Legislative Update

SEPTEMBER 26, 2006

(To provide the public with an overview of the regulations, OSERS will be hosting a series of community-based public meetings throughout the country. For information about times and locations go to: http://www.ed.gov/policy/speced/guid/idea/cbpm/idea2004-cbpm-schedule.html

Attendees to the community based public meetings about the final regulations for IDEA '04 will have the opportunity to ask questions following the presentation about these regulations. To help prepare for the meeting, an information sheet on regulations of concern for students with SLD and the Department's response to concerns expressed in the response to the proposed regulations will be posted on the LDA website by September 26.

The following information is limited to SLD issues only. The regulations are in bold, the DISCUSSION is taken from the Preamble of the final regulations, and the underlined material is possible questions. Feel free to contact us for further information. You should speak on behalf of the state organization or you as an individual. You may add other comments as desired.

THE STATUTE, THE REGULATIONS, AND THE PREAMBLE
The statute expresses the intent of Congress. The regulations provide details to assist States in the appropriate implementation of the Act. They may not contradict the statute, but they may go beyond it. Both statute and regulations have the force of law. The Discussion in the Preamble, which explains the Department's reasons for its wording, does not have the power of the statute and regulations, but is a useful tool for supporting arguments.

IMPORTANT REGULATIONS
Regulation 300.35 defines scientifically based research as that in the ESEA (NCLB) which is: The definition of scientifically based research is important to the implementation of Part B of the Act and, therefore, we will include a reference to the definition of that term in section 9101(37) of the ESEA.

DISCUSSION: For the reasons set forth earlier in this notice, we are not including definitions from other statutes in these regulations. However, we will include the current definition of scientifically based research in section 9101(37) of the ESEA here for reference.
Scientifically based research--
(a) Means research that involves the application of rigorous, systematic, and objective procedures to obtain reliable and valid knowledge relevant to education activities and programs; and
(b) Includes research that--

Employs systematic, empirical methods that draw on observation or experiment;
Involves rigorous data analyses that are adequate to test the stated hypotheses and justify the general conclusions drawn;
Relies on measurements or observational methods that provide reliable and valid data across evaluators and observers, across multiple measurements and observations, and across studies by the same or different investigators;
Is evaluated using experimental or quasi-experimental designs in which individuals, entities, programs, or activities are assigned to different conditions and with appropriate controls to evaluate the effects of the condition of interest, with a preference for random-assignment experiments, or other designs to the extent that those designs contain within-condition or across-condition controls;
Ensures that experimental studies are presented in sufficient detail and clarity to allow for replication or, at a minimum, offer the opportunity to build systematically on their findings; and
Has been accepted by a peer-reviewed journal or approved by a panel of independent experts through a comparably rigorous, objective, and scientific review.

The Department does not intend to dictate how extensive the research must be or who, within an LEA or State, should determine that the research is of high quality. We believe that this is a matter best left to State and local officials because determining the presence of an appropriate instructional process is part of the State-adopted criteria.

POSSIBLE QUESTION - Could the Department publish examples of this research?

Regulation 300.301 - That each state must ensure that Free Appropriate Public Education (FAPE) is available to any individual child with a disability who needs special education and related services even though the child has not failed or been retained in a course or grade and is advancing from grade to grade.

DISCUSSION: Section 300.101(c) provides that a child is eligible to receive special education and related services even though the child is advancing from grade to grade. Further, it is implicit from paragraph (c) of this section that a child should not have to fail a course or be retained in a grade in order to be considered for special education and related services. A public agency must provide a child with a disability special education and related services to enable him or her to progress in the general curriculum, thus making clear that a child is not ineligible to receive special education and related services just because the child is, with the support of those individually designed services, progressing in the general curriculum from grade-to-grade or failing a course or grade. The group determining the eligibility of a child for special education and related services must make an individual determination as to whether, notwithstanding the child's progress in a course or grade, he or she needs or continues to need special education and related services. However, to provide additional clarity we will revise paragraph (c)(1) of this section to explicitly state that children do not have to fail or be retained in a course or grade in order to be considered eligible for special education and related services.

POSSIBLE QUESTION - Could the department issue a special paper on this issue? Unfortunately, some schools seem to feel that special education is for failing students only.

Regulation 300.302 clarifies that the screening of a student by a teacher to determine appropriate instructional strategies or curriculum implementation shall not be considered to be an evaluation for eligibility for special education or related services.

DISCUSSION: An "evaluation" as used in the Act, refers to an individual assessment to determine eligibility for special education and related services, consistent with the evaluation procedures in §§300.301 through 300.311. "Screening," as used in §300.302 and section 614(a)(1)(E) of the Act, refers to a process that a teacher or specialist uses to determine appropriate instructional strategies. Screening is typically a relatively simple and quick process that can be used with groups of children. Because such screening is not considered an evaluation under §§300.301 through 300.311 to determine eligibility for special education services, parental consent is not required.

