CA Dept. of Education

Home

Culturally Responsive Assessment Archive 2014

jh  

James Hiramoto, Ph.D.,
School Psychologist

James graduated with an MA and PhD in Educational Psychology from UC Berkeley’s, School Psychology Program. He has 17 years of experience as a school psychologist. He advises and provides trainings for superintendents, school administrators, teachers and special education staff. He has over 8 years of experience as a university professor and director, training school psychologist at the Master and Doctoral level. His areas of expertise align with the subjects he teaches and or presents at state or international conferences. These areas include: Cognitive ability, neuropsychological, alternative and culturally responsive assessment; crisis planning, management and intervention; educational research methodology and statistics; program evaluation; consultation and special education law.

Submit A Question

Click a topic below to expand the full question and answer.

  • California Code of Regulations Section 3030 – definition of term “Educational Performance”

Question:

Hi James,

My question has to do with the term “educational performance.” This phrase is now in the California Code of Regulations (CCR) for Autism 3030 (b)(1) which did not explicitly have the phrase “Autism means a developmental disability significantly affecting verbal and nonverbal communication and social interaction, generally evident before age three, and adversely affecting a child's educational performance.” I have always taken that to mean academic performance, but others say it is more than that. If it’s not just academics, what does it include?

Signed,

Puzzled


Answer:

Hi Puzzled,

I understand that this can be confusing. The term “educational performance” appears throughout the eligibility section of the CCRs (3030), but is left undefined. The good news is that there are resources that provide clarity on what is meant by “educational performance” at the federal level. One such resource comes from the US State Department of Education, Office of Special Education Programs (OSEP) in a March 8th, 2007, Letter to Clarke, (https://www2.ed.gov/policy/speced/guid/idea/letters/2007-1/clarke030807disability1q2007.pdf). The letter states:

“The Department’s position that the term “educational performance” as used in the IDEA and its implementing regulations is not limited to academic performance…in conducting an evaluation, the public agency must use a variety of assessment tools and strategies to gather relevant functional, developmental and academic information. Therefore, IDEA and the regulations clearly establish that the determination about whether a child is a child with a disability is not limited to information about the child’s academic performance.”

Therefore, a comprehensive definition of “educational performance” includes all aspects of how a child functions at school with respect to: academic, cognitive, communication, independent living, social/emotional and vocational skills compared to other typically developing peers.

I hope this is helpful.

Sincerely,

James


  • California Education Code (CA Ed Code) & California Code of Regulations (CCRs)

Question:

Hi James,

This may be a strange question, but I can’t find the new 3030 regulations in the CA Education Code that you referenced in your training?

Thanks,

Jasmine


Answer:

Hi Jasmine,

Not strange at all. You have the number right, but it is not part of “CA Education Code”. The new regulations are part of the California Code of Regulations (CCR). The citation on my slide is CCR Sec 3030 (a more complete citation would be CCR Title 5 Sec 3030.)

The California Education Code (CA Ed Code) and the CCR are two separate sources of codes and regulations, which often reference each other:

The CA Ed Code are: “2. The code establishes the law of this state respecting the subjects to which it relates, and its provisions and all proceedings under it are to be liberally construed, with a view to effect its objects and to promote justice. 3. The provisions of this code, insofar as they are substantially the same as existing statutory provisions relating to the same subject matter, shall be construed as restatements and continuations, and not as new enactments.“ (http://www.leginfo.ca.gov/cgi-bin/displaycode?section=edc&group=00001-01000&file=1-11).

  1. The CCR: “is the official compilation and publication of the regulations adopted, amended or repealed by state agencies pursuant to the Administrative Procedure Act (APA). Properly adopted regulations that have been filed with the Secretary of State have the force of law.” (www.oal.ca.gov/ccr/htm).
  2. Where the CA Education Code is only about education, education is only fraction of the regulations being covered in the CCR. Another way to look at it: the CA Ed Code is about the laws regarding education; and the CCR is more about how laws are to be implemented.

Most people do not make the distinction as they are education codes (lower case), but when you are trying to find the actual wording or citation, it matters if it is CA Ed Code or CCR.

I hope this helps.

