Wednesday, October 28, 2009

Specific Learning Disability - Eligibility for Special Education

Eligibility for special education and related services under the category of Specific Learning Disability (SLD) involves perhaps the most complicated rules and analysis of any category under the IDEA. The understanding and acknowledgment of what constitutes a learning disability is changing as awareness, research, and information becomes more prevalent. Not only does research about learning disabilities in general effect the understanding of eligibility, but also research and developments about evaluation procedures and interventions can have an impact.

SLD is the only category under the IDEA that has specific evaluation procedures, beyond the general requirements for special education evaluations, that attach to the determination of eligibility. These specific evaluation procedures will be more thoroughly covered in a subsequent blog post.

IDEA's Definition of SLD Eligibility Under IDEA:

"In general, the term 'specific learning disability' means a disorder in 1 or more of the basic psychological processes involved in understanding or in using language, spoken or written, which disorder may manifest itself in the imperfect ability to listen, think, speak, read, write, spell or do mathematical calculations." 20 U.S.C. section 1401(30).

The team may determine that a child has a specific learning disability IF:

"(1) the child does not achieve adequately for the child's age or to meet State-approved grade-level standards in one or more of the following areas, when provided with learning experiences and instruction appropriate for the child's age or State-approved grade level standards:
(i) oral expression
(ii) listening comprehension
(iii) written expression
(iv) basic reading skill
(v) reading fluency skills
(vi) reading comprehension
(vii) mathematics calculation
(viii) mathematics problem solving

(2) (i) the child does not make sufficient progress to meet age or State-approved grade-level standards in one or more of the areas identified in (1) above when using a process based on the child's response to scientific research-based intervention; or (ii) the child exhibits a pattern of strengths and weaknesses in performance, achievement, or both, relative to age, State-approved grade level standards, or intellectual development, that is determined by the group to be relevant to the identification of a specific learning disability, using appropriate assessments... and

(3) the group determines that its findings are not primarily the result of
(i) a visual, hearing, or motor disability
(ii) mental retardation
(iii) emotional disturbance
(iv) cultural factors
(v) environmental or economic disadvantage; or
(vi) limited English proficiency"

34 C.F.R. section 300.309

Thus, to simplify this, under the IDEA's definition, the determination is going to be based on whether the child is not making adequate or sufficient progress relative to his/her age and to grade level standards, in one of the specified skill areas, even given appropriate learning experiences and instruction or given research-based interventions.

Role of State Laws and Regulations:

Each state individually sets forth guidelines that further explain the process for determining eligibility under the category of SLD. The IDEA states that "a state must adopt... criteria for determining whether a child has a specific learning disability..." 34 C.F.R. section 300.307(a). States are prohibited from requiring the use of the "severe discrepancy" model, must allow the use of a response to intervention model, and may allow the use of other research-based procedures. 34 C.F.R. section 300.307(a). The individual school districts are required to use the criteria adopted by the state.

Discrepancy Model:

Prior to the 2004 changes to the IDEA, the "severe discrepancy model" was the primary method utilized to determine eligibility under the category of SLD.

The severe discrepancy model looks at whether there is a severe/significant discrepancy between a child's intellectual ability and that child's achievement in a specified academic area. Whether a discrepancy is "severe" is determined by the standard used in that district / state, and is typically based upon a difference of 1.5 standard deviations.

For example:

Child is given a general ability measure or IQ test and his/her overall ability / full scale IQ is found to be a 100.

Child is also given a standardized measure of academic achievement, and cluster scores in areas related to reading are found to be broad reading - 80, reading comprehension - 72, basic reading skills - 75.

The difference or discrepancy between ability and achievement in the area of broad reading would be 20 points, in the area of reading comprehension would be 28 points, and in the area of basic reading would be 25 points. On standardized measure wherein 100 is the mean, two and a half standard deviations is 22.5 points, so this child has a "severe discrepancy" in reading comprehension and basic reading skills.

Although states can no longer require the use of a severe discrepancy model, they can still adopt this model, and define it, as one option for school districts to utilize. Therefore, in some areas, the discrepancy model is still widely used.

It is important to note that the discrepancy model relies upon a comparison of the child's achievement academically to his/her own ability level, rather than merely to grade- or age- level expectations. However, even if a state allows for use of the discrepancy model, the state's procedures must be consistent with the definition of an SLD under the IDEA, see above. Under that definition, it is necessary to look at whether the child is achieving adequately / sufficiently to meet age or grade-level standards, not necessarily to meet expectations based upon their own IQ.

