The Legal Meaning of Specific Learning Disability for Special Education Eligibility

Transcription

1 CAE LAW UPDATE The Legal Meaning of pecific Learning Diability for pecial Education Eligibility Perry A. Zirkel tudent with pecific learning diability (LD) continue to account for a higher proportion of all pecial education enrollment than any other claification under the Individual with Diabilitie Education Act (IDEA). According to the latet reported data. in fall 2007 tudent with LD amounted to 43.3% of al! tudent witli diabilitie age 6 to 21 under IDEA, down from the 50% average for the previou decade [Rehabilitation Reearch and Training Center. 2009). Probably the mot frequent topic in the pecial education literature ince Ihe 2004 amendment to IDEA ha been the movement toward a reponeto-intervention (RTI) approach for identifying tudent witli LD. The amendment exprely required each tate to elect RTI either a mandated or permitted for thi purpoe, and at the ame time to deignate the traditional approach of evere dicrepancy a permitted or prohibited; and to determine whether an alternate, reearch-baed approach would be allowed. According to the mot recent urvey of tate law, 12 tate have adopted RTI a the required approach, wherea the vat majority of tate permit both RTI and evere dicrepancy with approximately 20 tate additionally allowing the third reearchbaed option thereby effectively leaving the choice to local ditrict (Zirkel & Thoma, 2010). A Council for Exceptional Children (CEC) monograph (Zirkel, 2006) comprehenively canvaed the litigation both publihed hearing/review officer and court deciion concerning LD identification under IDEA. The major finding included (a) the total amounted to approximately 90 pertinent cae from 1980 to with about four fifth at the hearing/review officer level; (b) the frequency of the deciion roe gradually during thi period, with the majority ariing in California (n = 20), Pennylvania {n =15), and New York {n = U); and (c) chool ditrict, typically defending the poition that the child wa not eligible a LD, won approximately 80% of the cae, with the mot frequent deciional factor being evere dicrepancy (n = 68) or the need for pecial education (n = 31). The purpoe of thi article i to provide an update of the frequency, outcome, and bai of the publihed hearing/review officer deciion concerning LD eligibility ince the 2006 monograph. The pecific quetion include: 1. Have the upward lope and California predominance in frequency continued? 2. Ha the trend of ditrict-friendly outcome changed? 3. Ha RTI become a major deciional factor in thee cae? Meflhed A in the CEC monograph (Zirkel, 2006), the primary databae wa the Individuái with Diabilitie Law Reporter (IDELR). which i the mot comprehenive publication of hearing/review officer and court deciion under IDEA. For court deciion, the Wetlaw databae erved for double- 62 COUNCIL FÜR EXCEPTIONAL CHILDREN

2 checking that the identification of the reiev<int cae wa complete and acertaining the citation of any officially publihed cae. The cae were limited to hearing/review officer and court cae in thee two databae that pecifically decided whether a tudent, upon initial evaluation or upon réévaluation, qualified for pecial education ervice under the IDEA claification of LD. Ruling a to other legal claim within the ame cae were not part of the tabulation. Example of bordering cae that did not meet the election criterion included thoe baed on parental conent for an LD evaluation {Chico Uuißeä chool Ditrict, 2009J; failure to evaluate LD for otherwie claified tudent where the iue wa free appropriate public education [FAPE) [Department of Education v. L.K., 2006); language proceing and writing problem in term of the IDEA claification of peech and language impairment {Board of Education of Oining Union Free chool Ditrict, 2006); and a peripheral determination of LD ineligibility {Brendan K. v. Eaton Area chool Ditrict, 2007; trcjck u. Itidependetit chool Ditrict. 