Key Issues

1. Legal Issues in Special Education ReformPrepared by Dr. Tom Green, Director of School TransformationAlum Rock Union Elementary School DistrictThomas.green@arusd.org; trenwickgreen@gmail.comCARS PlusFebruary, 2012

2. Key Issues Changes in federal law pertaining to both general and special education strongly encourage (rather than mandate) significant reform in special education practice, with an emphasis on coordination and early intervention.

3. Key Issues • The current dominant model of such reform, Response to Intervention (RtI), is legal and strongly encouraged under federal and state law. RtI is specifically designed to coordinate general education with remedial education, English Learner services, extended learning programs, and special education, with an emphasis on early intervention.

4. Key Issues • This means that instructional groupings, BY DESIGN, will include both special education and non-special education students.

5. Key Issues • Legal responsibility for implementation rests with the local school district, with guidance from the state. California state guidance is extremely weak compared to other states, resulting in significant variance in interpretation, implementation, and practice at the local school district and school site levels, and places significant responsibility on local educational staff to lead necessary changes in practice.

6. Key Issues • Federal and state education laws, California Education Code, federal implementing regulations, and CDE policy memos allow special education staff to serve non-identified students. However, much of the language is vague, and interpretation and detail of implementation are critical.

7. Key Issues • It is in the best interest of our profession to learn the rules and to actively participate in the development and implementation of reform models.

8. Workshop Purpose • The intent of this workshop, then, is to carefully examine the legal underpinnings of coordinated early intervention, with the hope that by enhancing understanding of what the laws, codes, and regulations actually say, critical consensus can be achieved at the local level regarding effective implementation.

9. Laws, Codes and Policies • Federal Law • California State Law • California Education Code • Special Education Law • Contract Law/Collective Bargaining

10. Federal Law • Elementary and Secondary Education Act of 2001 (No Child Left Behind): • “A local education agency may consolidate and use funds under this part, together with other eligible Federal, State, and local funds, in order to upgrade the entire educational program of a school…”

11. Federal Law • Individuals with Disabilities Education Act of 2004 (IDEA): • “The education of children with disabilities can be made more effective by coordinating this title with other local, educational service agency, state, and federal school improvement efforts, including improvement efforts under the Elementary and Secondary Education Act of 1965, in order to ensure that such children benefit from such efforts…”

12. Federal Law • IDEA 2004: • “In determining whether a child has a specific learning disability, a local educational agency may use a process that determines if the child responds to a scientific, research-based intervention as a part of the evaluation process.”

13. First Research Challenge • These provisions in federal law are brief and vague. They have, however, been used by the federal government as the basis for extensive development of Response to Intervention guidelines to be used by state and local educational agencies to comply with the intent of the laws.

14. First Research Challenge • The federal government has primarily used two agencies, in partnership with many universities and state education departments, for this development. Their websites are excellent resources: • The United States Department of Education • The National Association of State Directors of Special Education

15. United States Department of Educationwww.rti4success.gov • “(RtI) is the practice of providing high-quality instruction and interventions matched to student need, monitoring progress frequently to make decisions about changes in instruction or goals and applying child response data to important educational decisions.”

16. United States Department of Educationwww.rti4success.gov • “RtI should be applied to decisions in general, remedial, and special education, creating a well-integrated system of instruction/intervention guided by child outcome date.”

17. National Association of State Directors of Special Education (NASDSE)www.nasdse.org • There are critical components of RtI implementation that if not attended to can render otherwise acceptable implementations ineffective. • • The school building is the unit of change in RtI. Multiple buildings within a district can implement RtI, but their implementations will likely be somewhat different. • • District-level supports must be systematically built in to support building-level implementation. • • State-level supports must be systematically built to support district- and building-level implementation.

18. California State Policywww.cde.ca.gov/ci/cr/ri/rtiresources.asp • The State of California has endorsed the federal recommendations that RtI be used as the model for the coordination of general education with all support services to support below grade level students. All pertinent state documents can be retrieved from the url above. The CDE website in general is very difficult to use as a resource.

