W. Joseph Hatley, Wednesday, September 01, 2010 | Filed under: Education Records
Lesson from Texas case: Retain test protocols from evaluators. Neglecting to do so can interfere with a parent’s participation in developing an IEP. Take these steps to obtain test protocols and underscore their importance. (Aug. 31) NEW!
Key points:
· Retain documentation of students’ evaluation responses, scores
· Guard against evaluators’ destroying materials
· Explain usefulness of test protocols to IEP team
Lesson from Texas case: Retain test protocols from evaluators.
Failing to retain documentation of a student’s evaluation responses and scores violates the IDEA and can prove costly, as one Texas district recently learned.
In McKinney Independent School District, 54 IDELR 303 (SEA TX 2010), the district had to pay $6,780 for IEEs obtained by the parents of a student with autism, a speech impairment and undisclosed disabilities. That’s because the district neglected to obtain test booklets with the student’s responses from its evaluator, and the evaluator destroyed them.
The IDEA requires that information obtained from all evaluation sources be documented, the IHO noted. What’s more, the failure to retain these documents interfered with the parents’ participation in developing a program that matched the student’s needs.
“Right now, I wouldn’t be surprised if test protocols are not present at the majority of IEP meetings,” says Joe Hatley, a school attorney with Spencer Fane Britt & Browne LLP in Missouri. He adds, “This decision may lead parents and parent attorneys to make the issue of having evaluation documentation at IEP meetings a bigger deal in the future.”
Follow these steps to obtain test protocols and underscore their importance:
Discuss needed documentation with outside evaluators. Problems can occur when you contract with an outside evaluator to coordinate student assessments, as the district did in McKinney, says school attorney Karen VanDijk of California-based Best Best & Krieger LLP.
“Most district evaluators always file test protocols and know not to destroy them. But outside evaluators might not know about the requirement to retain records,” she says. The best way to inform them -- and to guard against their destroying test protocols -- is to build the requirement into a contract, she says.
“Write in the contract that the evaluator must give you the test protocols at the time he gives you the assessment. Make that a condition of being paid,” she says. This way, the evaluator knows from the outset what to provide the district, and you won’t have to keep sending reminders, VanDijk says.
Explain need for test protocols with team members. IEP teams may not ask for test protocols unless they have questions about the evaluation scores, VanDijk says. Other teams might worry that parents will examine the test protocols for errors.
“But they are entitled to do that if they want,” VanDijk says. “And if you don’t let them, you risk the parent claiming that you interfered with her participation.”
For example, suppose parents say their child struggles in math and writing, but your evaluator finds that the child functions at grade level. “That’s just the conclusion,” says Deborah Mattison, a parent attorney with Wiggins, Childs, Quinn & Pantazis LLC in Alabama. You have to let the parents look at the protocols to determine how the evaluator reached that decision, she says.
Also, VanDijk says, “it will be tough to defend your evaluation and findings if you don’t have anything that supports how you reached your conclusion.”
Consider other uses of test materials. For example, Hatley says, if a student is “right on the border” between being eligible or ineligible for IDEA services, looking at the student’s evaluation responses can sometimes help teams understand why an evaluator made a certain recommendation. Test materials also can help you develop an IEP for a student who is new to the district, Hatley says. “IEP teams don’t have a history of involvement with that child, so evaluation materials can take on a greater significance in these situations,” he says. Team members may want to look at the student’s responses -- not just the scores and recommendations -- to really get an idea of who that student is and what he needs, he says.
Heidi Sfiligoj covers IEP teams and other special education issues for LRP Publications.
August 31, 2010
Copyright 2010© LRP Publications