Eligibility Criteria Form Specific Learning Disability

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1 WSPA Technical Assistance Paper For Specific Learning Disability Eligibility Criteria Eligibility Criteria Form Specific Learning Disability Chapter 7, Section 4(d)(x) Name of Child Date of Birth Date of Eligibility Determination The following information is intended as a guide to assist professionals and parents in making specific learning disability determinations. This information was adapted by the Wyoming School Psychology Association from technical assistance papers developed by the states of North Dakota and South Dakota for use in Wyoming. Note: WSPA comments are italicized to distinguish them from the WDE eligibility criteria. Specific Learning Disability: means a disorder in one or more of the basic psychological processes involved in understanding or in using language, spoken or written, that may manifest itself in an imperfect ability to listen, think, speak, read, write, spell, or to do mathematical calculations, including conditions such as perceptual disabilities, brain injury, minimal brain dysfunction, dyslexia, and developmental aphasia. The term does not include learning problems that are primarily the result of visual, hearing, or motor disabilities, of cognitive disability, of emotional disability, or of environmental, cultural, or economic disadvantage. Method of Determination: Severe Discrepancy (Appendix A) RTI PART I: Required Assurances. 34 C.F.R Initial Eligibility Criteria for Specific Learning Disability All statements must be checked Yes. A. Yes No The determination has been made by a team including the parent; the child s regular teacher, or if the child does not have a regular teacher, then a regular classroom teacher qualified to teach a child of the same age; for a child of less than school age, an individual qualified by the SEA to teach a child of that age; and at least one person qualified to conduct individual diagnostic examinations of children. 34 C.F.R WSPA COMMENTS: The requirement to have At least one person qualified to conduct individual diagnostic examinations of children could be fulfilled by a school psychologist, speech-language pathologist, remedial reading teacher, or special education teacher. For further clarification on Highly Qualified refer to the Wyoming Department of Education Reference Guide: Highly Qualified Providers of Special Education. As with other disabilities, pursuant to 34 CFR (a), upon completion of the administration of assessments and other evaluation measures: (1) A group of qualified professionals and the parent of the child determines whether the child is a child with a disability, as defined in 34 CFR 300.8, in accordance with 34 CFR (b) and the educational needs of the child; and (2) The public agency provides a copy of the evaluation report and the documentation of determination of eligibility at no cost to the parent. Page 1 of 16

2 Pursuant to 34 CFR (a)(1), the determination of whether a child suspected of having a SLD is a child with a disability as defined in 34 CFR 300.8, must be made by the child's parents and a team of qualified professionals, which must include: (1) The child's regular teacher; or (2) If the child does not have a regular teacher, a regular classroom teacher qualified to teach a child of his or her age; or (3) For a child of less than school age, an individual qualified by the SEA to teach a child of his or her age; and Pursuant to 34 CFR (b), the team must also include at least one person qualified to conduct individual diagnostic examinations of children, such as a school psychologist, speech-language pathologist, or remedial reading teacher. See 20 USC 1221 through 20 USC 1223 ; 1401(30); 1414(b)(6). B. Yes No The team has considered information from a variety of sources, including aptitude and achievement tests, parent input, teacher recommendations, and information about the child s physical condition, social or cultural background, and adaptive behavior. WSPA COMMENTS: Determining if a child has a Specific Learning Disability (SLD), like any other disability determination under IDEA, cannot be based on any single criterion meaning a single test, assessment, observation or report. A diagnostic examination of a child suspected of having SLD must include a variety of assessment tools and strategies. The diagnostic examination must include input from the child s parents as well as observation of the child s academic performance and behavior in the general education classroom. Once all agreed upon diagnostic examination measures have been completed and the child s parents have received copies of the diagnostic examination report along with full explanations of the finding, the child s parent and a team of qualified professionals can make determinations regarding a child s eligibility for special education services. Ed Requires Public Agencies Use A Variety Of Assessment Tools 34 CFR (b) requires that in conducting the evaluation public agencies must: Use a variety of assessment tools and strategies to gather relevant functional, developmental, and academic information about the child, including information provided by the parent, that may assist in determining: (i) Whether the child is a child with a disability under 34 CFR 300.8; and (ii) The content of the child's IEP, including information related to enabling the child to be involved in and progress in the general education curriculum (or for a preschool child, to participate in appropriate activities). A critical part of the evaluation process involves the selection and use of appropriate testing instruments to assess a student for potential disabilities. The range and type of instruments used are as varied as the disabilities themselves. The key requirements for the conduct of initial evaluations are set out below. Ed Prohibits One-Test Assessments As Sole Criterion Pursuant to 34 CFR (b)(2), public agencies may: Page 2 of 16

