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Disabled Education

Disabled Education. New York University Press (2013). Ruth Colker Distinguished University Professor The Ohio State University Moritz College of Law. Topics for discussion. Racial Statistics in Special Education Patterns in Ohio Child Find Interpreting Test Scores

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Disabled Education

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  1. Disabled Education New York University Press (2013) Ruth Colker Distinguished University Professor The Ohio State University Moritz College of Law

  2. Topics for discussion • Racial Statistics in Special Education • Patterns in Ohio • Child Find • Interpreting Test Scores • Independent Educational Evaluations • Adequacy of Individualized Educational Programs • Relief for Procedural Violations • The Future

  3. National Disability classification data (2010)

  4. National Suspension data for students with disabilities

  5. THEMES in OHIO

  6. ohio • Large number of sufficiency determinations under 2004 Act • Many cases involved issue of whether child was even eligible for special education; not a lot of cases about adequacy of IEP • Question: Why are school districts aggressively pursuing litigation despite flagrant violations of statute?

  7. Child find considerations • Child Find obligation is an “affirmative duty” of the State or LEA • Obligation helps neutralize what Schaffer Court called the school’s “natural advantage.” • Child Find cases can be very important for children subject to suspension who have not yet been identified as disabled. • Sixth Circuit standard: Board of Education of Fayette County v. L.M., 478 F.3d 307, 313 (6th Cir. 2007): Claimant “must show that school officials overlooked clear signs of disability and were negligent in failing to order testing, or that there was no rational justification for not deciding to evaluate.”

  8. Child find statutory language • All children with disabilities residing in the State, including children with disabilities who are homeless children or are wards of the sate and children with disabilities attending private schools, regardless of the severity of their disabilities, and who are in need of special education and related services, are identified, located, and evaluated and a practical method is developed and implemented to determine which children with disabilities are receiving needed special education and related services. (20 U.S.C. § 1412(3)(A)) • Ohio timeline: • Does MFE take place? School district provides parents with Prior Written Notice within 30 days of referral, either agreeing or refusing to conduct an evaluation. Request could come from parent or the school’s screening/review team. • MFE is conducted: Once parental consent is received, the school district conducts the evaluation within 60 days. (Ohio Guidance to 3301-51-01)

  9. Delays in initial evaluation • The 60-day timeline for conducting the evaluation does not apply to a school district if: • The parents of the child repeatedly fails or refuses to produce the child for the evaluation; or • The child enrolls in a new school district of residence after the 60-day period has begun, but prior to a determination by the child’s previous school district of residence regarding whether the child is a child with a disability. This exception applies only if the current school district of residence is making sufficient progress to ensure a prompt completion of the evaluation and the parents and the current school district agree to a specific time when the evaluation will be completed. • When determining the existence of a specific learning disability, the 60-day timeline also can be extended with mutual written agreement between the parents and eligibility team if it is determined that additional data are needed that cannot be obtained within the 60-day timeline. • Notice: RTI is NOT a reason to unilaterally slow down the 60 day evaluation timeline! • Source: Ohio Guidance to 3301-51-05 • After determination child is disabled, school district needs to develop an IEP within 30 days. See Knablev. Bexley City School District, 238 F.3d 755 (6th Cir. 2001).

  10. Board of Education of Fayette County v. L.m., 478 F.3d 307 (6th Cir. 2007) • T.D. exhibited behavioral and academic problems beginning in kindergarten • Received some interventions and was meeting grade-level expectations by end of kindergarten (1998-1999) • Also struggled in first grade and received specialized reading instruction, reading recovery program and behavior-management strategies; stayed near grade level (1999-2000) • By end of second grade, his standardized test scores showed him reading “far below grade level” but teacher did not make an IDEA referral although notified principal. (2000-2001) • Third grade teacher recommended he repeat third grade; his guardian objected, he attended summer school and moved on to fourth grade (2001-2002) • September 2002: School notified of ADHD diagnosis (beginning of 4th grade) • November 2002: School principal referred T.D. for IDEA evaluation (fall of 4th grade) • February 2003: Committee decided full evaluation appropriate (winter of 4th grade) • April 2003: Evaluation completed (spring of 4th grade) • May 2003: Committee met to devise a plan of action (spring of 4th grade) • May 2003: Guardian filed for due process to contest delay and content of plan (spring of 4th grade) • January 2004: IHO decision finding T.D. should have been classified by end of second grade (5th grade) • May 2004: Appeals Board upheld IHO decision except for structure of compensatory award (spring 5th grade) • July 2007: District court largely upholds IHO • IQ of 105 but still reading at fifth grade level during 7th grade School not legally liable for failure to refer for evaluation before second grade because “the nature of ungraded primary school recognizes the progress of very young students is not uniform.” But was legally liable for delay from Fall 2002 (beginning of 4th grade) to Spring 2003 (end of 5th grade). School Districts often cite this case for first point without recognizing court did find a “child find” violation.

