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Appropriate LD Evaluations Under the IDEA: Modernizing LD Eligibility, Understanding the Regulation, Incorporating RtI Practices, Dealing with Child -Find. Presented by Jose Martín , Attorney at Law Austin, Texas. The Modernization of LD Eligibility.
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Jose Martín, Attorney at Law
Lack of firm research bases
Over-reliance on FSIQ scores
Subject to overidentification
Subject to misidentification
A “wait-to-fail” model
Identified “instructional casualties”
Move away from discrepancy toward RtI
Focus on early reading assessments
Allow use of IDEA $ for early interventions
Limit LD eligibility to non-responders
Remember these recommendations!
But, this shift means a new landscape for LD
Child-find vis-à-vis RtI
Conducting modern LD evaluations
Working with reged and using RTI data
Complying with State criteria
Interrelated initiatives that are broader than special education
What’s it all about—The expansion of regular education services and its impact on special education
2. A means to better identify LD students by studying their response to interventions as part of the evaluation process
• Feds provide an overall framework only— States fill in the blanks and provide details
Discrepancy still a major part of many states’ models
Why the staying power?
States that use of discrepancy not required, but allowed (regression analysis)
Does not link use of discrepancy to strength & weaknesses assessment-based analysis
Why the staying power of discrepancy?...
2. Use of either (a) RTI analysis or (b) a “strengths & weaknesses” assessment-based determination
3. Rule-out of traditional exclusionary clauses
4. Appropriate instruction “filter”
Based on grade standards and age
Commentary says failure on statewide assessment is not enough (although a factor that should be considered)
RtI makes its entrance
Complicated failure-to-ID cases?... Commenters saw this coming from afar
RTI analysis raises basic unanswered questions (that will lead to litigation…)
Unanswered RtI questions:
How long to provide interventions?
What type of interventions?
How much data is required?
What form of data?
How is data analyzed?
How much response is enough?
• No caselaw right now on these points…
USDOE says “we do not believe more clarity in the requirements for RtI models is necessary”
If states have clear criteria
But if DOE believes it can’t be more detailed, why would states feel they can?...
Type of RTI model entirely up to LEAs (Letter to Clarke (OSEP 2008))
But, does the desire to allow latitude for LEAs that want to establish RtI mean that there cannot be fundamental minimum requirements for Feds to establish?
What about compensatory services claims? —USDOE advises to keep close contact with parents during interventions
Timelines for interventions will be a nagging issue (see HO’s comments in Salado ISD)
What about state RtI policies?
See §300.311(a)(7)—In eligibility report, LEA must notify parents of state policies on nature and amount of RtI data collected, and of the general ed services provided
See Letter to Zirkel, (OSEP 2008)—OSEP agrees that the reg means states must have RtI policies
Arkansas regs at §6.07.5.1(G)1
If child has participated in RtI program, eligibility report must document that parents were notified about “the State’s policies regarding the amount and nature of student performance data that would be collected and the general education services that would be provided” (straight quote from §300.311)
Some suspicion, because of the “gravitational pull” of the immense IDEA procedural safeguards
Particularly when viewed vis-à-vis the protections for regular ed students
And, a little problem—he’s still failing!
HO’s statements signal understanding of RtI
And, its challenges… (see quotes on p. 9-10)
HO laments lack of guidance on length of interventions prior to referral
Facts of case—Is ADHD student with OK grades, good state test scores, good social skills in need of sp.ed. as OHI?
HO felt that a simple regular ed “Academic & Behavior Contract” was a “special” program, and thus tacit admission by school that student needed sp. ed.
Question—What would the HO have thought if the school had implemented a sophisticated RtI-oriented intervention program?
Some HOs and courts will get uncomfortable with the specialization of interventions in regular ed—a potentially shrinking universe of sp.ed. services…
Provision of actual sp. ed. Services in a sp.ed. class went beyond RTI intervention, and was indicator of sp. ed. eligibility
Must assess student w/o accommodations
Because with them, many won’t qualify!
Why would USDOE say that?
Is some level of standardization of RtI-oriented interventions a bad thing?
Is the current IDEA really supporting the development of RtI-oriented programs?
Can there be real progress on RtI without getting some answers to the unanswered questions posed earlier?
How do we sell parents/advocates on RtI?
The “Strength & Weaknesses” Assessment
So, use of assessments still here
Why an alternative to the RTI analysis?...
Common misconception—RtI is mandatory
S & W process is another option in part 2
Could a state make RtI-based LD evals mandatory? (See Illinois)
Option allows LD eval w/o data from formal interventions
Need for States to clarify details in criteria and guidance (or complex assessment disputes will easily arise)—Arkansas regs only restate the federal reg
USDOE envisions amodern research-based use of assessment instruments
Arkansas allows discrepancy, but also restates the S & W option
Question—Can a pure straight discrepancy-based LD eval be appropriate under 300.309? See Ector Co. ISD (SEA TX 2007)
HO says no, because it would not comply with the four-part structure
Thus, the S&W process is not just a “refried” discrepancy analysis
Discrepancy or RtI? A false choice, and a too-superficial reading of Part 2 of LD structure
But, a discrepancy procedure, as one among other assessment procedures, would be OK, if not dispositive of the LD determination
Assessment staff must be up-to-date on modern assessment practices, cross-battery procedures, current LD theories
Should not patterns of S&W be corroborated by classroom performance?