281, 2008; Williamon County Bd. ofeduc. V. C.K., 2009). The only marginal cae that wa included {Pencader Charter chool, 2008) i a tate complaint reolution deciion, which IDELR reported and which i at leat partially akin to a hearing officer deciion. Finally, if a cae proceeded to more than one level of publihed adjudication under the IDEA, uch a a hearing officer and then court appeal, the tabulation wa limited to the highet and mot recent deciion. Reult Table 1 preent the pertinent deciion in chronological order, and include both hearing or review officer deciion (denoted by the acronym EA) and court deciion (in bold type). The deciional factor track the baic component of the IDEA definition of LD: Diorder in one or more pychological procee. Diorder-related excluion (e.g.. learning problem primarily the reult of other IDEA claification). Dicrepancy A: achievement not commenurate with age or ability (i.e,. general) after appropriate intruction in general education. Dicrepancy B: evere dicrepancy between achievement and intellectual ability in one or more of eight pecified area. Dicrepancy-related excluion A: ame a thoe above under diorder but in the context of the primary reaon for the dicrepancy. Dicrepancy-related excluion B; convere of prerequiite in Dicrepancy A, (i.e., lack of proper intruction a the primary reaon for the dicrepancy). The cae entrie alo include where the hearing/reviewer officer or court relied on it to a primary or econdary extent the econd prong of eligibility, which i common to all of the IDEA TEACHING ExcEPTioNAi. CHILDREN I MAY/JUNE 2O]O 63

3 Itable 1. Updated Overview ol IDEiA-Publlhad Hearing/Review Officer and Court Deciion Concerning LD Eligiblüty Outcome Relevance of IDEA Component _^ Diorder- Need for Abbeviated Cae Name Related Dicrepancy Dicrepancy pecial (Forum and Date) Party Eligible Diorder Excluion A B Education Centennial ch. Dit. (Pa. EA 2006) Elk Grove (Cal. EA 2006) Jaffe (E.D. Pa. 2006) High Tech (Cal. EA 2007) Hood (9th Cir. 2007) Jefferon County (Ala. EA 2007). V. Wiahickon (E.D. Pa. 2008) M.P. (CD. Cal. 200) Victor (Cal. EA 2008) Pencader Charter ch. (Del. EA 2008) W.H. (E.D. Cal. 2009) Hcuidon Height (N.J. EA 2009) E.M. (N.D. Cal. 2009) Chae (D. Colo. 2009). Orange (N.J. EA 2009) Autin (Tex. EA 2009) Nguyen (D.D.C. 2010) Anchorage (Alaka EA 2010) P Ye *» A** te. IDELR = Individuái with Diabilitie Law Reporter; LD = pecific learning diability; EA = tate education agency here, h earing/review officer deciion; IDEA = individual With Diabilitie Education Act; = deciion in favor of chool ditrict; P = deciion in favor of parent. econdary factor in ruling againt eligibility. Primary factor in ruling againt eiigibility. Primary factor in ruling for eligibility. A econdary factor in favor of eligibiiity. ^The hearing officer accepted the diagnoi from the parent' private evaluator of a viual proceing diorder a fulfilling thi deciionai factor. ^ In W.H.. in the context of child find the court alternatively concluded that the tudent wa eligible a other health impairment [OHI), including it effect in term of written expreion. In other cae, e.g.. Hood, the court rejected alternative eligibility under OHI. ^'The ditrict acknowledged that the child met the claification criteria, which include dicrepancy, but the child' highly gifted tatu and hi performance on the tate NCLB tet contributed to the concluion that he did not need pecial education. 64 COUNCIL FOR EXCEPTIONAL CHILDREN T T T T TT A TT TV T

4 claification: "by reaon thereof, need pecial education and related ervice" (IDEA regulation, 300.7(a)(l)). From late 2006 until early 2010, there were 18 deciion concerning LD eligibility; court deciion accounted for 41%, a doubling of the proportion preent in the previou 90 cae (Zirkel. 2006). The overall total when combined with the previouly reported deciion within the period 2005 to 2009 i a moderate decline ince the peak in 2000 to 2004, but till a higher level compared to the 5- year period prior to Moreover, continuing the previou trend, California accounted for more of the deciion than any other tate (n = 7), with Pennylvania remaining in econd place (n = 3). A for the outcome of the mot recent deciion, the parent prevailed in etablihing the child' eligibility in only one of the 18 cae. In thi cae [M.P. V. anta Monica-Malibu Unified chool Ditrict, 2008J, the court partially revered the bearing officer, who bad concluded that the tudent' diagnoi of attention deficit hyperactivity diorder (ADHD) met the LD diorder criterion and the alternative claification of other health impairment (OHI) but tbat be wa not eligible becaue be (a) did not meet the evere dicrepancy criterion, and (b) did not evidence the need for pecial education. Tbe court diagreed witb the hearing officer' concluion with regard to evere dicrepancy for two reaon: (a) the court found the tetimony from the parent' expert witne, a private pychologit pecializing in ADHD, to be cogent, wberea the bearing officer had dicredited it; and (b) tbe court imilarly gave the oppoite weight to the role of motivation: Tbe Court agree tbat tbe evidence how that [the cbild i capable of completing independent chool work when motivated, but the evidence alo how that becaue of bi ADHD be