3 and Not use any single measure or assessment as the sole criterion for determining whether a child is a child with a disability and for determining an appropriate educational program for the child; Use technically sound instruments that may assess the relative contribution of cognitive and behavioral factors, in addition to physical or developmental factors. Formerly, a validly conducted evaluation could consist of only one test, assuming other non-test procedures were also used, such as reports of teachers, parents and others who observe the student in both structured and unstructured settings. Eagle Point Sch. Dist. #9, 18 IDELR 1268 (SEA OR 1992). A California district did not deny a student FAPE. The 2005 psychoeducational and academic assessments conducted were appropriate in that the assessors were qualified to conduct the assessments, used multiple and validated assessment tools, assessed generally in all areas of suspected disability, were not discriminatory, and did not rely on one test or tool to make their determinations. Accordingly, the assessments met all of the legal requirements of the law. Dublin Unified Sch. Dist., 108 LRP (SEA CA 2008). Use Of Nondiscriminatory Test Materials And Native Language Requirements Pursuant to 34 CFR (c), each public agency must ensure that: (1) Assessments and other evaluation materials used to assess a child under this part: (i) Are selected and administered so as not to be discriminatory on a racial or cultural basis; (ii) Are provided and administered in the child's native language or other mode of communication and in the form most likely to yield accurate information on what the child knows and can do academically, developmentally, and functionally, unless it is clearly not feasible to so provide or administer; (iii) Are used for the purposes for which the assessments or measures are valid and reliable; (iv) Are administered by trained and knowledgeable personnel; and (v) Are administered in accordance with any instructions provided by the publisher of the assessments. C. Yes No The child has been observed in the child s learning environment to document the child s academic performance in the regular classroom. If the child is less than school age or out of school, the observation must be conducted in an environment appropriate for that child. 34 C.F.R Documentation from the observation must include a description of any relevant behavior noted during the observation, and the relationship of that behavior to the child s academic functioning. WSPA COMMENTS: Any relevant behaviors, if any, noted during the observation of the child and relationship of those behaviors to academic functioning. The observation must occur in the child s learning environment (including regular classroom setting) to document the child s academic performance and behavior in the areas of difficulty. In the case of a child of less than school age or out of school, a group member must observe the child in an environment appropriate for a child of that age. The information should include: name of the observer, dates of observation, times of the observation, location of the observation, and summary of relevant behaviors, if any, noted during the observation of the child and the relationship of the behaviors to academic functioning. The written findings need to reflect the relationship of observational information to the child s current levels of functioning. An observation report ensures attention is given to observations of the child s ability to process information, express an idea, and/or perform a skill. Since observational data may Page 3 of 16

4 either support or conflict with conclusions based on other assessment procedures, the inclusion of such data is critical. Classroom Observation Requirement Pursuant to 34 CFR (a), the public agency must ensure that the child is observed in the child's learning environment (including the regular classroom setting) to document the child's academic performance and behavior in the areas of difficulty. Pursuant to 34 CFR (b), the group described in 34 CFR (a)(1), in determining whether a child has a specific learning disability, must decide to: (1) Use information from an observation in routine classroom instruction and monitoring of the child's performance that was done before the child was referred for an evaluation; or (2) Have at least one member of the group described in 34 CFR (a)(1) conduct an observation of the child's academic performance in the regular classroom after the child has been referred for an evaluation and parental consent, consistent with 34 CFR (a), is obtained. Pursuant to 34 CFR (c), in the case of a child of less than school age or out of school, a group member must observe the child in an environment appropriate for a child of that age. D. Yes No The team has considered any educationally relevant medical findings, if any. WSPA COMMENTS: The team must document any medical information including any medical diagnoses, health conditions or medications that may impact the child s education. Some thoughts on the use of medical diagnosis to determine eligibility: Eligibility for special education and related services is rarely determined solely based on a medical diagnosis, without an initial evaluation. (For such an exception, see Doe v. Alabama State Dept. of Educ., 17 IDELR 41 (11th Cir. 1990).) Moreover, the regulations stress that public agencies must not use "any single measure or assessment as the sole criterion for determining whether a child is a child with a disability and for determining an appropriate educational program for the child." Identification of the disabling condition itself is just one of the two main elements of an evaluation; identification of resulting educational needs is the other, an aspect that cannot be investigated in a medical diagnosis. Joint Policy Memorandum, 18 IDELR 116 (OSERS 1991). The district's ability to acquire all necessary information from the child's hospital records and recent psychoeducational assessment prevented it from conducting its own evaluation. Board of Educ. of the Ellenville Cent. Sch. Dist., 48 IDELR 203 (SEA NY 2007). E. Yes No The child s underachievement is not due to lack of appropriate instruction in reading or math, considering: Data that demonstrate that prior to, or as 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 the child s progress during instruction. WSPA COMMENTS: This information should be provided whether determining eligibility using RtI or the discrepancy model. Page 4 of 16

