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

1. 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

2. The Modernization of LD Eligibility • Moving away from a dysfunctional, unscientific eligibility model—The discrepancy model Lack of firm research bases Over-reliance on FSIQ scores Subject to overidentification Subject to misidentification A “wait-to-fail” model Identified “instructional casualties”

3. The Modernization of LD Eligibility • The influence of the President’s Commission on excellence in special education (2002) 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!

4. The Modernization of LD Eligibility But, this shift means a new landscape for LD • The new challenges: Child-find vis-à-vis RtI Conducting modern LD evaluations Working with reged and using RTI data Complying with State criteria

5. 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

6. The Modernization of LD Eligibility • A point of semantics—The two RtI contexts • 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

7. 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)

8. Key 2006 IDEA Regulations • §300.307—State responsibility for LD model (a big responsibility…) • States cannot require discrepancy • Must allow RtI analysis (as a part of eval) • Can create alternative research-based model • Feds provide an overall framework only— States fill in the blanks and provide details

9. The 2006 IDEA Regulations • So, what are States doing? Discrepancy still a major part of many states’ models Why the staying power?

10. 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?...

11. 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

12. §300.309—4-Part Structure for LD • 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”

13. 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)

14. 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…)

15. 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…

16. 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))

17. 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)

18. 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

19. 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)

20. 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!

21. 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

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

23. 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…

24. 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 accommodations Because with them, many won’t qualify!

25. 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?

26. 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?

27. 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)

28. 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 amodern research-based use of assessment instruments

29. 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

30. 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

31. 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

32. 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

33. 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)

34. 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

35. 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

36. 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

37. 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”

38. 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?

39. 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

40. 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

41. 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?

42. 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

43. New Child-Find Complexities Areas of complication: Timeliness of interventions Rate of progress in interventions Intervention periods Schools encouraging/pushing interventions Inflexible intervention practices

44. 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

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

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

47. 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?...

48. 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

49. 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

50. 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 reged interventions, but student was ultimately referred, and qualified—parents alleged delay in ID