LDA Public Policy Committee Platform for the Reauthorization of the Individuals with Disabilities Education Act (IDEA) March 28, 2012

The reauthorization of the Individuals with Disabilities Education Act (IDEA) was officially scheduled for 2009, but most likely will not occur until 2013. Despite delays in scheduling, national organizations are reviewing current law and possible changes which appear to be on the horizon.

The coming reauthorization will be particularly critical for students with specific learning disabilities (SLD) and those yet to be evaluated and identified as SLD. The 2004 reauthorization significantly changed the construct for Specific Learning Disabilities, moving from defining SLD as a life-long struggle with learning due to neurologically based intra-individual processing deficits, to a transitory condition that can be overcome with prescribed educational supports.

The LDA Public Policy Committee is being proactive in preparing for the upcoming reauthorization. The Public Policy Committee developed the platform reflecting the issues that have arisen from on-going discussions held during committee and LDA Board meetings over the past several years. The LDA Board has ratified this platform. Core Beliefs have been developed so that LDA will be prepared to engage actively in debates and discussions on the IDEA reauthorization.

Goal 1: Retain the current statutory definition of Specific Learning Disabilities (SLD).

Congress acknowledged SLD as a disability in federal law with the passage, in 1975, of the Education for All Handicapped Children Act (P.L. 94-142), the forerunner of the current IDEA. The law provided a legal definition of SLD and provided children with Specific Learning Disabilities the same protections, safeguards, and special education services mandated for children with more visible disabilities.

Concerns: LDA has serious concerns about a possible move to revise the SLD definition to support the use of Response to Intervention (RTI) data as the main criterion in evaluation for SLD, an emphasis that began in the 2004 IDEA statute and the subsequent regulations of 2006. If that were to happen, the core cognitive and neurological basis of true SLD would be lost.

Goal 2: Re-establish the connection between the current SLD definition and the SLD evaluation criteria, including the requirement for a cognitive assessment as a part of a comprehensive evaluation for SLD.

LDA acknowledges at the outset that we are not trying to turn back the clock. The organization supports a pre-referral process, regardless of how it is labeled. However, LDA strongly believes that a full cognitive assessment should be an integral part of a comprehensive evaluation for SLD, in order to ensure that the core nature of the disability is addressed.

Concerns: LDA has serious concerns that the focus of the 2004 criteria for identification of a student with SLD has changed. That change has moved from determining if a child has a disorder in neurological processing as shown through a cognitive assessment, to a system that identifies students struggling to learn. Some of the criteria being used is for students who are not meeting “State approved grade level standards,” as shown on the state end-of-grade test, or are working below grade or age level, and are in need of academic interventions that will raise them to grade level achievement.

The link between the IDEA definition of SLD and the evaluation criteria is a cognitive assessment. That assessment is used to identify the strengths and weaknesses in neurological processing that impact the student’s ability to grasp concepts, process information, focus, and acquire knowledge. In addition, cognitive assessments can provide valuable information for designing interventions, writing IEP goals, and determining accommodations and modifications. These assessments also can provide an understanding for students and families of the students’ specific strengths and challenges. LDA feels that a cognitive assessment is a critical and necessary part of the comprehensive evaluation.

Goal 3: Clarify in the IDEA regulations that parents have the right to request a referral for special education evaluation at any time, including while the student is receiving services through an RTI process.

Concern: While the language is fairly clear in the regulatory comments, the actual regulatory language [Sec. 300.309(c)] is more oblique. The regulation requires that the “public agency…promptly request parental consent to evaluate the child…and must adhere to the timeframes…” A direct statement of the parents’ right to request an evaluation should be included within the sections that discuss evaluation for SLD rather than being relegated to one two-line entry as it is in §300.301(b).

The importance of a parent being able to request an evaluation was reiterated and supported by OSEP in their Memorandum stating that RTI could not be used to delay or deny an evaluation for eligibility under IDEA (Memorandum 11-07 to State Directors of Special Education, 2011). LDA is including this concern as part of our Platform because it is an extremely important statement and concept and we will continue to support this in the upcoming reauthorization.

