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SEPTEMBER 26, 2006
(To provide the public with an overview of the regulations,
OSERS will be hosting a series of community-based public meetings
throughout the country. For information about times and locations
go to: http://www.ed.gov/policy/speced/guid/idea/cbpm/idea2004-cbpm-schedule.html
Attendees to the community based public meetings about the final
regulations for IDEA '04 will have the opportunity to ask questions
following the presentation about these regulations. To help prepare
for the meeting, an information sheet on regulations of concern
for students with SLD and the Department's response to concerns
expressed in the response to the proposed regulations will be posted
on the LDA website by September 26.
The following information is limited to SLD issues only. The regulations
are in bold, the DISCUSSION is taken from the Preamble of the final
regulations, and the underlined material is possible questions.
Feel free to contact us for further information. You should speak
on behalf of the state organization or you as an individual. You
may add other comments as desired.
THE STATUTE, THE REGULATIONS, AND THE PREAMBLE
The statute expresses the intent of Congress. The regulations provide
details to assist States in the appropriate implementation of the
Act. They may not contradict the statute, but they may go beyond
it. Both statute and regulations have the force of law. The Discussion in the Preamble, which explains the Department's reasons for its
wording, does not have the power of the statute and regulations,
but is a useful tool for supporting arguments.
IMPORTANT REGULATIONS
Regulation 300.35 defines scientifically based research as that
in the ESEA (NCLB) which is: The definition of scientifically
based research is important to the implementation of Part B of
the Act and, therefore, we will include a reference to the definition
of that term in section 9101(37) of the ESEA.
DISCUSSION: For the reasons set forth earlier in this notice,
we are not including definitions from other statutes in these regulations.
However, we will include the current definition of scientifically
based research in section 9101(37) of the ESEA here for reference.
Scientifically based research--
(a) Means research that involves the application of rigorous, systematic,
and objective procedures to obtain reliable and valid knowledge
relevant to education activities and programs; and
(b) Includes research that--
- Employs systematic, empirical methods that
draw on observation or experiment;
- Involves rigorous data analyses that are adequate to test
the stated hypotheses
and justify the general conclusions drawn;
- Relies on measurements or observational methods that provide
reliable and valid
data across evaluators and observers, across multiple measurements
and
observations, and across studies by the same or different investigators;
- Is evaluated using experimental or quasi-experimental designs
in which
individuals, entities, programs, or activities are assigned to
different conditions and
with appropriate controls to evaluate the effects of the condition
of interest, with a
preference for random-assignment experiments, or other designs
to the extent that
those designs contain within-condition or across-condition controls;
- Ensures that experimental studies are presented in sufficient
detail and clarity to
allow for replication or, at a minimum, offer the opportunity
to build systematically
on their findings; and
- Has been accepted by a peer-reviewed journal or approved
by a panel of
independent experts through a comparably rigorous, objective,
and scientific
review.
The Department does not intend to dictate how extensive the research
must be or who, within an LEA or State, should determine that
the research is of high quality. We believe that this is a matter
best left to State and local officials because determining the
presence of an appropriate instructional process is part of the
State-adopted criteria.
POSSIBLE QUESTION - Could the Department publish examples of this
research?
Regulation 300.301 - That each state must ensure that
Free Appropriate Public Education (FAPE) is available to any individual child with
a disability who needs special education and related services even
though the child has not failed or been retained in a course or
grade and is advancing from grade to grade.
DISCUSSION: Section 300.101(c) provides that a child is eligible
to receive special education and related services even though the
child is advancing from grade to grade. Further, it is implicit
from paragraph (c) of this section that a child should not have
to fail a course or be retained in a grade in order to be considered
for special education and related services. A public agency must
provide a child with a disability special education and related
services to enable him or her to progress in the general curriculum,
thus making clear that a child is not ineligible to receive special
education and related services just because the child is, with
the support of those individually designed services, progressing
in the general curriculum from grade-to-grade or failing a course
or grade. The group determining the eligibility of a child for
special education and related services must make an individual
determination as to whether, notwithstanding the child's progress
in a course or grade, he or she needs or continues to need special
education and related services. However, to provide additional
clarity we will revise paragraph (c)(1) of this section to explicitly
state that children do not have to fail or be retained in a course
or grade in order to be considered eligible for special education
and related services.
POSSIBLE QUESTION - Could the department issue a special paper
on this issue? Unfortunately, some schools seem to feel that special
education is for failing students only.
Regulation 300.302 clarifies that the screening of a student by
a teacher to determine appropriate instructional strategies or
curriculum implementation shall not be considered to be an evaluation
for eligibility for special education or related services.
DISCUSSION: An "evaluation" as
used in the Act, refers to an individual assessment to determine
eligibility for special education and related services, consistent
with the evaluation procedures in §§300.301 through
300.311. "Screening," as
used in §300.302 and section 614(a)(1)(E) of the Act, refers
to a process that a teacher or specialist uses to determine appropriate
instructional strategies. Screening is typically a relatively simple
and quick process that can be used with groups of children. Because
such screening is not considered an evaluation under §§300.301
through 300.311 to determine eligibility for special education
services, parental consent is not required.
