1. Questions and Some Answers on Dual Identified ELL/SPED Students
Presented to Lane County Districts
Wednesday, March 4th 2009 By
ODE Staff (Office of Student Learning and Partnership, Office of Educational Innovation and Intervention)
and
Julie Esparza-Brown EdD

2. Presentation Goals
To answer questions related to service provision for students who are served by both ELD programs and SPED programs
Question themes: procedural implications of suspending a student with an IEP from an ELD program
Parents and translation
Professional development questions (what is best practice, what should take priority)
ELPA questions

3. Serving Students with Disabilities in Oregon
“Student first” language
E.g. services for SPED student are not suspended; instead, steps are taken to determine whether or not the student continues to require specialized instruction and (if not) services may be suspended from the program. This is a formal process requiring documentation.
Problem-solving approach:
Evaluate the needs of the student
Evaluate the resources available
Determine the student’s present level of performance in each of the areas that demonstrate a need
Determine the series of steps necessary to address the needs of the student in the context
Include check points/benchmarks along the way that allow for review and revision of goals and interventions

4. SPED Service Provision Guiding Principles
Emphasis is always on the individual
Consistent decision making
Evidence-based decision-making
Inclusion of relevant and appropriate data (i.e. not data for the sake of data, but a realistic evaluation of what the student needs, what can we measure to track progress on the success of our interventions)
Upholding IDEA using the IEP (appropriate selection of a team, present levels of academic and functional performance, measurable objectives, long- and short-term objectives)

5. IDEA Expectations
Access for students with disabilities to public elementary and secondary education
Upholding district responsibilities toward providing a free and appropriate education (FAPE) to students with disabilities
Educational instruction that is specially designed to meet the unique needs of a child with a disability and is supported by such services as are necessary to permit the child to benefit from instruction
Specialized education provided in the least restrictive environment

6. Requirements of ELD Programs
ELL students receive a program of instruction in ELD aligned with the state ELD standards
Programs are designed and implemented to ensure ELL students meet district’s content and performance standards
Funding must be used to provide every ELL student with learning opportunities
Parents must be informed of program placement
Teachers must hold appropriate endorsement and provide instruction through a direct service model
Instruction must be targeted to the student’s English proficiency level
Progress must be monitored regularly

7. Legislative and Judicial Mandates for ELL Students and Special Education
Individuals with Disabilities Educational Improvement Act (IDEIA) of 2004
No Child Left Behind Act (NCLB 2002)
Title VI of the Civil Rights Act of 1964 and its regulations at 34 CFR Part 100
Section 504
Title II of the Americans with Disabilities Act of 1990, 42 USC
Judicial Mandates
May 25, 1970 Memorandum
Lau v. Nichols
Castaneda v Pickard

8. Your Questions
“The problem is that we attempt to solve the simplest questions cleverly, thereby rendering them unusually complex. One should seek the simple solution.”
Anton Pavlovich Checkhov
Russian Author and Playwrite

9. Questions 1- 3
Is there a point at which a student with a severe learning disability who is not making progress in ELD due to the disability can be re-designated as no longer LEP? If an IEP team believes that ELD is no longer the best use of the student’s time, can they be taken out of the ELL program? What data needs to be included to justify this? If Sped identified students still need to be counted as LEP, but it is not the best use of their time to receive ELD services, are they to be left as un-exited students?

10. Considerations
Individuals responsible for decision-making around service provision for ELD should include individuals knowledgeable in English language proficiency, on the student’s progression on his/her IEP and his/her present levels of academic and functional performance and consider student-centered issues:
Who needs to be involved in this discussion?
What type of educational and progress-monitoring data do we have to measure academic progress? Progress in the ELD program?
Has the IEP program of service been reviewed, revised, and revisited?
Has the student met the LEA’s reclassification criteria?
Is the continued lack of English proficiency due only to the disability?
Can the student now benefit from English only services?

11. Question 1: Is there a point at which a student with a severe learning disability who is not making progress in ELD due to the disability can be re-designated as no longer LEP?
Possibly.
How was the eligibility determined (with language consideration/without)? How severe is the disability?
If the constructs provided in the ELD program were determined necessary for the student, what supports are currently in place to assist him/her in the ELD program?
What variables were used to determine that the student is not making progress in ELD, and how are these variables being measured?
How was the student’s IEP team –which includes the parent, involved in this decision?

12. Reclassification ELD Program
Criteria for reclassification in Oregon shall include:
(A) Achieving at the Advanced level on the State’s English Language Proficiency Assessment (ELPA).
(B) The Advanced level is a culmination of progress demonstrated on the same state proficiency measure over a legitimate period of time.

