Adverse Ed Impact--help


New Member
Hi Martie and Sheila,

I am still struggling with the issue of whether my son's issues constitute a significant enough adverse impact to warrant an IEP. I apologize in advance for the length of the post.

In terms of conditions, he would seem to qualify under OHI because of Fetal Alcohol Effects (FAE)/ADHD and a diagnosis of prodromal features of bipolar. This seems to be accepted by the school district.

The issue is whether his conditions have resulted in an adverse educational impact, as I posted last week.

The school wants to place him on a 504. They write that the education impact is not there: according to the director of Special Education for the district, "In generally the significant educational effect is with regard to frequency and severity of impact and is most often reflected in performances that are within the extremes of behavior; at least within the 10% tile or lower or if considering externalizing, acting out behavior that is above the 90% tile…"

Nowhere have I seen reference to the need to be in certain percentiles. Is what the school district says correct? Should I ask them to show the regulations? Or are these percentiles what is used in practice in determining adverse educational impact?

That said, it seems pretty hard to demonstrate adverse educational impact. According to the private evaluation we had done, his WISC IV scordes put him in the following percentiles : VCI --47th, PRI --25th, WMI 55th, and PSI 7th percentile. He scored in 19th percentile in the OWLS Listening Comprehension test.

On the WJII tests, he scored essentially in the range of 35-50 percentile based on age In math and reading.

The tester not that although there was not a wide discrepancy between cognitive and academic functioning his academic performance in the classroom suggests education need. He is a very fragile youngster. His profile of significant executive dysfunction suggests a high level of academic risk in all areas as the academic demands become more complex and greater independence is required. She also notes that he has come along way because of all the support he has been given (parent help at home, therapy).

His teacher writes that he "is in need of and will respond positively to getting some extra help. He generally needs far more repetitions of a given technique than an average student before it sinks in so I think he oftentimes falls behind the rest of the class as they move through material. Due to his problems with executive function he isn’t a kid who will be able to make up some of that gap on his own so I hope we can find a way to provide him with some opportunities to work in very small groups or individually with an aide or other qualified person. Although his academic performance may not qualify him for SPED at his point he is a child who is very much at risk. Having had him in my room last year and then tutoring him this summer in reading and math I found that he responds very well to one-on-one instruction. He definitely needs someone to spend extra time with him when working with math. I believe this can happen within the classroom as long as he is required to show he can complete the work on his own and, if necessary, given the necessary support."

So bottom line, I think we are going to have a hard time arguing for adverse educational impact at this point. The school district seems willing to provide some support in the classroom (aide?) under a 504. If they are unwilling to provide any individual support, would we be in a stronger position to argue for an IEP? Should he fail his math tests and maybe reading comprehension tests, then would we be in a position to go for a IEP? I also liked your idea of testing him at regular basis, Martie, to see whether he is keeping up. People tell me it is very hard to test reading comprehension. But there must be some test that is normed that would tell if he is keeping up.

I can't tell you how much I appreciate having you all as a resource to come to. We live in a small town and the nearest good educational advocate or lawyer is probably 150 miles away.

Thanks again,



"In generally the significant educational effect is with regard to frequency and severity of impact and is most often reflected in performances that are within the extremes of behavior; at least within the 10% tile or lower or if considering externalizing, acting out behavior that is above the 90% tile…"

Marti may be able to make more sense out of this than I can. It sounds like double talk to me in an attempt to get around the new law that states standard deviations can no longer dictate significant discrepancy or eligibility. For instance, prior to IDEA 2004, most school districts had a -1 Standard Deviation cutoff for eligibility criteria. In other words, one district might have a -1 SD requirement, another might have -2 SD.

1 SD = roughly 15 points. Therefore, when dealing with-a test interest with-a 15 point deviation and 100 being the mean (dead on average), equals a Standard Score of 85 (low average). The 15 point variance would be -1 Standard Deviation. In reverse, 115 would be +1 SD (high average).