POSSIBLE QUESTION - Could the Department issue
a separate fact sheet with this information? Parents may not be
aware of these differences.
Regulation 300.303 Reevaluations
DISCUSSION: An RTI process does not replace the need for a comprehensive
evaluation, and a child's eligibility for special education services
cannot be changed solely on the basis of data from an RTI process.
Consistent with §300.303 and section 614(a)(2) of the Act,
a child with a disability must be reevaluated if the public agency
determines that the educational or related services needs of
the child warrant a reevaluation or if the child's parent or
teacher requests a reevaluation. A reevaluation must occur no
more than once a year, unless the parent and the public agency
agree otherwise, and at least once every three years, unless
the parent and the public agency agree that a reevaluation is
unnecessary, to determine whether the child continues to have
a disability and to determine the educational needs of the child.
POSSIBLE QUESTION - How will the Department monitor to ensure that
states and school systems do not use data from the RTI as the sole
determinant for eligibility for special education for students
with SLD?
Regulation 300.306(b) Special rule for eligibility determination
DISCUSSION: Reevaluations must be conducted
in accordance with §§300.304 through 300.311. In addition,
as noted in §300.305(e)(1),
except for children at the end of their secondary school career,
a reevaluation must be done before determining that a child is
no longer a child with a disability. In conducting a reevaluation,
as noted in §300.305, consistent with section 614(c) of the
Act, the IEP Team and other qualified professionals must review
existing evaluation data on the child including evaluations provided
by the parents of the child; current classroom-based, local, or
State assessments and classroom-based observations; and observations
by teachers and related services providers. The results of an RTI
process may be one component of the information reviewed as part
of the reevaluation process. It is up to each State to
develop criteria to determine whether a child continues to have
a disability, including whether a particular child has an SLD. States that change
their eligibility criteria for SLD may want to carefully consider
the reevaluation of children found eligible for special education
services using prior procedures. States should consider the effect
of exiting a child from special education who has received special
education and related services for many years and how the removal
of such supports will affect the child's educational progress,
particularly for a child who is in the final year(s) of high school.
Obviously, the group should consider whether the child's instruction
and overall special education program have been appropriate as
part of this process. If the special education instruction has
been appropriate and the child has not been able to exit special
education, this would be strong evidence that the child's eligibility
needs to be maintained.
POSSIBLE QUESTION - Would the Department issue a fact sheet reiterating
that reevaluations must review existing evaluation data on the
child including evaluations provided by the parents of the child;
current classroom-based, local, or State assessments and classroom-based
observations; and observations by teachers and related services
providers?
Proposed regulation 300.307(a)(1) which would allow states
to prohibit the use of a severe discrepancy between IQ and achievement to determinate
eligibility under the SLD category has been removed. (Final regulations
for eligibility for SLD are now that 1) A state may not require
the use of a discrepancy between IQ and ability 300.307(a)(1);
2) A state must permit the use of a process based on a child's
response to scientific, research based intervention 300.307(a)(2);
and 3) A state may permit the use of other alternative research-based
procedures (300.307(a)(3).)
DISCUSSION: "States are free to prohibit the use of a discrepancy
model", since States are responsible for developing criteria
to determine whether a child is a child with a disability, including
criteria for specific learning disabilities.
POSSIBLE QUESTION - Will this information be posted on the IDEA
website? Parents need to know that a state may prohibit the use
of a discrepancy model.
New regulation 300.307(a)(3) May permit the use of other
alternative research-based procedures for determining whether
a child has a specific learning disability, as defined in §300.8(c)(10).
DISCUSSION: New 300.307(a)(3)(proposed 300.307(a)(4) recognizes
that there are alternative models to identify children with SLD
that are based on sound scientific research and gives States flexibility
to use these models. For example, a State could choose to identify
children based on absolute low achievement and consideration of
exclusionary factors as one criterion for eligibility. Other alternative
might combine features of different models for identification.
We believe the evaluation procedures in section 614(b)(2) and (b)(3)
of the Act give the Department the flexibility to allow States
to use alternative, research-based procedures for determining whether
a child has an SLD and is eligible for special education and related
services."
POSSIBLE QUESTION - Does this mean that the evaluation does not
have to take into account the uneven performance which is characteristic
of a child with SLD?
Regulation 300.309 Determining the existence of a specific learning
disability
DISCUSSION: The Department responded to requests that measures
of psychological processing disorders be added to the eligibility
criteria by stating "the Department does not believe that
an assessment of psychological or cognitive processing should be
required in determining whether a child has an SLD. There is no
current evidence that such assessments are necessary or sufficient
for identifying SLD. Further, in many cases, these assessments
have not been used to make appropriate intervention decisions.