Sincerely,

James


  • Eligibility Criteria

Question:

Hi James,

I attended one of your trainings in Oct. and for the life of me I can’t find a copy of the new CCR’s (3030) that you mentioned. Is there a link for this? Is there a compare and contract of the old CCR’s and the new ones?

Thanks,

Chris


Answer:

Hi Chris,

Here are two links to the new CCR’s (the first is a website, the second is a downloadable PDF version of the same information):

https://govt.westlaw.com/calregs/Document/I32126860DEDE11E3B1CDC211BAD8AD24?viewType=FullText&originationContext=documenttoc&transitionType=CategoryPageItem&contextData=(sc.Default)
and http://www.casponline.org/pdfs/pdfs/Title%205%20Regs,%20CCR%20update.pdf

Also find a PDF titled CCR 3030 past vs current.pdf, which places the old eligibility right next to the new criteria. In comparing the old CCRs to the new ones, the locations (the way they are laid out in numerical order) for each disability was shuffled a bit to reflect the order of the code of federal regulations (CFR 308). That is why the numbers that precede each of the newly updated CCR disability categories look like they are out of order compared to the old 3030, because they are. Therefore if you want all the numbers to line up in order use either the Westlaw link or the one from CASP.

I hope this helps, Chris.

Sincerely,

James Hiramoto


  • Emotional Disturbance and Social Maladjustment

Question:

Dear James,

I am not sure if this is the right place to post this, but I’ve attended your mental health training and feel I am getting conflicting information regarding eligibility for Emotional Disturbance (ED). I was trained that students who have a Behavior Disorder, such as Conduct Disorder, do not qualify under ED. You mentioned that the law was recently updated? Is that what changed?

Perplexed,

Alison


Answer:

Dear Alison,

Thank you for your question. As cultural factors can play a role in what is determined to be socially maladjusted behavior, I think your question here is appropriate. The answer is nuanced and may explain why you’ve been given conflicting information. Yes, the California Code of Regulations (CCRs) had been recently updated (July 1, 2014). No, this is not the cause of the confusion.

First let’s start with Title 5 CCR 3030 criteria for Emotional Disturbance:

CCR 3030

“(4) Emotional disturbance means a condition exhibiting one or more of the following characteristics over a long period of time and to a marked degree that adversely affects a child's educational performance:

(A) An inability to learn that cannot be explained by intellectual, sensory, or health factors.

(B) An inability to build or maintain satisfactory interpersonal relationships with peers and teachers.

(C) Inappropriate types of behavior or feelings under normal circumstances.

(D) A general pervasive mood of unhappiness or depression.

(E) A tendency to develop physical symptoms or fears associated with personal or school problems.

(F) Emotional disturbance includes schizophrenia. The term does not apply to children who are socially maladjusted, unless it is determined that they have an emotional disturbance under subdivision (b)(4) of this section.”

The new CCR reads almost word for word as the Federal language of Code of Federal Regulation (CFR) 34 also known as IDEA 2004.

34 CFR Part 300/A/300.8/c/(4)

(i) Emotional disturbance means a condition exhibiting one or more of the following characteristics over a long period of time and to a marked degree that adversely affects a child's educational performance:

(A) An inability to learn that cannot be explained by intellectual, sensory, or health factors.

(B) An inability to build or maintain satisfactory interpersonal relationships with peers and teachers.

(C) Inappropriate types of behavior or feelings under normal circumstances.

(D) A general pervasive mood of unhappiness or depression.

(E) A tendency to develop physical symptoms or fears associated with personal or school problems.

(ii) Emotional disturbance includes schizophrenia. The term does not apply to children who are socially maladjusted, unless it is determined that they have an emotional disturbance under paragraph (c)(4)(i) of this section.

As you see, Line (F) in the CCRs and Line (ii) in IDEA, have within them language that seems to imply those with Behavior Disorders do not qualify (”The term does not apply to children who are socially maladjusted,”). This is often called the “exclusionary rule.” However, the sentence doesn’t end there, it continues with, “unless it is determined that they have an emotional disturbance under subdivision (b)(4) of this section.” Therefore, even individuals who are socially maladjusted, if they also meet the criteria for ED, can qualify as ED.

How does that work?