19. California State Policywww.cde.ca.gov/ci/cr/ri/rtiresources.asp • Two state documents in particular clearly delineate the state position: • Response to Instruction and Intervention 11/13/2008 • Determining Specific Learning Disability Eligibility Using Response to Instruction and Intervention RtI2 2009

20. California State Policywww.cde.ca.gov/ci/cr/ri/rtiresources.asp • “Analyzing how students respond to instruction and interventions is an organization principle for structures and programs that already exist in our schools. These existing programs utilize personnel in specialized ways; allocating these highly trained personnel into other areas maximizes resources effectively.”

21. California Education Code • Response to Intervention is not specifically addressed in California Education Code (Ed Code). However, key components of an effective Response to Intervention program, such as teacher assignments, instructional groupings, and caseloads are defined by Ed Code.

22. California Education Code • Ed Code Section 44258 states that “A teacher authorized as a specialist teacher may be assigned, with his consent, to teach in his area of specialization at any grade level…”,

23. California Education Code • “The holder of a credential authorizing instruction in a self-contained classroom may provide instruction in a team teaching setting or may regroup pupils across classrooms in subjects authorized by the governing board of the school district.” Ed Code Section 44258.15

24. California Education Code • Ed Code 44258.3 (a) states that “The governing board of a school district may assign the holder of a credential, other than an emergency permit, to teach any subjects in departmentalized classes in kindergarten or any of grades 1 to 12, inclusive, providing that the governing board verifies, prior to making the assignment, that the teacher has adequate knowledge of each subject to be taught and the teacher consents to that assignment.

25. California Education Code • The governing board shall adopt policies and procedures for the purpose of verifying the adequacy of subject knowledge on the part of each of those teachers. The governing board shall involve subject matter specialists in the subjects commonly taught in the district in the development and implementation of the policies and procedures … “

26. California Education CodeThe Role of the Resource Specialist • Another key component of an effective Response to Intervention model is the role of the Resource Specialist. Ed Code Section 56362 addresses this position. Although Ed Code Section 56362 9(c) states that “No resource specialist shall have a caseload which exceeds 28 pupils,” a close reading of the entire section, plus CDE bulletin “Service Delivery for Students with Disabilities 3/27/2009” clarifies that this caseload is 28 students who have IEP’s.

27. California Education CodeThe Role of the Resource Specialist • It is permissible under Ed Code Section 44258 (previously cited) for a Resource Specialist, which his consent, to serve non-identified students as well. Ed Code Section 56362 (d) states that, “Resource specialists shall not simultaneously be assigned to serve as resource specialists and to teach regular classes.” This section has often been misinterpreted to mean that a resource specialist may not serve non-identified students or students in excess of a caseload of 28.

28. California Education CodeThe Role of the Resource Specialist • Again, an accurate reading of all of Ed Code Section 56362 and Ed Code Section 44258 establishes that a resource specialist must first meet the legal obligation to provide services specified under IEP’s to his/her caseload, but may, with his consent, provide services to non-identified students consistent with his credential and “his area of specialization.”

29. California Education CodeThe Role of the Resource Specialist • Both the resource specialist and the school system providing the Response to Intervention model of service delivery must be able to demonstrate that all IEP-specified services are being provided as specified by the IEP. As long as this condition is met, the resource specialist may provide services for which he is qualified to teach to non-identified students, and may do so in excess of 28 identified students.

30. California Education CodeThe Role of the Resource Specialist • Reason must prevail, however, and any such assignment must be with the consent of the specialist and to the educational benefit of the students served.

31. Special Education Legal Requirements • Because an effective Response to Intervention model involves flexible instructional grouping supporting all students below grade level, the model includes by definition both general education and special education students and staff. It is critical to inform students, staff, and parents regarding the model.

32. Special Education Legal Requirements • As established earlier, a special education teacher may provide services to a non-identified student. As long as the service is a general education service, it is not necessary to obtain informed, written consent as required by special education law. However, it must be very clear to all concerned parties that the service is a general education service and is part of a systemic Response to Intervention model.

