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Specific Learning Disability from USDOE
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<blockquote data-quote="Sheila" data-source="post: 149815" data-attributes="member: 23"><p>Part 2</p><p></p><p></p><p> One of the significant problems we've been consulted about has to do with STUDENTS WITH LEARNING DISABILITIES WHO ARE BEING DENIED SPECIAL EDUCATION SERVICES BECAUSE THEY ARE RECEIVING As, Bs AND Cs ON THEIR REPORT CARDS AND ARE PASSING FROM GRADE TO GRADE AT THE SAME RATE AS THEIR PEERS. </p><p>Some parents are even being told that a standard score of 85 or higher on an academic portion of the Woodcock Johnson indicates that the child is achieving at grade level in that subject and therefore, does not need special education services. We are also receiving calls from teachers saying that some Multidisciplinary Teams are being told that they now must consider as a part of eligibility criteria, whether the students' disability adversely impacts their ability to benefit from regular education (as stated in the Davilla letter). The term "adversely impacts" is given a very restrictive definition by the school systems. </p><p> School systems seem to be basing their eligibility policies for students with learning disabilities on the following factors: </p><p>1. The standard established by the Supreme Court in Board of Education v. Rowley that a handicapped child is not entitled to a special education (IEP) that is designed to permit him to reach his maximum or optimum potential and "that the LEA is not required to provide the best education, only an 'appropriate one,' even though the North Carolina State statute says; "The policy of the State is to insure every child a free and full opportunity to reach his full potential." </p><p>2. A 1989 letter of finding written by Robert R. Davila, former Assistant Secretary of Education commenting on Section 300.541(a) of the Federal regulations in which Mr. Davila stated "In the second situation the students would not satisfy the Federal requirement that there be a failure to achieve commensurate with [their] age. . ., although there was a failure to achieve commensurate with their ability levels." Mr. Davila's choice of words gives the impression that a Federal requirement of failure is written into the Individuals with Disabilities Education Act (IDEA). Unfortunately, Mr. Davila's rendering of the law is causing loss of services for many students with learning disabilities who are in need of special education services in order to receive benefit from education.</p><p>Another statement in Mr. Davilla's letter that raises an issue for IEP Teams when they are making eligibility decisions for students with learning disabilities is "IN THE CASE WHERE A STUDENT'S DISABILITY DOES NOT INTERFERE WITH THE STUDENT'S ABILITY TO BENEFIT FROM PARTICIPATION IN THE REGULAR EDUCATION PROGRAM WITHOUT SUPPLEMENTARY AIDS AND SERVICES, AND THE STUDENT IS PROGRESSING FROM GRADE TO GRADE AT THE SAME RATE AS HIS OR HER AGE PEERS, THEN THAT STUDENT IS NOT ENTITLED UNDER THE ACT TO SPECIAL EDUCATION" </p><p>Many students identified as having learning disabilities are not failing to achieve commensurate with their age level and are passing from grade to grade at the same rate their peer. Yet these same students are still in need of special education and related services in order to benefit from education. This is true for students with above average intelligence as well as students with average intelligence. The reason these students are achieving and passing is because parents are spending countless hours helping their children with homework, reviewing material and studying for tests. Parents also spend a great deal of money year after year on tutors thereby providing services themselves. Another factor in the academic success of these students is that many of their teachers do an outstanding job of individualizing instruction and modifying curriculum and tests. These children are not failing because they are not being allowed to fail. Parents and teachers are giving this type of support because they understand the devastation that comes with failure. </p><p> Thus, we contend that these two factors need to be addressed when eligibility decisions are made: </p><p> 1. How much help is the student receiving outside of the school day? </p><p>2. Does the student need remedial help in the areas of reading, writing and arithmetic? </p><p>Modifications/compensatory by-pass strategies are vitally important to the academic success of most students with learning disabilities, however, in some cases modifications can also mask severe academic weaknesses which might possibly respond to individualized instruction. For example: </p><p>A 6th grade student receives As and Bs on her report card. She has a learning disability in written language, dictates most written work to a parent, takes all tests orally and reads all class work to the teacher because the teacher can't understand what the student has written. Direct services in the area of written language is not considered because the student receives As and Bs on her report card and in fact she loses her eligibility for special education services, even though she has over the 15 point discrepancy, because she is achieving commensurate with the age and ability levels of her peers. </p><p>An 8th grade student receives As, Bs and some Cs on his report card. He has an identified learning disability in reading yet he has never received a comprehensive diagnostic evaluation in reading and has not received direct reading instruction since 5th grade. He struggles to read his text books in school and his parents help him to read school books in the evening including all math instructions and math word problems. Upon reevaluation this student also loses eligibility for services because he did not have the 15 point discrepancy required by North Carolina. He was, however, only tested in the areas of broad reading and broad math. His mother is told that because he is achieving above grade level, the school system will not do the alternative method of documenting a discrepancy. The possibility that he might benefit from direct reading instruction is not taken into consideration.