( shows an example of the Bell Curve. Go to the top of that page to read the whole paper Tests and Measurements for the Parent, Teacher,

Additionally, all percentile scores convert/correlate to standard and scaled scores, so using this type qualification criteria is not allowed via the new regs in my opinion.

Conversions of scores posted:

VCI --47th,
Score conversions
Standard Score (m=100, sd=16) 99
Standard Score (m=100, sd=15) 99
T Score (m=50, sd=10) 49
scaled score (m=10, sd=3) 10
z -0.07
Percentile 47

PRI --25th,
Score conversions
Standard Score (m=100, sd=16) 89
Standard Score (m=100, sd=15) 90
T Score (m=50, sd=10) 43
scaled score (m=10, sd=3) 8
z -0.67
Percentile 25

WMI 55th
Score conversions
Standard Score (m=100, sd=16) 102
Standard Score (m=100, sd=15) 102
T Score (m=50, sd=10) 51
scaled score (m=10, sd=3) 10
z 0.13
Percentile 55

PSI 7th percentile
Score conversions
Standard Score (m=100, sd=16) 77
Standard Score (m=100, sd=15) 78
T Score (m=50, sd=10) 35
scaled score (m=10, sd=3) 6
z -1.47
Percentile 7

19th percentile in the OWLS Listening Comprehension test
Score conversions
Standard Score (m=100, sd=16) 86
Standard Score (m=100, sd=15) 87
T Score (m=50, sd=10) 41
scaled score (m=10, sd=3) 7
z -0.87
Percentile 19

90 percentile
Score conversions
Standard Score (m=100, sd=16) 120
Standard Score (m=100, sd=15) 119
T Score (m=50, sd=10) 63
scaled score (m=10, sd=3) 14
z 1.27
Percentile 90

Based on info given, the Standard Score and Scaled Score for PSI meets a -1 SD requirement. The Owls testing has room for argument, but the Standard Score is in the low average range, and reflects -1SD pertinent to the Scaled Score. 10 (mean/avg) - 3 (1 SD) = 7 .

You may have the following info already, but thought I'd post it anyway.

Verbal Comprehension Index
The VCI is a measure of verbal concept formation. It assesses children's ability to listen to a question, draw upon learned information from both formal and informal education, reason through an answer, and express their thoughts aloud. It can tap preferences for verbal information, a difficulty with novel and unexpected situations, or a desire for more time to process information rather than decide "on the spot." It's a good predictor of readiness for school and achievement orientation, but can be influenced by background, education, and cultural opportunities.

Perceptual Reasoning Index
The PRI is a measure of non-verbal and fluid reasoning. It assesses children's ability to examine a problem, draw upon visual-motor and visual-spatial skills, organize their thoughts, create solutions, and then test them. It can also tap preferences for visual information, comfort with novel and unexpected situations, or a preference to learn by doing.

Working Memory Index
The WMI is a measure of working memory. It assesses children's ability to memorize new information, hold it in short-term memory, concentrate, and manipulate that information to produce some result or reasoning processes. It is important in higher-order thinking, learning, and achievement. It can tap concentration, planning ability, cognitive flexibility, and sequencing skill, but is sensitive to anxiety too. It is an important component of learning and achievement, and ability to self-monitor.

Processing Speed Index
The PSI is a measure of processing speed. It assesses children's abilities to focus attention and quickly scan, discriminate between, and sequentially order visual information. It requires persistence and planning ability, but is sensitive to motivation, difficulty working under a time pressure, and motor coordination too. Cultural factors seem to have little impact on it. It is related to reading performance and development too. It is related to Working Memory in that increased processing speed can decrease the load placed on working memory, while decreased processing speed can impair the effectiveness of working memory.

If you really want to know what's going on with your difficult child, get the subtest scores.

Do you recall what the Standard Deviation requirement was for a student to qualify for special education prior to IDEA 2004?


Should I ask them to show the regulations?

I would.

From IDEA 2004

Section 300.307(a) requires that States
adopt criteria for determining whether a
child has a specific learning disability.
Under the final regulations, States may
not require that LEAs use criteria based
on a severe discrepancy between
intellectual ability and achievement for
determining whether a child has a
specific learning disability.



