This page provides a very brief introduction to preschool assessment. However, links to more in depth resources are provided.
A comprehensive evaluation is divided into two distinct components. The evaluation to determine eligibility. And the individualized assessment intended to determine all of the child’s weaknesses, whether commonly related to the disability or not. The evaluation of preschoolers differs from that of older students in that all normed, standardized tests, including the ones we’ve listed below for use in the evaluation process, have distinct limitations when applied to young children. Some of those limitations are discussed in the article by Ron Dumont and John Willis that concludes this page.
Preschool eligibility teams must therefore consider the data gathered from standardized tests within the context of parent referral information, parent reports of the child’s behavior across settings, observational data, the results of criterion referenced assessments (for example, play assessments), and then apply their clinical judgment in making an eligibility determination (clinical judgment, however, should never be used to deny services to an otherwise eligible child).
Once sufficient information is gathered to determine eligibility as developmentally delayed, the evaluation team may still have to do further evaluations to rule out or confirm other suspected disabilities such as autism.
Additionally, a structured interview to identify the child’s strengths, weaknesses, and ability to participate in everyday activities is essential. along with other assessments, to determine all of the child’s suspected needs in order to establish present levels of academic achievement and functional performance ( PLAAFP. )
This introduction to preschool evaluations is not intended to provide a comprehensive guideline to all aspects of the evaluation and assessment components.
Some state publications have more detailed guidelines on the provision of a comprehensive preschool evaluation than provided herein, such as
Additional information is available from the National Association for the Education of Young Children.
The NAEYC (Education of Young Children) site has a number of position statements on early assessment. Their position statements on curriculum, and program evaluation provide generally helpful guidelines in the assessment of young children. Particularly recommended for reading are their Position Papers.
Back in the 1990’s, pre-kindergartens or transitional first grades were fashionable ways to give “young fives” or “young sixes” the “gift of time.” That practice has been largely debunked as being nothing more than a way of making retentions more palatable. Another issue that gave rise to criticism was that research showed the low income families were impacted more severely by the practice than average income families. Of greatest concern to the target audience of this website, however, was that schools were often using these classrooms as a way to put off the referral of children who may have actually been developmentally delayed (eligible for IDEA protections) and not just “developmentally unready” in the hope that an extra year would make the child’s problems go away. NAEYC in 2000 published one of the more wide ranging position statements on this issue, “STILL Unacceptable Trends in Kindergarten Entry and Placement.”
Pearson Assessment Report: Assessing Young Children (9 page)
“In this new Policy Information Report, authors
Debra J. Ackerman and Richard J. Coley have put
together a useful “primer” on state pre-K assessment
policies. They describe the instruments that are used
across the states and identify important aspects of their
use. Just as important, the authors remind us of the
particular challenges that are inherent in assessing young
children’s learning and report on sound assessment
practices that recognize these challenges.”
(The original link to the document above went dark on October 28, 2020 and was replaced with an archived link from the Wayback Machine. The status of issues discussed were up to date as of 2012 and should not therefore be regarded as current.)
National Research Council, Early Childhood Assessment, Who, What, and How, Chapter 8 Discusses the challenges of assessing young children who are members of ethnic and racial minority groups in the United States, young children whose home language is not English; and young children with disabilities.
“The National Institute for Early Education Research (NIEER) conducts and communicates research to support high-quality, effective early childhood education for all young children. Such education enhances their physical, cognitive, and social development, and subsequent success in school and later life. The Institute offers independent, research-based advice and technical assistance to policymakers, journalists, researchers, and educators.”
Still another organization providing up to date and relevant information on early childhood programs in general is the Early Childhood Technical Assistance Center. The only caveat, and it is a minor one, is that ECTA’s mission includes providing up to date information and resources for children being served under Part C and Section 619 of Part B. Part B and Part C differ in significant ways, so information accurate for a provider in one setting may not be relevant to a provider in the other. Still, it’s a magnificent resource, and a subscription to their email newsletter is free. To subscribe to their weekly newsletter, eNotes, contact
Note: Links to all of the following resources went dead on September 19, 2017. All of the documents below may or may not be outdated . . . the materials were however archived on the Wayback Machine and are provided below for reference.
“Our mission is to promote the principles of child development as the basis for all decision making for young children.
Our work is based on the original work of Dr. Arnold Gesell (1880-1961). The Institute has been associated with understanding how children grow and learn since 1950.”