  11. Relationship to manifestation review • A child who has not been determined to be eligible for special education and related services under this subchapter and who has engaged in behavior that violates a code of student conduct, may assert any of the protections provided for in this subchapter if the local educational agency had knowledge ... that the child was a child with a disability before the behavior that precipitated the disciplinary action occurred. • A school is deemed to have knowledge of the child's disability and need for special education if one of three circumstances exist: • the parent of the child has expressed concern in writing to supervisory or administrative personnel of the appropriate educational agency, or a teacher of the child, that the child is in need of special education and related services; • the parent of the child has requested an evaluation of the child pursuant to section 1414(1)(1)(B) of this title; or • the teacher of the child, or other personnel of the local educational agency, has expressed specific concerns about a pattern of behavior demonstrated by the child, directly to the director of special education or such agency or to other supervisory personnel of the agency. • 20 U.S.C. § 1415(k)(5)(A) & (B)

  12. Jackson v. Northwest Local School District, 2010 WL 3452333 (S.D. Ohio 2010) • Mother first sought assistance for daughter at age 6 in 2006; diagnosed with ADHD and provided with interventions but no IEP for first and second grade • Behavior worsened in October of 3rd grade • Rather than recommend an MFE, team recommended that mother seek assistance for child at an outside mental health agency on October 23, 2007 • Child was suspended on November 6, 2007 and told could not return to school unless she received psychological counseling and provided written confirmation that she was not a danger to herself or others; she had threatened to bring a gun to school and shoot certain students • Little home instruction until returned to school in January 2008 • Later in November 2007, upon advice of counsel, mother requested an MFE and a manifestation review • Mother given procedural safeguards handbook in January 2008 • School did not agree to conduct MFE until January 20008; completed MFE in March 2008 and classified child as emotionally disturbed • Mother objected to ED rather than OHI label

  13. Jackson v. Northwest School district (pro se case) • IHO Decision: • Should not have been classified as early as 2006; school did not unduly delay identifying student as disabled because kept providing services • Should have conducted manifestation determination before suspension • Failure to provide booklet contributed to delay in identification • No harm from ED rather than OHI classification • Delay in providing home instruction • SLRO Decision: • School should have suspected disability in October 2007 and conducted an MFE • No need to have conducted manifestation determination because not yet classified as disabled • Failure to provide booklet was harmless error • Child not misclassified as ED • But did delay in conducting MFE by five weeks and one day • District Court Decision: • Not disabled as early as 2006 • Should have conducted manifestation determination because of sufficient evidence to suspect disability at that time • No harm from failure to be provided booklet • Not misclassified as ED • Other Unaddressed Errors: • Parent should have properly sought reimbursement for testing. • Parent should have pressed for thorough academic evaluation and consideration of SLD diagnosis; child was being socially promoted despite academic failure

  14. Interpreting test scores

  15. STANDARD DEVIATIONS • Three ways to say the same thing: • A standard score of 70 • A percentile score in the 2nd percentile • 2 standard deviations below the mean

  16. Error of measurement • Scores should be stated as a band that takes into account the error of measurement, which also can be called the confidence interval • Usually, the confidence interval is plus or minus one standard error of measurement • Thus, a 100 on an IQ test might be expressed as being between a confidence interval of 95 and 105. But, that is only a 1 SD level of confidence (68 percent). • If we wanted a 95 percent degree of confidence, would have to consider a confidence interval of plus or minus TWO standard errors of measurement. (Score between 90 and 110.) • For 98 percent confidence, would need plus or minus THREE standard errors of measurement. (Score between 85 and 115). • Cases rarely consider error of measurement. See Adam Wayne D. v. Beechwood Independent School District, 2012 WL 1861041 (6th Cir. May 22, 2012) • Kentucky school denied classification as SLD for first grader with IQ of 106 and reading comprehension score of 87. Said he needed 84 to qualify. Still not reading by fifth grade but refuse to classify him as SLD, saying discrepancy isn’t sufficiently severe under Kentucky law. Eventually classified as having a speech and language disorder but refusing to recognize neurological connection to dyslexia.