There are no cut-off percentage in the regs--so by all means, ask to see them :D

I taught a law course (to psychologists--not lawyers LOL) last summer, and everyone is always amazed how deliberately vague Special Education. law is. The supposed reason Congress has done this repeatedly (cited many times by the Supreme Court) is to give "due deference" to professional judgment in the individual case. OK--but as of 1997, parents became "full members" of the IEP team and with "deference" adjusted, there are LOTS of Due Process hearings. See TIME magazine this week.

What strikes me as amazing is that you have an employee of the SD willing to stick her neck out and in essence, say your son will fail without a lot of support. That is a PROSPECTIVE negative educational impact. You also refer to "prodromal features of bipolar." In the past SD have been reluctant to qualify on the basis of what probably is going to happen down the road.

Two "howevers"

First, he either has Fetal Alcohol Effects (FAE)/ADHD or he does not. If he does, then those are "eligible" categories--one must have the 'right' disability, he does. His processing speed is very slow--below the 10%ile and goes along with what the teacher's statement said about keeping up in the classroom. THIS A NEGATVE EDICATIONAL IMPACT. He can't go fast enough to keep up. Without support, he will fail.

Second however:
IDEA 2004 emphasizes flexible service and NOT waiting for failure before providing services. I will repeat: you really have a great teacher who will commit her observations to writing because what she is saying is supported by testing AND classroom experience. It is not a prediction--it is what she saw last year.

Ask the SD how many days, weeks, quarters, semesters, years he has to fail before the impact will be "negative enough?" Also, ask about the cost (both in terms of dollars to them and suffering to your difficult child) of all the related services (therapy) he will need to address the self-esteem and negative attitude toward school that come with long-term school failure.

Kids should not have to fail flat out to get services. The law says "negative educational impact," it does not say "total failure at X percentile for Y amount of time."

The only way I would back down on this one is if they will write a 504 plan with a 1:1 aide full time AND test him monthly to determine if he is losing percentile rank. WHY they would agree to this level of service but not find him eligible for an IEP, I have no idea.

Two guesses:

Monitoring under 504 is nil--so they can offer anything with no intention of delivering--however, that does not seem like how your SD operates.


There are no Due Process rights under 504 so your only recourse if/when they don't deliver is to go into Federal district court. They are counting on your not doing that.

Reading comprehension can be reliably tested by any good standardized reading test. I have liked the Stanford in the past (I do not do a lot of evaluations anymore) but there are others: The Woodcock-Johnson tests a whole bunch of stuff in addition to sight reading and comprehension; the WIAT has the advantage of being normed on the same sample as the WISC IV, etc. You can be certain that they will say once a month is too often but "best practices" in school psychology (the folks who monitor this stuff) would say that monitoring in a situation such as this should be "frequent." You could compromise: at the beginning, middle and end of the semester (six times instead of nine).



More on Adverse Impact


Words here can be really important when and if we are involved in litigation.

And when it's your backside that is on the line, solely relying on the advice given by fellow psychologists on the NASP Listserv as to what constitutes "adversely affects" is especially risky.

The emphasis on the three R's, I think, goes back to Rowley, in which the SC found that Amy was getting FAPE because she was passing and being promoted from grade to grade (not just being given higher grades and not just being socially promoted.) But that was the standard for FAPE -- it had nothing to do with determining eligibility.

