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Ennis Britton's On the Call
The Special Education Team of Ennis Britton hosts the podcast “On the Call." Each episode focuses on a real-life special education scenario you may have encountered or might bump into very soon. Ennis Britton attorneys Jeremy Neff and Erin Wessendorf - Wortman take the call and then discuss applicable cases and laws related to the scenario presented. Each episode wraps up with practical tips based on the Special Education Team's years of experience serving school districts throughout Ohio.
Ennis Britton's On the Call
On the Call: Bespoke Evaluations
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When parents demand a detailed list of assessments before signing consent, what’s a district to do? Using a recent Connecticut case as a cautionary tale, Jeremy and Erin unpack what IDEA actually requires, why over-specifying can backfire, and how districts can preserve flexibility without sidelining parent participation. They also share practical tips for documenting conversations and keeping the focus where it belongs: understanding the student’s needs.
Here is the link to the earlier episode Jeremy references: On the Call: Bespoke Education/Methodologies
Join Jeremy for LRP's Ask the Attorney on 9/17. He’ll be hosting a live Q&A addressing common IDEA and Section 504 compliance challenges, including child find and evaluations, FAPE, discipline, and school safety. Bring your questions and get practical guidance from an experienced education attorney with firsthand school experience. Register here!
And it's Britain. This is Jeremy.
SPEAKER_00Hi Jeremy. I got a question about our upcoming reevaluation for a student. The parents are insisting we list every single assessment we plan to use before they'll sign the consent form. But we usually just describe the areas we're planning on assessing.
SPEAKER_01Okay, so you mean they want to like name the particular academic test you'll use, cognitive tests, things like that?
SPEAKER_00Yes. We agreed on the areas of testing, but they're still insisting on a detailed list. What are our options here?
SPEAKER_02It's season five of On the Call, Ennis Britton's Special Education Law Podcast.
SPEAKER_01I'm Jeremy Neff.
SPEAKER_02And I'm Aaron Wessendorf Wortman.
SPEAKER_01We've got another great call to explore.
SPEAKER_02Let's jump in.
SPEAKER_01So this whole like bespoke everything and selecting labels and brand names, this, that, and the other. You know, I we're gonna get back to idea, but you know, just like to bring my personal life in here. My eldest. Yes, God bless her. Um, she's she's pretty responsible about the computers and the whatnot and doesn't really do the social media. She is constantly getting sucked into fashion though. And and and it'll be like it's like AI slop. It's made up brands. Yeah. And she'll be like, well, I need the, you know, I need the I'm looking at our coffee sacks on the wall. I need the uh cafe do Brasil. We have yeah, it's a long story, listeners. Um, I want the cafe's do Brasil um t-shirt that says this. And we're like, dude, that's not a real brand. How about we go to Target and find something that looks like that? Well, I don't want to shop at Target. Like, but Target is real. So like, but this whole it's and it's gonna tie in. It's the AI nonsense. I I do think that's part of what's putting an accelerant on the tendency of parents, like our caller was describing, that they're they're insisting on things they would have never even known what to ask for.
SPEAKER_02And they probably still I hate to say this, and I'm sorry, maybe you're a very informed parent, and that's fine. But go with the others. They might not even know what they're actually asking for. Yeah. If we're asking for a certain type of evaluation and we're listing it by, you know, initials and number, do you really know what you're asking for? Or are you just parroting what AI has told you is an appropriate evaluation tool to be able to look at the services that your child might need or what your needs are for your child. Right.
SPEAKER_01Go back 20 years. Parents generally were more trusting, I would say, of the educators. Then go back like 10 or 15 years, and parents were learning something on social media and saying, well, I want this thing. And now we're in the AI era where it's like the AI is telling them, oh, you want this version of this.
SPEAKER_02Correct.