First let’s address the term “socially maladjusted.” There are no federal or state regulations that define the term. It is also not found in the DSM-5. No one is clinically diagnosed as socially maladjusted.

So how is “socially maladjusted” defined?

The definition comes about through legal decisions, with experts providing language that helps define the term. Here are a few that have been collected and shared in a training provided by Lozano Smith (Special Education Legal Consortium 2014):

  • “Student acts in deliberate noncompliance with known social demands or expectations
  • Student’s behavior is controlled, predictable and purposeful
  • Drinking alcohol, abusing drugs, running away from home or getting in the occasional fight are associated with social maladjustment, not ED
  • Look for a persistent pattern of violating societal norms with truancy and substance abuse (i.e. a perpetual struggle with authority).”

However, if a student exhibits these behaviors, it does not exclude them from receiving services as a student with ED. For instance, a student who is suffering from Post-Traumatic Stress Disorder (PTSD), Anxiety, Depression, etc., can also be exhibiting many of these behaviors. The 8th Circuit Court of Appeals in 2011 (L. Hansen on behalf of J.H. v. Republic R-III School District) held:

“that a student suffering from ADHD, bipolar disorder, and conduct disorder is “a child with a disability” within the meaning of the Individuals with Disabilities Education Act (IDEA) and, therefore, eligible for special education services under the statute. The panel concluded that the student satisfied the eligibility requirements for “emotional disturbance” and “other health impairment” under IDEA.” (http://legalclips.nsba.org/2011/01/27/student-with-adhd-bipolar-disorder-and-conduct-disorder-is-a-child-with-a-disability-under-idea/)

For the “exclusionary rule” to hold, the student cannot be found to meet the criteria of ED. An example of this comes from the 4th Circuit Court (as reported in the 8th Circuit Courts report).

“In Springer v. Fairfax County School Board, 134 F.3d 659 (4th Cir. 1998), the student at issue was found to be positive relationships with teachers and peers, and had participated in extracurricular activities until the eleventh grade when he began stealing, sneaking out of his house, skipping school, and using marijuana and alcohol. Id.at 661. At that point, the student continued to score in the average to superior range on standardized tests, but his grades suffered due to skipping class and failing to complete assignments. Id. Additionally, “the overwhelming consensus” among the psychologists who examined the student was that he did not suffer from an emotional disturbance. Id at 665”. (L. Hansen on behalf of J.H. v. Republic R-III School District, No 10-1514)

This was not the case in Hansen:

“In contrast, J.H. received numerous disciplinary referrals over a four-year period for threatening students and teachers, fighting with other students, and treating his peers and teachers with disrespect. After working with J.H., Republic’s school based mental health clinician, Peggy DeFazio, described him as socially unsuccessful due to his limited social skills and terminated their relationship because he threatened her. Unlike the student in Springer who started to fail his courses because he skipped class and refused to turn in assignments but continued to perform above average on standardized tests, J.H. consistently struggled to pass his classes, failed the standardized test he was required to pass for advancement to the seventh grade, and suffered academically because of his diagnosed bipolar disorder.

In support of its argument that J.H. did not exhibit an inability to build or maintain satisfactory interpersonal relationships, Republic cites the testimony of its director of special services, Matt White, who stated that J.H. did well with some teachers but not well with others. However, White based his opinion on behavior reports and had no personal interactions with J.H.” (L. Hansen on behalf of J.H. v. Republic R-III School District, No 10-1514)

What does this all mean?

Because Circuit Courts (a.k.a., United States Courts of Appeals) are often the final word of law on most federal cases (as the U.S. Supreme Court reviews very few cases), these decisions set legal precedent. Even though California falls under the jurisdiction of the 9th Circuit Court, precedents from 8th and 4th Circuit Courts need to be strongly considered.

The determination of ED is not simple. There is no equation where socially maladjusted (oppositional defiant or conduct disordered) does not equal ED. As I mentioned above, cultural factors can play a role in what is determined to be socially maladjusted behavior, so identifying if culture is playing a role is necessary.

As school psychologists we must exercise our clinical judgment if a student meets eligibility for ED. If so, they qualify as a student with an ED, regardless of whether or not they are socially maladjusted.


