COBIDA Presentation Ruth Colker November 2, 2013

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

Resources Whose IDEA Is This? Ohio’s Operating Standards for Ohio Educational Agencies serving Children with Disabilities Ohio Administrative Code Sections 3301-51-01 to 3301-51-11

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

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)

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.

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

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

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

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.

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

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

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.

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

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.

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.”

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

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.

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]

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.” (3323.25(D)).

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

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.

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)

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.”

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.

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

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.

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

RTI Tiers

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

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 300.301 through 300.111 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.”

Independent educational evaluations 34 C.F.R. § 300.502 (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.

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

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.

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

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.

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.

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.

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.

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.

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

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

Adequacy of Individualized Educational Programs

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”

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”

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.

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.

Hope you found this helpful. Questions?

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)