Goal 4: Clarify more specifically the current provisions related to research-based pre-referral programs, e.g., RTI, in both the IDEA and NCLB/Elementary and Secondary Education Act (ESEA).

As noted above in Goal 2, LDA supports the concept of time-limited, scientific, research-based pre-referral processes. For example, any student having reading difficulties should be able to receive assistance without being labeled and then, as appropriate, be referred for more intensive interventions or special education and related services.

LDA believes that pre-referral processes, such as RTI, should be included in the ESEA, as these interventions are targeted at students who are not currently receiving special education and related services.

Concerns: If RTI continues to be included in IDEA, despite the fact that RTI is a general education process, not a special education process, LDA supports the following:

the structure of pre-referral processes, both within and across States; timelines regarding how long students will receive pre-referral interventions before being referred for a special education evaluation; parental notification when a student will receive pre-referral interventions, including the right to refer their child for a special education evaluation at any time, even during the pre-referral process, as stated in the IDEA; a uniform standard or definition of “research-based inventions”; and, how students with SLD who are succeeding in school and benefiting from special education and related services can continue to receive special education and related services, despite the fact that they are meeting the IDEA 2004 eligibility criterion of achievement on State grade-level standards. Exiting special education many times results in a student once again falling behind without the individualized accommodations and/or modifications necessary for school success.

In an evening workshop devoted to a presentation and discussion on RTI, at the recent LDA conference in Chicago, a consensus was reached by the professionals in the audience that 6 to 8 weeks in Tiers 2 and 3 could be considered a Best Practice. In reviewing the survey of RTI carried out by LDA in 2011, there are some states that allow students to spend as many as thirty weeks in Tiers 2 and 3.

LDA also believes a serious discussion must be held regarding language in the regulatory comments about cost effectiveness of RTI processes, i.e., reducing the number of referrals for and children receiving special education and related services (Fed. Reg., Pages 46750-51). More specifically, Congress should clarify what the real intention and purpose is behind the use of pre-referral processes, particularly in relation to reducing the number of students identified as having specific learning disabilities. In the fall of 2010 there were 294,912 fewer students identified as SLD receiving special education services than in the fall of 2006, a significant reduction (Data Accountability Center, 2011). We can’t help but wonder how many of these almost 300,000 students became, or will become, dropouts or will exit school with a certificate rather than a diploma.

Goal 5: Retain the IDEA and the ESEA (currently known as the No Child Left Behind Act, NCLB) as separate laws.

The influence of NCLB on the IDEA has been seen in the dramatic changes to the SLD evaluation/identification criteria, with the alignment in IDEA ’04 of the eligibility determination for SLD with State-approved grade level standards under NCLB. According to the Department of Education’s discussion on the IDEA regulations, “The first element in identifying a child with SLD should be a child’s mastery of grade-level content or in relation to State-approved grade-level standards, not abilities….[T]he group must determine that the child does not demonstrate achievement that is adequate for the child’s age or the attainment of State-approved grade level standards, when provided with learning experiences and instruction appropriate for the child’s age or State-approved grade-level standards in one or more of the areas listed in Sec. 300.309(a)(1). The reference to ‘State-approved grade-level standards’ is intended to emphasize the alignment of the Act [IDEA] and the ESEA….” [71 Fed. Reg. 156, 46652 (2006)]

Concerns: LDA believes that the IDEA and ESEA should be separate laws that can complement each other, without changing the intent of or diverting funds from the IDEA. LDA continues to support the IDEA as it was originally intended – a specific law to provide specialized instruction and supports for students with disabilities. For students with SLD this includes a comprehensive evaluation that illuminates a student’s strengths and weaknesses and draws the connection between the student’s neurological processing and the impact on learning. The main focus of the IDEA is to identify the disability and then, through the IEP, create a plan to assist the child to benefit from education and eventually be prepared for post-school life. In passing the original law, Congress also established a specific funding stream for the purpose of providing specialized instruction and related services for students with disabilities. Over the years this funding has eroded, and under IDEA 20004 a significant amount of money, up to 15% of special education funds, may now be used by local school districts for early intervening services, including Response to Intervention (RTI), for general education students at risk of failure.