5 A child s academic progress should be documented by using an objective and systematic process administered at reasonable intervals. Data-based documentation of repeated assessments of achievement at reasonable intervals, reflecting formal assessment of a child s progress during instruction, which was provided to the child s parents. Based upon the data, the diagnostic examination team must determine that the underachievement in the child suspected of having a specific learning disability is not due to the lack of appropriate instruction in reading or math. In other words, information such as teacher reports and teacher made tests, while helpful, are not adequate for this determination. Data should be used to determine the effectiveness of a particular instructional strategy or program and should be provided to parents in order to keep them informed of their child s progress, so that they can support instruction and learning at home. If the diagnostic examination team decides the documentation is not adequate, the team must collect additional information about the child. A child whose lack of achievement can be attributed to a lack of appropriate instruction in reading or math should not be determined to have an SLD. Such a child should be provided with appropriate instruction in general education as well as scientific, research-based interventions. Appropriate instruction in reading must include explicit and systematic instruction in: phonemic awareness, phonics, vocabulary development, reading fluency (including oral reading skills), and reading comprehension strategies; and in math: mathematic calculation and mathematics problem solving. Pursuant to 34 CFR (c), the public agency must promptly request parental consent to evaluate the child to determine if the child needs special education and related services, and must adhere to the timeframes described in 34 CFR and 34 CFR , unless extended by mutual written agreement of the child's parents and a group of qualified professionals, as described in 34 CFR (a)(1): (1) If, prior to a referral, a child has not made adequate progress after an appropriate period of time when provided instruction, as described in 34 CFR (b)(1) and 34 CFR (b)(2); and (2) Whenever a child is referred for an evaluation. F. Yes No The team has determined that the child does not achieve adequately for the child s age or to meet Stateapproved grade-level standards in one or more of the following areas when provided with learning experiences and instruction appropriate for the child s age or State approved grade-level standards: Oral expression; listening comprehension; written expression; basic reading skill; reading fluency skills; reading comprehension; mathematics calculation; and mathematics problem solving. WSPA COMMENTS: This determination will be based on the child s mastery of grade level content appropriate for the child s age, including performance against the state s academic content standards or school based work samples. For a child who has been retained in a grade or is otherwise not in the grade typical for their age, achievement against the state s grade level academic standards for the child s enrolled grade might be used to determine underachievement. Pursuant to 34 CFR (a), the group described in 34 CFR may determine that a child has a specific learning disability, as defined in 34 CFR (c)(10), if: (1) The child does not achieve adequately for the child's age or to meet state-approved grade-level standards in one or more of the following areas, when provided with learning experiences and instruction appropriate for the child's age or state-approved grade-level standards: Page 5 of 16

6 (i) Oral expression. (ii) Listening comprehension. (iii) Written expression. (iv) Basic reading skill. (v) Reading fluency skills. (vi) Reading comprehension. (vii) Mathematics calculation. (viii) Mathematics problem solving. (2) (i) The child does not make sufficient progress to meet age or state-approved grade-level standards in one or more of the areas identified in 34 CFR (a)(1) when using a process based on the child's response to scientific, research-based intervention; or (ii) The child exhibits a pattern of strengths and weaknesses in performance, achievement, or both, relative to age, state-approved grade-level standards, or intellectual development, that is determined by the group to be relevant to the identification of an SLD, using appropriate assessments, consistent with 34 CFR and ; and (3) The group determines that its findings under 34 CFR (a)(1) and (2) of this section are not primarily the result of: (i) A visual, hearing, or motor disability; (ii) Mental retardation; (iii) Emotional disturbance; (iv) Cultural factors; (v) Environmental or economic disadvantage; or (vi) Limited English proficiency. Pursuant to 34 CFR (b), to ensure that underachievement in a child suspected of having an SLD is not due to lack of appropriate instruction in reading or math, the group must consider, as part of the evaluation described in 34 CFR through 34 CFR : (1) Data that demonstrate 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 (2) 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. Page 6 of 16

7 PART II: Response to Scientific Research-based Intervention. 34 C.FR (a) All statements must be checked Yes. If the child has participated in a process that assesses the child s response to scientific research-based intervention, the following assurances are required: A. Yes No The team has determined that the child does not make sufficient progress to meet age or State-approved grade-level standards in one or more of the areas identified above when using a process based on the child s response to scientific, research-based intervention. B. Yes No A statement of the instructional strategies used and the child -centered data collected is contained in the evaluation report. C. Yes No The parents were notified about the State s policies regarding the amount and nature of child performance data that would be collected and the general education services that would be provided; the strategies for increasing the child s rate of learning; and the parent s right to request an evaluation. WSPA COMMENTS: If the child has participated in a process that assesses the child s response to scientific, research-based intervention the diagnostic examination team should document the following: - Document that prior to, or as part of, the referral process, the child was provided appropriate instruction in regular education settings by qualified personnel - Instructional strategies used to assess the child s response to scientific, research-based intervention Note: Interventions generally take place prior to referring a child for a complete diagnostic examination. - Child-centered RtI data Note: This documentation of progress is generally done using curriculum-based measurements (CBM). OR - Based upon the data, identify each area of potential disability. - The diagnostic examination team determines the child has not made sufficient progress to meet age or state-approved grade-level standards in one or more of the SLD areas when using a process based on the child s response to scientific, research-based interventions. - The child exhibits a pattern of strengths and weaknesses in performance, achievement, or both, relative to age, state-approved grade level standards, or intellectual development, that is determined by the team to be relevant to the identification in one or more of the SLD areas when using appropriate assessments. - Refer to the Stateof Wyoming s Department of Education s technical assistance document for guidance on RtI Framework (i.e., specific intervention, length of intervention, etc.) PART III: Exclusionary Factors. 34 C.F.R (a)(3) This statement must be checked Yes. Page 7 of 16