  17. Applied to intellectual disability • Ohio definition of “cognitive disability” states: • “Based on a standard error of measurement and clinical judgment, a child may be determined to have significant subaverage general intellectual functioning with an intelligence quotient not to exceed seventy-five.” See Ohio Operating Standards, § 3301-51-01(B)(ii). • It codifies a confidence ban of 70 to 75 when interpreting IQ results if that band is consistent with a clinical judgment irrespective of the error of measurement of the actual testing instrument.

  18. Developmental delay category for preschoolers • Ohio identifies five areas of development (physical development, cognitive development, communication development, social or emotional development, and adaptive development) and requires a child to be below the norm by 2 standard deviations in one area or 1.5 standard deviations below the norm in two areas to qualify as a child with a disability. See OH ADC 3301-51-11.

  19. Example of good child find evaluation: XXB • Development: difficulty repeating what he hears, pronouncing words, retaining what he reads, writing coherent sentences, using neat handwriting, remembering math concepts, and singing songs; frequent problems turning words around and mispronouncing similar sounding words • Repeated 1st grade but did not benefit • Kindergarten to first month of 5th grade: Public school • District administered BASC-2, showed some areas of concern but no follow up • 5th grade: Home schooling • 6th and 7th grade: Parochial school; did not re-enroll due to discomfort with religious instruction but performed somewhat better • 8th grade: Public school • Intervention study hall • School claims he doesn’t succeed because not trying hard enough • Currently failing science and in jeopardy of failing math, social studies and language arts • Self-report that homework intervention not helpful because forgot all the material when took test and still failed • Important subscores: • 77: written expression 74: oral expression 64: phonemic decoding efficiency • 71: story recall-delayed 78: understanding directions 6: fluency • By the time child was identified, he had lost interest in school and higher education!

  20. jimmy at age 3 • Peabody Developmental Motor Scale (Gross Motor) • Balance: 2nd percentile • Nonlocomotor: 10th percentile • Locomotor: 2nd percentile • Receipt and Propulsion: 4th percentile • Total Score: 1st percentile • SIB-R Adaptive Behavior Assessment • Self-care: 1st percentile • Social communication 6th percentile • Total Score: 8th percentile • Where is Jimmy 1.5 SD below mean? • Where is he 2 SD below mean? • Does he need academic scores to qualify as disabled?

  21. Consideration of subscores: IQ score of 98 in 3rd grade on Group-administered Test • Jimmy’s IQ is 98 (45th % NPA) but is there anything average about Jimmy’s aptitude? • Why are Jimmy’s Grade Scores higher than his Age Scores? • What does asterisk mean? • Would you be surprised to learn that Jimmy scored in 75th percentile in reading despite verbal aptitude in 6th percentile?

  22. JIMMY Re-Test • Jimmy took an individually administered IQ test with no auditory component • Achieved a standard score of 124 on the verbal portion of the test • Overall IQ now measured at 120 (age-based score) • Academic progress: • Jimmy repeatedly scored two grade levels behind his grade on writing but otherwise at or above grade level What’s going on here?

  23. Jamie rodriquez • Corrected vision of 20/100 in one eye and 20/80 in the other eye • Reads with magnification equipment • Average IQ and average achievement as incoming first grader • Navigation challenges although familiar with building due to older sibling • To qualify, need to demonstrate BOTH an impairment AND adverse educational impact. • Specialized instruction does not merely include academic instruction; can include orientation and mobility instructions • Specialized classroom equipment can avoid the need for specialized instruction, consistent with least restrictive environment rule

  24. Learning disabilities • Specific Learning Disability • A disorder in one or more of the basic psychological processes involved in understanding or in using language, spoken or written, that may manifest itself in an imperfect ability to listen, think, speak, write, spell or to do mathematical calculations. The term includes such conditions as perceptual disabilities, brain injury, minimal brain dysfunction, dyslexia and developmental aphasia. The term does not include children who have learning problems that are primarily the result of visual, hearing or motor abilities, of cognitive disability, of emotional disturbance or of environmental, cultural or economic disadvantage. • How will the group determine whether my child has a specific learning disability? • When determining whether your child has a specific learning disability, the group: • May use a process based on your child’s response to certain ways of teaching shown by research to be successful with children at your child’s age and grade level; • May use other procedures that research has shown to be successful; and • Is not required to take into consideration whether there is a severe difference between your child’s intelligence and achievement in speaking thoughts, writing thoughts, reading, understanding what is heard and read and solving mathematical problems.