i not capable, witbout help, of being motivated. Thi i tbe very definition of a dicrepancy beiween ability and achievement, [p. 1102) Baed on the ame reaon, the court revered the hearing officer' concluion a to vtrhether the tudent needed pecial education, pointing to the private expert' tetimony, the purported ADHD-motivation linkage, and the teacher' unucceful attempt at claroom accommodation. The child' alternative and equally ucceful claim baed on OHI eligibility, epecially given the court' reliance on ADHD, arguably weaken the weight of the LD ruling. In contrat, the other cae tended to follow the pronounced previou trend of deferring to the ditrict' teacher and other expert and being relatively trict about the evere dicrepancy criterion. In. v. Wiahickon chool Ditrict [2008). the court agreed with the hearing officer, not the parent' expert, that the child, who bad a diagnoi of ADHD, evidenced a lack of motivation (pecifically for homework completion), not a need for pecial education. imilarly, in the mot recent court deciion (Nguyen v. Ditrict of Columbia. 2010), the judge found the teacher' tetimony to outweigh the parent' private expert, concluding a follow: While there i ome evidence tbat H.N. uffer from a learning diabihty, I cannot ay that [the parent] ha met her burden. Tbe evidence i weak that H.N. ha "a evere dicrepancy between achievement and intellectual ability," and failure in achievement are likely at leat partially driven by poor attendance. (p. "7) Finally, an examination of thee deciion revealed that RTI wa conthe ditrict wa no longer required but wa till permitted to ue evere dicrepancy, thereby peripherally referencing RTI and only by implication. In outh Orange-Maplewood Board of Education (2009), the bearing officer mentioned that New Jerey had changed it law to permit an RTI identification approach but neverthele upbeld the ditrict' determination thai the tudent wa not eligible for LD baed on it permitted primary reliance on tbe evere dicrepancy approach. If the hearing officer gave RTI any role, it would be mitakenly her eeming connection of the ditrict' ue of a coniputer program for determining evere dicrepancy with the "cientifically baed" apect of RTI. In High Tech Middle Media Art chool (2007), tbe hearing officer concluded tbat the tudent wa not eligible a LD under either of the method permitted by California law RTI or evere dicrepancy. However, after defining RTI a a "method tbat look at an underachieving child' repone to cientific, reearch-baed intervention conducted in tbe claroom." the hearing officer appeared to miapply tbe definition by concluding tbat "tbere i no underachievement by the tudent... and no evidence of any reearch-baed intervention [emphai added] attempted with tudent" (p. *498). Dicuion The moderate overall decline in publibed bearing/review officer and court deciion pecific to LD eligibility i likely attributable to the recent declining plateau cf IDEA deciion more generally (e.g., Zirkel & Gichlar, 2008; RTI wa conpicuou in it abence, [ariing] in 2 or 3 of the 18 deciion, and in thee few cae each in favor of noneligibility it role wa negligible or even mitaken. picuou in it abence. RTI only aroe in 2 or 3 of tbe 18 deciion, and in tbee few cae eacb in favor of noneligibility it role wa negligible or even mitaken. In W.H. v. Cloui Unified chool Ditrict (2009), the court merely acknowledged that under IDEA, Zirkel & cala, in pre). Additional likely contributing factor are the aforementioned decline in the proportion of pecial education tudent claified a LD (Rehabilitation Reearch and Training Center. 2009) and the dampening effect of the pro-ditrict (rend in TEACHING EXCEPTIONAL CHILDREN MAY/JUNE

5 cae law outcome for LD eligibility fzirkel, 2006). California' continued predominance in the frequency of LD cae i not primarily attributable to the tate' litigiou reputation; variou other juridiction tarting with the Ditrict of Columbia and New Yorkfar exceed California in pecial education adjudication. When limited to the 50 tate (thu leaving the Ditrict of Columbia' unuually high total out of the comparion), California ranked fourth after New York. New Jerey, and Pennylvania in the number of adjudicated due proce hearing under the IDEA for the period 1991 to 2005; when the figure were adjuted in relation to the pecial education enrollment, it dropped to 20th place (Zirkel & Gichlar. 