The Gesell Institute back in the 1990’s was a strong advocate for pre kindergarten and pre first classrooms for students in order to “give the gift of time” to children who were “developmentally unready,” which tended to include most of the “young fives” or “young sixes.” Their view in the twenty first century, however, have changed considerably. In response to the out-pouring of criticism regarding this policy guidance , their Executive Director wrote in 2015, “Another criticism, I would like to address, is that Gesell Institute advocates the “wait a year” or “gift of time” philosophy for “younger” children or those with late birthdays. Gesell Institute does not want to be characterized for advocating this position. Today, we know that is simply not a choice to wait a year for many low income families. A qualified teacher should be able to meet the needs of any child of legal age that walks through the door. Today’s Gesell Institute emphasizes the importance of the teacher’s knowledge of where each child is developmentally.Knowing each child developmentally helps the teacher provide developmentally appropriate activities for every child. When DAP is implemented in the classroom, each child is challenged at the appropriate level and feels good about him/herself. One of the most important goals for early education is that the child loves to learn and feels good about him/herself as a learner. There are entirely too many young children “turned-off” to school because they are forced to do things that are too difficult; which, in turn, results in low self-esteem, frustration, and aggression or withdrawal.”
Gesell Assessment Tools
Gesell Institute offers resources for educators to help understand the ages and stages of child development, and how development relates to the individual learning needs of children in the classroom.
The Gesell Early Screener (GES) is an instrument that can identify if a child may be at risk for developmental delay in one of four domains (Cognitive, Language, Motor, and Social/Emotional/Adaptive Skills). Its more in-depth counterpart, the Gesell Developmental Observation-Revised (GDO-R), determines a child’s overall developmental age relative to chronological age.
The GDO-R requires participation in a training workshop, but the GES can be administered by users of varying levels of experience. Both assessment instruments are complemented by the Teacher Questionnaire (TQ) and Parent/Guardian Questionnaire (PQ)
The Gesell Developmental Observation-Revised was published in 2011 with new normative data. A complete technical report is found on their website.
There are at least fifty and probably a hundred standardized assessments that could be used with children in the three to five year old range to assist eligibility groups in determining eligibility and/or PLAAFP under Part B. The selected tests reported below have exemplary documentation of reliability and validity and are all suitable for use in determining eligibility under Part B — with the caveat above that the results of these tests alone must not be determinative in ruling out a disability and must be considered within the context of a comprehensive evaluation.
Batelle Developmental Inventory 2nd Edition
For children ages birth through 7-11
Measures: Personal-Social, Adaptive, Motor, Communication, and Cognitive
User Qualifications
“Can be administered by paraprofessionals (“non-psychologists”) and is intended for use by infant, preschool, primary, and special education teachers. Important that examiners have supervised practice in administering BDI for children with disabilities across age span.”
Training Resources
For Ordering Information, click here.
Strengths/Advantages:
Multiple domains
Manipulatives are inviting to children
Adaptations available for children with disabilities
Spanish version
Splits expressive and receptive language and fine and gross motor
Can be used to help determine eligibility and for progress monitoring
Can be used to help develop IFSPs and IEPs
Weaknesses/Disadvantages:
Takes 90 minutes to administer (long for children of this age and especially so for children with attentional problems)
Relatively costly
Requires four to six hours of training to administer
Does not involve parents; a comprehensive evaluation MUST include information from parents
Bayley Scales for Infants and Toddlers
For: Children from 0-0 to 3-6
Measures: Adaptive Behavior, Cognitive, Language, Fine Motor, Gross Motor and Social Emotional
User Qualifications: Qualified personnel will likely have training in the following areas:
Sample qualified personnel: psychologists, psychiatrists, speech and language therapists, occupational and physical therapists specializing in early intervention, early interventionists, social workers, developmental pediatricians, pediatric nurse practitioners. Those who qualify will most likely have at least a Master’s degree.
Training Resources
| Bayley-III: Administration and Scoring Original Air Date: Tuesday, April 26, 2011 Presenters: Dr. Gloria Maccow | Part one: Audio/Video Part two: Audio/Video |
015-8027-612 Bayley-III Enhanced Administration/Scoring Resource (Interactive DVD) $93.45
015-8027-833 Bayley-III Fundamental Administration DVD $63.00
Strengths/Advantages:
Weaknesses/Disadvantages:
For Ordering Information, Click Bayley
Brigance IED Early Childhood Edition
For children from birth through 7 years.
The IED III Standardized includes scores in five domains, demonstrating broad content coverage and strong alignment to state early learning standards and Common Core State Standards:
For Ordering Information, click here.