  25. Specific Learning disabilities categories • Qualifying Categories • Oral Expression • Reading Fluency Skills • Written Expression • Mathematics Calculation • Listening Comprehension • Reading Comprehension • Basic Reading Skill • Mathematics Problem Solving • PR-06 ETR Form (revised May 10, 2011) • Exclusionary Factors: • A Visual, Hearing, or Motor Disability • Mental Retardation • Emotional Disturbance • Limited English Proficiency • Environmental or Economic Disadvantage • Cultural Factors Should Jimmy be classified as having a learning disability?

  26. Learning disabilities & RTI • Discrepancy model is still permitted in Ohio but most school districts have adopted RTI. • January 21, 2011 OSEP opinion letter states that RTI cannot be used as a way to delay evaluation • “It would be inconsistent with the evaluation provisions at 34 CFR 300.301 through 300.111 for an LEA to reject a referral and delay provision of an initial evaluation on the basis that a child has not participated in an RTI framework.” • See Case No. SE 2223-2009 (Sylvania School District): hearing officer criticized school district for insisting on continuing to conduct IAT’s after parental request for MFE and refusing to conduct MFE even though student was failing most of his core subjects despite two IAT attempts. (But parent gets no relief in ridiculous decision; will discuss later.)

  27. Example of good dyslexia evaluation: XXA • Child repeated first grade which was helpful • First tested during 2004-05 school year and diagnosed with dyslexia in early 2006 (second grade); has been on an IEP since that time • Administered same tests in 2010 and 2012 and results are compared • Written expression declined from 104 to 87 • Fluency increased from standard score of 2 to score of 5 (with a mean of 10 and SD of 3) • Oral reading quotient increased from 76 to 91 (with mean of 100 and SD of 15) • Rapid digit naming decreased from 9 to 6 (with mean of 10 and SD of 3) • Phonological memory increased from 73 to 88 (with mean of 100 and SD of 15) • IQ documents high-average cognitive ability • “Minimal change in scores does not convey that intervention has not been successful; rather it may illustrate the persistent effect of dyslexia” Continued intervention needed to sustain current level of academic achievement and growth.

  28. INDEPENDENT EDUCATIONAL EVALUATIONS

  29. Schaffer v. Weast: importance of Independent educational evaluations • “[Parents] also have the right to an ‘independent educational evaluation of the[ir] child.’ The regulations clarify this entitlement by providing that a ‘parent has the right to an independent educational evaluation at public expense if the parent disagrees with an evaluation obtained by the public agency.’ IDEA thus ensures parents access to an expert who can evaluate all the materials that the school must make available, and who can give an independent opinion. They are not left to challenge the government without a realistic opportunity to access the necessary evidence, or without an expert with the firepower to match the opposition.”

  30. Independent educational evaluations • 34 C.F.R. § 300.502 • (b) Parent right to evaluation at public expense. • (1) A parent has the right to an independent educational evaluation at public expense if the parent disagrees with an evaluation obtained by the public agency • (2) Parent is entitled to evaluation at public expense unless agency demonstrates at a due process hearing that its evaluation is appropriate … • (4) The public agency may ask for the parent’s reason why he or she objects to the public evaluation. However, the public agency may not require the parent to provide an explanation and may not unreasonably delay … • (5) A parent is entitled to only one independent educational evaluation at public expense each time the public agency conducts an evaluation with which the parent disagrees.