POSSIBLE QUESTION - Could the Department issue a separate fact sheet with this information? Parents may not be aware of these differences.

Regulation 300.303 Reevaluations
DISCUSSION: An RTI process does not replace the need for a comprehensive evaluation, and a child's eligibility for special education services cannot be changed solely on the basis of data from an RTI process. Consistent with §300.303 and section 614(a)(2) of the Act, a child with a disability must be reevaluated if the public agency determines that the educational or related services needs of the child warrant a reevaluation or if the child's parent or teacher requests a reevaluation. A reevaluation must occur no more than once a year, unless the parent and the public agency agree otherwise, and at least once every three years, unless the parent and the public agency agree that a reevaluation is unnecessary, to determine whether the child continues to have a disability and to determine the educational needs of the child.

POSSIBLE QUESTION - How will the Department monitor to ensure that states and school systems do not use data from the RTI as the sole determinant for eligibility for special education for students with SLD?

Regulation 300.306(b) Special rule for eligibility determination
DISCUSSION: Reevaluations must be conducted in accordance with §§300.304 through 300.311. In addition, as noted in §300.305(e)(1), except for children at the end of their secondary school career, a reevaluation must be done before determining that a child is no longer a child with a disability. In conducting a reevaluation, as noted in §300.305, consistent with section 614(c) of the Act, the IEP Team and other qualified professionals must review existing evaluation data on the child including evaluations provided by the parents of the child; current classroom-based, local, or State assessments and classroom-based observations; and observations by teachers and related services providers. The results of an RTI process may be one component of the information reviewed as part of the reevaluation process. It is up to each State to develop criteria to determine whether a child continues to have a disability, including whether a particular child has an SLD. States that change their eligibility criteria for SLD may want to carefully consider the reevaluation of children found eligible for special education services using prior procedures. States should consider the effect of exiting a child from special education who has received special education and related services for many years and how the removal of such supports will affect the child's educational progress, particularly for a child who is in the final year(s) of high school. Obviously, the group should consider whether the child's instruction and overall special education program have been appropriate as part of this process. If the special education instruction has been appropriate and the child has not been able to exit special education, this would be strong evidence that the child's eligibility needs to be maintained.

POSSIBLE QUESTION - Would the Department issue a fact sheet reiterating that reevaluations must review existing evaluation data on the child including evaluations provided by the parents of the child; current classroom-based, local, or State assessments and classroom-based observations; and observations by teachers and related services providers?

Proposed regulation 300.307(a)(1) which would allow states to prohibit the use of a severe discrepancy between IQ and achievement to determinate eligibility under the SLD category has been removed. (Final regulations for eligibility for SLD are now that 1) A state may not require the use of a discrepancy between IQ and ability 300.307(a)(1); 2) A state must permit the use of a process based on a child's response to scientific, research based intervention 300.307(a)(2); and 3) A state may permit the use of other alternative research-based procedures (300.307(a)(3).)
DISCUSSION: "States are free to prohibit the use of a discrepancy model", since States are responsible for developing criteria to determine whether a child is a child with a disability, including criteria for specific learning disabilities.

POSSIBLE QUESTION - Will this information be posted on the IDEA website? Parents need to know that a state may prohibit the use of a discrepancy model.

New regulation 300.307(a)(3) May permit the use of other alternative research-based procedures for determining whether a child has a specific learning disability, as defined in §300.8(c)(10).
DISCUSSION: New 300.307(a)(3)(proposed 300.307(a)(4) recognizes that there are alternative models to identify children with SLD that are based on sound scientific research and gives States flexibility to use these models. For example, a State could choose to identify children based on absolute low achievement and consideration of exclusionary factors as one criterion for eligibility. Other alternative might combine features of different models for identification. We believe the evaluation procedures in section 614(b)(2) and (b)(3) of the Act give the Department the flexibility to allow States to use alternative, research-based procedures for determining whether a child has an SLD and is eligible for special education and related services."

POSSIBLE QUESTION - Does this mean that the evaluation does not have to take into account the uneven performance which is characteristic of a child with SLD?

