1. COBIDA Presentation Ruth Colker November 2, 2013

2. Topics for Discussion IDEA overview Section 504/ADA overview
Child Find
Preschool
School-Age
Specific Learning Disabilities
Definitions
Response to Intervention
Independent Educational Evaluations
IEPs
Complaint Process
Due Process Hearings

3. Resources Whose IDEA Is This?
Ohio’s Operating Standards for Ohio Educational Agencies serving Children with Disabilities
Ohio Administrative Code Sections to

4. IDEA BASICS
A child with a disability, who is between the ages of 3 and 21, inclusive, is entitled to a free and appropriate public education
State has obligation to identify, locate and evaluate children to determine if they are entitled to special education and related services
A child identified as disabled under IDEA is entitled to an Individualized Education Program in the least restrictive environment
Procedural safeguards exist to ensure compliance with these rules

5. IDEA Definition of Disability
A child who has one of the following disabilities and who, by reason thereof, needs special education and related services:
Autism
Cognitive Disability
Deaf-blindness
Deafness
Emotional Disturbance
Hearing Impairment
Multiple Disabilities
Orthopedic Impairment
Other Health Impairment
Specific Learning Impairment
Speech or Language Impairment
Traumatic Brain Injury
Visual Impairment, or
Developmental Delay (for 3-5 year olds) (will discuss later)

6. Section 504/ADA Basics
An entity that receives federal financial assistance may not discriminate on the basis of disability
“Discriminate” is understood to mean the provision of “reasonable accommodations” to allow an individual to fully participate in programs and activities
If student is covered by both Section 504/ADA and IDEA, must typically first pursue rights under IDEA.

7. ADA/Section 504 Definition of Disability
A physical or mental impairment that substantially limits one or more major life activities of such individual
“Major life activities” includes speaking, learning, reading, concentrating, thinking, and communicating
An individual with a disability under ADA/Section 504 is entitled to “reasonable accommodations”
Students in this category get a “section 504 plan” rather than an IEP
Students are only in this category if they do NOT qualify as disabled under IDEA

8. Rights Under ADA/Section 504
Sameness:
Differences:
Entitled to Free Appropriate Public Education
Likely to be placed only in regular classroom
Only entitled to accommodations rather than special programs
Valid evaluations
Meetings with appropriate individuals
Rights extend while in higher education
Appropriate placement decision
Rights extend to non-school activities
Least restrictive environment
Due process protections

9. When to Use Section 504/ADA
Hostile environment on the basis of disability
Refusal to permit student to bring a service animal to school
Inaccessible facilities
Segregated graduation and honors ceremonies
Denial of admission to before of after school child care programs
Refusal to allow participation in sports activities
Refusal to permit to attend event unless accompanied by a parent
Pattern of assigning students with disabilities to inferior facilities
Exclusion from summer camp or social program
Obtain sign language interpreter for parent to attend school meeting

10. Examples of Use of Section 504/ADA
Child with a moderate case of cystic fibrosis could attend regular classes if accommodated by the provision of respiratory therapy services during the day.
A child with sickle cell anemia could attend regular classes if provided with home or hospital tutoring during infrequent crisis situations that necessitate absence from school
A child with spina bifida might be capable to attending regular classes if provided with catherization services
A child with diabetes could attend field trips as part of a regular school program if accommodating by ensuring the child’s meals during trips satisfy his medication requirements.

11. Section 504/ADA or IDEA?
Child with ADHD who needs breaks or extra time
Child with diabetes who needs insulin injections
Child with learning disability who needs specialized instruction
Child with mobility impairment who needs adaptive physical education
Child with ADHD who needs specialized writing instruction to help with organization

12. Child Find: Preschoolers
A child 3 to 5 years old who is experiencing a delay in one or more of the following areas:
Physical development
Cognitive development
Communication development
Social or emotional development
Adaptive development
AND who, by reason thereof, needs special education and related services

13. Child Find: Preschoolers
School district may “choose” to use developmental delay category; not required
A developmental delay may be substantiated by a delay of two standard deviations below the mean in one or more of the areas of development or 1.5 standard deviations below the mean in two or more of the areas of development.