</p><p> Two court decisions; <em>Ohio (Toledo Public School District 1989) and Pennsylvania (Conrad Weiser Area School District v. Thomas and Wendy L., February 10, 1992), </em>supported parents whose children were achieving academically to the point that the school systems thought the students should not receive special education services. One student was academically gifted/learning disabled and was achieving at or above grade level; the other had a low IQ and was achieving at or above potential. Both courts gave a great deal of credit for the students' achievement levels, to daily help from parents, teachers and private tutors. </p><p> According to these courts achieving at or above grade/age level or achievement level, does not disqualify a student from eligibility for special education services. </p><p>(3) Clarification of the responsibilities granted to the Administrative Placement Committee (APC) according to Federal Law and definition of what is meant by the word 'PLACEMENT' in regard to their job description. </p><p>Does the term 'placement decisions' mean eligibility decisions (whether or not the student is going to be placed in a special education program); or in which part of the continuum of placements the student will receive special education; or allocation of resources? </p><p>Is the APC Committee given the authority to override eligibility decisions made by the Multidisciplinary Committee at the local school level? </p><p>In North Carolina the School Based Committee and/or the Multidisciplinary Committee collects all student information including evaluations and then makes the decision as to whether or not the student indeed has a learning disability and is eligible for, and in need of special education and related services. </p><p>This Committee, including a Local Education Agency Representative, signs all state and federal paperwork and then together with the parent writes and signs the IEP. The signed Special Education Forms and the IEP then goes to the Administrative Placement Committee (APC) located in each Local Educational Agency's Central Administration Office. According to NC. Special Education Policies and Procedures Manual, the APC Committee is empowered to make final decisions on eligibility. </p><p>In some cases their parents have been informed that their children are not eligible after the IEP Team met with the parents, the parents were told that the child received the necessary 15 point discrepancy, every person on the IEP Team including the LEA Representative signed all of the necessary paper work which stated that the child had a learning disability that was not correctable without special education services and every person on the IEP Team, including the parents agreed upon the contents of the IEP and signed it. The special education forms and IEP were then sent to the Administrative Placement Committee (APC) where special education services for that student were denied because the APC Team overrode the eligibility decision made by the IEP Team. </p><p> Unfortunately, these are not isolated incidences. </p><p>(4) (a) A policy statement as to the compliance of the NC guidelines with the evaluation procedures mandated by the last part of Section 300.541. (b) A list of tests that may be used to test achievement in the areas of reading comprehension, basic reading, mathematics calculation or mathematics reasoning. </p><p>The North Carolina Special Education Policies and Procedures Manual only instructs the LEA to test the student in Reading and Arithmetic and does not follow the federal mandate 300.541 which specifically requires separate testing in the areas of basic reading and reading comprehension and in mathematics calculation and mathematics comprehension. Currently, N. C. Special Education Guidelines only require students with suspected learning disabilities to be evaluated in five areas, instead of the seven areas designated by Section 300.541. Many diagnosticians and psychologists are unaware of this facet (mandate) of federal law because it is currently not mentioned in NC. Guidelines; therefore students are only evaluated in broad reading and broad mathematics. Advocates who have requested that federal law be followed, have been told by NCDPI, that the Woodcock Johnson (the most commonly used educational test) cluster scores of basic reading and reading comprehension, which are composites of the broad reading; as well as the cluster scores of mathematics calculation and mathematics reasoning may not be used because the cluster scores are not considered statistically reliable. We are looking forward to receiving your policy decisions relating to our concerns. Your interest in these issues is very much appreciated.