Appropriate LD Evaluations Under the IDEA: Modernizing LD Eligibility, Understanding the Regulation,...

Appropriate LD Evaluations Under the IDEA: Modernizing LD Eligibility, Understanding the Regulation, Incorporating RtI Practices, Dealing with Child-Find

Presented byJose Martín, Attorney at Law

Austin, Texas

The Modernization of LD Eligibility

• Moving away from a dysfunctional, unscientific eligibility model—The discrepancy model

Lack of firm research basesOver-reliance on FSIQ scoresSubject to overidentificationSubject to misidentificationA “wait-to-fail” modelIdentified “instructional casualties”

The Modernization of LD Eligibility

• The influence of the President’s Commission on excellence in special education (2002)

Move away from discrepancy toward RtIFocus on early reading assessmentsAllow use of IDEA $ for early interventionsLimit LD eligibility to non-responders

Remember these recommendations!

The Modernization of LD Eligibility

But, this shift means a new landscape for LD

• The new challenges:

Child-find vis-à-vis RtIConducting modern LD evaluationsWorking with reg ed and using RTI dataComplying with State criteria

The Modernization of LD Eligibility

• Understanding the relationship between RTI and LD

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

The Modernization of LD Eligibility

• A point of semantics—The two RtI contexts

1. An expansion and improvement of intervention options for

struggling students in regular ed

2. A means to better identify LD students by studying their response to

interventions as part of the evaluation process

The 2004 IDEA Provision• A “mild” reform provision

• LEAs can’t be forced to use discrepancy, and must be allowed to use RTI analysis

• RTI analysis = using data from high-quality research-based interventions to help decide if a student is LD by reference to their response to interventions (in addition to other evaluation procedures)

Key 2006 IDEA Regulations

• §300.307—State responsibility for LD model (a big responsibility…)

1. States cannot require discrepancy2. Must allow RtI analysis (as a part of eval)3. Can create alternative research-based model

• Feds provide an overall framework only—States fill in the blanks and provide details

The 2006 IDEA Regulations

• So, what are States doing?

Discrepancy still a major part of many states’ models

Why the staying power?

Arkansas Regulations (§6.07)

• Follows §300.309 (reg on LD evaluation) closely

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?...

The 2006 IDEA Regulations

• §300.309—The main regulation; sets forth fundamental LD evaluation requirements and overall framework that state models must follow

• At its core, a four-part structure

§300.309—4-Part Structure for LD1. Determination that child is not achieving

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”

Key Issues in the 4-part Structure• Failure to achieve adequately

Based on grade standards and age

Commentary says failure on statewide assessment is not enough (although a factor that should be considered)

• The RTI analysis option — Part 2A

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…)

• The RTI analysis option — Part 2A

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…

• The RTI analysis option — Part 2A

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))

• The RTI analysis option — Part 2A

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)

• The RTI analysis option — Part 2A

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

• The RTI analysis option — Part 2A

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)

Quick Aside

• Parent/advocates’ perceptions of RtI vary:

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!

• Some of the emerging caselaw is showing the impact of RTI on the IDEA hearing officers…

• Salado ISD (TEX SEA 2008)

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

• A. D. v. Alvin ISD (5th Cir. 2007)—The Hos decision is an example of the persistence of “old thinking” on reg ed/sp. ed. relationship

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.

• A. D. v. Alvin ISD (5th Cir. 2007)

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…

• Adelanto Elem. Sch. Dist. (SEA CAL 2008)—(Not in materials)

Provision of actual sp. ed. Services in a sp.ed. class went beyond RTI intervention, and was indicator of sp. ed. eligibility

• See new case—Marshall Joint Sch. Dist. No. 2 v. C.D., 51 IDELR 242, 592 F.Supp.2d 1059 (W.D.Wis. 2009)—REVERSED on other grounds

Must assess student w/o accommodationsBecause with them, many won’t qualify!

• What about RTI in areas other than LD? OSEP points out that regs do not address use of RTI models for children suspected of having other disabilities

Why would USDOE say that?

• Discussion Time:

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?