2008). Intead, other contributing factor appear more likely to account for it differential poition in LD identification cae. Firt. California' regulation (CAL. CODE REG ) expand on the IDEA definition of LD in variou way, including exprely allowing for alternative mean of determining evere dicrepancy "when tandardized tet are conidered to be Invalid for a pecific pupil" ( 3030(j)(4)(B)) and providing beyond the tandardized tet and alternative mean a third alternative of eligibility "provided that the team document in a written report that the evere dicrepancy between ability and achievement exit a a reult of a diorder in one or more of the baic pychological procee" ( 3030(j)(4)(C)). econd, California' legilation (CAL. EDUC. CODE. 2008) include a dicrepancy-related excluion thai i a variation from the IDEA language and that ha continued to contribute to litigation (e.g.. Hood u. Enrínita Union chool Ditrict, 2007). pecifically that "the dicrepancy cannot he corrected through other regular or categorical ervice offered within the regular intructional program" ( 56337(c)). Third, overlapping with the California regulation regarding alternative mean, the tate ha been the cene of continuing litigation concerning the ue of tandardized IQ tet with minority children, with the original focu being identification of tudent with mental retardation (e.g.. Larry P. v. Rile, 1986) and with the latet iteration rejecting extenion of the ban to LD identification [Crawford V. Honig. 1994). In any event, of more ignificance i that the outcome trend continue to be trongly in favor of ditrict' noneligibility determination and that RTI ha not yet urfaced a a deciional factor. The predominance of ditrictfriendly deciion i conitent with the previou pattern of LD cae (Zirkel. 2006). which i not unexpected due to the role of precedent in judicial deciion making and the overall ditrictdeferential trend in the outcome of pecial education litigation [e.g.. Golden, 2007). The negligible role of RTi upport thi trend, becaue the precedent pecific to evere dicrepancy have been o pronounced, hut it i in tark contrat to the imilarly pronounced trend in the profeional literature in favor of replacing evere dicrepancy with RTL Although profeional norm do not equate to legal requirement, the 2004 amendment to IDEA, the 2006 IDEA regulation, and ubequent tate law may have uggeted litigation urfacing, at leat at the hearing officer level by now. everal reaon might explain the relative abence of RTI in the LD deciion to date. Firt, the 12 tate that have partially or fully mandated RTI thu far are generally not among the mot litigiou juridiction. econd, the proce of not only iuing but alo implementing new law i far from intantaneou. The earliet deadline were relatively recent: Connecticut' acro-the-board deadline and New Mexico' deadline for Grade K to 3 wa July ; Delaware' deadline for reading and math wa eptember , for the elementary grade and eptember , for econdary chool. Third, litigation i alo low; even the firt level, due proce hearing, often do not meet the 45-day time period pecified in the IDEA regulation, epecially but not entirely becaue the regulation allow for extenion at the requet of either party ( 3OO.515(c)) and the new proviion for the reolution proce ( ) effectively extend the deadline for approximately 30 more day ( (a)). Finally, a uhtaqtial egment of initial due proce filing end in withdrawal, ettlement, or deciion that are not publihed in IDELR. Partially mitigating thi final factor, a earch of the more extenive databae that the publiher offer, at and a a premium, to electronic ubcriber revealed a imilarly negligible role of RTL The outcome trend continue to be trongly in favor of ditrict' noneiigibility determination. in the only cae where RTI had even a econdary deciional role the hearing officer deciion in High. Tech Middle Media Art chool (2007) there wa no mention, much le evaluation, of the pecific feature or criteria of thi general approach, uch a univeral creening, multiple tier, and continuou progre monitoring. On the other hand, perhap the hearing officer' reference to "no evidence of any reearch-baed intervention" (p. "498) meant that becaue the child wa not underachieving he wa reponding to proper regular education by "achiev[ingj adequately for the child' age or to meet tate-approved grade-level tandard in one or more of the [eight enumerated] area" (IDEA regulation, (a)(l)) there wa no need to implement RTL Alternatively, her RTl-related concluion could be jutified by characterizing it a dicta, urplu language beyond the holding, or pecific ruling, of the written opinion. Her reaoning wa merely a hypothetical haed on the rejected parent claim that IDEA and California law required RTI and prohibited evere dicrepancy for determining LD. In any event, thi limited appearance and role of RTI reinforce it relative abence in the mot recent cae law. In um. the previou trend in LD hearing/review officer and court deciion pecific to LD eligibility (Zirkel, 2006) have continued in the mot 66 COUNCIL FOR EXCEPTIONAL CHILDREN