</p><p> <strong>Text of Response </strong></p><p>This letter is in further response to your request for clarification of the requirements of Part B of the Individuals with Disabilities Education Act (Part B) that govern procedures for determining whether children suspected of having specific learning disabilities are eligible for services under the Part B program. Based on your inquiry and a subsequent telephone conversation between Ms. Lillie and a member of my staff, the specific issues which you wanted clarified in writing were identified. The relevant issues and our responses appear below. Please excuse the delay in responding to your request. </p><p>In items (1) and (2) of your letter, you raised questions about a letter to Mr. Brian J. Hartman dated August 28, 1989, concerning situations in which some students with exceptionally high I.Q.s may be eligible for special education services, under the specific learning disability category, while others may not. A more recent clarification from this Office relevant to the issues that your inquiry raises is set forth in a letter to Stephen Mark Ulissi, Ph.D, dated January 14, 1992 (copy enclosed). The more recent clarification to Mr. Ulissi represents the Department's current position on the relevant issues and supersedes the clarifications set forth in the August 28, 1989 letter to Mr. Hartman. </p><p>The letter to Mr. Ulissi clarifies that "each child who is evaluated for a suspected learning disability must be measured against his or her own expected performance, and not against some arbitrary general standard." The Part B regulations include requirements, at 34 CFR &#167;&#167; 300.540-300.543, which must be used for evaluating children suspected of having specific learning disabilities, in addition to the evaluation requirements at 34 CFR &#167;&#167; 300.530-300.534. The multidisciplinary evaluation team, whose responsibilities for evaluating a child with a specific learning disability are specified at 34 CFR &#167;&#167; 300.541-300.543, is responsible for making a determination as to whether there is a severe discrepancy between an individual child's ability and his or her performance level. </p><p>The interpretation in the letter to Dr. Ulissi is that underachievement is measured against the student's own ability, and not against a normative performance standard. Thus, each child's educational needs are determined on a case-by-case basis, using the evaluation procedures at 34 CFR &#167;&#167; 300.530-300.534, and the additional criteria at 34 CFR &#167;&#167; 300.540-300.543 when evaluating children with learning disabilities. </p><p>You are also concerned that, because of a statement in the August 28, 1989 letter to Mr. Hartman, "teachers [are] saying that some Multidisciplinary Teams are being told that they now must consider as a part of eligibility criteria, whether the student's disability adversely impacts their ability to benefit from regular education." Part B contains no such requirement. In order to be eligible for services under Part B, a child must be evaluated as having one or more of thirteen specified physical, mental, emotional, or sensory impairments, which cause the child to need special education and related services. 20 U.S.C. &#167; 1401(a)(1). The common denominator in this definition is that the child's impairment "adversely affects educational performance." 34 CFR &#167; 300.7(b)(1)-(b)(13). Part B does not otherwise define this concept. The term "adversely affects" is used in the Part B regulations at 34 CFR &#167; 300.7 in the phrase "adversely affects a child's educational performance." An operational definition of "educational performance" is included in a letter to William M. Lybarger, Ed.D. dated September 14, 1990 (copy enclosed). That letter states that a child's educational performance must be determined on an individual basis, and should include non-academic and academic skills. Since the measurement of "educational performance" is different for each child, the Department has not developed a single definition for this term. Similarly, the term "adversely affects" must be determined on an individual basis.</p></blockquote><p></p>
[QUOTE="Sheila, post: 149815, member: 23"] Part 2 One of the significant problems we've been consulted about has to do with STUDENTS WITH LEARNING DISABILITIES WHO ARE BEING DENIED SPECIAL EDUCATION SERVICES BECAUSE THEY ARE RECEIVING As, Bs AND Cs ON THEIR REPORT CARDS AND ARE PASSING FROM GRADE TO GRADE AT THE SAME RATE AS THEIR PEERS. Some parents are even being told that a standard score of 85 or higher on an academic portion of the Woodcock Johnson indicates that the child is achieving at grade level in that subject and therefore, does not need special education services. We are also receiving calls from teachers saying that some Multidisciplinary Teams are being told that they now must consider as a part of eligibility criteria, whether the students' disability adversely impacts their ability to benefit from regular education (as stated in the Davilla letter). The term "adversely impacts" is given a very restrictive definition by the school systems. School systems seem to be basing their eligibility policies for students with learning disabilities on the following factors: 1. The standard established by the Supreme Court in Board of Education v. Rowley that a handicapped child is not entitled to a special education (IEP) that is designed to permit him to reach his maximum or optimum potential and "that the LEA is not required to provide the best education, only an 'appropriate one,' even though the North Carolina State statute says; "The policy of the State is to insure every child a free and full opportunity to reach his full potential." 