. It’s going to need to be team discussions, but ultimately, the school district is going to be responsible for determining that.

Miriam: And if the team doesn’t agree, then the district determines the appropriate services and provides parents with prior written notice.

Lisa: Yes, and since we’re really talking about evaluations, you’re not necessarily going to delineate what all those services are in your evaluation, but for example, if you think the child is eligible under one category and the parent thinks another, you know, you really do have to go with what is appropriate based on the documentation. Be careful not to just appease parents. Sometimes I think we get in that trap, but also making sure, though, that you’re considering everything they’re bringing to the table. If a parent says, “Well, I think this category instead,” be sure to really listen to their reasons why, because there very well may be a way to incorporate that, and also be having the discussions too. The eligibility determination isn’t necessarily going to drive your IEP. The child’s needs drive what goes into the IEP.

Miriam:  That’s right.

Lisa: So yes, the eligibility ultimately gets them eligible. We know outside there’s other reasons why people want certain eligibilities, whether it be the stigma that goes with it, whether it be different funding issues, we know that that’s out there, but keep in mind that it’s the need.

Miriam: That’s secondary.

Lisa: It’s secondary, yes, and it’s the needs that drive the IEP. Also, when you’re explaining your eligibility determination, be sure to give a good explanation of your justification. It makes me crazy when I get these evaluations and it literally just says they’re eligible for this category because here’s the definition. That doesn’t tell me anything about how the student…

Miriam: Has met the category.

Lisa: Right. What happens in their progress in the general curriculum that equates to that category? Just be sure to explain that. The last thing to consider too about eligibility is, a child very well may meet eligibility for multiple categories. You’re just going to be determining the primary category, narrowing it down to one, and sometimes a further explanation of that is needed for parents to understand, yes, maybe you’re going with category A, but that doesn’t mean they don’t display needs that would align with another category, and that those needs still will be addressed in a further developed IEP. Just to wrap things up, we do have a couple of other general issues just to give you some brief reminders of before we say goodbye today.

Miriam: Okay, excellent. Timelines. Timelines are very important. Missing timelines are one of the key mistakes that we see when we start looking at due process complaints. Be sure to send private notices, and beware of parents who push the district out of compliance by asking for extensions. For example, if you have a parent that says, “No, I just can’t make this meeting. I’m so sorry, can we reschedule it for next week?” Or if a parent says, “I’m waiting on this and this from a doctor or from an outside provider. Can we reschedule the meeting?” Sometimes you can, but sometimes you can’t, and it’s okay to go ahead and have that meeting with your team and tell the parent that you can reconvene again after the deadline to consider any new information. That’s fine, but make sure that you still have that meeting even if the parent is unable to attend, or even if the parent comes without all the information that she wanted to bring to the table, you can always meet again.

Lisa: Yes, that reconvening is really important that you do always anytime there’s new information, you can reconvene, but keep in mind too with that we’re not saying that you make sure you meet if you’ve only notified a parent once and have not documented any other attempts, you’ve got to make sure that you’re going through your proper steps to find a mutually agreeable time as well. Don’t push yourself into that deadline of your meeting on the last day, and that’s why your team has to meet.

Miriam: Another area is the attendance, the required team members. Sometimes people don’t have time or they’re trying to leave early. You always want to make sure you have your team members there, and that you have an excusal form for those people who are not able to attend.

Lisa: While in that excusal form, we won’t jump into that today, but just a caution to be careful when you’re using that and when you are excusing required team members that they’re still providing input to the whole team, not just only calling parent to give their input. The team needs all that information to consider. This includes leaving early too. Don’t forget, you can’t just have a district rep show up for five minutes and leave.

Miriam: That’s interesting. I haven’t seen that. That’s interesting.

Lisa: In another episode, we can dive into some of those nuances a little bit more, but just some things to keep in mind. We hope this discussion has been helpful for you today. Overall, just remember that a district evaluation is going to be a key tool to defend the district should contention develop, and definitely needs to be that comprehensive to then drive your development of your IEP if the child is eligible, or in the contrary doesn’t support the decision if you determine a child isn’t.

Miriam: Thanks for joining us today. Have a great day. Don’t forget to leave us feedback and rate us on iTunes or Stitcher wherever you get your podcast. That helps the algorithm and–

Lisa: Don’t say all that.

Miriam: Don’t say all that?

Lisa: They don’t care about the algorithm.

Miriam: Have a great day!

Lisa: The content of this podcast is provided for general information purposes only. The podcast is not legal advice, does not create an attorney-client relationship, and should not be relied upon in making legal decisions. Actions on legal matters should be taken only upon advice of legal counsel. Walter  Haverfield does not guarantee the accuracy of the information contained in this podcast.