14. Jimmy at age 3: Need to know anything else?
Peabody Developmental Motor Scale (Gross Motor)
Balance: 2nd percentile
Nonlocomotor: 10th percentile
Locomotor: 2nd percentile
Receipt and Propulsion: 4th percentile
Total Score: 1st percentile
SIB-R Adaptive Behavior Assessment
Self-care: 1st percentile
Social communication 6th percentile
Total Score: 8th percentile

15. Child Find: IDEA language
All children with disabilities residing in the State … who are in need of special education and related services, are identified, located, and evaluated and a practical method is developed and implemented to determine which children with disabilities are receiving needed special education and related services. (IDEA language)
Ohio timeline:
School district provides parents with Prior Written Notice within 30 days of referral, either agreeing or refusing to conduct an evaluation. Request could come from parent or the school’s screening/review team.
Once parental consent is received, the school district conducts the evaluation within 60 days.

16. Child find considerations
Child Find obligation is an “affirmative duty” of the school district
Obligation helps neutralize what Supreme Court called the school’s “natural advantage.”.
Legal standard: Claimant “must show that school officials overlooked clear signs of disability and were negligent in failing to order testing, or that there was no rational justification for not deciding to evaluate.”

17. When is school’s evaluation “appropriate”?
Variety of assessment tools and strategies to gather relevant functional, developmental, and academic information, including information provided by the parent
Not use any single measure or assessment as the sole criterion
Use technically sound instruments that may assess the relative contribution of cognitive and behavioral factors, in addition to physical or developmental factors
Provided and administered in the language and form most likely to yield accurate information
The child must be assessed in all areas of suspected disability
Special rules for assessing specific learning disabilities, including use of scientific, research-based intervention

18. Delays in initial evaluation
The 60-day timeline for conducting the evaluation does not apply to a school district if:
The parents of the child repeatedly fails or refuses to produce the child for the evaluation; or
The child enrolls in a new school district of residence after the 60-day period has begun.
When determining the existence of a specific learning disability, the 60-day timeline also can be extended with mutual written agreement between the parents and eligibility team if it is determined that additional data are needed that cannot be obtained within the 60-day timeline.
Notice: RTI is NOT a reason to unilaterally slow down the 60 day evaluation timeline.

19. Learning Disabilities
School District is not required to use “a severe discrepancy between intellectual ability and achievement for determining whether a child has a specific learning disability.”
May use “a process based on the child’s response to scientific, research-based intervention” [RTI]

20. Ohio Dyslexia Statute (ORC 3323.25)
Creates Dyslexia pilot project for early screening and intervention services
Defines dyslexia as “a specific learning disorder that is neurological in origin and that is characterized by unexpected difficulties with accurate or fluent word recognition and by poor spelling and decoding abilities not consistent with the person’s intelligence, motivation, and sensory capabilities, which difficulties typically result from a deficit in the phonological component of language.” ( (D)).

21. DSM-5: Specific Learning Disorder: Criterion A: Persistent Difficulties
(A) Difficulties learning and using academic skills, as indicated by the presence of at least one of the following symptoms that have persisted for at least 6 months, despite the provision of interventions that target those difficulties:
1. inaccurate or slow and effortful word reading
2. difficulty understanding the meaning of what is read
3. difficulties with spelling
4. difficulties with written expression
5. difficulties mastering number sense
6. difficulties with mathematical reasoning

22. Criterion B: Affected academic skills are well below average for age
(B) The affected academic skills are substantially and quantifiably below those expected for the individual’s chronological age, and cause significant interference with academic … performance … as confirmed by individually administered standardized achievement measures and comprehensive clinical assessment.
Notes: Prefers standard score at least 1.5 standard deviations below the population mean for age (78 or less) but more lenient threshold (1 SD) can be used when other evidence is available.

23. Criterion C: Readily apparent in the early school years
(C) The learning difficulties begin during school-age years but may not become fully manifest until the demands for those affected academic skills exceed the individual’s limited capacities (e.g., as in timed tests, reading or writing lengthy complex reports for a tight deadline, excessively heavy academic loads)

24. Criterion D: Are considered “specific”
(D) The learning difficulties are not better accounted for by intellectual disabilities, uncorrected visual or auditory acuity, other mental or neurological disorders, psychosocial adversity, lack of proficiency in the language of academic instruction, or inadequate educational instruction.
Notes: “Specific learning disabilities may also occur in individuals identified as intellectually ‘gifted.’”
Notes: “Since specific learning disorder typically persists into adulthood, reassessment is rarely necessary, unless indicated by marked changes in the learning difficulties (amelioration or worsening) or requested for specific purposes.”

25. 315.00 (F81.0) With impairment in reading
Word reading accuracy
Reading rate or fluency
Reading comprehension
Note: Dyslexia is an alternative term used to refer to a pattern of learning difficulties characterized by problems with accurate or fluent word recognition, poor decoding, and poor spelling abilities. If dyslexia is used to specify this particular pattern of difficulties, it is important also to specify any additional difficulties that are present, such as difficulties with reading comprehension or math reasoning.