Response to Intervention Model:

Response to Intervention (RTI) is still a relatively new model in terms of special education eligibility. The idea behind RTI, though, is based in the finding that students who are provided with appropriate, research-based instructions should learn to read, write, do math, etc. This is similar to the idea behind the requirements of No Child Left Behind that students be provide with research based instructions. Basically, the IDEA's recognition of RTI as an appropriate process to take into consideration when making an eligibility determination is a recognition that there should be a determination that the child has learning difficulties even though he/she has been provided with research-based interventions within the general education setting before he/she is determined to have a disability.

The main components of an RTI program include (1) provision of scientific, research-based instruction and interventions within the general education program; (2) monitoring progress with specific measurement tools that are scientifically based; (3) adjustments to interventions and instruction provided based on the measurement of student progress.

RTI can take into consideration instructional curriculum that is already being used in the classroom, without the need for addition instruction / intervention prior to an eligibility determination. For example, if the District-wide curriculum for reading is a "research-based program," that has built-in periodic progress measurements, the consideration of RTI may look at the student's progress within that instructional program.

The District is not permitted to halt or delay the assessment timelines due to the utilization of the RTI model, as will be discussed more thoroughly in a subsequent blog post.

Stay tuned for Part 2 on this topic, which will cover Consideration of Other Factors, Specific Diagnoses vs. Eligibility, and Issues related to Highly Intelligent Students with SLD.

Tuesday, October 27, 2009

Tip of the Day: Take the Copy of the Safeguards

As I sit here pouring through IEPs that indicate parents were offered the procedural safeguards and had no questions and having flashbacks to testimony in hearings (apparently asking a question - even if unanswered by a district IEP team member means you participated - but I digress) I thought that it would be great if the actual procedural safeguards were attached to the IEP.

So here's my tip - and I know it means one more piece of paper that you don't want - but take the procedural safeguards and attach them to your copy of the IEP. Or note on the copy the date you received it, what meeting, and who gave it to you (I actually like this option better). Even better if you have the person who gave it to you intial and date it. Why is this important? Well as I sit here pouring over documents that indicate parents had no questions about procedural safeguards and wondering if I can track down a copy from two years ago, I thought how easy it would be if it was already with the document. But why? Well these "safeguards" get updated occasionally (likely when the district gets in trouble about something) so sometimes the copy you can get tomorrow is not the copy they would have given you in December 2007 and maybe, just maybe, it didn't include a safeguard or had wrong information, that has since been corrected. And you never know if that could be helpful.

Monday, October 26, 2009

Web Resources for Special Education

Check out my new Squidoo lens all about resources for special education and disabilities on the web! It covers websites that provide useful information, twitter-users who tweet about special education, and interesting books on Amazon. Hope you find it helpful!

Friday, October 23, 2009

While We Were Away

As you may have noticed the posts were sparse for there for awhile. Unfortunately, it is not because we all took a vacation to somewhere fabulous but rather we had a lot on our collective plate. In addition to the back to school rush that we deal with every September (the typical failure of the school districts to implement agreements or have service providers available), we've been dealing with cases at three different levels of the court system, which has made for some pretty late nights/early mornings, beyond normal caffeine consumptions, and just not enough time to blog (and sometimes shower).

At the administrative level we had a six-day hearing for a preschooler with autism and apraxia (the school district thinks it is impossible by the way to have both). The school district claimed the LRE for this student was a class with no typical peers because he was not potty-trained at the time of the last IEP. The school district also refused to offer more than 60 minutes per week of LAS or describe the frequency and duration. Parents have been providing a private placement and private services for a year now so we we're arguing for appropriate services and reimbursement for the unilateral placement and related services. We had quite a lot of expert witnesses in this case (all the more reason to get behind COPAA's efforts to support the IDEA Fairness Restoration Act), a lot of evidence and just got done filing our closing brief and reply brief.

In district court we have a case pending, and had briefs due this past month, regarding the unilateral placement of a student who is twice-exceptional in a school that is not certified as a NPS. The school district in that matter offered a placement at a NPS without specifying the school and parents enrolled him in a private school. We are appealing a decision from the administrative level that found that the school district's failure to offer a specific placement was proper.

In the Ninth Circuit we also had a case pending, and the inevitable briefs due, regarding a student with CP who the school district kept segregated from any district school. The student has since passed and we are litigating the issue that Parents still have claims for reimbursements for services provided. We are also appealing the district court's decision to impose attorneys' fees on this matter on Parents' attorneys for moving forward with litigation after the death of the student.

As you can see we've been busy busy but we are excited about the possibility of (hopefully) making some good law on some of these cases and moving forward in the next few months.

We hope to keep any future hiatuses to a minimum and we thank you for hanging in there with us.