User Qualifications
“Administered by a teacher, school psychologist or developmental expert, or other early education professionals.
The manual suggests that the assessor familiarize him- or herself with the assessments and practice administration a few times before assessing a child. Specific directions accompany each assessment and should be closely followed.”
Training Resources
Strengths/Advantages:
Takes only 10 to 15 minutes to administer per child
Comprehensive skill sequence and developmental milestone summaries by year are included.
Detailed breakdown of skills in physical development and communication.
Manual provides very detailed information about standardized test administration.
Allows for observation of child’s natural behavior in addition to family andca regiver report in administration. (certain items and age ranges)
Routines based skills in daily living section.
Social and Emotional development section is divided by Play Skills and Behaviors, as well as, Engagement and Initiative
Includes information about assessment strategies for children with specific developmental disabilities.
Language domain-Guidelines to assist with proper administration for those that communication is not area of specialty. Example – Information provided for test administrator regarding articulation milestones.
Physical Domain – illustrations that help define skills for gross motor and fine motor development
Weaknesses
DAYC-2 Developmental Assessment of Young Children – Second Edition
Designed to measure cognitive skills, social emotional develoopment, communication, physical development, and adaptive behavior of children ages birth through 5-11.
Ordering Information, click here
User Qualifications
“A degree from an accredited 4-year college or university in psychology, counseling, or a closely related field PLUS satisfactory completion of coursework in test interpretation, psychometrics and measurement theory, educational statistics, or a closely related area; OR license or certification from an agency that requires appropriate training and experience in the ethical and competent use of psychological tests.”
Strengths/Advantages:
Assesses all 5 areas of development
Yields standard scores and percentiles
Excellent reliability and validity features
Lends itself well to evaluation in the natural environment
Scoring moves along a continuum that includes direct examination, observation and parent report
A revision is planned for the near future
Separates gross and fine motor and receptive and expressive language domains (in this revised version)
Weaknesses/Disadvantages:
Standard scores may not seem to accurately reflect performance at some age
There are a number of reliable and valid tests that may be used appropriately for this age level; the listing below is meant to be illustrative, not exhaustive.
Differential Abilities Scales — Second Edition
The DAS–II is a comprehensive, individually administered, clinical instrument for assessing the cognitive abilities that are important to learning. The test may be administered to children ages 2 years 6 months (2:6) through 17 years 11 months (17:11) across a broad range of developmental levels.
The diagnostic subtests measure a variety of cognitive abilities including verbal and visual working memory, immediate and delayed recall, visual recognition and matching, processing and naming speed, phonological processing, and understanding of basic number concepts. Some of these subtests can be used with children ages 2:6–17:11, while others have specific age ranges.
Also see our Test Info page on the DAS II by clicking here.
Kaufman Assessment Battery for Children – II
Description: A culturally fair ability test
Age range: 3 – 18
For Ordering Information, click KABC II NU.
User Qualifications: QUALIFICATION LEVEL C:
Tests with a C qualification require a high level of expertise in test interpretation, and can be purchased by individuals with:
Woodcock Johnson ECAD (Early Cognitive and Academic Assessment)
Designed for administration with all children ages 2:6 through 7:11 and children with cognitive developmental delays through age 9:11, the ten-test ECAD battery measures general intellectual ability, early academic skills, and expressive language skills – all in a single test easel.
For Ordering Information, click here.
Test User Qualifications: Level C “Related Masters degree with specialized education and training (e.g., WJ Cognitive, Stanford-Binet, CAS)”
For an overview and technical abstract, click on WJ IV Assessment and Service Bulletin No. 4
WPPSI Preschool Scales of Intelligence IV
For children ages 2:6 to 7:7.
QUALIFICATION LEVEL C:
Tests with a C qualification require a high level of expertise in test interpretation, and can be purchased by individuals with:
The Primary Index scales include:
The Ancillary Index scales include:
For Ordering Information, click here.
Transdisciplinary Play-Based Assessments 2
User Qualifications: No specific qualifications are listed. Although training is offered, it is not required by the test publisher.
