September, 2000 ~ Volume 14, Issue 1

Ounce of Prevention News

Information and Ideas for Practical Problem Solving in Special Education

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In this issue:

USDOE and MDE Offer Guidance on High-Stakes Testing and Accommodations
for the MEAP................................................................................................................1

DSM-IV Diagnosis Does Not Special Ed Eligibility Make............................................1

FAQ's ...........................................................................................................................2

USDOE and MDE Offer Guidance on High-Stakes 
Testing and Accommodations for the MEAP

School districts must make certain that Ahigh-stakes@ assessments, including tests under the Michigan Educational Assessment Program (MEAP), are conducted in a manner that does not discriminate against students with disabilities, either by improperly excluding disabled students from the assessment or by denying those students appropriate accommodations. The United States Department of Education (USDOE) and the Michigan Department of Education (MDE) have recently issued guidance in this area.

The USDOE=s guidance is in two documents. The first document, issued by the Office for Civil Rights (OCR), is entitled AThe Use of Tests When Making High-Stakes Decisions for Students@ and is available on the internet at http://ed.gov/ocr/testing. This document is still considered a DRAFT document and will be referred to as AOCR Draft Guidance@ throughout this article. The second document issued by the USDOE is an August 24, 2000 Memorandum from the Office of Special Education and Rehabilitative Services (OSERS) and the Office of Special Education Programs (OSEP). Attached to the memorandum are a number of frequently asked questions and answers regarding the topic. The joint memorandum and the Q&As (AQ&A@) can be found on the internet at http://ed.gov/offices/OSERS/OSEP/OSEPmemo0024.Assessment.pdf. The MDE document is entitled AStudents with Disabilities and the MEAP, MEAP with Assessment Accommodations, or Alternative Assessment B Questions and Answers@ and is available at htt://www.mde.state.mi.us/off/sped/LIBRARY/ASSESSMENT/ALT_ _ASSMT/alt_assmt_page.htm1.

USDOE=s guidance is based on federal statutory, regulatory and constitutional authority, including Section 504 of the Rehabilitation Act of 1973 (Section 504), Title II of the Americans with Disabilities Act (ADA), the Individuals with Disabilities Education Act (IDEA), and the regulations implementing those acts. In many respects, the guidance is built on the positions OCR and OSEP announced in their September 19, 1997 Joint Policy Memorandum on Assessments. (The Joint Policy Memorandum can be found at 27 IDELR 138). In that Joint Policy Memorandum, OCR/OSEP stated that the exclusion of students from assessments based on disability generally would violate Section 504 and the ADA. OCR/OSEP further stated that Section 504, the ADA, and IDEA 97 require appropriate testing accommodations for students with disabilities, where necessary. See also, Q&A # 4.

According to OCR, Ahigh-stakes@ decisions must be made in a manner that does not result in the discriminatory denial of educational benefits or opportunities to students with disabilities. OCR states that examples of Ahigh-stakes@ decisions are decisions regarding: student placement in gifted and talented programs; determinations of disability and eligibility to receive special education services; student promotion from one grade to another; graduation from high school and diploma awards; and admissions decisions and scholarship awards.

Under IDEA 97, the IEP Team must determine how the student will participate in state and district-wide assessments. 20 USC '1414(d)(1)(A)(v)(ii); 34 CFR 300.347(a)(5)(ii); Q&A # 4. If the IEP Team decides that a student will not participate in a particular state or district-wide assessment, then the IEP must contain a statement of why the assessment is inappropriate for the student and how the student will be assessed. 20 USC '1414(d)(1)(A)(v)(ii); 34 CFR 300.347(a)(5)(ii); Q&A # 3. In making the assessment determination for each child, the IEP Team must also determine whether the student needs accommodations in the testing process. If the Team determines that assessment accommodations are appropriate, then the IEP must include a description of those accommodations in the IEP. 20 USC '1414(d)(1)(A)(v)(i); 34 CFR 300.347(a)(5)(1); Q&A # 3. If the provisions of the IEP regarding assessments need to be changed after the IEP is completed, the IEP Team must meet to make that change. Q&A # 5.