SPEAKER_01Yeah, it it's a real challenge. Well, uh, before we dive into this case, we'll point to, and we'll drop this in the show notes, uh, think of this almost as a companion to an episode from maybe a a season or two ago about bespoke methodologies, where it's the same concept where parents are coming in saying, well, not just any reading program that you've just described, how it works and why it's good for my kid, but this particular brand name, pull that off the shelf and use that. Correct. So we'll put that in the show notes because it is a uh thing we're encountering more and more. So let's let's get back to the black letter law here.
SPEAKER_02But this episode isn't about bespoke methodologies for an IEP. We are talking about bespoke evaluation tools.
SPEAKER_01Aaron Powell Yeah, yeah. So uh and you know, as far as what the law is here, we do need parental consent to initiate the evaluation process. And it's really key where that parental consent comes in. It's at the beginning of the process, not at the end of the process.
SPEAKER_02Aaron Powell But I think this is where people get a little uh my term, not a real term, wonkified. Wonkified. That's it.
SPEAKER_01That's in Black's law dictionary, I'm pretty sure. Stop it.
SPEAKER_02But if we get wonkified, it's because in order for a parent to provide consent, they have to be fully informed, right? And there are oftentimes, I will even sit at that table and a parent goes, Well, I wasn't fully informed because I didn't know what tools you were using. Oh, wait, wait, what? But you knew we were doing an evaluation to like the OT was going to be doing an evaluation on sensory, right? And so you knew we were doing those things. Are you then not fully informed as a parent if you don't know the exact tools that will be used?
SPEAKER_01Well, we're we're gonna find out quite possibly. Oh, okay. Um in the in the US Department of Education has acknowledged, it's been a while, it was, you know, gosh, over 20 years ago, I think. But they did issue a letter. Um, oh, I'm I've I overstated it, 16 years ago. Letter to Johnson, if you're super bored having trouble sleeping. Um the feds issued that one back in 2010, uh, trying to address this very question of well, what does being fully informed mean in the context of an evaluation? And they said generally speaking, parents don't need an in-depth understanding of everything that's gonna be done. They they need to have a general understanding of what's gonna happen. So we think we need to get some new data on you know cognitive abilities, we think we need to have some data on academics, uh, we don't think we need something in speech, whatever it may be. It's generally along those lines, you know, who's gonna do the evaluation, like the qualifications, the credential of the person. But it's not necessarily getting into the nitty-gritty. I'm sure there's an exception out there somewhere where, you know, oh, well, that particular, if you just say, well, we're gonna get some reading measures, well, maybe we need to be a little more precise about that. Or speech is one where, well, is it receptive, is it expressive, is it pragmatic? You know, you can start to break that down where sure, I think that would be in line with that guidance from 2010 and and in line with what idea generally requires about fully informed consent, uh, but not necessarily what's the brand name.
SPEAKER_02Correct. Because fully informed, at least, is just stating parents have all the information relevant to the activity for which consent is sought. That's it. Yep. It's not you need to be able to dive down into the 30-page mortgage document to make sure you understand all of the nitty zing gritties of what will happen if that isn't it. But I think what also needs to be clear is sometimes we've gotten in these situations where parents provide consent and then they get a little wonky about what the consent is that they've been they've provided. So then maybe they even try to revoke it during the evaluation process and say, oh, well, that covers it's backwards. It has to be backwards looking, or it now wipes away all that you've done. That's not true.
SPEAKER_01Right, yeah. They they can revoke it, but but you're right, it doesn't wipe out anything. And there are a couple other, before we get into the case, uh a couple other kind of uh nuances to this consent for conducting the evaluation again at the beginning of the process. Um you do not need consent if you're reviewing existing data, because as you know, Erin was just describing, it doesn't wipe out something that's already happened. So uh you don't need it if you're just reviewing existing data, which presumably means a re-evaluation, probably not doing an initial with just reviewing data. Do be careful about that because the law also would require then that if a parent says, But I but I want new testing, okay, well then we can't just force a records review. And then also you don't need consent if we're just talking about assessments that are done for all students. Correct. So if there's just a broad grade level screener or some sort of academic testing imposed on the case, some district testing, stuff like that.