Goal 6: Define the categories of assessments, i.e., the elements, of a comprehensive evaluation for SLD, within the IDEA statute and/or regulations.

The IDEA does not currently define or provide guidelines for what constitutes a “comprehensive evaluation” for SLD or any other disability category. The regulations state only that “each public agency [must]…conduct a full and individual initial evaluation.” [Sec. 300.301(a)] The regulations require that the evaluation be conducted using a variety of assessment tools and strategies to gather functional, developmental, and academic information, including the relative contribution of cognitive, behavioral, physical or developmental factors.

Concern: LDA has concerns about the wide variation in the components of a comprehensive evaluation. This has become a more serious concern with the codification of RTI in IDEA 2004, a process for which there is no single template and for which there is a very limited research base. LDA strongly believes that a complete cognitive assessment should be a required component of any comprehensive evaluation for SLD.

Goal 7: Ensure that the requirements of “least restrictive environment” (LRE) remain as a cornerstone of the IDEA.

One of the cornerstones of the IDEA is the concept of LRE. Local school districts must educate students with disabilities, to the maximum extent possible, in the general education classroom. LRE also requires, for students who are not able to receive educational benefit in part or whole in the general education classroom, that a continuum of educational placements be available.

Concern: LDA believes that, with appropriate accommodations and modifications and well-trained general education teachers, the majority of students with SLD can have a positive educational experience in the general education classroom. However, LDA also believes that the IDEA must ensure that other placements are available, as necessary. Decisions about a student’s placement must continue to be made on an individualized basis focused on the unique educational needs of each student. Some students with SLD may do better in smaller classes or other settings, depending on their individual needs, and those needs must be accommodated.

The expectation that a general education teacher can teach a class of students of mixed abilities and mixed disabilities (SLD, ADHD, autistic, hearing impaired, visually impaired, orthopedically impaired, etc.) without adequate pre-service training, is to ensure that many more children will unnecessarily be referred for interventions in the RTI process. More effort must be given to appropriate pre-service preparation of teachers and the administrators responsible for evaluating them. Research has shown that many of the aforementioned students with disabilities could greatly benefit from direct, intensive instruction. The question must be asked if such methodologies are routinely taught in teacher-preparation classes or included in school district staff development programs.

Goal 8: Provide adequate and appropriate documentation for students with SLD regarding the accommodations and modifications and services received in public schools and ensure coordination with documentation requirements of post-school systems, such as higher education, vocational rehabilitation, and employers.

The discussion related to the IDEA 2004 regulations on post-school transition states: “While the requirements for secondary transition are intended to help parents and schools assist children with disabilities transition beyond high school, section 614(c)(5) in the Act does not require a public agency to assess a child with a disability to determine the child’s eligibility to be considered a child with a disability in another agency, such as vocational rehabilitation program, or a college or other postsecondary setting.” This is a major policy shift from prior law and regulations. Previously, there was a more fluid system from the public schools to higher education or vocational rehabilitation, assuring that documentation furnished by the school was of the type generally required and accepted by other agencies whose services the individual might use after leaving high school.

The IDEA’s new requirements have caused a severe disconnect between the public schools and post-secondary education and other agencies. Rather than the more specific evaluation documentation, the law now requires school districts to provide the student with a “summary of academic achievement and functional performance” (SOP). The SOP provides a summary of special education, related services, and modifications and accommodations received. The SOP does not include a recent evaluation that documents the student’s cognitive strengths and weaknesses, the type of information necessary for higher education faculty and vocational rehabilitation case supervisors to have in order to be responsive to the student’s unique educational needs and learning style.