Parental participation in the decision whether a disabled student will participate in assessments must generally be the same as parents of non-disabled students. Thus, if parental permission for a non-disabled student=s participation in an assessment is required, it should also be required for disabled students. Q&A # 6. Similarly, if a parent of a non-disabled student has the right to opt the student out of a particular assessment, that same right should be afforded to the parents of disabled students. Q&A # 7.

The question whether an accommodation in the testing process is necessary must be made with respect to each student on an individual basis. The inquiry should be made regarding all students covered by Section 504, the ADA, or IDEA. In its draft guidance, OCR states that the decision to use or not use an accommodation should be based on the ultimate goal of collecting assessment information that accurately and fairly represents the knowledge and skills of the student, rather than extraneous factors such as the student=s disability (except, of course, when the test is designed to measure the nature and extent of the student=s disability).

Under IDEA 97, states must, as appropriate, develop guidelines for a disabled student=s participation in alternate assessments, if the student cannot participate in certain state or district-wide assessments. Alternate assessments should only be used for students with disabilities who are unable to participate in general large-scale assessments, even when accommodations are made. Q&A # 10. The section requires that those alternate assessments be developed and conducted, beginning no later than July 1, 2000. 20 USC '1412(a)(17)(A); Q&A # 11.

MDE Guidance B MEAP

The MDE document described above is intended, in part, to address the requirements of this section of IDEA. The document is in Q&A format and contains guidance regarding State of Michigan assessments including, most notably, the MEAP. MDE has not yet issued final guidelines that the IEP Team may use to determine whether students with disabilities should participate in statewide assessments, statewide assessments with accommodations, or an alternate assessment. In addition, the state has not yet developed a final form of alternate assessment for students with disabilities who the IEP Team determines cannot take the MEAP. MDE has developed a APhase I@ alternate assessment for students with Asevere and moderate cognitive disability,@ which is being implemented in selected schools during the winter of 2001 and scheduled for full implementation during the winter of 2002.

MDE=s position with respect to testing accommodations is similar to OCR=s position in that the goal of an assessment accommodation is to minimize the impact of the student=s disability on his/her performance on the assessment. MDE states that the accommodation should not give a student with a disability an unfair advantage over other students, but instead, should give that student an equal opportunity. MDE also states that, before deciding on an accommodation for a student, the IEP Team should consider whether the accommodation changes what the test is designed to measure or otherwise threatens test security or integrity. With respect to the MEAP, the MDE guidance contains specific accommodations that MDE and the Michigan Merit Board consider appropriate and some that are considered inappropriate. (See also, the MEAP Manuals for the Spring, Fall, and Winter of 2000 and the Winter of 2001). IEP and 504 teams should be cautious, however, in accepting or rejecting testing accommodations for the MEAP or any other test, without taking into account the individual needs of each student Q&A # 9.

Because parents of nondisabled students may opt those students out of the MEAP, parents have a right to opt a disabled student out as well. We are aware that MDE has advised that when an IEP states that a student will participate in the MEAP, a parent cannot opt a student out unless the IEP Team reconvenes and revises the IEP to provide that the student will not participate. This appears to be inconsistent with the OSERS/OSEP memorandum. One way to reconcile the positions would be to state in the IEP that the student will take the MEAP (or an alternative assessment) unless the parent opts out. A parent should be required to follow the district=s normal opt-out process. Any Aopt-out@ should be in writing and subsequent to the IEP so that the parent can make an Ainformed@ opt-out decision.

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DSM-IV Diagnosis Does Not Special Ed Eligibility Make

Time and time again districts are confronted by parents who have obtained a psychological diagnosis, such as PDD, ADHD, dysthymia or depression, from outside providers and claim that their child is therefore eligible for special ed services. Countless times district staff meet with parents to explain that there is a difference between a medical diagnosis and special education eligibility. Recently, many hearing officers and courts have been addressing the issue of whether or not a medical or psychological diagnosis from outside the school system is sufficient to qualify a student for eligibility. Resoundingly the courts and hearing officers are declaring that students who have medical/psychological diagnoses are not, by those diagnoses alone, necessarily eligible for special education. As IEP team meeting season is upon us, it is good to review why that is so.