8 A. Yes No The team has determined the child s underachievement is not primarily the result of a visual, hearing or motor disability; cognitive disability; emotional disability; cultural factors; environmental or economic disadvantage; or limited English proficiency. WSPA COMMENTS: The team must consider how the following factors may interfere with the evaluation process: - Visual disability: visual acuity - Hearing disability: auditory screening - Motor disability: When assessing a child, the evaluation procedures and instruments must measure the concerns expressed through the evaluation process and consider motor impairments. - Cognitive disability: Not identified as having cognitive disabilities. - Emotional disability: Psychological conditions that interfere with the child s ability to provide valid responses to assessment tasks. - Cultural factors: Information about the child s culture and receptive/expressive language abilities must be gathered to assist in providing nonbiased assessments. - Environmental factors: Consider the child s environment and make accommodations during the diagnostic examination process so the child s true abilities are reflected. - Socioeconomic factors: Be aware of social and economic factors that may limit exposure to varied environments. PART IV: Conclusion. 34 C.F.R (a)(1) Team Determination Yes No Based on Parts I through III above, the team has determined that the child has a specific learning disability. EACH GROUP MEMBER MUST CERTIFY IN WRITING ON THE ELIGIBILITY REPORT WHETHER THE REPORT REFLECTS THE MEMBER S CONCLUSION. IF IT DOES NOT REFLECT THE MEMBER S CONCLUSION, THE GROUP MEMBER MUST SUBMIT A SEPARATE STATEMENT PRESENTING THE MEMBER S CONCLUSIONS. 34 C.F.R (b) THE EVALUATION REPORT MUST CONTAIN SPECIFIC DOCUMENTATION REGARDING EACH OF THE ABOVE ASSURANCES. Page 8 of 16

9 Frequently Asked Questions 1. When using ability testing, can index or composite scores be used in place of the IQ, Index, or Factor score? When using a measure of intellectual ability, the total score should be used unless there is an unusually large discrepancy between IQ, Index, or Factor scores. To provide the most valid estimate of each IQ, Index, or Factor score, best practice would suggest the composite would consist of at least three subtests. Additionally, the magnitude of the discrepancy found should be statistically significant and in the tenth percentile or less of the base rate of the normative sample. If there is such a discrepancy, the higher score should be used, unless other considerations, such as cultural factors, contraindicate this course of action. For example, when utilizing the WISC-IV, if a child obtains a Verbal Comprehension Index of 85 and a Perceptual Reasoning Index of 103, the difference of 18 points between the two indexes constitutes an unusually large discrepancy (base rate = less than 10%). In this case, you can use the Perceptual Reasoning Index of 103 for eligibility determination. However, the WISC-IV Working Memory and Processing Speed Index score cannot be used for discrepancy comparisons, as each of the indexes measures a limited aspect of cognitive functioning and therefore not an appropriate measure of overall cognitive functioning or reasoning abilities. 2. When is it appropriate to compute a General Ability Index (GAI) of the Wechsler Scales? When using a Wechsler Scale such as the WISC-IV, a General Ability Index (GAI) may be considered in lieu of the Full Scale IQ if both of the following conditions are met: Considering the four WISC-IV Indexes, there is an unusually large discrepancy (base rate 10% or less) between either the Working Memory or Processing Speed Index, and the highest Index (i.e., the Verbal Comprehension Index or the Perceptual Reasoning Index) AND There is no unusually large discrepancy between the Verbal Comprehension Index and the Perceptual Reasoning Index (base rate more than 10%). See the following link for computing the GAI (WISC-IV Technical Report #4): 3. Can I use a Reading Fluency subtest score within a discrepancy analysis to determine if a learning disability exists in that area? If the reliability of the Reading Fluency subtest is.80 or greater, it can be used within a discrepancy analysis. 4. When determining if a significant discrepancy exists between IQ and Achievement, should I use the subtest scores of the composite scores of the Achievement Test? Most test development companies have designed their achievement tests to measure the learning disability areas defined within IDEA (i.e., reading comprehension, basic reading, reading fluency, written expression, math calculation, math problem solving, oral expression, listening comprehension). As such, it is recommended these subtests be used in the discrepancy analysis if their reliability is.80 or greater across all grade levels. If an unusually large difference exists between subtests, the composite score is invalid and should not be used in the discrepancy analysis. Page 9 of 16