6 recent 4 year. Whether RTI change the frequency and outcome of uch deciion remain an open quetion, imilar to the larger iue of whether RTI reult a it proponent ugget in a decreae in the proportion of tudent claified a LD and in more accurate including le culturally and linguitically biaed LD identification. Of coure, uch touted effect are conditioned on implementing RTI correctly, which will be at leat partially teted in the coming, but not yet preent, wave of LD litigation baed on RTI. Reference Anchorage ch. Dit., 54 IDELR í 67 (Alaka EA 2010). Autin Indep. ch. Dit., 53 IDELR ^ 310 (Tex. EA 2009). Bd. of Educ. of Oining Union Free ch. Dit., 46 idelr t 180 (N.Y. EA 2006). Brendan K. v. Eaton Area ch. Dit.. 47 IDELR [E.D. Pa. 2007). CAI.. CoLiE REG. lit t-f eq. (2008). CAL. EDUC. CODE (2008). Centennial ch. Dit., 46 IDELR ^ 55 (Pa. EA 2006). Chae v. Mea County ch. Dit.. 51, 53 IDELR 1 72 (D. Colo. 2009). Chico Unified ch. Dit., 52 IDELR 1 90 (Cal. EA 2009). Crawford v. Honig, Í7 F.3d 485 [9th Cir. 1994). Dep't of Educ. v. L.K., 46 IDELR 1 36 (D. Hawaii 2006). E.M. V. Pajaro Valley Unified ch. Dii., 53 IDELR ^41 (N.D. Cal. 2009). Elk Grove Unified ch. Dit., 46 IDELR i 56 (Cal. EA 2006). Golden. D. [2007, July 24). chool beat back demand for pecial-ed ervice. Wall treet Journal, p. Al. Haddon Height ch. Dit., 52 IDELR (N.J. EA 2009). High Tech Middle Media Art ch., 47 IDELR [Cal. EA 2007). Hood V. Eucinita Union ch. Dit F.3d 1099 (9lhCir. 2007). Individual With Diabilitie Education Act regulation, 34 C.F.R. Part 300 (2008). Jaffe V. Council Rock ch. Dil., 46 IDELR 1246 [E.D. Pa. 2006). Jefferon County Bd. of Educ. 49 IDELR 1 57 [Ala. EA 2007). Urry P. v. Rile. 793 F.2d 969 (9th Cir. 1986), M.P. V. anta Monica-Malibu Unified ch. Dil F upp. 2d 1089 (CD. Cal. 2008). Nguyen v. Dit. of Columbia, 2010 WL (D.D.C. 2010J. Pencader Charter ch., 50 IDELR f 299 (Del. EA 2008). Rehabilitation Reearch and Training Center on Diability tatitic and Demographic. [2009). Anmiat compendium of diability tatitic. Nevii York, NY: Hunter College. Available at net/tat/rrlc/compendium/ect3-2.htm. V. Wiahickon ch. Dit., 50 IDELR [E.D. Pa. 2008), affd on other ground ub nom. Richard. u. Wiahickon ch- Dil F. App'x 508 [2d Cir. 2009).. Orange-Maplewood Bd. of Educ, 53 IDELR [N.J. EA 2009). trock V. Indep. ch. Dit.. 281, 49 IDELR (D. Minn. 2008). Victor Elementary ch. Dit., 50 IDELR ^ 204 (Cal. EA 2008). W.H. ex ret. B.H. v. Clovi Unified ch. Dit., 52 IDELR [E.D. Cal. 2009), tay denied. 53 IDELR 1 21 (E.D. Cal. 2009). Witiiamon County Bd. of Educ v. C.K.. 52 IDELR 1 40 [M.D. Tenn. 2009). pcnlic'l Diabili(\ l.ilni;il](iii Zirkel, P. A. [2006). The legal meaning of pecific learning diability for pecial education eligibility. Arlington, VA: Council for Exceptional Children. Zirkel, P. A., & Cichlar, K. [2008). Due proce hearing under the IDEA: A longitudinal frequency analyi. Journal of pecial Education Leaderhip. 21, Zirke!. P. A.. & cala. G. (in pre). Due proce hearing ytem under (he IDEA: A tate-by-tate urvey. Journal of Diability Pb/icy tudie. Zirkel, P. A., & Thoma. L. [2010). tate law for RTI: An updated naphot. TEACHING Exceptional Children, 42(3), Perry A. Zirkel, Univerity Profeor of Education and Law, Lehigh Univerity. Bethlehem. Pennylvania. TEACHING Exceptional Children, Vol , pp Copyright 2010 CEC. j tor Exceptional Children The Legal Meaning of pecific Learning Diability for pecial Education Eligibility Perry A. Zirkel tudent wiih pecific learning diability (LD) account for half of all the tudent deemed eligible under the Individual with Diabilitie Education Act [IDEA). The 2004 Amendment to the Act and it currently propoed regulation include ignificant change with regard to the evere dicrepancy and repone to intervention [RTI) criteria for pecific learning diability [LD) eligibility. In the current atmophere of profeional ferment and legal advocacy, thi monograph provide what i not available in the literature to date a thorough and objective ynthei of the variou applicable ource of law, including the variou pertinent U.. Department of Education policy interpretation and the more than 80 publihed hearing/review officer and court deciion under the IDEA page IBN X ffp5775 $22.95 / CEC Member $16.95 To order call or viit u online at TEACHING EXCEPTIONAL CHILDREN MAY/JUNE

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