  • Are any parts of an Intelligence test allowed under Larry P.?

Question:

Dear James,

I didn’t see an appropriate place to send the below question:

Is it legally defensible to administer components of the CAS, WJ Cognitive or other IQ tests, when assessing processing skills only for an African-American student? For example, administering select tests of the WJ Cognitive, comprising the auditory processing domain, to an African-American student?

I appreciate your forwarding this question or emailing me where I can directly forward.

Thank you very much,

Lucy


Answer:

Dear Lucy,
The DCN has interpreted CDE’s Legal Memorandum 1997, which in part reads:

”No other list of tests has been recognized by the Department of Education for the purpose of finding school districts out of compliance in testing African-American students for special education…the original Larry P. decision was not limited to a specific set or sets of standardized intelligences tests, school districts should be advised that any standardized measure of intelligence should not be used with African-American students until such time as they are validated as unbiased by the State Board of Education and approved by the court. There should be no “on-the-spot” judgments that result in finding districts out of compliance for using tests that are not listed.”

So basically, no measures of intelligence, means no measures, period.

  • Nothing from these tests: No age equivalents, No grade equivalents, No percentile ranks. No raw scores.
  • If a competent school psychologist can figure out the standard scores from that information, don’t use it.
  • And yes, the subtests of an intelligence test represent measures of intelligence.

Some may argue that it is a matter of splitting hairs when subtests from an intelligence/cognitive ability test look the same as one from a specific processing area test e.g., CTOPPs or TVPS. However, there are theoretical and construct distinctions between being:

  • A measure of a single broad processing area with many subtests (usually 10 or so) contributing to that single processing area

versus

  • One or two subtests representing a broad processing area co-normed with other subtests representing other processing areas that ultimately lead to an even broader single general ability measure.

Hope this helps clarify the situation and feel free to write me directly with any other questions.

Sincerely,
James


  • So what standardized tests do you use? Do you have a list? Can you share the list?”

Question:

Hi James,

We’ve been going through a SESR (Special Education Self Review) and in the process updating our policy on the assessment of African American to be compliant with Larry P., Crawford v Honig and the last word on the subject (as far as I know), the 1997 CDE Memorandum. Discussion around the topic of assessment instruments not to be used has brought up conflicting information. Colleagues have reported that CDE employees (these are first hand reports) have expanded the scope of the 1997 Memorandum from, “any standardized measure of intelligence should not be used” to a much broader one that would include any standardized measure of learning or of a specific cognitive process.

What are your thoughts on this? I want to know, not because I am not advocating for more testing. I fully support the best practice of RIOT (Record review, Interviews, Observation, Testing) with “T” used to support the “RIO” data, and not using it as the all-powerful determiner of eligibility. I’ve attended your trainings at CASP on what you do at the DCN. You’ve strongly promoted the best practice of: RIOT with T being more informal than standardized testing, but you have mentioned at times you also use some standardized tests that are not prohibited by Larry P. So what standardized tests do you use? Do you have a list? Can you share the list?


Answer:

Hi Robert,

You’re not the first person to ask me about a perceived expansion of the test ban. To my knowledge CDE has no new memorandum. As you correctly wrote, the 1997 Memorandum specifically states, “any standardized measure of intelligence should not be used.” Each LEA (Local Education Agency) is responsible to determine what a standardized intelligence test is. An expansion to include standardized measures of learning or cognitive processes is far beyond the scope of Larry P., as this would include measures of achievement and adaptive ability which have never been part of the ban. In fact, these type of measure have been mentioned as other factors in a comprehensive assessment by CDE’s Larry P. Task Force (which also included measures of learning, memory, specific cognitive processes, and neuropsychological assessment).

I am heartened to know that you (and I’m sure your team of psychologists) ascribe to best practices and not use standardized testing as a short cut for a comprehensive assessment. That being said, I am sorry I am unable to furnish a list for you of tests that are allowable. The 1997 Memorandum states, “No other list of tests has been recognized by the Department of Education for the purpose of finding school districts out of compliance in testing African-American students for special education” The DCN does not have the ability to generate a list. The procedure, specified in Larry P., and reconfirmed in Crawford v Honig, is that no approved list of tests can be generated “until such time as they are validated as unbiased by the State Board of Education and approved by the court.” To date that has not happened.