However, Sec. 300.309(a)(2)(ii) permits, but does not require,
consideration of a pattern of strengths or weaknesses, or both,
relative to intellectual development, if the evaluation group considers
that information relevant to an identification of SLD. In many
cases, though, assessments of cognitive processes simply add to
the testing burden and do not contribute to interventions. As summarized
in the research consensus from the OSEP Learning Disability Summit
(Bradley, Danielson, and Hallahan, 2002) ***, "Although processing
deficits have been linked to some SLD (e.g. phonological processing
and reading), direct links with other processes have not been established.
Currently, available methods for measuring many processing difficulties
are inadequate. Therefore, systematically measuring processing
difficulties and their link to treatment is not yet feasible
* * *. Processing deficits should be eliminated from the criteria
for classification * * *.'' (p. 797).\3\ Concerns about the absence
of evidence for relations of cognitive discrepancy and SLD for
identification go back to Bijou (1942; \4\ see Kavale, 200 2) \5\.
Cronbach (1957) \6\
characterized the search for aptitude by treatment interactions
as a hall of mirrors,'' a situation that has not improved over
the past few years as different approaches to assessment of cognitive
processes have emerged (Fletcher et al., 2005; Reschly & Tilly,
1999) \7\.
POSSIBLE QUESTION - Does the Department plan
to do further research in this area? Other researchers have indicated
that processing deficits can be linked to SLD.
DISCUSSION: In response to requests
that the regulations include a definition of "intellectual
development", the Department
replied "We do not believe it is necessary to define "intellectual
development" in these regulations. Intellectual development
is included in §300.309(a)(2)(ii) as one of three standards
of comparison, along with age and State-approved grade-level standards.
The reference to "intellectual development" in this provision
means that the child exhibits a pattern on strengths and weaknesses
in performance relative to a standard of intellectual development
such as commonly measured by IQ tests. Use of the term is consistent
with the discretion provided in the Act in allowing the continued
use of discrepancy models.
DISCUSSION: In response to requests that intra-individual differences,
particularly in cognitive functions, are essential to identifying
a child with an SLD and should be included in the eligibility criteria
in §300.309, the Department responded with "an assessment
of intra-individual differences in cognitive functions does not
contribute to identification and intervention decisions for children
suspected of having an SLD. The regulations, however, allow for
the assessment of intra-individual differences in achievement as
part of an identification model for SLD. The regulations also allow
for the assessment of discrepancies in intellectual development
and achievement.
POSSIBLE QUESTION - Does the Department plan to publish a fact
sheet explaining that intra-individual differences in an individual
have long been the basis for determining that a child has SLD.
This determination is essential to develop an IEP based on the
child's individual strengths and weaknesses.
Regulation 300.309 (a)(2)(ii) requires that the child
exhibits a pattern of strengths and weaknesses in performance, achievement
or both relevant to age, state approved grade level standards,
or intellectual development.
DISCUSSION: We agree that failing a State
assessment alone is not sufficient to determine whether a child
has an SLD. However, failing a State assessment may be one factor
in an evaluation considered by the eligibility group. As required
in §300.304(b)(1), consistent
with section 614(b)(2)(A) of the Act, the evaluation must use a
variety of assessment tools and strategies to gather relevant information
about the child. Further, §300.304(b)(2), consistent with
section 614(b)(2)(B) of the Act, is clear that determining eligibility
for special education and related services cannot be based on any
single measure or assessment as the sole criterion for determining
whether a child is a child with a disability. We agree that §300.309(a)(2)(ii)
could be stated more clearly and will rewrite it to state that
the eligibility group can determine that a child has an SLD if
the child meets the criteria in §300.309(a)(1) and exhibits
a pattern of strengths and weaknesses in performance, achievement,
or both, relative to age and State-approved grade-level standards,
or intellectual development, that is determined by the group to
be relevant to the identification of an SLD.
POSSIBLE QUESTION - Does the Department plan to issue guidance
on "a
pattern of strengths and weaknesses in performance achievement
or both relative to age and state-approved grade level standards
or intellectual development?.
Regulation 300.309(c) - To require the public agency to
promptly request parental consent to evaluate a child suspected of having
an SLD who has not made adequate progress when provided appropriate
instruction, and whenever a child is referred for an evaluation.
POSSIBLE QUESTION - Does the Department plan to include that information
on its website?
New Regulation 300.311 - To require that the eligibility
report include evidence that when a child has participated in an RTI process,
the parents were informed of State policies regarding child performance
data that would be collected and the general education services
that would be provided; strategies to support the child's rate
of learning; and a parent's right to request an evaluation at any
time.
DISCUSSION: If parents request an evaluation
and provide consent, the timeframe for evaluation begins and the
information required in §300.309(b) must be collected (if
it does not already exist) before the end of that period.
POSSIBLE QUESTION - Does the Department plan to include that information
on its website? |
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