Fast Fact Friday: Statute of Limitations

Under the IDEA there is a two-year statute of limitation for filing a due process complaint. What this means is that a due process complaint must allege a violation that occurred not more than two years before the date the parent or public agency knew or should have known about the alleged action that forms the basis of the due process complaint. See 34 C.F.R. 300.507(a)(2). It is up to a hearing officer or ALJ to make the decision as to whether the parent should have known about the alleged action that forms the basis of the complaint. See Analysis of Comments and Changes to 2006 IDEA Part B Regulations, 71 Fed. Reg. 46706 (2006).

Under the IDEA there are several exceptions to the two-year statute of limitations. It does not apply to a parent if the parent was prevented from filing a complaint due to: 1) Specific misrepresentations by the district that it had resolved the problems forming the basis of the complaint; or 2) The district's withholding of information from the parent that the IDEA required it to provide. See 34 CFR 300.511(f). The Department of Education declined to define the term "misrepresentations" as used in that section. See Analysis of Comments and Changes to 2006 IDEA Part B Regulations, 71 Fed. Reg. 46706 (2006).

If a state law has set an explicit time limitation for requesting a due process hearing, the IDEA defers to the state's law. See 34 CFR 300.507(a)(2).

Monday, October 12, 2009

Due Process Cases: What is Mediation All About?

Mediation is a voluntary alternative dispute resolution process in which an impartial third party ("mediator") helps the parties to resolve their dispute but does not and cannot impose a solution.

Mediation Under the IDEA:

States are required to "ensure that procedures are established and implemented to allow parties to disputes involving any matter, including matters arising prior to the filing of a complaint... to resolve such disputes through a mediation process." 20 U.S.C. section 1415(e)(1).

States must "ensure that the mediation process (i) is voluntary on the part of the parties; (ii) is not used to deny or delay a parent's right to a due process hearing...; (iii) is conducted by a qualified and impartial mediator who is trained in effective mediation techniques." 20 U.S.C. section 1415(e)(2).

What to Expect:

A mediation session usually happens fairly shortly after the 30 day "resolution period" contemplated for in the IDEA, or in some states may even be available during that time period. Note that in some instances, parties may not have both a resolution session and a mediation. Mediation is voluntary, so the parties can decide not to attend / participate. Unless each side is clearly not going to attempt to reach an agreement, mediation is worth your time to attempt to reach a settlement.

At the start of the mediation, an effective mediator should describe the process to parents and their representatives. Typically, a mediator will let the parties know that mediation is confidential, and that what is discussed in mediation can't be put into evidence at a subsequent hearing. A mediator should also explain any rules for the process, explain whether all parties will remain in one room or "caucus" separately, and answer any questions.

Sometimes, it is helpful for the parties to give a brief statement that provides an overview of their position and of what they are seeking in a settlement agreement. This is both for the benefit of the mediator - who needs this information to effectively guide communication - and is for the other side - who needs to hear what your position is and how strong you are in it.

A mediator's role is essentially to help with the communications between the parties. While there are many theories of effective mediation techniques, in terms of whether the mediator is simply relaying information or is more involved in helping to brainstorm solutions, a good mediator will always be able to effectively communicate each party's position and offer to the other side.

Many special education disputes are resolved through mediation. Ideally, mediation also allows for the two sides to communicate and air their disputes so that parents and the district may have a chance in the future of a productive relationship.

Due Process Cases: What is a Resolution Session?

"Informal Dispute Resolution" can refer to many different things in the context of special education cases. Many school districts may have their own informal dispute resolution ("IDR") processes, in which a parent can meet with or speak with someone about their disagreements without having to file for a due process hearing or go to a mediation. Even in the context of a due process case, there is an opportunity to "informally resolve" the issues between the parents and the district.

Definition of "Resolution Session"

A resolution session is a process by which parties meet without a neutral third party and attempt to resolve their dispute.

Rules / Statutory Basis

The Resolution Session and Informal Resolution Period were created in the 2004 changes to IDEA;

"Prior to the opportunity for an impartial due process hearing... the local educational agency shall convene a meeting with the parents and the relevant member or members of the IEP Team who have specific knowledge of the facts identified in the complaint
(i) within 15 days of receiving notice of the parents complaint;
(ii) which shall include a representative of the agency who has decision-making authority on behalf of such agency;
(iii) which may not include an attorney of the local educational agency unless the parent is accompanied by an attorney; and
(iv) where the parents of the child discuss their complaint, and the facts that form the basis of the complaint, and the local educational agency is provided the opportunity to resolve the complaint, unless the parents and the local educational agency agree in writing to waive such meeting or agree to use the mediation process in lieu of the resolution session"

20 U.S.C. section 1415(f)(1)(B)

Any agreement made in the resolution session must be in writing, is enforceable, and can be voided by either party within 3 business days of execution. 20 U.S.C. section 1415(f)(1)(B)(iii)&(iv).