What I can describe to you is how we at the DCN interpret what an intelligence test is and how we go about doing a comprehensive assessment.

How we at the DCN interpret what an intelligence test is

First, we go to the theoretical construct of the test and how it is being defined and used in professional practice. Any test of cognitive ability that purports to be able to measure overall cognitive ability (general ability, intelligence, psychometric ‘g’) which can then be represented by a single score is an intelligence test. The fact that many test makers tell you to ignore the overall score or not to report the overall score is irrelevant. Substitution of another test for an intelligence test is also prohibited as tests of Language were banned as part of the original Larry P. case. Therefore, any test used to replace a test of intelligence would de facto be an intelligence test and violate Larry P. injunction, and CDE Memorandum 1997.

This is why the DCN developed its best practices based on a processing strengths and weaknesses model. C.C.R. (California Code of Regulations) 3030 (10) (C) (2) (ii): “The pupil exhibits a pattern of strengths and weaknesses in performance, achievement, or both, relative to age, State-approved grade-level standards, or intellectual development, that is determined by the group to be relevant to the identification of a specific learning disability, using appropriate assessments, consistent with 34 C.F.R. sections 300.304 and 300.305; and” (C.F.R. – Code of Federal Regulations). An analysis of PSW (Processing Strengths and Weakness) as part of a comprehensive assessment provides information on specific cognitive processing areas that have been found to have direct implication on academic performance. This method has been found to be the preferred methodology from the 9th Circuit Court e.g. Michael v Hawaii (2011) and EC v Lafayette (2014). So even though LEA’s (Local Education Agencies) continue to have the right to determine within CCR 3030 (10) a methodology for SLD (Specific Learning Disability) identification, there is an unavoidable problem when the discrepancy model (defined in CCR 3030 (10) (B)) is applied to African American students.

How we at the DCN go about doing a comprehensive special education assessment for African American students

That process is described in detail on the DCN’s website at http://www.dcn-cde.ca.gov/altassessment/index.html. There you will find links to videos and PDFs on the subject. The process we describe here is not just a best practice for African American students. It is a best practice for all students.

If you have any questions regarding this please feel free to contact me.

Sincerely,
James Hiramoto


  • Are any parts of an Intelligence test allowed under Larry P.?

Question:

Dear James,

I didn’t see an appropriate place to send the below question:

Is it legally defensible to administer components of the CAS, WJ Cognitive or other IQ tests, when assessing processing skills only for an African-American student? For example, administration of select tests of the WJ Cognitive comprising the auditory processing domain, to an African-American student.

I appreciate your forwarding this question or emailing me where I can directly forward.

Thank you very much,

Lucy


Answer:

Dear Lucy,

The DCN has interpreted CDE’s Legal Memorandum 1997 which in part reads:

”No other list of tests has been recognized by the Department of Education for the purpose of finding school districts out of compliance in testing African-American students for special education…the original Larry P. decision was not limited to a specific set or sets of standardized intelligences tests, school districts should be advised that any standardized measure of intelligence should not be used with African-American students until such time as they are validated as unbiased by the State Board of Education and approved by the court. There should be no “on-the-spot” judgments that result in finding districts out of compliance for using tests that are not listed.”

So basically, no measures of intelligence, means no measures, period.

  • Nothing from these tests: No age equivalents, No grade equivalents, No percentile ranks. No raw scores.
  • If a competent school psychologist can figure out the standard scores from that information don’t use it.
  • And yes, the subtests of an intelligence test represent measures of intelligence.

Some may argue that it is a matter of splitting hairs when subtests from an intelligence/cognitive ability test look the same as one from a specific processing area test, e.g., CTOPPs or TVPS. However, there are theoretical and construct distinctions between being:

  • A measure of a single broad processing area with many subtests (usually 10 or so) contributing to that single processing area

verses

  • One or two subtests representing a broad processing area co-normed with other subtests representing other processing areas that ultimately lead to an even broader single general ability measure.

I hope this helps clarify the situation; feel free to write me directly with any other questions.

Sincerely,
James