13. Reclassification ELD Program
General alternative reclassification criteria are NOT allowable.
Each decision would be based on the student’s language and learning needs and made in consultation with individuals knowledgeable about the student’s IEP and present levels

14. Not a Basis for Reclassification
Low academic skills in English
Low test scores in English and/or Spanish
Lack of resources
Longevity in a program or district

15. Can the student now benefit from English only services?
Question 2: If an IEP team believes that ELD is no longer the best use of the student’s time, can they be taken out of the ELL program? What data needs to be included to justify this?
Same as previous: A student can be suspended from from a program following the appropriate considerations by the appropriate individuals. Child-centered problem-solving first, procedural investigation to follow.
Child-centered
Is the continued lack of English proficiency due only to the disability?
Can the student now benefit from English only services?
Does the team include individuals knowledgeable about the differences between characteristics indicative of a disability and characteristics related to limited English proficiency such as an ELL and a Speech and Language specialist?

16. Has the student met the LEA’s reclassification criteria?
Question 2: If an IEP team believes that ELD is no longer the best use of the student’s time, can they be taken out of the ELL program? What data needs to be included to justify this?
Procedural
Has the student met the LEA’s reclassification criteria?
If the student’s placement in and services in the ELD setting are documented on the student’s IEP, then the decision to suspend the student from the services provided in the ELD program must be documented on the IEP.

17. Question 3: If Sped identified students still need to be counted as LEP, but it is not the best use of their time to receive ELD services, are they to be left as un-exited students?
If ELD services have been suspended through the process described in previous slides, they are no longer counted nor considered ELL students.
However, the IEP should clearly document that occurred and why services have been suspended.
Best practice would be that this is documented in all subsequent IEPs so that is clear that the student comes from a home where English is not the primary nor strongest language.

18. Question 4
What if a student’s disability is so severe that ELL services would be ineffective, do we have to assess, qualify, and serve? What about a non-verbal student from a Spanish-speaking home? Are they LEP if they don’t speak at all?

19. Under directive by the Office of Civil Rights (OCR), school districts must determine the language(s) spoken at home by each student in order to provide all students meaningful instruction.
The following are typical questions on the Home Language Survey (HLS):
Language(s) most often used for communication at home
Mother’s first language
Father’s first language
Student’s first language
Do the parents communicate with their child in their native language?
When the parents communicate with the child in the native language, does s/he respond in the native language?

20. If any of the questions indicate that language(s) other than English are spoken in the home, then the student must be assessed with a language proficiency instrument.
Common tests:
Language Assessment Scales (LAS)
Woodcock-Muñoz Language Survey
Bilingual Syntax Measure
Idea Proficiency Test
Are any of these appropriate for severely handicapped students with limited or no verbal language?
There may be some areas in which the student may be assessed on one of these instruments.

21. The Alternate Language Proficiency Instrument for Students with Significant Disabilities (ALPI, 1989)
The only instrument to assess English language proficiency of students with significant disabilities can be found at the link below:

22. Returning to the question…
Is a non-speaking student from a home where English is not the primary or strongest language, is the student LEP/ELL or not?
Discuss and consider the questions used to determine LEP status.
So, is a non-speaking student from a Spanish/Hmong/Chinese etc. speaking home LEP or not?

23. For this student, will the content be comprehensible and meaningful without support for their limited English status?
Would sequential and systematic instruction in English help the student to achieve content goals?
If the answer to #1 is yes, clearly document in the IEP that over time the student has not progressed in English language proficiency given an appropriate ELD program.
ELD services for this student can then be suspended.

24. Individualized instruction within special education can continue to adapt the level of English as appropriate for the student’s disability.
The student’s prior ELL status should be documented in subsequent IEPs if the home language is other than English.

25. Question 6: If an IEP team determines that some domains should be skipped on the ELPA, how do you know which questions to skip? Is it obvious which questions go with which domain.
2009 Guidance
The method of skipping domains will vary depending on the format of the domain. The proctor may skip by: (1) choosing random answers for multiple choice questions, (2) entering random answers for Writing or (3) for the first Speaking question, the TA says verbatim: “This is a test administrator. This student is not participating in this portion of the ELPA” and for subsequent speaking questions TA says verbatim: “Test Administrator". Once the data are loaded into Student Staging, the district test coordinator will enter an administration code that identifies which of the 15 combinations of ELPA domains should not be scored.