What to Expect:

An informal resolution session is to be held within 15 days after parents filed for due process. The statute allows for a 30 day "resolution period" meaning that although the resolution session must occur within the first 15 days, the district has an opportunity to try to resolve the dispute within 30 days before the time period for the hearing and a decision commences. If a district files for due process against a parent an informal resolution session does not have to be held and the 30 day period does not toll.

A school district representative will most likely contact the parents prior to the deadline to schedule a resolution session (sometimes referred to as an "informal"). Parents are required to attend the resolution session, unless the parties both agree in writing to waive it. If the school district doesn't agree, and parents still refuse to participate, then all of the applicable timelines stop until parents agree to go to the informal.

Whether attorneys or advocates attend the resolution session with parents is a case-by-case determination. There are pros and cons of having and attorney or advocate there, but many parents feel that they would be easily bullied if they went alone. The law anticipated that attorneys would not be involved in this process, and therefore parents cannot get reimbursed for an attorney's time spent attending the resolution session.

A resolution session is sometimes convened with only the parents and a district representative, like a special education director. However, sometimes the school district will have many participants, including members of the IEP team.

Even if a district does not typically settle cases at this level, the informal resolution process can be helpful to the overall settlement negotiations in a case. Often, the fact that a "decision-maker" has been forced to immediately get involved in the case, to meet with the parents first-hand, and to familiarize themselves with the facts contained in the complaint, can be very effective. Sometimes, if a subsequent mediation is held, it may be much more productive because it is not the first time the parties meet, and the "decision-maker" will at least have already read the complaint.

Friday, October 9, 2009

Learning Disabilities Awareness Month

October is Learning Disabilities Awareness Month here in the U.S. In 1985, President Ronald Reagan issued a proclamation designating Learning Disabilities Awareness Month, and stating

"Awareness of learning disabilities is one of the most important advances in education in recent years. As more and more Americans become aware, our citizens with learning disabilities will have greater opportunity to lead full and productive lives and to make a contribution to our society."

Increased awareness - better educational programs - greater opportunities! That's the idea, and we can all play a role in making it a reality. For Learning Disabilities Awareness Month, we encourage all of our readers to participate; here are some ideas:
  • Increase your own awareness - educate yourself about different types of learning disabilities, programs that are appropriate to remediate learning deficits, etc. Check out LD Online, the Learning Disabilities Association, and the National Center for Learning Disabilities as good starting place. Or go to your local library and check out books on learning disabilities. Each of the websites listed above has "recommended books," and I recommend Overcoming Dyslexia - even though there are more current books out there, it provides a very comprehensive overview.
  • Talk to your child. If you have a child with a learning disability, this may be a great time to talk to him or her about his/her disability. Understanding your own learning needs is the first step to learning to self-advocate! There are children's books and other resources available that can help open the door for communication about these issues. Check out, for example, I Wish I Could Fly Like a Bird, a great story that teaches children to understand and accept differences. This is also a great book to share with your child's teacher as a way to introduce the topic of learning disabilities and other differences to classmates. And if you have a child who is non-disabled, this book is a great tool to increase his/her awareness of learning differences as well.
  • Share with your family and friends. Awareness happens because people who know and care about the issue talk about it with others. Talk to your friends about learning disabilities. Share your personal stories and insight and help them to understand why awareness matters.
  • Find local events. Find your local Learning Disabilities Association chapter, parent support groups for parents of students with learning disabilities, or other community groups. Many groups may be having local events to promote awareness throughout October that you can get involved in.
Throughout October, we will be posting various blog articles about Learning Disabilities, particularly focusing on special education issues related to students with learning disabilities. Check back later for more information and updates, and feel free to leave a comment if there are particular issues related to this topic you want us to talk about!

Fast Fact Friday: Alternative Dispute Resolution

"Alternative Dispute Resolution" encompasses many processes by which parties resolve disagreements without going through a trial. There are many benefits to ADR in general, which include saving time and money for the parties, and possibly achieving better and more participant-oriented results. ADR has grown increasingly popular in all kinds of cases, due in part to the realization that it could lead to faster results than if parties waited to go through a hearing or a trial in an over-burdened court or hearing system.

In special education, ADR includes the following:
  • Informal Dispute Resolution processes established within the procedures of the local school districts, allowing for parents and the district to discuss disagreements and possible solutions without filing for due process
  • Resolution Sessions under IDEA 2004, which are held within 15 days of when a parent files for due process, and include parents and district representatives, possibly IEP team members
  • Mediation, a voluntary process in which a neutral third party mediator, assigned through whatever system is established in your state, meets with the parties to try to help them resolve their disagreement and reach a settlement
  • Settlement negotiations and written settlement offers, which may occur at any point during the case between the parties and which allow for the parties to attempt, independently of a third party, to reach a negotiated settlement