A widely used criterion referenced system for play assessments of children birth to six, this tool is especially helpful in establishing current levels of performance and determining “next steps” to be addressed instructionally. It is not normed. Inter-rater reliability is reportedly high, although the samples were taken following formal training. The test appears based on one study to have satisfactory construct validity as well. (North Carolina has made training sessions on this assessment available both to its LEAs and to Part C providers twice a year.) The product is described by the publisher as
“Transdisciplinary Play-Based Assessment, Second Edition (TPBA2) is a comprehensive, easy-to-follow process for assessing four critical developmental domains—sensorimotor, emotional and social, communication, and cognitive—through observation of the child’s play with family members, peers, and professionals. In this volume, early childhood professionals will get
Ordering Information: To order the book from Brookes Publishing, click here; for the same book from Amazon.com, click here.
While on-site training is available for a feww, a free recorded 43 minute Webinar is also available on YouTube. To view the recorded Webinar on YouTube, click here.
For the Publisher’s citations, click on Reviews. Of ten user reviews on Amazon, eight gave it five stars.
Strengths and weaknesses (neither list is intended to be exhaustive):
Advantages: good for monitoring progress
The child must be comfortable; as with standardized testing, if s/he is uncomfortable and/or confused, accurate results cannot be obtained.
There are not specific, set standardized administration procedures (which could also be seen as a strength, depending on one’s perspective)
Within the timeframe for testing, it may not be possible to assess all of the child’s strengths and weaknesses. in all areas so additional testing may be necessary.
For product and ordering information, click on the link. Some products are available from more then one vendor and may be available less expensively from a vendor other than the one linked below.
Ron Dumont John O. Willis
Fairleigh Dickinson University Rivier College
Bracken, B. A. (1988). Ten psychometric reasons why similar tests produce dissimilar results. Journal of School Psychology, 26, (2), 155-166.
Ford, L., Kozey, M. L., & Negreiros, J. (2012). Cognitive assessment in early childhood: Theoretical and practice perspectives. In D. P. Flanagan & P. L. Harrison (Eds.), Contemporary intellectual assessment: Theories, tests, and issues (3rd ed.) (pp. 585-622). New York: Guilford Press.
Schultz, M. K. (1988). A comparison of Standard Scores for commonly used tests of early reading. Communiqué, 17 (4), 13.
It has been reported (Zirkel, 2008) that of 290 hearings and court cases between 1980 and 2000, nearly thirty percent were about preschool children. The district or circuit court decisions below represent a very small sampling of cases, most since 2005.
Transition
The decision applied in Delaware, New Jersey, and Pennsylvania. The court ruled in this instance that when a child transiioned from a Part C program to a Part B program, stay-put rights applied. In reaching that decision, the court also illustrated another important point, that when OSEP letters say that they are not binding, they aren’t lying. OSEP had previously written in 1997 that in its opinion stay-put did NOT apply. The Third wrote in part,
In Letter to Klebanoff, the OSEP answered an inquiry regarding whether the stay-put provision mandated the continuation of services a three-year old received in the Birth to Three-Year old program when the parents did not agree to the school’s proposed education program. OSEP responded to the inquiry by stating it did not interpret 34 C.F.R. § 300.513 as requiring a public agency responsible for providing FAPE ․ to maintain [the] child in a program developed for a two-year old child as a means of providing that child and ․ [h]er family appropriate early intervention services under Part H. 28 IDELR 478.12 However, the OSEP never explained how it reached that conclusion. Moreover, we find the discussion in Thomas v. Cincinnati Bd. of Ed. much more helpful. We agree that the plain meaning of “current educational placement” refers to the “operative placement actually functioning at the time the dispute first arises.
The court therefore concluded,
For the reasons set forth above, we hold that the stay-put provision of the IDEA, 20 U.S.C. § 1415(j), required Georgia to continue to receive conductive education until the dispute over its appropriateness for inclusion in her IEP was resolved. Accordingly, the Pardinis are entitled to the cost of the conductive education that they purchased before the dispute was resolved by their agreement to an IEP that did not contain it. We will therefore reverse the decision of the District Court and remand for the court to determine the amount of reimbursement the Pardinis are entitled to as well as the amount of any attorneys fees
D.P. v. Broward County, Eleventh Circuit, 2007
Key Words: Transition, stay-put
Published: Yes
Decided for: The school system
In this decision, in reaching an opposite conclusion from the Third, applied to Alabama, Florida, and Georgia.