• Part 2B of the Four-Part Structure

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)

The “Strength & Weaknesses” Assessment

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 a modern research-based use of assessment instruments

The “Strength & Weaknesses” Assessment

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

The “Strength & Weaknesses” Assessment

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

The “Strength & Weaknesses” Assessment

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

The “Strength & Weaknesses” Assessment

Cross-Battery Methods

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

The “Strength & Weaknesses” Assessment

Cross-Battery Methods

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)

The “Strength & Weaknesses” Assessment

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

Key Issues in the 4-part Structure• Part 3—The traditional exclusionary clauses

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

• Part 3—The traditional exclusionary clauses

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

Key Issues in the 4-part Structure• Part 4—Ruling out lack of appropriate

instruction (the appropriate instruction “filter”)

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”

• Part 4—Ruling out lack of appropriate instruction (the appropriate instruction “filter”)

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?

• Part 4—Ruling out lack of appropriate instruction (the appropriate instruction “filter”)

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

• Part 4—Ruling out lack of appropriate instruction (the appropriate instruction “filter”)

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

New Child-Find Complexities• New Questions:

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?

New Child-Find Complexities

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

New Child-Find Complexities

Areas of complication:

Timeliness of interventionsRate of progress in interventionsIntervention periodsSchools encouraging/pushing interventionsInflexible intervention practices

New Child-Find Complexities

• A.P. v. Woodstock Bd. of Educ. (D.Conn. 2008)—p. 16

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

• A.P. v. Woodstock Bd. of Educ. (D.Conn. 2008)

Parent claimed child-find violation, arguing that:

Use of CSTs circumvented IDEACSTs used to thwart parental referralIf CSTs OK, all IDEA safeguards apply

(Case really most interesting as a study of the legal challenges attempted)

• A.P. v. Woodstock Bd. of Educ. (D.Conn. 2008)

Court rejected arguments, holding that:

Use of reg ed help consistent with IDEAParents could have referred at any timeAssistance can’t create IDEA protectionsStudent improved, passed state test

• A.P. v. Woodstock Bd. of Educ. (D.Conn. 2008)

“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?...

• What if parents request IDEA evaluation while RTI interventions proceed?

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

• What if parents request IDEA evaluation while RTI interventions proceed?

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

• What if interventions fail and child winds up qualifying for sp ed after all?

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 reg ed interventions, but student was ultimately referred, and qualified—parents alleged delay in ID

HO ruled he could not fault school for attempting RtI process, even if it eventually resulted in a referral, evaluation, and eligibility

Key Finding—HO noted that all stakeholders worked collaboratively in deciding on reg ed interventions

What if parents had not been fully in agreement to RtI interventions?...

• Lake Park Audubon Ind. Sch. Dist. (SEA MN 2008)

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

• Lake Park Audubon Ind. Sch. Dist. (SEA MN 2008)

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 reg ed interventions prior to referral, and noted the student’s complex social situation

• Lake Park Audubon Ind. Sch. Dist. (SEA MN 2008)

Might it be helpful, then, to have state rules requiring some regular ed interventions prior to IDEA referral?

Might such rules violate IDEA, however?

• Dowington Sch. Dist. (SEA PA 2007)

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

• Pajaro Valley (N.D. Cal. 2009)—Recent case!

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

• Pajaro Valley (N.D. Cal. 2009)—Brand new!

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”…

• Pajaro Valley (N.D. Cal. 2009)—Brand new!

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?

How to Avoid Child-Find Claims• Inform parents of full range of interventions• Meet and discuss options, timelines• Make clear parents’ right to request IDEA eval• Reach a consensus on course of action• Share progress data frequently• Follow-up on progress, or lack thereof• Have follow-up meetings• Closely document above steps

59

• Key Perspective: parents as partners in the decision-making process on reg ed interventions and timing of referral

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 reg ed interventions and show data

60

• Watch fidelity issues—See Crete-Monee Comm. Unit Sch. Dist. #201-U (SEA IL 2008)

RTI process was in effect on paper, but HO found interventions were not applied when student struggled

61