10 5. Can other procedures be used to calculate the discrepancy between achievement and intellectual functioning, such as using computer scoring program like the WISC-IV Assist intellectual-achievement discrepancy analysis? Can confidence intervals be used? Neither of these procedures can be used in the state of Wyoming to calculate the severe discrepancy between intellectual and achievement scores. The only procedure is that found in Appendix A of the Chapter 7 Rules and Regulations, which uses the appropriately determined intellectual and achievement scores and Table A: Correlation Coefficient Between Ability and Achievement Test Scores. 6. Can you review existing data in absence of parent consent for reevaluation? Reviewing existing data is considered part of the reevaluation process under the IDEA. However, this review can constitute the whole reevaluation in cases where parents do not consent to a reevaluation, experts say. In Gwinnett County School District, 53 IDELR 341 (SEA GA 2010), a mother's refusal to consent to a triennial reevaluation prevented her from seeking redress for alleged deficiencies in her child's IEP. As a matter of fairness, the parent could not proceed, because the judge felt her lack of consent hindered the IEP team from gathering data that would have helped it develop the IEP, an ALJ reasoned. Even so, the IEP team reviewed test results, anecdotal reports, and data regarding the student's progress on his IEP goals and objectives. Based on this information, the team concluded it had enough information to make an eligibility determination, and it found the student remained a child with a disability. The ALJ determined the proposed goals and placement in the IEP were appropriate. When parents don't consent to a reevaluation, they essentially don't want their child to undergo further testing, Rhoads says. "But it would be hard to believe that the district would not see some need for a reevaluation," especially if it's been three years since the last one, he says. You can reevaluate students without parental consent by reviewing "everything at your disposal," Rhoads says. Terrie Ralston, special education coordinator for County (Ky.) Schools, agrees. "I think that schools can write relevant IEPs based on a variety of information that is already out there," she says. "know where to find that data." Remember, Rhoads says, always notify parents if you seek to amend the IEP in any way. "Even if parents are uncooperative during the whole reevaluation process, you still have to comply with the IDEA and provide them prior written notice of proposed changes," he says. 7. What data should be reviewed in a review of existing data? The review of existing data is considered part of the general reevaluation process under the IDEA. 34 CFR (a). This type of review may also constitute the whole reevaluation process when parents don't consent to a reevaluation, experts say. Here are nine places to mine for existing data: Review data from these 9 sources when reevaluating students - The current IEP: Review whether the child met his goals and objectives, says Terrie Ralston, special education coordinator for County (KY) Schools. If so, adjust them to the student's current ability. "You also want to review whether the child received accommodations, interventions or assistive technology," she says. Ask whether those things helped him achieve his goals and if they are still necessary to provide FAPE, she says. Page 10 of 16

11 - Common and formative assessments: These will "aid in indicating a child's present levels of performance, which will help the IEP team identify goals based on the child's strengths and weaknesses," Ralston says. "If you don't assess students, you don't know what they don't know," she says. "Assessments will indicate whether the student needs extra instruction or increased interventions." - Behavior observations: Observe the child in the classroom, at lunch, and as he transitions from class to class. Ask questions such as: How does the student interact with his peers? How does he/she interact with adults? Does the student work independently? "Teachers, service providers, and anybody else working with the student should record this information so the IEP team can refer to it when updating the IEP," Ralston says. - Disciplinary reports: Instruct teachers and service providers to keep track of any repeated behaviors that lead to disciplinary action, Ralston says. Has the student been placed in in-school or out-of-school suspension? Do teachers report behavior issues in the classroom? Does the student display negative behavior, such as fighting other students, when he transitions between classes? Also, obtain discipline records from the principal, Ralston says. This information will help you develop goals related to the child's behavior. It also will help determine the need for a functional behavioral assessment or BIP. - Teachers: In Gwinnett County School District, 53 IDELR 341 (SEA GA 2010), data collected by the student's teacher helped the IEP team determine an appropriate placement for the child. The teacher collected data on the student's progress on a variety of his IEP goals, such as tracing letters and naming lowercase letters. According to the teacher, the student's performance on his objectives was often inconsistent. She believed his regression was related to his frustration over the pace of the classroom, which overwhelmed him. These concerns prompted the IEP team to consider changing the student's placement from a classroom for children with mild disabilities to a classroom for students with moderate disabilities. Teachers should also maintain a list of the accommodations the student received throughout the year and whether they were effective, Ralston says. This will help the IEP team decide whether to continue the accommodations. - Guidance counselors: If a counselor meets frequently with the student, the counselor can be a "wealth of knowledge," Ralston says. "Because a counselor's meetings with a student are school-related, you have access to these records," she says. Ask for any information that is pertinent to developing the IEP. For example, students may tell a counselor they feels extremely anxious in math class. "This kind of information impacts the student's learning. It is helpful for the IEP team to have so it can formulate an appropriate response," Ralston says. - Doctors and outside agencies: While parents may not grant permission for a reevaluation, they may sign a release to allow you to talk to these sources, Ralston says. Doctors can provide a description of any medical or health problems that may impact instructional programming. "New or updated medical information may have become available since the last time you conducted an evaluation," says Rhoads, a school attorney with Keeney, Cooper, Mohan & Jackstadt P.C. in Missouri. Outside agencies, such as social services, can provide information about a child's past, such as whether the student was formerly in foster care, Ralston says. These agencies may also have other information on the child. "They may know things that aren't readily apparent to school staff, such as that the student doesn't like to be touched or is afraid of loud noises," Ralston says. - The student: Ask student what they think are their strengths and weaknesses, Ralston says. You can also ask the student why he behaves a certain way. For example, Ralston says, a student who consistently "acts like the class clown" may say he does so because he would rather be perceived as "funny" than "stupid." This may inform the IEP team the real reason the student acts up is because he doesn't understand the material, Ralston says. - The parent: Just because parents doesn't give consent to a reevaluation does not mean they are unwilling to share any information. It doesn't hurt to ask a parent how the child is doing at home, Ralston says. You can also ask parents for their input after you collect your data. For example, perhaps the information suggests the child Page 11 of 16