With respect to OSEP’s opinion, the court wrote
Because we rely on the plain language of the “stay put” provision, we do not engage in analysis to determine whether the agency’s interpretation of the statute is reasonable and therefore entitled to deference
And, in upholding the district court decision in favor of the school board, the Third Circuit’s discussion of the issue said, in summary,
The pendency provision at § 300.514(a) does not apply when a child is transitioning from a program developed under Part C to provide appropriate early intervention services into a program developed under Part B to provide FAPE. Under § 300.514(b), if the complaint requesting due process involves the child’s initial admission to public school, the public agency responsible for providing FAPE to the child must place that child, with the consent of the parent, into a public preschool program if the public agency offers preschool services directly or through contract or other arrangement to nondisabled preschool-aged children until the completion of authorized review proceedings.
Paxton Buckley-Loda School Distric v. Jeff and Debbie S., District Court, Illinois, 2002
Key Words: Transition from Part C to Part B, Timelines, Tuition reimbursement
Published: Yes
Decided for: The parents (for the most part)
A child with a history of hearing impairments and a new cochlear implant transitioned from Part C to Part B programming. The school missed the deadline for providing the child with an IEP, and the parents placed the child in a private school. The school refused to reimburse the parents, contending that a minor timeline violation shouldn’t make them liable for the parents’ unilateral private school placement. The district court supported the parents for the most part, ordering:
(1) Defendants’ Motion for Summary Judgment (# 29) is GRANTED.
(2) Plaintiffs’ Motion for Summary Judgment (# 35) is DENIED.
(3) The order of the hearing officer is modified to state that the District has a right to file for a due process hearing if it disagrees with the conclusions of Hammes and Jones on the need for AVT services after an IEP is developed.
(4) The District is ordered to reimburse Jeff and Debbie S. in the following amounts:
(a) $2,326.20 as ordered by the hearing officer, comprised of $765 for preschool tuition through April 30, 2000, and $1,561.20 for Hammes’ substantiated charges not covered by insurance.
(b) $845 as payment for the costs of Alec’s therapy from Jones as ordered by the hearing officer and as documented by Exhibits RRR 0001-003 to the Supplemental Record.
(c) $2,161 as payment for the costs of Alec’s therapy from Hammes as ordered by the hearing officer and as documented by Exhibits RRR 005-009 of the Supplemental Record.
(d) Reimbursement for 1990-2000 school year as ordered by the hearing officer upon tender of proof of payment of these expenses.
Other Court Cases Involving Preschoolers
R.H. v. Plano Independent School District, Fifth Circuit, 5/27/2010 .
Key Terms: Autism, preschool, inclusion, LRE
Published: Yes
Decided for: The school system
The parents claimed that the district’s offer of an IEP to be implemented in an inclusion class with children with other disabilities, along with children who were not disabled, did not meet the LRE requirements in the IDEA and that their private placement did. The court rejected their claim, finding that there was no requirement in the IDEA for a preschool child to be placed in a private school setting when all it was offering was an inclusion class. The decision was guided by the five factor Daniel R.R. standard :
Standard (Two-Part Test): 1. Ask whether education in the regular classroom, with the use of supplemental aids and services, can be achieved satisfactorily. 2. If the answer is “no,” and the school intends to provide special education or to remove the child from regular education, ask whether the school has mainstreamed the child to the maximum extent appropriate.
Factors to consider:
1. Has the district taken steps to accommodate the child with disabilities in regular education? “The Act requires states to provide supplementary aids and services and to modify the regular education program when they mainstream handicapped children.” “If the state has made no effort to take such accommodating steps, our inquiry ends, for the state is in violation of the Act’s express mandate to supplement and modify regular education.” 4 The Fifth Circuit Court of Appeals includes the states of Louisiana, Mississippi, and Texas. Copyright 2010: Walsh, Anderson, Brown, Gallegos & Green, P.C. Page 7 of 21
2. Were these efforts sufficient or token? “The Act does not permit states to make mere token gestures to accommodate handicapped students; its requirement for modifying and supplementing regular education is broad.” “Although broad, the requirement is not limitless. States need not provide every conceivable supplementary aid or service to assist the child.” “[T]he Act does not require regular education instructors to devote all or most of their time to one handicapped child or to modify the regular education program beyond recognition.”
3. Will the child receive an educational benefit from regular education? “This inquiry necessarily will focus on the student’s ability to grasp the essential elements of the regular education curriculum.” “We reiterate, however, that academic achievement is not the only purpose of mainstreaming. Integrating a handicapped child into a nonhandicapped environment may be beneficial in and of itself. Thus, our inquiry must extend beyond the educational benefits that the child may receive in regular education.”
4. What will be the child’s overall educational experience in the mainstreamed environment, balancing the benefits of regular and special education? “[T]he benefit that the child receives from mainstreaming may tip the balance in favor of mainstreaming, even if the child cannot flourish academically.” “On the other hand, placing a child in regular education may be detrimental to the child.”