  31. When is school’s evaluation “appropriate”? • 20 U.S.C. § 1414(b): • Variety of assessment tools and strategies to gather relevant functional, developmental, and academic information, including information provided by the parent • Not use any single measure or assessment as the sole criterion • Use technically sound instruments that may assess the relative contribution of cognitive and behavioral factors, in addition to physical or developmental factors • Provided and administered in the language and form most likely to yield accurate information • The child must be assessed in all areas of suspected disability • Special rules for assessing specific learning disabilities, including use of scientific, research-based intervention

  32. OHIO Case: no. SE-2274-2009 (Hamilton Local School District) • District’s MFE not appropriate and parent entitled to an IEE at public expense • District conducted MFE for 8 year old boy and found that he was ineligible for special education • Developmentally delayed; retained in kindergarten • 19 days of suspension from school between September 2008 and January 2009 • In-school suspensions and emergency removals beginning September 2008 • Suspended from bus beginning in October 2008; eventually excluded from bus • Parent shared diagnosis of Oppositional Defiant Disorder in January 2009 • Parent requested MFE on January 8, 2009 • On February 5, 2009, school district concluded that student was not suspected of having a disability because of no adverse effect on educational performance; no manifestation determination review for suspensions because of that decision • District agreed on March 4, 2009 to conduct an MFE • Student expelled on March 5, 2009 • Mother filed for expedited due process hearing on March 10, 2009 • March 17, 2009: held both a Resolution session on the expedited due process hearing and the MFE meeting (MFE took only 13 days!)

  33. Problems with MFE in hamilton case • Lacked depth because District was in a rush to get it completed; ruled out ED but failed to evaluate for ADHD, ADD, or OIH by fully completing BASC-2 • Several team members voiced concerns over short time period of evaluation • Rushed because of pending suspension issue • Did not gather any information from student’s bus driver • Functional behavior assessment was not done as part of the MFE • Ignored evidence of problems from three different rating scales: • On BASC-2, student’s teacher ranked him “at risk” and “caution” category for hyperactivity and overall, respectively • Parent rating on BASC-2 was clinically significant for hyperactivity and attention problems • Aggression portion for teacher and parent on BASC-2 was clinically significant • SAED showed inappropriate behavior at school • Sensory Processing evaluation showed a problem with social participation • No evaluation of whether he had a Specific Learning Disability despite low scores in verbal comprehension, perceptual reasoning, working memory and in reading and math • Too high a standard for “adversely affects educational performance” – not necessary to be failing in school to receive special education and related services

  34. Kenston Local School District, SEA 1194-2002 (Nov. 25, 2003) • State Level Review Officer: • Affirmed conclusion of the IHO that the child was a child with a disability • School district had denied eligibility because of student’s grading results. But SLRO found that “grades alone are not determinative with whether the child is impacted, or impaired, by her disability. Rather IDEA encourages a more complete examination of all of the educational achievement of the student.” • SLRO found the MFE “replete with evidence that this student struggles with activities necessary to success in school.”

  35. Adequacy of individualized educational plans

  36. Rowley v. Board of Education:Amy’s story • First grade IEP: • Tutor for deaf for one hour per day • Speech therapist for three hours per week • FM amplification device • Issue: • Whether Amy would also receive a sign language interpreter

  37. Factual background • Three week trial with interpreter scheduled in kindergarten • Ended after two weeks • Amy resisted using his services • Interpreter’s Report: “I would say that as far as interpretive services are concerned, they are not needed at this time. However, this does not rule out the fact that an interpreter will not be needed at a future date when the classroom work becomes more involved and large group discussion becomes the rule.” • Moved to new school district in 5th grade where she received interpreter

  38. Educational benefits standard • Supreme Court repeatedly focuses on the importance of “access to specialized instruction and related services” • State satisfies its FAPE requirement by “providing personalized instruction with sufficient support services to permit the child to benefit educationally” • The “basic floor of opportunity” consists of “access to specialized instruction and related services which are individually designed to provide educational benefits”

  39. Applied to amyrowley • Amy was receiving “substantial specialized instruction” • “We do not hold today that every handicapped child who is advancing from grade to grade in a regular public school is automatically receiving a ‘free appropriate public education.’ In this case, however, we find Amy’s academic progress, when considered with the special services and professional consideration accorded by the Furnace Woods school administrators, to be dispositive.”

