Deviations from Standardized Assessments May Be OK If Assessments Are Not Used to Generate Standardized Scores

GirardEdwards_image05Author: Eric Stevens, Attorney at Law 

Summary: The Office of Administrative Hearings (“OAH”) held that the use of accommodations and modifications while administering standardized assessments did not invalidate the resulting assessment reports because they did not attempt to present or rely on standardized scores, and therefore the school district did not have to pay for a student’s independent educational evaluation (“IEE”).  Poway Unified School District, OAH Case No. 2015030732.

Facts:  Student was a 10-year old eligible for special education under the categories of Multiple Disabilities and Autism.  Student had severe limitations in receptive and expressive language.  District developed and implemented an assessment plan as part of Student’s triennial evaluation.  Student’s special education teacher tested Student’s academic skills.  District’s Psychologist conducted intellectual development and social/emotional/adaptive behavioral testing.

Psychologist directly administered the Kauffman Assessment Battery for Children, Second Edition, to Student because it gave Student manipulatives to work with in testing, which she believed would be a better measure of Student’s ability because it was more interactive than just having Student point at pictures.  Psychologist found that Student had significant difficulty understanding the test’s directions, so she broke standardization in order to learn more about Student’s abilities.  Psychologist gave instructions in familiar language from Student’s classes and pantomimed instructions.  Psychologist used the test to obtain information on Student’s skills, but was unable to score the test and generate a standardized score because she deviated from the test’s strict instructions.

These results were used to create Student’s individualized education program.

Parents became concerned the following school year that Student was not progressing academically and was regressing to earlier behaviors.  Parents believed the prior assessments were defective in light of Student’s lack of progress and requested IEEs in psychoeducational functioning and academic skills.

Rather than agree to pay for the IEEs, District filed a request for a due process hearing to show that its assessments were appropriate.

Issue: Does the provision of accommodations and modifications while administering a standardized assessment invalidate the resulting assessment report?

Holding: No, accommodations and modifications may be provided to a student while a standardized assessment is administered without in and of itself invalidating the resulting assessment report.  Any standardized score resulting from the assessment would be invalid and should not be relied upon because accommodations and modifications were used, but the tester’s observations can validly form part of a resulting assessment report for the purpose of developing present levels of functioning and goals.

Discussion:  To obtain an IEE, a student must disagree with an evaluation obtained by the local education agency (“LEA”) and request an IEE.  34 CFR § 300.502(b)(1), (b)(2).  The burden then falls on the LEA who, without unnecessary delay, either ensures that an IEE is provided at public expense or files a request for a due process hearing.  34 CFR § 300.502(b)(2); Educ. Code § 56329(c).

When the District requested a due process hearing, the District assumed the burden of proving that its assessments were proper.  The District had to establish that its assessments satisfied the following criteria:

Tests and assessment materials must be used for the purposes for which they are valid and reliable, and must be administered by trained personnel in conformance with the instructions provided by the producer of such tests.  20 U.S.C. § 1414(b)(3)(A)(iii)-(v); Ed. Code §§ 56320(b)(2), (3).  Tests and assessment materials must be validated for the specific purpose for which they are used; must be selected and administered so as not to be racially, culturally, or sexually discriminatory; and must be provided and administered in the student’s primary language or other mode of communication unless this is clearly not feasible.  20 U.S.C. § 1414(a)(3)(A)(i)-(iii); Educ. Code § 56320(a).

An assessment tool must also “provide relevant information that directly assists persons in determining the educational needs of the child.”  34 CFR § 300.304(c)(7).  A test must be selected and administered to produce results “that accurately reflect the pupil’s aptitude, achievement level, or any other factors the test purports to measure.”  Ed. Code § 56320(d).

In this case, District’s assessments were appropriate.  In particular, the Kauffman Assessment Battery for Children was appropriately used to gain insight into Student’s abilities and functioning.  Accommodations and modifications were appropriate given Student’s language limitations.  Standard testing protocols were not followed, but the assessment was not used to generate a standardized score (which would have been invalid) and the assessment report did not present or rely upon standardized scores.

The outcome would have been different if the assessment was scored after providing accommodations and modifications, and if such scores were provided in assessment reports and formed the basis for establishing baselines and goals.

Practice Tip:  Assessments are the foundation of the IEP process.  LEAs can best protect themselves by documenting why specific assessments are chosen and, if there is any deviation from standard protocols, why those deviations are the best means (or only means) to gain insight into a student’s abilities and functioning.  If an LEA later finds itself in a due process hearing, it will have strong evidence to back-up the appropriateness of the decisions it made and the assessors’ conclusions and recommendations.


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