5. What effect does the disabled child’s presence have on the regular classroom environment? “Where a handicapped child is so disruptive in a regular classroom that the education of other students is significantly impaired, the needs of the handicapped child cannot be met in that environment. Therefore regular placement would not be appropriate to his or her needs.”
D.L. v. District of Columbia, District Court, 2011.
Key Terms: Class action; preschool; comprehensive evaluation, denial of FAPE
Published: Yes
Decided for: The parents (Most decidedly)
A class action suit that is still not settled. The judge found that the D.C. schools had failed in their duty to find and identify children with disabilities at an early age, thereby denying them a window of opportunity when interventions could “work miracles.” This case was already years old, litigation having started in 2005, and the judge found that the district was still relying on the same screening procedures it had used in 2006 which were ineffective, unreliable, informal, unstructured, and lacking in the conditions necessary to identify children who were in need of special education services. The judge found the district guilty of having systematically violated children’s rights. It would be impossible in a summary to do justice to the comprehensive list of numerical requirements (including a goal of 8.5 percent of children identified, programmatic requirements (including a requirement that all children referred from Part C be presumed to qualify for Part B services), modification requirements (allowing the district to request a modification to the order if they could find a way to accomplish the same thing better) and reporting requirements. Part B service providers are encouraged to read pages 37 through 44 of the decision above for a detailed report of the court order. Other summaries are available at:
Washington Post, November 2011
Wrightslaw: D.L. v. District of Columbia
A.J. v. Board of Education, District Court, 2011
Key Terms: Autism, preschool, educational performance
Published: Yes
Decided for: The school system
Plaintiffs C.L.J. and C.J. (collectively, “Plaintiffs”) bring this action on behalf of their son, A.J., pursuant to the Individual with Disabilities Education Act (the “IDEA”), 20 U.S.C. § 1400 et seq., seeking review of a denial of educational benefits. The defendant Board of Education, East Islip Union Free School District (the “District”) determined that A.J. did not qualify for benefits under the IDEA and, on administrative review, an Impartial Hearing Officer (“IHO”) and a State Review Officer (“SRO”) agreed. The District moves for an Order pursuant to 20 U.S.C. § 1415(i)(2)(c)(iii) dismissing Plaintiffs’ Complaint. For the reasons that follow, *2 2 the District’s motion is granted and the Complaint is dismissed.
The question the court asked regarding this preschool child diagnosed with Aspergers Disorder on the Autism Spectrum was, “Does the evidence show that the child’s disability” Their answer to that question:
Absent a statutory directive to the contrary, the Court agrees with Plaintiffs that the term “adversely affects” should be given its ordinary meaning and that no qualifier such as “severe” or “significant” should be inferred. See Mr. I., 480 F.3d at 13 (declining “to infer such a limitation from Maine’s regulatory silence”) (internal quotation marks and citation omitted). Nonetheless, even when the correct legal standard is applied, the result is the same. The record reveals that despite A.J.’s Asperger’s, A.J. was performing at average to above average levels in the classroom and was progressing academically. Therefore, even applying the term’s ordinary meaning, the Court finds by a preponderance of the evidence that A.J.’s condition was not affecting his educational performance in an adverse or unfavorable way.
L.G. v. Fairlawn Board of Education, Third Circuit, 2012.
Key Terms: Autism, LRE, preschool, tuition reimbursement
Published: No
Decided for: The school system
The school had offered placement in a preschool program for children with autism. The parents argued that their child could benefit from inclusion with children who were not disabled and entered a videotape of their child to support their claim. The court found that the videotape was actually more supportive of the school’s position. (Legal point: anything entered into evidence can actually be a sword that cuts both ways.) The court held the district’s offer did not violate the child’s right to FAPE and did not order reimbursement for the private school. The court found additionally that the parents had been involved in the development of the IEP even though they did not agree with it; and that there was no restriction or burden on the school system to include the parents in meetings before the IEP team meeting to develop a proposed IEP.