26. ELPA is a required assessment
Question 7: If a student is SPED, can parents opt the child out of the ELPA?
ELPA is a required assessment
Parent exemption for a student on an IEP is not explicitly addressed in IDEA.
NCLB allows states to meet participation targets with 95% participation
Oregon’s current OAR on this issue ( ) Exception of Students with Disabilities from State Assessment Testing, states: “(2) A public agency shall not exempt a student with a disability from participation in the Oregon State Assessment System or any district wide assessments to accommodate the student's disability unless the parent has requested such an exemption.”
IDEA USC 20 §1412(a)(16) states: “Participation in assessments. (A) In general. All students with disabilities are included in all general State and districtwide assessment programs, including assessments described under section 1111 of the Elementary and Secondary Education Act of 1965 [20 USCS § 6311], with appropriate accommodations and alternate assessments where necessary and as indicated in their respective individualized education programs.”

27. Question 8: Is the ELPA required every year for SPED students?
Yes.
ELPA is part of the State Assessment System as required in NCLB Sec
All students are required to participate in each of the tests in the State Assessment system.
Additionally, all students identified as Limited English Proficient are required to also participate on the annual assessment of English proficiency until it is determined that the students have gained the proficiency necessary to be successful in regular education classes taught in English only.

28. Question 9
For parents with no English, how much or which sections of an IEP legally need to be translated if there was an interpreter at the IEP meeting?
For the answer- turn first to the Parent Participation requirements in IDEA and OAR.

29. Procedural Safeguards Public agency responsibilities
…ensure the opportunity for parents to participate in meetings related to the child’s identification, evaluation, educational placement, and the provision of FAPE to the child.
…provide notice of each IEP team meeting as required by the Parent Participation requirements in §
34 CFR Parent participation in meetings

30. Parent Participation
IDEA states:
“Use of interpreters or other action, as appropriate. The public agency must take whatever action is necessary to ensure that the parent understands the proceedings of the IEP Team meeting, including arranging for an interpreter for parents with deafness or whose native language is other than English.”
34 CFR Parent Participation, subsection (d); OAR Parent Participation - General

31. Procedural Safeguards
Is Prior Written Notice required? Depends upon actions District pursues.
If required, IDEA (and OAR) require Prior Written Notices to be:
(1) (i) Written in language understandable to the general public; and (ii) Provided in the native language of the parent or other mode of communication used by the parent, unless it is clearly not feasible to do so.

32. Procedural Safeguards
(2) If the native language or other mode of communication of the parent is not a written language, the public agency must take steps to ensure—
(i)That the notice is translated orally or by other means to the parent in his or her native language or other mode of communication;
(ii)That the parent understands the content of the notice; and (iii) That there is written evidence that the requirements in paragraphs (c)(2)(i) and (ii) of this section have been met.”
34 CFR § Prior notice by the public agency content of notice; (c) Notice in understandable language; OAR and

33. OCR says…
Districts must maintain a list of parents who need interpreter/translators in order to meaningfully participate in their child’s educational program.
The districts must have a policy and procedures for notifying ELL parents about the availability of interpreters/translators.

34. Letter to Boswell
To see how the U.S. DOE/Office of Special Education Programs (OSEP) answered:

35. OCR says…
Districts must establish qualifications and competency standards for interpreters.
Interpreter/translators must be trained around issues of confidentiality.
How are districts handling this issue currently?
What are parents asking for?

36. Question 10
What are best practices in a SST (or CST) process for determining whether language is an issue that precludes eligibility for special education? How much time without progress in an ELD program is reasonable to ascertain that language is not the issue?

37. Normal Progression through Language Stages

38. Additional Best Practice Resources
NCCREST Resource:
WOU Best Practice:

39. Critical Questions At what age was the second language introduced?
What type of instruction has the student had:
Model of ELD or bilingual, if any
Instructional model/language in other country
What has been their access to core curriculum
Was student ever retained?
In native country
In U.S.
What is the student’s motivation and attitude?

40. Critical Questions
How does the student compare with his/her true peers?
What are the student’s competencies indicated in the records and how does it compare to current performance?
How does the student interact with others in the school/home/community environments?

41. Examples of OCR Findings
Under Section 504 and Title VI, a student’s language proficiency and ELL status is part of a student’s cultural background that needs to be considered in order to make appropriate special education evaluation and placement determinations.

42. What are the student’s needs?
Question 11: When conflicts arise in schedules in schools with school-wide ELD, is ELD or SPED the priority?
Considerations
What are the student’s needs?
How can the students needs be met while working in a context that presents scheduling conflicts?
What resources?
Is it an either or? If student’s needs are both, then a model of collaboration will have to be relied on.

43. When I asked this question to the OCR in Seattle, here is what they answered:
“A student must receive ELL services even though the scheduling may be inconvenient or result in two “pull outs.”
There are, however, better ways than two “pull outs.”
We need flexible, collaborative service delivery models.

44. OCR also states:
Under Section 504 and Title VI, a student’s language proficiency and ELL status is part of a student’s cultural background that needs to be considered in order to make appropriate special education evaluation and placement determinations.