  40. Meaningful education standard • Third and Sixth Circuits support a “meaningful educational benefit standard” under which one would measure educational benefit “in relation to the potential of the child at issue” • Good example of using this standard in Ohio is B.H. v. West Clermont Board of Education, 788 F. Supp.2d 682 (S.D. Ohio 2011) (Judge Timothy S. Black)

  41. codified • IDEA Findings: education for children with disabilities can be made more effective by “having high expectations for such children and ensuring their access to the general education curriculum in the regular classroom, to the maximum extent possible” • Department of Education regulations: Children can be classified as disabled and therefore entitled to a FAPE “even though they are advancing from grade to grade”

  42. Relief FOR PROCEDURAL VIOLATIONS

  43. Procedural errors that cause harm

  44. impeded the child’s right to a FAPE

  45. significantly impeded the parent’s opportunity to participate in the decisionmaking process regarding the provision of a FAPE to the parent’s child

  46. caused a deprivation of educational benefit

  47. B.H. v. West Clermont Board of Education, 788 F. Supp. 2d 682 (S.D. OH 2011) • 10 year old girl had mental retardation, poorly controlled epilepsy, asthma, selective mutism, ADHD, explosive behavior disorder, Cushing’s Disease, autism, and post traumatic stress disorder. • She had significant adaptive behavior deficits but no IEP goals for those issues. • She received about 45 minutes of speech consult per year but speech therapist did not even know she had a cognitive deficit. Speech therapist sent in report recommending IEP goals without ever attending IEP meeting. • The functional behavior assessment was conducted by an untrained aide. She had a behavior plan with a complicated method for her to earn “points” that she did not have the cognitive capacity to understand. She was frequently restrained, even to the point of requiring hospitalization. • Her guardian repeatedly shared outside assessments and recommendations to school, which were ignored. • Following serious injuries from use of restraints, Guardian transferred child to private day treatment center that used Applied Behavioral Services and no restraints. Child did much better there. • IHO found in favor of Guardian (and child) with regard to nonacademic goals, decision reversed by SLRO, but IHO decision reinstated by federal district court judge • “SLRO opinion is without any evidentiary or legal support and contains virtually no references to the record.” • Nonetheless, neither IHO, SLRO nor federal judge found FAPE violation regarding academic progress despite goals that were completely inappropriate for child; concluded she made academic progress that was consistent with her aptitude on the basis of scant evidence of progress

  48. Procedural/harm analysis • Speech Services • District ignored the documentation of child’s need for speech services from outside experts • Dismissal of District’s speech therapist from the IEP meeting, coupled with notations on the excusal form which indicated level of recommended speech therapy before the IEP meetings, shows that speech services had been predetermined before the IEP team ever met. • OT Services • No evidence that District considered the outside evaluations related to child’s need to learn appropriate hygiene, toileting, and self care skills, which also required direct service. • District failed to provide prior written notice for failing to consider outside evaluations. • OT services were “predetermined.” Fact that parent was present does not demonstrate that parent could meaningfully participate. 3. Substantive Harm • Failure to provide child with the necessary related services of speech and occupational therapy constituted a denial of FAPE as well a denial of meaningful participation. • Do not need to find evidence of failing to progress academically to conclude denial of FAPE

  49. Behavioral interventions • Rowley analysis: lack of “meaningful educational benefit” • Why the Behavioral Point System Failed Rowley standard: • Behavioral regression through the downgrading of goals each year • No evidence that there was any scientific basis for the point system • The point system was incomprehensible to child • Was unduly punitive SLRO errors: • Failed to recognize importance at looking at both academic AND functional advances. “The IDEA covers students with disabilities that are not per se educational, but require specially designed instruction.” • Failed to recognize that behavior was an essential part of her program.

  50. SE 2223-2009 (Sylvania School District) (Ridiculous result; not appealed because child moved out of district) • 17 year old child not evaluated over the years despite: • 7th grade, failed second trimester of math • 8th grade, diagnosed privately with oppositional defiant disorder, ADHD and math disorder; failed many classes; lots of absenteeism and lateness • Parents requested testing in 9th grade for 504 plan; reported private test results • School insisted on IAT process first; very haphazard process; no MFE; again failing classes • Parent again requested assistance for 10th grade; another IAT put in place; again haphazard implementation • School finally conducted evaluation in 11th grade and concluded that impairment not having a “severe negative impact” but continued to receive IAT support • Procedural errors occurred but parent did not demonstrate that student required special education; a mentor was sufficient; so no adverse impact from delay in testing

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