26. Ohio’s ETR Form
Part 3: Documentation for Determining the Existence of a Specific Learning Disability
Required Notification: that RTI being used (if applicable)
Documentation of RTI (if used)
Patterns of strengths and weaknesses (if used alternative research-based procedures)
Exclusionary factors
Documentation that underachievement is not due to a lack of appropriate instruction
Observation
Medical findings
Part 4: Eligibility Determination (3 boxes must be checked yes)
Not due to lack of appropriate instruction
Meets state criteria for disability
Child demonstrates need for specially designed instruction

27. Summary Federal law gives states option to use RTI to define SLD
State law gives discretion to individual school districts
DSM-5 doesn’t reference RTI but notes academic difficulties lasted at least 6 months and were not remediated by good, regular instruction
Gifted student with dyslexia is recognized under DSM-5 and Ohio’s state standards but hard to fit into requirement that have achievement 1.5 SD below mean for age.
Dyslexia not in federal law or state list of disabilities but mentioned in state pilot statute and DSM-5.

28. What is RTI?
The child does not make sufficient progress to meet age or state-approved grade-level standards in one or more area when using a process based on the child’s response to scientific, research-based intervention
To ensure that underachievement is not due to lack of appropriate instruction, document that:
Prior to, or as a part of the referral process, the child was provided appropriate instruction in regular education settings, delivered by qualified personnel; and
Data-based documentation of repeated assessments of achievement at reasonable intervals, reflecting formal assessment of student progress during instruction, which was provided to the child’s parents

29. RTI Tiers

30. RTI Evaluation (Ohio Regulations)
Begins when sufficient data have been gathered and analyzed under conditions of targeted and intensive individualized intervention conditions, when there is evidence of an inadequate response to intervention on the part of the child, and the group determines that the child’s needs are unlikely to be met without certain specialized instruction in addition to the regular classroom instruction;
Employs interventions that are scientifically-based and provided at appropriate levels of intensity, frequency, duration, and integrity, relative to the child’s identified needs;
Is based on results of scientifically-based, technically adequate assessment procedures that assess ongoing progress while the child is receiving scientifically-based instruction, and that have been reported to the child’s parents;
Includes the analysis of data to determine whether a discrepancy is present between actual and expected performance;
MAY NOT BE USED TO DELAY UNNECESSARILY A CHILD’S BEING EVALUATED TO DETERMINE ELIGIBILITY FOR SPECIAL EDUCATION SERVICES

31. Learning disabilities & RTI
January 21, 2011 OSEP opinion letter states that RTI cannot be used as a way to delay evaluation
“It would be inconsistent with the evaluation provisions at 34 CFR through for an LEA to reject a referral and delay provision of an initial evaluation on the basis that a child has not participated in an RTI framework.”

32. Independent educational evaluations
34 C.F.R. §
(b) Parent right to evaluation at public expense.
(1) A parent has the right to an independent educational evaluation at public expense if the parent disagrees with an evaluation obtained by the public agency
(2) Parent is entitled to evaluation at public expense unless agency demonstrates at a due process hearing that its evaluation is appropriate …
(4) The public agency may ask for the parent’s reason why he or she objects to the public evaluation. However, the public agency may not require the parent to provide an explanation and may not unreasonably delay …
(5) A parent is entitled to only one independent educational evaluation at public expense each time the public agency conducts an evaluation with which the parent disagrees.

33. When is school’s evaluation “appropriate”?
Variety of assessment tools and strategies to gather relevant functional, developmental, and academic information, including information provided by the parent
Not use any single measure or assessment as the sole criterion
Use technically sound instruments that may assess the relative contribution of cognitive and behavioral factors, in addition to physical or developmental factors
Provided and administered in the language and form most likely to yield accurate information
The child must be assessed in all areas of suspected disability
Special rules for assessing specific learning disabilities, including use of scientific, research-based intervention

34. Individualized Education Program
A written statement, developed, reviewed and revised in a meeting of an IEP team to identify the individualized, specially designed instruction, related services, accommodations, modifications and supports that a school district will provide for a child with a disability.