In examining cases brought where parents have obtained medical/psychological diagnosis, the courts and hearing officers continually refer back to the three basic elements of special ed eligibility; (a) characteristics within one of the eligibility categories, (b) an adverse educational impact, and (c) a need for special education services in order to benefit from a student=s program.

In order to be eligible for special education services a student must meet the criteria within one of the eligibility categories set forth in the IDEA. While a medical diagnosis may be helpful (and necessary in some instances), merely having a medical/psychological diagnosis does not necessarily mean that a student will meet these criteria. One of the most common examples is a diagnosis of Attention Deficit Hyperactivity Disorder. A student may have a medical diagnosis of ADHD, but this alone does not guarantee a student will be eligible for special education. See, Brownsville Area Schools, 33 IDELR 81 (SEA, PA., 1999). ADHD is not an IDEA eligibility category, and one must look to IDEA categories to determine eligibility. OSERS made clear in its Joint Policy Memorandum, 18 IDELR 116 (OSERS 1991) that ADHD may be a basis for eligibility under the POHI (physically or other health impaired) category. The 1991 memorandum also made the point that students diagnosed with ADHD might also be eligible under other categories, not on the basis of ADHD, but because of Acomorbid@ conditions that were independent bases for eligibility, e.g., emotional impairment or learning disability. See, Letter to Parker, 18 IDELR 963 (OSEP 1992).

More recently, OSEP has made clear that merely having a diagnosis under the DSM-IV (Diagnostic and Statistical Manual - 4^th Edition) of Pervasive Developmental Disorder (PDD) does not guarantee eligibility under IDEA. See, Letter to Coe, 32 IDELR 204 (OSEP 1999). Instead, where a student has a diagnosis of PDD, a district should look to one of the thirteen eligibility categories such as AI, POHI, etc. Other DSM-IV psychological diagnosis, such as depression, have also been held not to support eligibility under special education in and of themselves. See, Los Angeles Unified School District, 31 IDELR 71 (SEA, CA., 1999).

An IEP Team must look beyond label to the adverse impact the disability has on the student=s educational performance. In Bonita Unified School District, 32 IDELR 273 (SEA, CA., 2000) a hearing officer determined that a psychological diagnosis of dysthymia and ADD did not necessarily make a student eligible as emotionally impaired. Instead, the district must look to the adverse educational impact. See also, Pflugerville Independent School District, 33 IDELR 84 (SEA, TX., 2000) [ADD and motor coordination disorder]. Similarly, a student who exhibited Asigns of depression@ as reported by a private therapist was found not to be eligible for services in West Chester Area School District, 32 IDELR 275 (SEA, PA., 2000). In both cases, the hearing officers looked to whether the disability (as determined by the psychological diagnosis) had an adverse impact on the student=s education.

Even psychiatric disorders and mental illnesses may not rise to the level of IDEA eligibility. In Capistrano Unified School District, 33 IDELR 51 (SEA, CA., 1999) a student was privately diagnosed with major depressive and anxiety disorders. Although the major depressive and anxiety disorders had been documented for a significant period of time and depression can be a basis for EI eligibility, the disorders did not have an adverse effect on the student=s academic performance. Notwithstanding the psychiatric disorders, the student had an appropriate attitude at school, was not an attendance or behavioral problem, and was able to maintain a 3.6 to 3.8 GPA. As such, the hearing officer found that there was no adverse impact on the student=s academic performance.

While one facet of Aadverse impact@ may be reflected in the student=s grades, this is not the only area that a district needs to be concerned about. In Rochester City School District, 31 IDELR 178 (SEA, NY, 1999) a hearing officer determined that a student who had ADHD and a seizure disorder was not eligible for special education services because the disabilities did not adversely effect the student=s academic performance. On appeal, the federal district court reversed. In Corchada vs. Board of Education of Rochester City School District, 32 IDELR 116 (WD, NY, 2000) the court found that despite Aaverage@ academic performance, the student=s ADHD, seizure disorder, speech and learning disabilities may Aadversely effect his ability to concentrate, focus and learn.@ As such, the student was eligible for special education services.