33. Special Education Legal Requirements • Federal and state law cited earlier clearly establish that Response to Intervention is intended to coordinate general education, remedial education, special education, English language development, and extended learning instruction. Under this model it is a given that instructional groupings will mix identified and non-identified students.

34. Special Education Legal Requirements • Instruction provided to a non-identified student by special education staff must clearly and defensibly be specialized general education services provided to other general education students as well. The instructional groupings must be flexible and students must regularly move in and out of groupings based upon changes in instructional needs. Parents, students, and staff must be informed at all times of the rationale for the groupings and the progress of the students

35. Special Education Legal Requirements • Students who do not respond adequately to the intervention must be referred for Student Study Team services and changes in duration, frequency, and intensity must be made in an attempt to accelerate the student’s progress towards meeting or exceeding grade level standards.

36. California Credential Requirements • Conflicts with all other legal references in this document arise in credential requirement language. Prior to 1997 all applicable special education credentials required general education authorization. Consequently any credentials issued prior to 1997 clearly allow the holder to serve both special education and general education students.

37. California Credential Requirements • Subsequent to 1997 this requirement was removed, and “The Education Specialist Instruction Credential: Mild/Moderate Disabilities authorizes the holder to provide instruction, and Special Education Support to individuals with a primary disability of specific learning disabilities” (retrieved from CTC website 3/3/2011).

38. California Credential Requirements • Although I do not interpret this language as restricting service to general education students, CTC currently does. Further, CTC credential language pertaining to Resource Specialists states “Holders of a Resource Specialist Certificate or an Education Specialist Credential may NOT provide services to general education students unless the individual also holds an authorization for general education in the subject area and grade level of the assignment. (Administrator’s Assignment Manual, CCTC September 2007, p. F-11).

39. California Credential Requirements • I have had direct conversation with the CTC, on this issue on February 18, 2011. They acknowledge that this language was in conflict with the other legal sources cited in this document, and deferred to the CDE to address this conflict. In reality, districts across the state are reconciling this conflict by adhering to Ed Code, CDE policy, and federal law and policy, and addressing the credential limitations through mutual agreement between district administration and teaching staff. I know of no initiative at the CDE as of this writing to address this issue.

40. Contract Law/Collective Bargaining • The collective bargaining agreement will often need to be addressed in any implementation of a Response to Intervention system. Any contract language regarding assignments, credentials, caseloads or student contact limits often require negotiated changes.

41. Contract Law/Collective Bargaining • Provisions in Ed Code such as Ed Code Section 44258.3 (a) stating “The governing board shall involve subject matter specialists in the subjects commonly taught in the district in the development and implementation of the policies and procedures …” suggest at a minimum that instructional staff be fully involved in the development and implementation of the Response to Intervention model and give consent to implementation and any resultant changes in teaching assignments, and that a decision be made regarding whether or not to include that involvement in the collective bargaining process.

42. Contract Law/Collective Bargaining • Realistically, it can be a significant challenge for staff concerned about the implementation of a Response to Intervention model to work with negotiation teams on both sides of the table to understand the issues and priorities involved.

43. Conclusions and Final Thoughts • Regardless of whether or not the district chooses to address RtI through collective bargaining, RtI can be successfully and legally implemented under existing federal and state law.

44. Conclusions and Final Thoughts • The key is the use of best educational practices that truly benefit accelerated achievement by low achieving students. If data can be produced demonstrating significant growth by students participating in an RtI program, most sound educational practices will be legally defensible under federal and state laws authorizing RtI.

45. Conclusions and Final Thoughts • RtI is specifically designed to coordinate general education, special education, remedial education, English language development instruction, and extended learning instruction. This applies to instructional strategies, materials, staffing, resource allocation, assessment practices, and instructional groupings, and requires changes to traditional practice in all of these areas.

46. Conclusions and Final Thoughts • These changes are based on tremendous improvements in our knowledge of teaching and learning, are research-based, are proven to improve student achievement and warrant the considerable time and effort necessary to change our practices.