SPEAKER_02Yeah. Okay.
SPEAKER_01Well then let's take that black letter law here, again, with the focus really being on what does that fully informed consent look like for an evaluation, and uh head out to Connecticut. We got a uh case here, it was a due process complaint uh back in the fall of 2025. And uh it comes down to well, did the district violate that consent requirement when it conducted some assessments that were not listed specifically on a revised consent form? So you can tell already there's a little bit of a backstory here, right?
SPEAKER_02Why are we revising a consent form?
SPEAKER_01Yeah, yeah. Well, we got a kid here, um, and uh if we say PPT, uh to me that means PowerPoint. Um but if you're a special ed I was not expecting that.
SPEAKER_02I'm so sorry.
SPEAKER_01If you're a special ed teacher um in Connecticut, that means a uh planning and placement team.
SPEAKER_02Oh, okay.
SPEAKER_01Yeah. So the PPT uh met and said, hey, look, we're gonna do an annual review um of your child's IEP, so is the kid already eligible, and we're gonna do a reevaluation. Let's start planning for that. And the parents were given a consent form the next day. So they had the meeting, so your parental, like your participation, check the boxes there, sent a form out the next day, and it listed, you know, we're gonna do some observations, we're gonna get some cognitive functioning, some academics. Um, they checked a couple of other boxes. That's how their planning form looks. These are gonna vary state by state. So they checked a box for sensory processing, autism rating scale, some adaptive behavior, and some motor development. Okay, great. So they described all these uh categories that had been discussed in that meeting, but the parents at least initially said, look, we're not gonna sign this because we don't know what actual tests you're using. We get the areas, but what what specific test are you gonna use?
SPEAKER_02Dun dun dun.
SPEAKER_01Yeah. So what's the district do? They stood their ground. No, they gave them all the information.
SPEAKER_02They're like, oh, okay, which is what most clients do.
SPEAKER_01Yeah, right. Educators are helpers. Correct.
SPEAKER_02If nothing else. You want the information? Here you go. Here's the information. Now I have found, at least as a little bit of as an aside from the case, when parents are asking that, uh that often means in my experience, again, I understand that nobody calls us with sunshine, puppy dogs, and rainbows. We're always in the valley, shall we say, where things roll. It tends to be because they've already requested an outside evaluation and they're trying to figure out what assessments have been done so they don't repeat them.
SPEAKER_01Yeah, it can certainly be that. Yeah, not all questions. Um I think educators, God bless them, truly. Um educators assume when somebody asks a question, it's information seeking. That is definitely not always the case in the sense of it could be um, you know, trying to provoke a fight. It could be that that was information seeking, but not in a necessarily good faith way, right? Correct, correct. And sorry for that little detour. We'll get back to the case.
SPEAKER_02I don't think the negative was imposed here from my lens of that little detour. But it definitely was the parents wanted to verify every test that in the age of parent rights, sure. Parents wanted to verify every test that was given and consent to only the tests that possible the way I read it, that they only wanted to consent to what they were choosing to consent to.
SPEAKER_01Yeah. And and this is where the the decision doesn't say anything about AI, but I don't know. The fall of 25, I'm also reading that into this a little bit. Yeah. Um, because there's no indication the parents themselves were educators and would understand or psychologists. Correct. So um parents didn't ask for any additional assessments, so they signed the revised form that specifically named the tests. In the process of carrying out the evaluation, the professional educators who um, you know, understand these things decided, you know what, actually we could use this um handwriting assessment and this keyboarding assessment. Um that would also help us kind of learn things.
SPEAKER_02Aaron Powell But I think regardless in this case, right? After consent is obtained, if we add on additional assessments that are not looking at record review type of things or data that we're taking on all students, assessments administered to all students, we are administering assessments without consent.
SPEAKER_01Yeah. So I mean, they are here, I think, only because of the way they got here. Because that initial plan that they discussed as a group and sent to the family included motor development fine and motor development gross. These sound like two motor development fine assessments.