Regulation 300.309 Determining the existence of a specific learning disability
DISCUSSION: The Department responded to requests that measures of psychological processing disorders be added to the eligibility criteria by stating "the Department does not believe that an assessment of psychological or cognitive processing should be required in determining whether a child has an SLD. There is no current evidence that such assessments are necessary or sufficient for identifying SLD. Further, in many cases, these assessments have not been used to make appropriate intervention decisions. However, Sec. 300.309(a)(2)(ii) permits, but does not require, consideration of a pattern of strengths or weaknesses, or both, relative to intellectual development, if the evaluation group considers that information relevant to an identification of SLD. In many cases, though, assessments of cognitive processes simply add to the testing burden and do not contribute to interventions. As summarized in the research consensus from the OSEP Learning Disability Summit (Bradley, Danielson, and Hallahan, 2002) ***, "Although processing deficits have been linked to some SLD (e.g. phonological processing and reading), direct links with other processes have not been established. Currently, available methods for measuring many processing difficulties are inadequate. Therefore, systematically measuring processing difficulties and their link to treatment is not yet feasible
* * *. Processing deficits should be eliminated from the criteria for classification * * *.'' (p. 797).\3\ Concerns about the absence of evidence for relations of cognitive discrepancy and SLD for identification go back to Bijou (1942; \4\ see Kavale, 200 2) \5\. Cronbach (1957) \6\
characterized the search for aptitude by treatment interactions as a hall of mirrors,'' a situation that has not improved over the past few years as different approaches to assessment of cognitive processes have emerged (Fletcher et al., 2005; Reschly & Tilly, 1999) \7\.

POSSIBLE QUESTION - Does the Department plan to do further research in this area? Other researchers have indicated that processing deficits can be linked to SLD.

DISCUSSION: In response to requests that the regulations include a definition of "intellectual development", the Department replied "We do not believe it is necessary to define "intellectual development" in these regulations. Intellectual development is included in §300.309(a)(2)(ii) as one of three standards of comparison, along with age and State-approved grade-level standards. The reference to "intellectual development" in this provision means that the child exhibits a pattern on strengths and weaknesses in performance relative to a standard of intellectual development such as commonly measured by IQ tests. Use of the term is consistent with the discretion provided in the Act in allowing the continued use of discrepancy models.

DISCUSSION: In response to requests that intra-individual differences, particularly in cognitive functions, are essential to identifying a child with an SLD and should be included in the eligibility criteria in §300.309, the Department responded with "an assessment of intra-individual differences in cognitive functions does not contribute to identification and intervention decisions for children suspected of having an SLD. The regulations, however, allow for the assessment of intra-individual differences in achievement as part of an identification model for SLD. The regulations also allow for the assessment of discrepancies in intellectual development and achievement.

POSSIBLE QUESTION - Does the Department plan to publish a fact sheet explaining that intra-individual differences in an individual have long been the basis for determining that a child has SLD. This determination is essential to develop an IEP based on the child's individual strengths and weaknesses.

Regulation 300.309 (a)(2)(ii) requires that the child exhibits a pattern of strengths and weaknesses in performance, achievement or both relevant to age, state approved grade level standards, or intellectual development.
DISCUSSION: We agree that failing a State assessment alone is not sufficient to determine whether a child has an SLD. However, failing a State assessment may be one factor in an evaluation considered by the eligibility group. As required in §300.304(b)(1), consistent with section 614(b)(2)(A) of the Act, the evaluation must use a variety of assessment tools and strategies to gather relevant information about the child. Further, §300.304(b)(2), consistent with section 614(b)(2)(B) of the Act, is clear that determining eligibility for special education and related services cannot be based on any single measure or assessment as the sole criterion for determining whether a child is a child with a disability. We agree that §300.309(a)(2)(ii) could be stated more clearly and will rewrite it to state that the eligibility group can determine that a child has an SLD if the child meets the criteria in §300.309(a)(1) and exhibits a pattern of strengths and weaknesses in performance, achievement, or both, relative to age and State-approved grade-level standards, or intellectual development, that is determined by the group to be relevant to the identification of an SLD.

POSSIBLE QUESTION - Does the Department plan to issue guidance on "a pattern of strengths and weaknesses in performance achievement or both relative to age and state-approved grade level standards or intellectual development?.

Regulation 300.309(c) - To require the public agency to promptly request parental consent to evaluate a child suspected of having an SLD who has not made adequate progress when provided appropriate instruction, and whenever a child is referred for an evaluation.

POSSIBLE QUESTION - Does the Department plan to include that information on its website?

New Regulation 300.311 - To require that the eligibility report include evidence that when a child has participated in an RTI process, the parents were informed of State policies regarding child performance data that would be collected and the general education services that would be provided; strategies to support the child's rate of learning; and a parent's right to request an evaluation at any time.

DISCUSSION: If parents request an evaluation and provide consent, the timeframe for evaluation begins and the information required in §300.309(b) must be collected (if it does not already exist) before the end of that period.

POSSIBLE QUESTION - Does the Department plan to include that information on its website?

Learning Disabilities Association of America
4156 Library Road
Pittsburgh, PA 15234-1349
Phone (412) 341-1515 Fax (412) 344-0224
www.LDAAmerica.org