2. A 1989 letter of finding written by Robert R. Davila, former Assistant Secretary of Education commenting on Section 300.541(a) of the Federal regulations in which Mr. Davila stated "In the second situation the students would not satisfy the Federal requirement that there be a failure to achieve commensurate with [their] age. . ., although there was a failure to achieve commensurate with their ability levels." Mr. Davila's choice of words gives the impression that a Federal requirement of failure is written into the Individuals with Disabilities Education Act (IDEA). Unfortunately, Mr. Davila's rendering of the law is causing loss of services for many students with learning disabilities who are in need of special education services in order to receive benefit from education. Another statement in Mr. Davilla's letter that raises an issue for IEP Teams when they are making eligibility decisions for students with learning disabilities is "IN THE CASE WHERE A STUDENT'S DISABILITY DOES NOT INTERFERE WITH THE STUDENT'S ABILITY TO BENEFIT FROM PARTICIPATION IN THE REGULAR EDUCATION PROGRAM WITHOUT SUPPLEMENTARY AIDS AND SERVICES, AND THE STUDENT IS PROGRESSING FROM GRADE TO GRADE AT THE SAME RATE AS HIS OR HER AGE PEERS, THEN THAT STUDENT IS NOT ENTITLED UNDER THE ACT TO SPECIAL EDUCATION" Many students identified as having learning disabilities are not failing to achieve commensurate with their age level and are passing from grade to grade at the same rate their peer. Yet these same students are still in need of special education and related services in order to benefit from education. This is true for students with above average intelligence as well as students with average intelligence. The reason these students are achieving and passing is because parents are spending countless hours helping their children with homework, reviewing material and studying for tests. Parents also spend a great deal of money year after year on tutors thereby providing services themselves. Another factor in the academic success of these students is that many of their teachers do an outstanding job of individualizing instruction and modifying curriculum and tests. These children are not failing because they are not being allowed to fail. Parents and teachers are giving this type of support because they understand the devastation that comes with failure. Thus, we contend that these two factors need to be addressed when eligibility decisions are made: 1. How much help is the student receiving outside of the school day? 2. Does the student need remedial help in the areas of reading, writing and arithmetic? Modifications/compensatory by-pass strategies are vitally important to the academic success of most students with learning disabilities, however, in some cases modifications can also mask severe academic weaknesses which might possibly respond to individualized instruction. For example: A 6th grade student receives As and Bs on her report card. She has a learning disability in written language, dictates most written work to a parent, takes all tests orally and reads all class work to the teacher because the teacher can't understand what the student has written. Direct services in the area of written language is not considered because the student receives As and Bs on her report card and in fact she loses her eligibility for special education services, even though she has over the 15 point discrepancy, because she is achieving commensurate with the age and ability levels of her peers. An 8th grade student receives As, Bs and some Cs on his report card. He has an identified learning disability in reading yet he has never received a comprehensive diagnostic evaluation in reading and has not received direct reading instruction since 5th grade. He struggles to read his text books in school and his parents help him to read school books in the evening including all math instructions and math word problems. Upon reevaluation this student also loses eligibility for services because he did not have the 15 point discrepancy required by North Carolina. He was, however, only tested in the areas of broad reading and broad math. His mother is told that because he is achieving above grade level, the school system will not do the alternative method of documenting a discrepancy. The possibility that he might benefit from direct reading instruction is not taken into consideration. Two court decisions; [I]Ohio (Toledo Public School District 1989) and Pennsylvania (Conrad Weiser Area School District v. Thomas and Wendy L., February 10, 1992), [/I]supported parents whose children were achieving academically to the point that the school systems thought the students should not receive special education services. One student was academically gifted/learning disabled and was achieving at or above grade level; the other had a low IQ and was achieving at or above potential. Both courts gave a great deal of credit for the students' achievement levels, to daily help from parents, teachers and private tutors. According to these courts achieving at or above grade/age level or achievement level, does not disqualify a student from eligibility for special education services. (3) Clarification of the responsibilities granted to the Administrative Placement Committee (APC) according to Federal Law and definition of what is meant by the word 'PLACEMENT' in regard to their job description. Does the term 'placement decisions' mean eligibility decisions (whether or not the student is going to be placed in a special education program); or in which part of the continuum of placements the student will receive special education; or allocation of resources? Is the APC Committee given the authority to override eligibility decisions made by the Multidisciplinary Committee at the local school level? In North Carolina the School Based Committee and/or the Multidisciplinary Committee collects all student information including evaluations and then makes the decision as to whether or not the student indeed has a learning disability and is eligible for, and in need of special education and related services. This Committee, including a Local Education Agency Representative, signs all state and federal paperwork and then together with the parent writes and signs the IEP. The signed Special Education Forms and the IEP then goes to the Administrative Placement Committee (APC) located in each Local Educational Agency's Central Administration Office. According to NC. Special Education Policies and Procedures Manual, the APC Committee is empowered to make