45. Examples of Possible Service Delivery of both ELD and SPED
During ELD instruction, a special education teacher, or assistant under the direction of the teacher, can provide support by modifying the assignment, providing additional directions and frequent comprehension checks, be a scribe…
This model could also be used within the general education classroom.

46. Examples of Possible Service Delivery of both ELD and SPED
Special education staff would need professional development in ELD strategies instruction, second language acquisition, and culturally responsive pedagogy.
ELD staff would need some professional development in special education strategies and instruction.

47. Where Does Instruction in ELL and Sped Take Place?
Current Title III state mandates require that ELL students receive systematic instruction in English language development from an appropriately certified teacher.
Thus, a ELD push-in into a special education classroom is not an option.
However, special education services are frequently provided in an inclusive or push-in model.
What can be worked out in your setting?

48. Program Planning
Considering the language needs of the student means the collaborative team determines:
How and from which instructor(s) the student will receive ELD and core academic subjects
How the student will receive specially designed academic instruction in English (SDAIE)
To what degree does the student need bilingual support or instruction to access core curriculum
The team must consider the language the students will hear and need to use at home and how the child will communicate with the family

49. OCR says…
Procedures must ensure that ELL/SPED students are not removed, nor denied, ELL or special education services for administrative reasons unrelated to a student’s educational needs.

50. To Ensure that ELL Students are Appropriately Placed into Special Education…
Involve ESL/Bilingual staff as soon as possible
Assess student’s acquisition of English over time and current proficiency in L1 and L2
Gather input from parents
Examine the student’s developmental and educational history

51. Question 12
If a student’s IEP specifically mentions that the state assessments will be read aloud to them, which is a modification and not an accommodation, how is that addressed for the ELPA? Would it invalidate parts of the test such as the reading portion?

52. Accommodating the ELPA
ELPA Accommodations:
ELPA Guidance. IEP teams must make some specific decisions about the provisions of ELPA because of its unique administration:

53. The same universal modifications are available to all students, including ELLS as deemed needed by the teacher.
Extended testing time (on same day)
Separate location or study carrel
Preferential seating
Special lighting
Student wears noise buffers after directions

54. Special furniture or pencil
Familiar test administrator*
Repeat directions
Color Overlay
This may mean more people need to be trained to be administrators of ELPA to fully serve our special student population.

55. Lane County Questions
In light of what you have just heard, how would you respond now to the questions coming out of your district?
1.  What test would you recommend for us to use to identify/qualify and exit special ed. children from the ELD program?.  Specifically the children who are in  self-contained classrooms (Academic Learning Centers, Structured Learning Center, SED, Autism and Life Skills).  Currently, we are using the PreLAS for Kindergarten and Woodcock Munoz for grades 1-12 to qualify them for ELD and the ELPA to exit them from ELD.
2.  How can we best serve these children and their special needs in our ELD program?  

56. ODE Responses
1.ODE/IDEA do not have a specific test that will inform an ELD team to make exit decisions. In fact no one test should ever be relied on solely to make critical and high stakes decisions for students. Team process and data-based decisions are always critical. Refer to previous slide on “Normal Progression through the Language Stages” for a general guideline.
2. Collaboration, professional development, student-based decision-making.

57. Small steps can create a solid path.
Remember…
Small steps can create a solid path.

58. Reporting Issues
For reporting purposes, observe the following protocol:
the LEP flag in the student file format core is turned off (N) the year after ELL/SpEd students are no longer served in the ELD program
ELL/SpEd students are reported in the NCLB Spring LEP collection if they were served at any time during the current school year
ELL/SpEd students are not required to take ELPA if the agreement about suspending these students from the ELD program is reached before the end of the current school year.

59. Reporting Issues
Also, as with regular education ELL students, ELL/SpEd students are eligible for re-entry into the ELD program when or if the SpEd/ELD school team agrees that the student may benefit from participation in the school’s ELD program.

60. Reporting Issues
Dual identified students as English Language Learners and who are also served in the Special Education program:
Who have documented evidence that further participation in the ELD program no longer benefits the student, and
When school teams, that include ELD and SpEd staff, are in agreement that suspending ELD services is in the best interest of the student, and
When the student’s parents are not only informed but have participated in the decision making process …

61. In Summary…
Professional development and service delivery models must emphasize a cross-disciplinary and collaborative approach so that all students can realize the American dream.

62. Resources Professional Development articles/discussion
ELPA Guidance:
NCCREST Resource:
WOU Best Practice:
National Center on Response to Intervention
A Cultural, Linguistic, and Ecological Framework for Response to Intervention with English Language Learners
Professional Development articles/discussion