35. Important Components Child’s Profile Present Levels of Performance
Child’s performance in comparison with peers
Academic Achievement
Functional Performance
Measurable Annual Goals
There should be numerous annual goals
Benchmarks for Each Goal
Summary Sheet of Specially Designed Instruction

36. Components of a Measurable Goal
WHO: Sarah
DOES WHAT: will be able to read Dolch sight words
TO WHAT LEVEL OR DEGREE: at her instructional level with readability of 75 of 100 words with 100 % accuracy
UNDER WHAT CONDITIONS: while using a text
IN WHAT LENGTH OF TIME: by the end of the school year
MEASUREMENT OF PROGRESS: Progress will be measured through short-cycle assessments with parents receiving 9 week reports.

37. Another Example of an IEP Goal
WHO: Tommy
DOES WHAT: will make inferences by answering “what will happen next” questions
TO WHAT LEVEL OR DEGREE: with 80 % accuracy in 4 out of 5 trials
UNDER WHAT CONDITIONS: given a second grade reading sample
IN WHAT LENGTH OF TIME: by the end of the year
MEASUREMENT OF PROGRESS: Short cycle assessments and work samples sent home to parents every nine weeks.

38. Inappropriate Uses of Percentage
80 % is often used indiscriminately even when it is not measurable or it is inappropriate as a goal
Karen will stay on task 80 % of the time
Karen will cross the street safely 80 % of the time
Percentage is used when task doesn’t lend itself to measurement
Karen will identify the main idea with 95 % accuracy
Karen will ask questions when confused 80 % of time.

39. What is wrong with this IEP Goal?
Tommy will:
Correctly articulate the R, S and L sounds in conversational speech with 80 % accuracy
Respond appropriately when asked a “wh” question in 8 out of 10 trials across 4 consecutive sessions
Take conversational turns when conversing with an adult in 4 out of 5 structured conversational activities over four consecutive sessions, and
Increase sentence length from 4-5 words to 7-8 works with prompts and modeling across four consecutive sessions.

40. What is wrong with this IEP Goal?
Parent will make sure that student empties backpack after school each day and brings appropriate work and supplies to school each day on 4 of 5 days.

41. Benchmarks
A specific statement of what the child should know and be able to do in a specified segment of the year
Goal: reading 75 of 100 sight words independently by end of year
First benchmark: match 75 of 100 sight words to appropriate text with 80 % accuracy in 4 of 5 trials by end of first grading period
Second benchmark: read 60 of 100 sight words with use of visual prompts by end of second grading period

42. Summary of Specially Designed Instruction
List all supports and services for the goal:
Beginning and end dates
Amount of time
Provider and location
Instructional grouping
Accommodations
Any supports for school personnel needed to provide the services

43. Adequacy of Individualized Educational Programs

44. Educational benefits standard
Supreme Court repeatedly focuses on the importance of “access to specialized instruction and related services”
State satisfies its FAPE requirement by “providing personalized instruction with sufficient support services to permit the child to benefit educationally”
The “basic floor of opportunity” consists of “access to specialized instruction and related services which are individually designed to provide educational benefits”

45. Statute and Regulations
IDEA Findings: education for children with disabilities can be made more effective by “having high expectations for such children and ensuring their access to the general education curriculum in the regular classroom, to the maximum extent possible”
Department of Education regulations: Children can be classified as disabled and therefore entitled to a FAPE “even though they are advancing from grade to grade”

46. Complaint Process
An organization or individual may file a written complaint about an alleged violation that occurred not more than one year prior to the date of the complaint
State has 60 days to:
Carry out an investigation
Give complainant opportunity to provide additional information
Provide school district with an opportunity to respond
Review all relevant information and determine if school district is violating IDEA
Issue a written decision
If find denial of appropriate services, then must:
Include corrective action appropriate to address needs of the child and
Appropriate further provision of services for all children with disabilities
Parents often obtain relief through complaint process.

47. Due Process Hearings Due Process Complaint filed by parent
School District answers complaint within 10 days
Parties schedule a resolution meeting or mediation
If matter not resolved within 30 days then Due Process Hearing held
A decision is supposed to be reached within 45 days of the expiration of the 30 day resolution period
Timeline can be expedited in the event of an emergency matter like an expulsion
Ohio has two-tier system so either party can appeal decision by Hearing Officer.
Parents rarely prevail and almost never prevail without a lawyer.

48. Hope you found this helpful.
Questions?

49. Bibliography Ruth Colker, Disabled Education (NYU Press 2013)
Ruth Colker & Julie K. Waterstone, Special Education Advocacy (LexisNexis 2011).
Ruth Colker & Paul Grossman, The Law of Disability Discrimination (LexisNexis 2013) (8th Edition)
Ohio Poverty Law Special Education Workshop, Workshop Materials (August 2012)