Chapter 6 Ethical and Legal Issues in Psychoeducational Assessment Jacob, Decker, & Hartshorne

Testing v. Assessment A test is a tool that may be used to gather information as part of the assessment process. Assessment is a broader term that means the gathering of information pertinent to a psychoeducational concern. The ecological perspective (as compared to a medical model) takes into account the multiple factors that affect learning and behavior, including classroom variables, teacher and instructional variables, characteristics of the referred student, and support available from the home for school achievement.

Informed Consent Ethically, “…school psychologists seek parent consent (or the consent of an adult student) prior to establishing a school-psychologist client relationship for the purpose of psychological diagnosis, assessment of eligibility for special education or disability accommodations…” (NASP-PPE I.1.2).

Parent Consent Under IDEA 2004, written consent of the parent is needed for the initial pre‑special education placement eligibility evaluation. Parent consent also is required for subsequent reevaluations, unless the school can demonstrate that it has taken reasonable measures to obtain consent and the child’s parent failed to respond. Informed consent also is required prior to evaluation to determine whether a child has a disability within the meaning of Section 504/ADAA.

Over-ride of Parent Refusal to Consent Under IDEA 2004, if the parent fails to provide consent for an initial evaluation of a child with a suspected disability, the school may use mediation and other due process procedures (e.g., a hearing by an impartial hearing officer) to pursue evaluation of a child without parental consent in an effort to over-rule parent failure to consent. However, schools are not required to pursue an initial evaluation of a child with a suspected disability if the parent fails to provide consent to do so. Furthermore, parents have “the final say” regarding whether their child will receive special education.

Consent (Continued) Parent consent is not required for a review of existing data as part of an evaluation or reevaluation. In addition, the screening of a student by a teacher or specialist to determine appropriate instructional strategies for curriculum implementation is not considered to be an evaluation requiring parental consent under IDEA 2004. (e.g., RTI) Parent consent is not required for a child to participate in class or school testing.

Assessment of Minors According to the Standards and consistent with IDEA, the parent granting permission for the diagnostic evaluation should be made aware of the reasons for the assessment, the type of tests and evaluation procedures to be used, what the assessment results will be used for, and who will have access to the results. Practitioners should not solicit a child’s assent if refusal will not be honored (NASP-PPE I.1.4). However, they seek the child's active cooperation; inform child about why he or she is being assessed, what will be done with results, and the limits of confidentiality.

Five Ethical-Legal Concerns1 Multifaceted Psychoeducational assessment of a child with a suspected disability must be based on a variety of different types of information from different sources. No decisions should be made on the basis of a single test score. 1 See IDEA and NASP-PPE Principle II.3

Comprehensive A child with a suspected disability is assessed in all areas related to the suspected disability, including, if appropriate, health, vision, hearing, social and emotional status, general intelligence, academic performance, communicative status, and motor abilities.

Fair In the selection of assessment tools, the psychologist strives to choose the most appropriate instruments and procedures in light of the child's age, gender, native language, disabilities, and socioeconomic and ethnic background. Must consider: Limited English proficiency Disabilities Ethnicity/socio-cultural background

Valid School psychologists are obligated to select tests and other evaluation procedures that meet high professional standards and are valid for the purpose for which they are used.

Useful Tests and other evaluation procedures must be selected to provide a profile of the child's strengths and difficulties to aid in instructional planning. Regulations implementing IDEA state that assessment tools and strategies must “provide relevant information that directly assists persons in determining the education needs of the child.” The assessment is planned to ensure the information gathered will result in maximum feasible assistance to the child.

NON-BIASED ASSESSMENT Sources of Guidance NASP 2010 Ethics Code APA 2002 Ethics Code Standards for Educational and Psychological Testing (AERA, APA, NCME, 1999) Recent literature on fair assessment IDEA 2004 emphasis on RTI and pre-referral intervention

APA 2002 Code: Greater Emphasis on Responsiveness to Diversity and Effective Services to Diverse Clientele1 9.02 Use of Assessments “(b) Psychologists use assessment instruments whose validity and reliability have been established for use with members of the population tested. When such validity or reliability has not been established, psychologists describe the strengths and limitations of tests results and interpretation.” “(c) Psychologists use assessment methods that are appropriate to an individual’s language preference and competence, unless the use of an alternative language is relevant to the assessment issues.” 1APA 2002 new language is underlined

9.06 Interpreting Test Results APA 2002 Code1 9.06 Interpreting Test Results “When interpreting assessment results . . ., psychologists take into account the purpose of the assessment as well as the various test factors, test taking abilities, and other characteristics of the person being assessed, such as situational, personal, linguistic, and cultural differences, that might affect psychologists’ judgments or reduce the accuracy of their interpretations. They indicate any significant limitations of their interpretations. . . .” 1 APA 2002 new language is underlined.