Orange County Unified School District v. C.K. District Court, 2012
Key Terms: Autism, preschool, comprehensive evaluation, appropriateness of IEP, behavior therapy, tuition reimbursement
Published: No
Decided for: The parents
The school evaluated the child for autism and offered an IEP to be implemented in an inclusion class but did not offer any behavior therapy. The parents asked the court to address the following issues in seeking reimbursement for private school. A) Did the District deny Student a free and appropriate public education (―FAPE‖) at the December 18, 2008 Individualized Education Program (―IEP‖) meeting by:
(1) Failing to assess Student to determine if he was eligible for special education under the category of autistic-like behaviors;
(2) Failing to offer Student appropriate behavior support therapy;
(3) Failing to offer Student appropriate speech and language services;
FN2 and FN2. District does not appeal the findings on issues A(3), B(2), and B(5). (District’s Opening Br. 3, n. 5, Docket No. 43.)
(4) Failing to have a special education teacher at the IEP meeting?
B) Did the District deny Student a FAPE at the March 12, 2009 IEP meeting by:
(1) Failing to offer Student behavior therapy services; *4
(2) Failing to provide Student with appropriate speech and language services; (3) Failing to place Student in the least restrictive environment with the support of a one-to-one aide
[Withdrawn]; FN3 FN3. As discussed below, withdrawal of this claim in the context of the least restrictive environment did not foreclose the award for a one-to-one aide in another context.
(4) Failing to assess Student in the area of occupational therapy (―OT‖) and provide him with appropriate OT services
[Withdrawn]; and
(5) Failing to have in attendance at the IEP meeting a speech and language pathologist?
C) Did the District deny Student a FAPE at the March 8, 2010 IEP meeting by: (1) Failing to place Student in the least restrictive environment with the support of a one-to-one aide
[Withdrawn];FN4 FN4. See footnote 3, supra.
(2) Failing to provide Student with appropriate behavior services;
(3) Failing to offer appropriate extended school year
(4) Failure to assess Student in all areas of suspected disability [Withdrawn]?
The ALJ found that the parents prevailed with respect to most of the issues above, and in addition to reimbursement of tuition said the student was entitled to compensatory education. The district appeared to argue that since the child was in a private school that did provide FAPE they should not have to provide additional compensatory education. The district court affirmed the ALJ’s decision, saying in part
“District did not make an offer of FAPE to Student prior to his private placement. Further, upon close examination of the evidence, the ALJ found that Student’s placement at Salem with a one-to-one aide was appropriate. District has not presented any evidence to suggest otherwise. Accordingly, the ALJ properly awarded reimbursement for the cost of Student’s private placement”
The financial awards, not always available, are illustrative of the gamble taken by litigants in taking a sped case to court. In this instance, the court awarded the parents $20,214 in tuition reimbursement. However, the attorney fees awarded to the parents were $153,718.08.
Note: Only letters containing information of potential interest to all 50 states are summarized below. For example, a Q and A about Virgin Islands law would not be included. Also, similar letters on the same topic (for example, Hurricane Katrina) are not included. The letters generally run several pages; reliance for guidance should be based on the letters (links provided), not the summaries.
Letter to Kane, 2005. What should a school do if a child with an IFSP transfers from a disaster area (in this case, Louisiana) and previous records are unavailable? “If appropriate (i.e., if the Louisiana program offices are not operating), a State may use an interim IFSP, consistent with 34 CFR §303.345, until such time the records establishing eligibility are available or such time an evaluation and assessment can be conducted to determine eligibility.” Q. Our state has a residency requirement, and the family are not residents. A. ” Under Part C, the lead agency in a State must make early intervention services available to all infants and toddlers with disabilities in the State regardless of residence. ” Q. How does McKinney Vento affect displaced children with disabilities? A. “The IDEA 2004 amendments in Section 602(11) added a definition of “homeless children” to clarify that the definition under the IDEA is the same as the term “homeless children and youths” in section 725 of the McKinney-Vento Homeless Assistance Act (codified at 42 U.S.C. 11434a). This cross-reference did not add any additional requirements for children with disabilities under the age of three who are served under Part C because the McKinney-Vento Homeless Assistance Act requires that homeless children have the same access to a free, appropriate public education, including a public preschool education, as provided to other children and youths.”
Letter to Brekken 2010. Similar questions from Mississippi and responses from OSEP as in the letter above following Hurricane Katrina.
Letter to Smith, December 1, 2006. This New Jersey letter was written in response to concerns that children placed in private schools would not be eligible for Part B services. Cutting to the chase, OSEP replied that if the LEA offered a program in the public school system, and the parents chose a private school setting, then the school would not be required to provide FAPE. However, if the school placed the child in a private school rather than provide services in its own elementary schools, then it would be required to provide FAPE. LEAs would still be responsible for including those children in Child Find and for making FAPE available to them as well.