Concerns: Anecdotally, LDA members have reported that the SOP requirement has either not been implemented or not implemented well and that information in the SOP can vary significantly from one school district to another. Members also report that colleges and universities are not accepting SOPs and continue to require additional data, e.g., an assessment of cognitive factors, in order for students with SLD to receive appropriate accommodations and modifications. Therefore, “while the requirements for secondary transition are intended to help parents and schools assist children with disabilities transition beyond high school,” now the “burden of proof” regarding the student’s disability and the need for accommodations and modifications falls to the family.

LDA believes this is an untenable situation for most families and finds the lack of useful documentation particularly problematic for students with SLD. Families have found the high cost of providing a private evaluation prohibitive, when it is required by a post-school institution or agency, seriously restricting their child’s options after high school.

Most important, colleges, universities, vocational rehabilitation and other adult services providers must be included in the next round of IDEA reauthorization conversations, so that documentation provisions have real meaning for, and acceptance in, higher education and the workplace.

GOAL 9: To assure that the reauthorization of IDEA and ESEA will adequately prepare students with SLD to graduate from high school and succeed in post-secondary education and the 21st century workforce, multiple pathways to graduation from high school, including career and technical education routes, must be established.

The primary purpose of education is to prepare students to be contributing members of the society in which they live. This purpose was re-enforced with the passage of NCLB/ESEA which required state education departments to establish high school graduation standards. In response to this mandate, states have established academic achievement standards focused on preparing student for postsecondary higher education. Additionally, forty-four states and the District of Columbia have adopted the Common Core State Standards. LDA recognizes that many students with SLD are succeeding in academic courses and continuing on to higher education. Unfortunately, there are others who have not benefited because alternative graduation options through which they could succeed are not available.

Concerns: The passage of NCLB/ESEA and the need to increase graduation standards along with rates of graduation has effectively eliminated vocational/career and technical education as an allowable high school curriculum and an acceptable graduation pathway. This has resulted in the elimination of a viable alternative for students with SLD. The current all-or-nothing approach to a high school diploma has led to many students with SLD dropping out of high school or exiting high school with an IEP certificate of completion, both of which greatly curtail earning potential in the modern day global economy. In the 2009-10 School Year, 45,907 students classified as SLD dropped out of school and 26,909 exited school with a certificate (Data Accountability Center, 2011). Had alternative paths (career and technical) to graduation been available, one cannot help but wonder how many of the 72,816 students who dropped out or exited with a certificate (in one school year) could have exited with a high school diploma?

According to several business and trade organizations, there is a desperate need for skilled tradesmen such as machinists, welders and mechanics. In the seventies, eighties and nineties, these positions were often filled by individuals who were perhaps not interested in college but wanted a vocation as well as a good income. Countless students graduated from HS with an emphasis on career education. Many of these were students with learning disabilities. Vocational and technical career paths have been effectively eliminated from the K-12 education system resulting in a potential long term threat to our nation’s economic security. More emphasis must be placed on career and technical education.

LDA Platform for the Reauthorization of the Individuals with Disabilities Education Act (IDEA) was approved by the LDA Board of Directors February 2009, and updated in 2012.

References

Federal Register. Vol. 71, No. 156. (2006). Pgs. 46652, 46658, 46750, 46751.

Individuals with Disabilities Education Act (IDEA) regulations, 34 C.F.R. Part 300 (2006).

No Child Left Behind (NCLB) Act of 2001. P.L. 107-110. (2002).

U. S. Department of Education, Data Accountability Center. (2011). IDEA 618 data tables. Retrieved at https://www.ideadata.org/tables30th/ar_1-3.htm; https://www.ideadata.org/TABLES34TH/AR_1.3.pdf; and https://www.ideadata.org/TABLES34TH/AR_4-1.pdf.

U.S. Department of Education, Office of Special Education Programs. (2011). Memorandum to State Directors of Special Education, OSEP 11-07.