OSEP guidelines are very broad -- which means if you operationalize them with a rule that restricts teams from considering children from being eligible, you've automatically got a problem. OSEP told Wisconsin, for example:

"As you know, in Bd. of Educ. of the Hendrick-Hudson Central Sc. Dist. v. Rowley, 102 S.Ct. 3034 (1982), the Supreme Court held that the School District was not required to provide a sign language interpreter to a deaf student, who was performing above average in the regular classroom, and rejected the parents' arguments that services under the Part B of IDEA should be designed to maximize a student's potential. The dispute in Rowley was not over whether the child needed supplementary aids to benefit from regular class instruction, but rather what aid was required in order to provide the child with an "appropriate" public education. The Court did not establish any one test for determining the adequacy of educational benefits received by a child and neither has OSEP, because it will vary for each individual student, depending on his or her unique educational needs. However, the Court in Rowley rejected the position that a student's advancement from grade to grade in the regular education program necessarily meant that the student was receiving a free appropriate public education. Rowley, 102 S.Ct. at 3049 n.25. Therefore, OSEP does not interpret the Rowley decision as relieving school districts of their obligations to provide appropriate special education and related services to individual disabled students who need them even though they are advancing from grade to grade. For example, in a situation where a student may be passing from grade to grade but is suspected of having a specific learning disability, it would be appropriate for the multidisciplinary team to consider information about outside or extra learning support provided to the child or about any modifications or compensatory strategies used by the child when assessing whether the child achieves commensurate with his or her age and ability levels when provided with learning experiences appropriate for the child's age and ability levels. See 34 CFR 300.541 (a) (1). Such information may indicate that the child's current educational achievement reflects the service augmentation, not what the child's achievement would be without such help. The information may also bear on whether the child has a severe discrepancy between achievement and ability that is not correctable without special education and related services."

And that's not just OSEP, as some school systems who over relied upon the Rowley decision found to their dismay when they tried to deny a child services just because he was getting C's and passing from grade to grade. Special education is specially designed instruction, but the federal law does not define that as a teacher teaching a child the three r's.

What it says in the regulation is that "Specially-designed instruction means adapting, as appropriate to the needs of an eligible child under this part, the content, methodology, or delivery of instruction." (300.26)

That "or" is important (and that's not just me either.) In the same letter cited above, OSEP told Wisconsin,

"Modifications required by a student with a physical impairment may be as subtle as altering the regular class curriculum or methods of instruction in order to accommodate the student's impairment. If such modifications are considered "specially designed instruction" because they constitute individualized instruction planned for a particular student, they could be deemed special education."

Sammy is deaf. Sammy gets an interpreter. He's got a 504 Plan. Mom wants an IEP because 504 Plans don't require transition planning and IEPs do. The district says, "Sammy is getting all A's. He is not entitled to an IEP. We're not giving him one. So, sue us." Mom, of course, does, and Mom, of course, prevails.

The same thing with Suzy, who can't say her "r" sounds. She's embarrassed to talk in front of her class, she doesn't have friends, she cries when she has to go to school in the morning because the kids mimic her. The school says, "Suzy doesn't need articulation therapy, because she's getting all C's and she's passing from grade to grade, so she doesn't need special education. So we're not giving her speech. Sue us." Mom, of course, does, and Mom, of course, prevails. This does not just apply to children who are suspected of being ED, of course. Nothing in the federal regulations speaks to etiology, either, when talking about eligibility for ED. Look to the criteria. We're talking legal entitlements here, not what we think should or ought to be.

In my state regulations, a lack of appropriate management or instruction would be disqualifying, but we have assistance teams that are supposed to address children's problems before a decision is made to refer. If the child responds to the interventions, we do not refer. If the child does not respond to the interventions, we do. Sort of a primitive "Response to Intervention" model. We do not say, "Oh, Johnny spent five years in a concentration camp. It is NORMAL for children who spent five years in a concentration camp to be paranoid about authority figures. Therefore, we're not qualifying him." That would be silly.

The information in the Wisconsin letter, by the way, is not new.

"An operational definition of "educational performance" is included in a letter to William M. Lybarger, Ed.D. dated September 14, 1990 (copy enclosed). That letter states that a child's educational performance must be determined on an individual basis, and should include non-academic and academic skills. Since the measurement of 'educational performance' is different for each child, the Department has not developed a single definition for this term. Similarly, the term 'adversely affects' must be determined on an individual basis."

If your school's main witnesses get on the stand and say, "We only consider a child for services if he's failing in reading, math, and/or written language," you might just as well save yourselves the cost of litigation and give the parent a blank check. Guy

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