The Language of Predetermination in Special Education

“Predetermination occurs when an educational agency has made its determination prior to the IEP meeting, including when it presents one placement option at the meeting and is unwilling to consider other alternatives.” –H.B. v. Las Virgenes, 48 IDELR 31 (9th Cir. 2007), on remand 52 IDELR 163 (C.D. Ca. 2008), aff’d 54 IDELR 73 (9th Cir. 2010)

As someone involved in special education for a few years now, including two special education graduate degrees, I have heard many interpretations about what predetermination is and how to avoid it. The most common definition begins this short discussion on the topic. A key example that many can relate to can be when professional bring a completed IEP or draft IEP to the meeting for parents to approve (you can read more about that here). I will not go into all possibilities today. My main goal is to highlight how the language we use among team members and in the documents we right can equal predetermination.

Why Predetermination Matters

First, let me take a moment to highlight the importance of this issue. Many like to think that the issue isn’t real because you are not likely to go to due process unless you refuse to provide services. Just because the likelihood of legal action is minimal does not mean you are justified in engaging in a particular practice (ethical codes exist for a reason). We are to provide students with the best possible care and service. Making them and their parents key members in the decision making process is part of that duty. By engaging in predetermination and back tracking when caught shows that we do not truly care about those we serve, nor do we have a high respect for our professional role.

Language

Language is the first step in avoiding predetermination. What we think influences what we say which influences our actions (and to be honest, most of us think in language). Below are some examples of language or ideas that contribute to the problem of predetermination and how to fix those errors.

  • “I have to come prepared or the meeting will take forever; no one has time for that.” 

Every professional needs to come to a meeting (IEP or evaluation) prepared to discuss data and contribute to the decision making process. However, if we are more worried about time, then making quality decisions and the student in question does not get the respect deserved. As mentioned previously, coming to the meeting with pre-made goals, plans, and services can be considered determination. Let me highlight this issue with a couple stories. I was running IEP meeting for a student, going over present levels of performance. I used a template to save time in creating the paragraphs for the drafted IEP. I made a key error in the template in that I forgot to delete the previous student’s name in one place. So here I was talking about Dave and Steve’s name appears in the document. This showed to the parent that I was not individualizing this plan as I ought and I was more concerned about going fast then talking about their son. In another meeting, the team came prepared with an IEP for the parents to review and sign. We learned in the meeting about vision problems. The team was caught off guard. When the parent and student asked for large print, the team didn’t not know how to react and decided to move forward and get back to the parent about that (I was in the meeting as a practicum student and therefore could not chip in as an assistive technology specialist). The team also ignored a vital piece of information by the parent regarding transition goals because, again, they were not prepared to make such changed to the document they spent time making before hand. Both stories highlight the inner voice of this statement can lead us to predetermination and not individualizing the meeting for a student.

  • “I’ve seen the data, the student isn’t going to qualify. So what do we do for him?”

This might be the most obvious example of language most educators have heard. This statement makes it clear that the team member has made a decision on services before the meeting where a collaborative decision is to be made. It is important to note that no one assessment can make a decision. I will admit guilt here as I uttered this exact phrase early in my career. The data I was referring to was a cognitive assessment. I was reprimanded for these remarks. It was explained to me that while the cognitive results showing everything in the average range, the results still have to be put in context of all the other assessment data and the team has to collectively interpret all data to make a decision. My predetermination did not take into account all factors, including data that could be brought to the meeting by parents that was not previously available. It is important for professionals to realize that data can be gathered up until that meeting takes place. Therefore, we never have all the data to review until that meeting takes places (and often times not even then).

  • “This evaluation is being done to see if the student meets eligibility requirements [qualifies for] for special education services.” 

This is the language I was taught for report writing. I was taught “qualifies for” is predetermination but “meets eligibility requirements” is not. Here is why this is problematic. Eligible means “(adj.) having the right to do or obtain something; satisfying the appropriate conditions.” Qualify means “(verb) be entitled to a particular benefit or privilege by fulfilling a necessary condition.” The wording of the definitions may be different but the mean is the same. These words are synonyms, with one being an adjective and the other a verb. They mean the same thing in the context of report writing for school psychologists. Take a look at the rules and regulations for Utah (my state):

II.I. DETERMINATION OF ELIGIBILITY (§300.306). 1. Upon completion of the administration of assessments and other evaluation measures, a group of qualified professionals and the parent of the student or the adult student determine eligibility under Part B of the IDEA and these Rules, including: a. Whether that student is a student with a disability, and b. The educational needs of the student. 2. The LEA shall provide the parent or adult student with a copy of the evaluation report and the documentation of determination of eligibility. 3. A student must not be determined to be a student with a disability: a. If the determinant factor for that determination is: (1) Lack of appropriate instruction in reading, including the essential components of reading instruction (phonemic awareness, alphabetic principle, vocabulary, comprehension, and fluency); (2) Lack of appropriate instruction in mathematics; or (3) Limited English proficiency; and b. If the student does not otherwise meet the eligibility criteria. II. Identification, Location, and Evaluation 31 4. Procedures for determining eligibility and educational need. a. In interpreting evaluation data for the purpose of determining if a student is a student with a disability and the educational needs of the student, each LEA must: (1) Draw upon information from a variety of sources, such as aptitude and achievement tests, parent or adult student input, teacher recommendations, physical condition, social or cultural background, and adaptive behavior; and (2) Ensure that information obtained from all of these sources is documented and carefully considered. b. If a determination is made that a student has a disability and needs special education and related services, an IEP must be developed for the student within 30 calendar days.

The above excerpt expressly states that the IEP team determines eligibility or if eligibility criteria are met. While a report may state this in the context of a team decision following the conclusion of the evaluation meeting, it would be predetermination for one member of the team to state that eligibility criteria is or is not met prior to the meeting being concluded.

But what about saying the purpose of the report is to check for eligibility criteria? That is okay since no decision is being made, right? The problem I have with this logic is that a school psychologist rarely ever has all assessment data and team member input at the referral question stage (where this statement would be placed). In my experience, school psychologists report on the assessment data they personally conduct, with data from other professionals either not being included or not included until after the meeting. Another issue I have is that “to see if” is followed by a “yes” or a “no.” Therefore, a school psychologist can make a determination on eligibility if the report is presented at the meeting as either a draft or a completed document (since all team member make that decision and not just the school psychologists report).

This last piece of language is tricky. There are so many ways to word things that the waters get muddied. At best I feel like this is a lazy and unnecessary way of stating a referral question; at worst it is predetermination. With so much grey area in between I would avoid it.

Conclusion

Is my opinion gospel? No; absolutely not. However, I believe we can do better to elevate our practice in school psychology. This can be done by avoiding language in ourselves, amongst ourselves, and in our reports that could be misleading or potentially violate rules and regulations.

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