Hand in hand with the Aadverse impact@ criteria is the requirement that a student must need special education programs and services to benefit from his educational program in order to be eligible for services. While a student may meet one of the eligibility categories, and the disability may adversely affect his educational performance, if the student does not need special education in order to benefit from his program, that student is not eligible. In J.D. vs. Pawlet School District, 33 IDELR 34 (2d Cir., 2000) the court analyzed the adverse effect and need for special education criteria. In that case, a gifted student sought services based upon a discrepancy between his IQ and performance and his exhibiting emotional/behavioral problems. The student had an IQ of 149. Despite this, in some areas he Aonly@ performed at or slightly above grade level. A psychologist noted that the student experienced Afrustration, boredom, alienation, apathy and hopelessness@ due to an absence of intellectual peers at his local high school. While the student may have met the criteria for one of the eligibility categories, the court found that there was no adverse educational impact since the student was able to achieve at or above grade level without special education support. As such, the student did not necessitate special education programs and services to benefit from his educational program, and was therefore ineligible for such services.

Merely having a medical or psychological diagnosis, such as PDD, dysthymia, depression, ADHD, bipolar disorder, etc., does not necessarily guarantee that a student is eligible for special education. A district must determine that the characteristics of the student=s condition which give rise to the psychological diagnosis also meet the criteria of one of the thirteen eligibility categories. A district may not make a determination of eligibility premised purely upon a medical diagnosis, such as ADHD. Instead, the district may utilize this information along with other testing instruments which provide additional information as to whether the student satisfies the criteria for eligibility. Remember the medical/psychological condition must adversely effect the student=s educational performance, and further the student must need special education programs and services in order to benefit from his/her educational program. In making its determination, a district should not limit the eligibility categories based upon a psychiatric diagnosis. For example, a diagnosis of PDD may satisfy the criteria under AI, POHI or PPI (depending upon the student=s age); a diagnosis of ADHD may satisfy the criteria for LD, EI or POHI. Be sure to examine all areas of possible eligibility. Do not take shortcuts by merely accepting a medical doctor/psychiatrist=s diagnosis of such things as ADHD, dysthymia, bipolar illness, depression, etc. A district is well advised to do a complete and thorough evaluation to discern whether or not a student may be eligible. Unless all of these factors are met, a DSM-IV diagnosis does not special education eligibility make.

One final comment: remember Section 504. Even if a student is not eligible under the IDEA, a medical/psychological diagnosis under the DSM-IV may give rise to a suspected disability under Section 504 of the Rehabilitation Act, and a district is well advised to refer such students for a 504 team meeting.

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Q & A

Q: May a district require a parent to Asign off@ special education services in order for a student to attend an alternative high school setting?

A: No. A school district is obligated to provide a free and appropriate public education to all students with special education needs. See, Letter to Foley, 26 IDELR 179 (OSEP 1996). The obligation to provide special education programs and services is solely upon the district, not the parents. When determining an appropriate placement, a district may consider utilizing an alternative school. Such alternative schools many times have lower class sizes, more individualized or alternative methods of teaching, etc. However, no matter what the placement decision is, a district is still obligated to provide FAPE, which includes special education programs and services. A district is not permitted to condition acceptance into a program upon the waiver of a federally protected statutory right to special education services. Failing to provide special education services at a district alternative education school would be a denial of FAPE and violate Section 504. See, Comstock Park Public Schools (MI), 20 IDELR 1084 (OCER 1993). While an IEP team may be warranted in providing less special education services due to lower class sizes, individualized instruction, etc. (and the alternative school may be a less restrictive environment than the typical school for a particular student), a district cannot refuse to provide services, or condition acceptance into an alternative school upon Awaiving@ or Asigning off@ on a student=s right to special education.

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