NASP’s 2010 Code of Ethics Standard I.3.2. “School psychologists pursue awareness and knowledge of how diversity factors may influence child development, behavior, and school learning. In conducting psychological, educational, or behavioral evaluations. . .the school psychologist takes into account individual characteristics. . .so as to provide effective services.”

NON- BIASED ASSESSMENT History of Court Challenges Hobson v. Hanson (1967, 1969) The first significant legal challenge to the use of tests for placing “minority” (African-American) children in ability groups. Diana v. State Board of Education (1970) The first significant court case that required the schools to assess primary language competence prior to the administration of assessment instruments. Guadalupe v. Tempe Elementary District (1972) The court ruling that required an IQ score of two or more standard deviations below the mean and evaluation of adaptive behavior prior to placement in a classroom for the mentally retarded. Larry P. v. Riles (1984) The court ruling that resulted in a ban on the use of IQ tests with African-American children in California. Later reversed (1994) by the same judge who issued the original opinion, but policy of ban on using IQ tests with African-American children to determine special education eligibility was continued by the state legislature. P.A.S.E. v. Hannon (1980) The court ruling that IQ tests do not result in racially-biased decisions when used in conjunction with other assessment procedures as outlined in IDEA.

Test Bias vs. Bias in Clinical Decision-making vs Test Bias vs. Bias in Clinical Decision-making vs. Fairness of Consequences Test bias refers to the psychometric adequacy of the instrument itself, that is, evidence that a test is not equally valid when used with individuals from differing ethnic or racial backgrounds.

Different Mean Scores is Evidence of Cultural Bias but not Test Bias Evidence that an IQ test yields different mean scores for various ethnic groups is not considered to be adequate evidence of test bias in and of itself. It has not been possible to create a test on which various ethnic or racial groups receive the same mean score that also adequately predicts a criterion of interest. For example, test developers have not been able to develop an IQ measure on which African-Americans, Asian-Americans, and whites receive the same mean score that also predicts academic achievement as the criterion of interest. Part of the problem is that each ethnic group has different average achievement scores.

Test Bias Content Bias Bias in Predictive Validity Bias in Constructive Validity

Content Bias An item or subscale of a test is considered to be biased in content when it is demonstrated to be relatively more difficult for members of one group than another when the general ability level of the groups being compared is held constant and no reasonable theoretical rationale exists to explain group differences on the item (or subscale) in question (Reynolds et al., 1999, p. 564). The question of content bias is resolved by research that shows equal (or unequal) item difficulties for various groups (Flaugher, 1978).

Bias in Differential or Predictive Validity A test is considered biased with respect to predictive validity if the inference drawn from the test score is not made with the smallest feasible random error or if there is constant error in an inference or prediction as a function of membership in a particular group (Reynolds et al. 1999, p. 577). A test may be shown to be nonbiased in criterion‑related validity if it predicts the criterion‑measure performance equally well for children from different ethnic backgrounds.

Bias in Construct Validity Bias exists in regard to construct validity when a test is shown to measure different hypothetical traits (psychological constructs) for different groups; that is, differing interpretations of a common performance are shown to be appropriate as a function of ethnicity, gender, or another variable of interest (Reynolds et al., 1999, p. 573).

Bias in Clinical Application Practitioners also must consider the potential problem of bias in clinical application. Technically adequate tests can be used to make poor decisions because of atmosphere bias and bias in interpretation and/or decision making. Atmosphere bias refers to factors in the testing situation that may inhibit performance of children from ethnically diverse backgrounds (Flaugher, 1978).

Fairness in Consequences A third area of concern is that the use of tests may in some way result in unfair consequences or outcomes for a particular group. If testing and assessment practices result in children from a particular ethnic group being placed in inferior educational programs, then the outcomes or consequences of testing are biased and unfair, no matter how adequate the tests and decision‑making procedures (Reschly, 1997; also Standards, p. 80).