SPEAKER_02So they probably would have done them anyway, but then they weren't listed when mom went ahead and said, I only want these.
SPEAKER_01Yeah. Yeah. Yeah. Yeah. So they do that, and uh, you know, not surprisingly, PPT uh meets and the parents show up and read a statement indicating they won't participate until additional documents are provided to them and they leave. So again, uh Aaron, Aaron's spidey sense of there's something else going on here. Oh, absolutely.
SPEAKER_02Especially when they come with a prepared statement.
SPEAKER_01And but then the team goes ahead and proceeds with the meeting. Why? Because at this point they didn't need any additional consent because they already got but did they? Um they go ahead and they they make some changes to the IEP as well, and and the details of those changes don't matter. We're focused on the ETR.
SPEAKER_02Correct. But the IHO in this due process said, oh yeah, district you done screwed up.
SPEAKER_01Yeah.
SPEAKER_02You should have had consent for those because you took the abnormal step of outlining the bespoke evaluation tools.
SPEAKER_01Yep. Yeah. He said, you know, ultimately no harm, no foul, but um it it was still the school district, it was it was uh just to add in another sports analogy, it was an own goal, right? Like they they didn't need to go down this road. And and you know, the hearing officer specifically said having modified the consent form and received consent for only those revised assessments, the district limited itself to the enumerated evaluation assessments.
SPEAKER_02But harmless but they said harmless error.
SPEAKER_01Aaron Ross Powell Harmless error, yeah. But but it also, the hearing officer kind of is giving us the playbook here and said, had the district stuck to its usual practice of seeking broad consent for re-evaluations, it could have conducted any unanticipated assessments it might have deemed necessary. Basically, you're the professionals. If you'd have just said, hey, look, this is what we're gonna do and stuck to it. Um now granted the parents could have revoked consent, but then there's also nuclear options for the district at that point. So harmless error at the end of the day, but definitely um kind of a real-world example of uh what you don't want to do as far as putting barriers in your way as education professionals. No good deed. No good deed.
SPEAKER_02I mean, there's classic thing, no good deed, because at the end of this, for me, and I'm sorry, Connecticut District, if you're listening to this and you're like, that's not what happened. Okay, cool. Please tell us podcast at nisburton.com, totally fine to get that email. No issue. But I read this and go, okay, there's a finding against the district, no harm though, so nothing ordered, attorney's fees. Because probably.
SPEAKER_01I wonder, yeah, I don't know if their legal position changed.
unknownYeah.
SPEAKER_02I just find that intriguing, but no good deeds. So somebody's fighting over it. Let's stop limiting ourselves to those things because we want to be kind, right? So let's turn to those practical pointers now that we have these lessons.
SPEAKER_01Yeah, I mean, I here's my thoughts on it. Um, school folks need to be more assertive in their expertise. Yeah. Um, because they are phenomenal experts on things, and frankly, society doesn't always treat them that way. If I went to my doctor and he said, Hey Jeremy, we need to do a cholesterol screening, and I tried to tell him which blood test we were going to use, he would tell me where to go and how to get there. And I would thank him because he's a professional that I rely on. Um, educators do, I think, need to be in their kind, supportive, loving way, more assertive in their expertise because um in barring really unusual circumstances, the parent doesn't actually know what they're asking for. No. And that's not their fault. That's okay. That's why we pay educators to do this work.
SPEAKER_02Um, well, Ryan, and in school psychologists and OTs and PTs and speech language pathologists to know the testing tools, right? There are many times you and I have sat in ETR meetings where our in Ohio evaluation team report meetings, where maybe not a PPT meeting like they have in Connecticut, but our version of the same thing. When we're sitting at planning and you have these individuals, maybe if a parent asks for a bespoke evaluation tool who says, I am not trained in knowing how to do that. But if what you are looking for in this evaluation around this, here are the types of things that I look for. We don't put it in the planning form.