Q. Did the IDEA 2004 encourage schools to use RTI in determining eligibility for special educational services?
A. No
Q. Can a school system delay a referral from a Head Start program until the program has monitored his/her progress using RTI?
A. No. Once an LEA receives a referral from a Head Start program, the LEA must initiate the evaluation process to determine if the child is a child with a disability
Q. Must parents of a Head Start child be told of their right to refer?
A. No, However, they may initiate a referral and, once a referral is received from Head Start, the LEA must seek parent consent, give them their rights, and start the evaluation process. (Paraphrasing)
Letter to Hutton and East, February 9, 2011. Several questions were raised regarding the Transition FAQ issued by OSEP in 2010 to the states. The Q and A is summarized below.
Q. The letter questioned the statutory authority for the FAQ’s definition of a referral.
A. OSEP’s response was that the IDEA required two separate notifications, although not labeled as such; and that “Referral is a term commonly used in the education community for such notification and distinguishes it, for Part B purposes, from the receipt of written, informed parental consent for evaluation which triggers the 60-day evaluation timeline under 34 CFR §300.301(c)(1)(i).”
Q. They questioned the statutory authority for Part C providers to determine eligibility for Part B programs.
A. “Under IDEA section 637(a)(9)(A)(ii)(II), the lead agency is required to convene a transition conference among the lead agency, the family, and the LEA not less than 90 days (and at the discretion of the parties, not more than 9 months) before the child is eligible for the preschool services for any child who may be eligible for Part B services. Therefore, the lead agency is required to make a determination if a child is potentially eligible for Part B services in order to determine for which children the lead agency needs to hold those transition conferences that must be conducted not later than 90 days prior to the child’s third birthday. “
Q. They questioned OSEP’s statement that if Part B providers did not participate in the transition meeting why the lead agency would be responsible for insuring parents got their Part B rights.
A. OSEP agrees that it is primarily a Part B LEA responsibility to attend the transition conference and provide information to parents of children potentially eligible for services under Part B; however, the absence of Part B staff at a transition conference does not negate the responsibility of the Part C lead agency under IDEA sections 635(a)(6) and 637(a)(9) to ensure that parents have the information they need to support a smooth transition for their children with disabilities from Part C to Part B services. Under the public awareness requirements at IDEA section 635(a)(6), the lead agency must provide Part B information (services under IDEA section 619) to primary referral sources (in this case parents). Part C and Part B programs should take joint responsibility for ensuring that parents are provided complete and accurate information regarding the services available to children transitioning from Part C to Part B services.
Q. They questioned the statutory authority for OSEP to say that the Part C Service Coordinator must make every effort to attend the initial IEP meeting if invited by the LEA at the request of the parent.
A. OSEP’s reply, paraphrasing, was that the IDEA did not impose any requirement for the Part C Coordinator to attend, and OSEP was only saying that the Part C Coordinator must make “every effort” to attend.
Letter to Colleague, February 29, 2012. This four page letter was written to emphasize that the LRE requirement applied to preschool programs. In one key paragraph, OSEP write, “A preschool child with a disability who is eligible to receive special education and related services is entitled to all the rights and protections guaranteed under Part B of the IDEA and its implementing regulations in 34 CFR Part 300. One of these guaranteed rights is the right to be educated in the LRE in accordance with section 612(a)(5) of the IDEA and 34 CFR §§300.114 through 300.118. The LRE requirements under Part B of the IDEA state a strong preference for educating children with disabilities in regular classes alongside their peers without disabilities. The term “regular class” includes a preschool setting with typically developing peers.4 In determining the educational placement of a child with a disability, including a preschool child with a disability, the public agency5 must ensure that each child’s placement decision is made in conformity with the LRE provisions in 34 CFR §§300.114 through 300.118. “
Letter to Tymeson, July 13, 2013.
Q. Is it consistent with Part B of the Individuals with Disabilities Education Act (IDEA) and its implementing regulations for a school district to deny the provision of physical education services as part of a preschool-aged child’s individualized education program (IEP), when physical education is not available to all children in preschool. As an example, the writer stated that a local school district refused to provide a preschool-aged child with a disability physical education as part of the child’s IEP because children without disabilities in preschool in the school district are not offered physical education.
A. OSEP’s response was that if a school system does not offer physical education to all its students, it is not required to offer physical education to all special education students. However, “if physical education is specially designed to meet the unique needs of a child with a disability and is set out in that child’s IEP, those services must be provided whether or not they are provided to other children in the agency.”