12 no longer requires special education services, Rhoads says. See what the parents think, he says. "If they want their child to continue receiving services, they will likely become more involved in the reevaluation process," he says. 8. What information should I have to terminate special education services: IEP teams need to gather and consider relevant data on a student before determining he is no longer eligible for special education services. "You need pure evidence that a student is ready to be instructed in the general ed classroom and can function there without major accommodations," says Jackson, director of student services for the (Wis.) School District. It also noted the district adhered to proper procedures in reviewing the reevaluation data and determining that the student was ineligible for IDEA services. The IEP team found the student ineligible based on the results of reevaluations, the student's performance in the general education classroom, and statements from the student's general education and resource room teachers. Make sure your decision to discontinue a child's special education services is also evidence-based. Here's how: Reevaluate students in accordance with the IDEA. A public agency must conduct a reevaluation in accordance with 34 CFR through 34 CFR if it determines a child's educational or related services needs, including academic achievement and functional performance, warrant a reevaluation. 34 CFR (a). The results of a reevaluation have to be considered at the IEP meeting to determine whether the child is no longer eligible for special education services, says Sneed, a school attorney with & Hartson in Washington, D.C. Review work from general education classroom. The student's general education teacher plays a critical role in determining whether special education services are no longer needed, experts say. "This person knows how the student is doing compared to his general education peers," Jackson says. Task the general education teacher with tracking the student's progress. She should bring the child's tests and work samples to IEP meetings, Sneed says. "The teacher should bring current work to the meeting as well as some of the student's earlier work, so the IEP team can review how he has progressed over time," Jackson says. Also, look at any accommodations the student receives in the general education classroom. "If the child is performing pretty well on tests and assignments, wean any accommodations over the next couple of months. If the child is keeping up without them, then that's almost a definite sign he no longer needs the [special ed] services," Jackson says. Interview the child and parents. Address any related concerns a student has before discontinuing services, Jackson says. He suggests having the child's special education teacher talk one-on-one with him. "Children are more likely to express how they truly feel when are talking individually with somebody as opposed to talking in front of the whole IEP team and their parents," he says. For example, a student may be hesitant to tell the IEP team he feels ready to forgo special ed services if his parents fight to keep them. It is equally important to interview the parents. Ask them why they do or do not think their child is ready to stop receiving special education services. "You want to listen to their concerns, but if the data indicates the student no longer needs the services, that should drive your decision," Jackson says. If parents are worried their child will not succeed without special education services, sit down with them and review the data that indicate services are no longer needed. Parents can also provide helpful feedback about how their child fares at home, Jackson says. Ask them if the child struggles with homework or is able to complete assignments with little help from his parents. Finishing assignments from the general education classroom with minimal help is another indicator that the child no longer needs special ed services, Jackson notes. 9. What is a comprehensive evaluation? In evaluating each child with a disability under 34 CFR through 34 CFR , the evaluation must be sufficiently comprehensive to identify all of the child's special education and related services needs, whether or not commonly linked to the disability category in which the child has been classified. 34 CFR (c)(6). Page 12 of 16