SPEAKER_01Yeah.
SPEAKER_02But we at least discuss it as at the meeting.
SPEAKER_01Yeah. And I think even if you in a meeting discussed generally, so let's say a parent has questions, because they're they're really committed, they're they've learned a lot, that's great. And and they want to know more about, you know, well, what tool do you think you'll use? I don't have a problem with a a team discussing, you know, so it's the OT in this case. Oh, you know, I'm thinking that as part of this, I would do this, this is why. Um, I just wouldn't commit that that's going to be listed because you just don't know. Um, and it could be the child shows up and you learn, oh crap, somebody else has already done this test within the past year. I can't do it, I need to shift. Or, hmm, the why the way the child's responding to this isn't working well. I'm a professional, I'm experienced. Correct. I'm going to make a call on the on the go here to I bet if I shift to this test, it'll work. Or maybe the child's performance seemed odd in the one you did. And you're like, I don't know if that's really valid. Let me try something else. I can't redo it. So we need to leave that flexibility.
SPEAKER_02So the more that we give in those planning meetings and planning forms that starts to handcuff us, the worse it becomes as school professionals.
SPEAKER_01Yep, absolutely. So uh, you know, and and we always include with these things, if you are starting to find yourselves in a bit of a tussle, and this district definitely has some signals that there might be one. Um, an ounce of prevention. Uh your district has legal counsel for a reason. So there are times when it's worth calling just to sort out in your specific state where to consent. We have additional consent requirements, you know, or even if you think you've walked into a mm, we've gotten ourselves in a tough spot, there might be strategies to kind of unwind that a little bit. Yeah. The strategy can't be to surprise the parent at a meeting after you've committed to very specific testing with something new. Correct. That's not going to work out.
SPEAKER_02And I think at least in terms of language, like how do we give listeners the ability to have language back to parents when they are asking for them, aside from no? Right? I like the point in here in the notes that talks about look, we are looking at ETR planning meetings or evaluation planning meetings, whatever your team is called, areas of assessment. That's where we're focused. And we are consenting to certain areas of assessment. We don't, because of all the things you just talked about, that the tools might limit us if we need to pivot. We are focused on areas. And so I think if we can have conversations with parents at the table when they're coming forward with that, I would really like this autism evaluation, for example. Okay, well, what is the area that you are most concerned about here? Is it an autism diagnosis? Because generally in schools we don't give those. Or are we looking at certain areas of need that might be OTPT speech? Are we looking at more cognitive development? Are we looking at behaviors? Are we looking at sensory? What are our areas that we can focus on that can help push the conversation away from a a one-item checklist and more to what is our real big concern here?
SPEAKER_01Uh that I beautiful, yes. My my short version of that is curious questions. I'm constantly, anytime I'm doing any kind of training for special ed folks, I'm like, ask curious questions. Genuinely curious questions will almost never lead you astray.
unknownRight.
SPEAKER_01Well, you know, with that, let's return to the collar. Um school teams conduct evaluations every day because they're trained to gather the information needed to make sound educational decisions. While parents should always be informed and involved, educators should feel confident in the professional judgment they bring to this process. Keep communication open, explain your reasoning, document key discussions, but remember that flexibility in selecting assessment tools often leads to a more complete picture of the student. When everyone stays focused on understanding the student's strengths and needs, the evaluation process becomes a tool for collaboration rather than conflict. Thank you for tuning in to On the Call. If you have found value in our discussion and think your educator colleagues would as well, please share this podcast through text, word of mouth, staff meetings, chats, and teachers launch. Your support is what drives this podcast.
SPEAKER_02We work to bring real life situations and practical tips to each episode. If you have a topic you would like to suggest or want to share your thoughts, please connect with us on social media or email us at podcast at nsbritain.com.
SPEAKER_01A quick note this podcast is intended to be used for general information only and is not legal advice. If you have a specific question, please consult an attorney.
SPEAKER_02We are looking forward to being on the call with you again soon.