A modern role for cognitive testing—not to arrive at a FSIQ, but to look at distinct areas of cognitive functioning
Good research basis (Flanagan, Ortiz, Shaywitz, and others)
Modern intelligence tests align to the 7 g’s of cognitive processing
G’s analysis can predict areas of non-normative academic weakness
Achievement testing can corroborate G’s findings on academic weakness areas
Classroom data can corroborate pattern
Data must also show relative strength areas
Data can provide useful information on intervention strategies for sp ed instruction (unlike discrepancy analysis)
What about combined use of RtI data and assessment data? No problem
Opinion—Most US LD evals are still assessment-based evals (but hopefully better assessment-based evals) at part 2
Ruling out other disabilities, or non-disability factors, as the primary causes of the academic difficulties
Nothing new here in terms of how to objectively make this determination
USDOE concedes it’s a “judgment” call
Still as difficult as ever
How does one distinguish between educational disadvantage as a primary cause of the profile, as opposed to a contributing factor? Who knows!
Only in isolated and clear cases can the point be made defensibly
Collecting data on social history is crucial
Sometimes confused with RTI analysis—not a provision establishing a prerequisite of high-quality interventions prior to IDEA referral
Really, it’s only a rule out of really bad instruction—to address Commission’s concerns on “instructional casualties”
Question—How does one determine if instruction has been appropriate solely by looking at the one student’s performance?...
Wouldn’t you look at teacher training, experience, grades of all the teacher’s students, lesson plans, state test scores of all the teacher’s students, employment reviews?
In fact, since in part 1 we already determined the student is not achieving, we should expect the student’s performance data to be poor
So, if the data shows persistently poor student performance, what should the team find in part 4?
Regulation simply is not looking at the right things to assess the concern addressed
Opinion—The provision may be politically tainted and may prove fully ineffective to deal with the concern it intended to address
Tendency will be for teams to find that there was not lack of appropriate instruction, regardless of the student’s performance data
At what point in the RTI process should schools suspect LD and refer?
How long should interventions be tried?
What if the child is moving thru RTI tiers with some improvement, but also deficits?
How do schools handle parent referrals?
What role do campus assistance teams play?
Ultimate question: How to make effective use of regular ed interventions while also timely complying with child-find?
Initial litigation most likely will center on this friction
Areas of complication:
Timeliness of interventions
Rate of progress in interventions
Schools encouraging/pushing interventions
Inflexible intervention practices
A preview of the first line of legal claims
4th-grade teacher and “Child Study Team” followed a student’s struggles, provided accommodations/strategies
Twice, team decided referral not needed
Parent claimed child-find violation, arguing that:
Use of CSTs circumvented IDEA
CSTs used to thwart parental referral
If CSTs OK, all IDEA safeguards apply
(Case really most interesting as a study of the legal challenges attempted)
Court rejected arguments, holding that:
Use of reged help consistent with IDEA
Parents could have referred at any time
Assistance can’t create IDEA protections
Student improved, passed state test
“This is decidedly not a case in which a school turned a blind eye to a child in need”
Why would parents push for IDEA eligibility in this situation?...
See §300.309(c)—p. 18 (could have been differently drafted to be more RtI-friendly)
Legal options: (1) evaluate, (2) ask parents for extended timeline, or (3) refuse eval (and provide notice of refusal and notice of safeguards)
The problem is more present if RTI process is lengthy, parent nervous
Refusing eval not an attractive option
USDOE says schools should start the intervention process early, and does not appear to envision lengthy intervention cycles/tiers
But parents could still “opt-out” of full RtI process by seeking early eval, and placing school in a potential litigation posture
Although the scenario is expected for a number of students, there can still be dispute
Salado Ind. Sch. Dist. (SEA TX 2008)
Parent agreed to reged interventions, but student was ultimately referred, and qualified—parents alleged delay in ID
Key Finding—HO noted that all stakeholders worked collaboratively in deciding on reged interventions
What if parents had not been fully in agreement to RtI interventions?...
When K student had academic and behavior problems, school tried interventions (“Academic Improvement Plan”)
School noted student was in a foster home
Then, student moved to a second foster home and new school, with new interventions, and was retained
After another round of interventions without much success, she was evaluated/qualified
Parents argued delay in referral
HO found that state law required two types of reged interventions prior to referral, and noted the student’s complex social situation
Might it be helpful, then, to have state rules requiring some regular ed interventions prior to IDEA referral?
Might such rules violate IDEA, however?
In this variant, the student got interventions, which initially worked (DIBELS monitoring, academic supports, reading interventions), but then his progress slowed
When progress slowed, school team offered evaluation, but parents placed him privately
HO rejected the failure-to-ID claim
4th grade bilingual student has some problems with homework, a little distractible, but good academic capacity
Ind. eval diagnoses LD (straight discrepancy)
School evaluates, rejects LD eligibility
Parents get another IEE that shows CAPD
Court finds student “responded” to regular interventions (“intervention plan”)
Court noted Calif. law rejects IDEA eligibility if discrepancy “correctable” in the reg class
Court also noted frequent contact with parents
Says RtI consistent with “mainstreaming”…
A thought on the California “correctable” provision—Does the law really mean that the discrepancy must be able to be fully “corrected,” or that child can make progress and meet grade level standards without sp.ed. services?
Schools that act unilaterally will be more susceptible to legal challenge
Beware of inflexible, rigid application of intervention processes
Educate parents on the value of your reged interventions and show data
RTI process was in effect on paper, but HO found interventions were not applied when student struggled