13 Evaluation is the initial step in the provision of special education to a student with a disability, and districts must follow several procedures to ensure the evaluation is legally compliant. Pursuant to 34 CFR (a), each public agency must conduct a full and individual initial evaluation, in accordance with 34 CFR and 34 CFR , before the initial provision of special education and related services to a child with a disability. Here are some things to consider: Purpose Of The Evaluation The evaluation is the key to detecting the existence of a student's disability or disabilities, and it sets the parameters for the course of special education and related services that will follow if the student is determined to be eligible. Who Must Conduct Evaluation 20 USC 1414(a)(1)(A) provides that an SEA, other state agency, or LEA shall conduct a full and individual evaluation of a child before the provision of special education and related services. The Education Department has interpreted that language as requiring public agencies, as that term is defined in 34 CFR , to evaluate children with disabilities. 34 CFR (a). An evaluation means procedures used in accordance with 34 CFR through 34 CFR to determine whether a child has a disability and the nature and extent of the special education and related services that the child needs. 34 CFR Distinctions Between Initial Evaluations And Reevaluations Conceptually, both the IDEA and Section 504 distinguish between initial, or preplacement, evaluations (34 CFR ; 34 CFR (a)) and reevaluations of students who already are receiving special education and related services under the IDEA (34 CFR ; 34 CFR (d)). The former refers to the first evaluation, while the latter refers to the follow-up or repeat evaluations that occur throughout the course of the student's educational career. Screening Is Not Considered An Evaluation The screening of a student by a teacher or specialist to determine appropriate instructional strategies for curriculum implementation shall not be considered to be an evaluation for eligibility for special education and related services. 34 CFR Measurement To Accurately Assess Special Education Needs, Not Impairments Assessments are selected and administered so as best to ensure that if an assessment is administered to a child with impaired sensory, manual, or speaking skills, the assessment results accurately reflect the child's aptitude or achievement level or whatever other factors the test purports to measure, rather than reflecting the child's impaired sensory, manual, or speaking skills (unless those skills are the factors that the test purports to measure). 34 CFR (c)(3). Input From The Other Sources And Student's Parents The evaluation must include all existing evaluation data, classroom observations, and information provided by the parent. 34 CFR Consideration Of The Student's Participation In The LRE The evaluation must include information related to enabling the child to be involved in and progress in the general curriculum (or for a preschool child, to participate in appropriate activities). 34 CFR (b)(1)(ii). Technically Sound Instrument Requirement In conducting assessments, districts must use technically sound instruments that can assess the relative contribution of cognitive and behavioral factors, in addition to physical or developmental factors. 34 CFR (b)(3). Validation Procedures The IDEA does not provide specific validation procedures that must be followed, nor does it identify who must perform the validation. Tests validated by their publishers, rather than the district, meet the test validation requirements of the IDEA. Board of Educ. of Duanesburg Cent. Sch. Dist., 20 IDELR 641 (SEA NY 1993). Page 13 of 16

14 Administration In Accordance With Producers' Instructions All assessments and evaluation materials must be administered in accordance with any instructions provided by the producer of the assessments. 34 CFR (c)(1)(v). Discretion To Select Tests And Evaluation Instruments As long as the requirements of either IDEA or Section 504 (whichever law applies) are satisfied, the selection of particular testing or evaluation instruments is left to the discretion of SEAs and LEAs. Letter to Warrington, 20 IDELR 539 (OSERS 1993); Letter to Anonymous, 20 IDELR 542 (OSEP 1993). Observation Of Child In Classroom Setting As with children suspected of having a specific learning disability, under 34 CFR (a)(1), the IEP team and other qualified professionals must review existing evaluation data on the child, including: (i) Evaluations and information provided by the parents of the child; (ii) Current classroom-based, local, or state assessments, and classroom-based observations; and (iii) Observations by teachers and related services providers. 10. Can I still use IQ tests? IDEA 2004 still allows IQ testing to assess discrepancies in a child's intellectual development. The term "Intellectual development,'' in 34 CFR (a)(2)(ii), means that a child exhibits a pattern on (of instead of 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 IDEA 2004 allowing the continued use of discrepancy models. See Letter to Anonymous, 108 LRP (OSEP 2008) (Under the IDEA, states can allow districts to use a severe discrepancy model when evaluating students for specific learning disabilities. However, OSEP cautioned that the use of a severe discrepancy model should be just one part of a multi-factored evaluation.) 11. What is the purpose of the special evaluation procedures for specific learning disabilities? The IDEA establishes many additional procedures for evaluating students with specific learning disabilities. See generally 34 CFR through 34 CFR Because an SLD presents as significant academic underachievement, SLDs are difficult to diagnose when students are young. However, when the academic performance of an older student is poor, or becomes worse than it was, any number of factors other than having an SLD may account for the low level of achievement. These diagnostic challenges, along with the No Child Left Behind Act's scientifically based research requirements, motivated the Education Department to regulate the evaluation process with more particularity than it did under the generally applicable regulations concerning procedures for evaluating and determining eligibility. 12. Can the state department require use of severe discrepancy model in evaluating students for SLD? Pursuant to 34 CFR (a), a state must adopt, consistent with 34 CFR , criteria for determining whether a child has a SLD as defined in 34 CFR (c)(10). In addition, the criteria adopted by the state: (1) Must not require the use of a severe discrepancy between intellectual ability and achievement for determining whether a child has a specific learning disability, as defined in 34 CFR (c)(10); (2) Must permit the use of a process based on the child's response to scientific, research-based intervention; and (3) May permit the use of other alternative research-based procedures for determining whether a child has an SLD, as defined in 34 CFR (c)(10). In Letter to Zirkel, 107 LRP (OSEP 2007), OSEP indicated that a state's hypothetical use of the term "and/or" when listing evaluation techniques would permit districts to use any and all methods identified, including the severe discrepancy model. Recognizing that states cannot require districts to base SLD determinations on a severe discrepancy between a student's intellectual ability and achievement, OSEP observed that states can give districts the option to rely solely on the severe discrepancy model. OSEP noted that the example presented by a professor of special education law, in which a state authorized districts "to use RTI, severe discrepancy, and/or a third research- Page 14 of 16

15 based alternative," would expand districts' assessment options. OSEP explained, however, that districts cannot deviate from the state criteria in evaluating students for SLDs. Although the student's parents maintained that the severe discrepancy between the student's abilities and achievement made her eligible for special education under the category of SLD, the court pointed out that the student consistently received average or above-average grades. The student's progress, the judge noted, showed that the discrepancy could be corrected in the general classroom. The 9th Circuit determined that the student did not need special education services to obtain a meaningful educational benefit. Hood v. Encinitas Union Sch. Dist., 47 IDELR 213 (9th Cir. 2007) 13. Can a student who lacks motivation be identified with SLD eligibility? A bright student whose poor grades reflect lack of motivation or effort may or may not be IDEA-eligible based on an SLD. See Kelby v. Morgan Hill Unified Sch. Dist., 18 IDELR 831 (9th Cir. 1992) (when poor grades are the result of a student's poor work habits and disruptive behavior, the student is not eligible for IDEA services on the basis of an SLD, even if the student actually has a psychological processing disorder). For a different view, see Manchester Sch. Dist., 18 IDELR 425 (SEA N.H. 1990) (ruling that a district could not exclude students from eligibility on the basis of lack of motivation; only if the district could devise objective criteria for determining when "lack of motivation" is a manifestation of emotional disturbance could it exclude a student from eligibility as SLD on that basis). 14. What is the relationship between ADHD and SLD eligibility? While behavioral problems related to ADHD are sometimes the more prominent deficits, a student diagnosed as having this disorder may also be found eligible for services and programming based on a specific learning disability. See Letter to Williams, 21 IDELR 73 (OSEP 1994) (recognizing that a child with ADD or ADHD may be served under one of several disability categories such as SLD, serious emotional disturbance (SED) or other health impaired, if the child meets the eligibility criteria for the specific disability category.) A student diagnosed as having ADD may be eligible under the IDEA based on an SLD, provided the impact of the ADD on the student's academic performance meets the criteria set out in the IDEA. Letter to Latham, 21 IDELR 1179 (OSEP 1994): Nowhere in the IDEA definition of specific learning disability are the words "attention deficit disorder." 34 CFR (c)(10)(i). See also, Norton v. Orinda Union Sch. Dist., 29 IDELR 1068 (9th Cir. 1999) (a student with ADD will be eligible on the basis of an SLD if he has a processing disorder and a severe discrepancy between ability and achievement and needs special education as a result). 15. What materials should I use to measure the existence of severe discrepancy between ability and achievement? The IDEA does not compel the use of specific measures of intellectual ability or achievement to measure discrepancy between ability and achievement. See Letter to Copenhaver, 25 IDELR 640 (OSEP 1996) (rejecting notion that standardized tests must be used to determine the existence of a severe discrepancy; tests must be validated for the specific purpose for which they are being used.) See, also, e.g., Independent Sch. Dist. 204 Kasson- Mantorville, MN, 22 IDELR 380 (SEA MN 1994) (then-current state law providing that demonstration of a severe discrepancy could not be based solely on the use of standardized tests was consistent with federal law). 16. Could a student be SLD eligibile under section 504? Any student who has a psychological processing disorder affecting his ability to learn is eligible for modifications, services and protections under Section 504. A student is covered under Section 504 if he has a "physical or mental impairment" that "substantially limits one or more major life activities." 34 CFR (j). OCR has opined that districts must make decisions about whether a particular impairment substantially limits a major life activity on an individual basis, but generally the term connotes an important and material limitation. See, e.g., Pinellas County, 20 IDELR 561 (OCR 1993). See also Smart Start: Page 15 of 16

16 Evaluations -- Preplacement Procedures Under Section 504 and SmartStart: Eligibility Under Section 504 and/or IDEA. Page 16 of 16