final decisions on eligibility. In some cases their parents have been informed that their children are not eligible after the IEP Team met with the parents, the parents were told that the child received the necessary 15 point discrepancy, every person on the IEP Team including the LEA Representative signed all of the necessary paper work which stated that the child had a learning disability that was not correctable without special education services and every person on the IEP Team, including the parents agreed upon the contents of the IEP and signed it. The special education forms and IEP were then sent to the Administrative Placement Committee (APC) where special education services for that student were denied because the APC Team overrode the eligibility decision made by the IEP Team. Unfortunately, these are not isolated incidences. (4) (a) A policy statement as to the compliance of the NC guidelines with the evaluation procedures mandated by the last part of Section 300.541. (b) A list of tests that may be used to test achievement in the areas of reading comprehension, basic reading, mathematics calculation or mathematics reasoning. The North Carolina Special Education Policies and Procedures Manual only instructs the LEA to test the student in Reading and Arithmetic and does not follow the federal mandate 300.541 which specifically requires separate testing in the areas of basic reading and reading comprehension and in mathematics calculation and mathematics comprehension. Currently, N. C. Special Education Guidelines only require students with suspected learning disabilities to be evaluated in five areas, instead of the seven areas designated by Section 300.541. Many diagnosticians and psychologists are unaware of this facet (mandate) of federal law because it is currently not mentioned in NC. Guidelines; therefore students are only evaluated in broad reading and broad mathematics. Advocates who have requested that federal law be followed, have been told by NCDPI, that the Woodcock Johnson (the most commonly used educational test) cluster scores of basic reading and reading comprehension, which are composites of the broad reading; as well as the cluster scores of mathematics calculation and mathematics reasoning may not be used because the cluster scores are not considered statistically reliable. We are looking forward to receiving your policy decisions relating to our concerns. Your interest in these issues is very much appreciated. [B]Text of Response [/B] This letter is in further response to your request for clarification of the requirements of Part B of the Individuals with Disabilities Education Act (Part B) that govern procedures for determining whether children suspected of having specific learning disabilities are eligible for services under the Part B program. Based on your inquiry and a subsequent telephone conversation between Ms. Lillie and a member of my staff, the specific issues which you wanted clarified in writing were identified. The relevant issues and our responses appear below. Please excuse the delay in responding to your request. In items (1) and (2) of your letter, you raised questions about a letter to Mr. Brian J. Hartman dated August 28, 1989, concerning situations in which some students with exceptionally high I.Q.s may be eligible for special education services, under the specific learning disability category, while others may not. A more recent clarification from this Office relevant to the issues that your inquiry raises is set forth in a letter to Stephen Mark Ulissi, Ph.D, dated January 14, 1992 (copy enclosed). The more recent clarification to Mr. Ulissi represents the Department's current position on the relevant issues and supersedes the clarifications set forth in the August 28, 1989 letter to Mr. Hartman. The letter to Mr. Ulissi clarifies that "each child who is evaluated for a suspected learning disability must be measured against his or her own expected performance, and not against some arbitrary general standard." The Part B regulations include requirements, at 34 CFR §§ 300.540-300.543, which must be used for evaluating children suspected of having specific learning disabilities, in addition to the evaluation requirements at 34 CFR §§ 300.530-300.534. The multidisciplinary evaluation team, whose responsibilities for evaluating a child with a specific learning disability are specified at 34 CFR §§ 300.541-300.543, is responsible for making a determination as to whether there is a severe discrepancy between an individual child's ability and his or her performance level. The interpretation in the letter to Dr. Ulissi is that underachievement is measured against the student's own ability, and not against a normative performance standard. Thus, each child's educational needs are determined on a case-by-case basis, using the evaluation procedures at 34 CFR §§ 300.530-300.534, and the additional criteria at 34 CFR §§ 300.540-300.543 when evaluating children with learning disabilities. You are also concerned that, because of a statement in the August 28, 1989 letter to Mr. Hartman, "teachers [are] saying that some Multidisciplinary Teams are being told that they now must consider as a part of eligibility criteria, whether the student's disability adversely impacts their ability to benefit from regular education." Part B contains no such requirement. In order to be eligible for services under Part B, a child must be evaluated as having one or more of thirteen specified physical, mental, emotional, or sensory impairments, which cause the child to need special education and related services. 20 U.S.C. § 1401(a)(1). The common denominator in this definition is that the child's impairment "adversely affects educational performance." 34 CFR § 300.7(b)(1)-(b)(13). Part B does not otherwise define this concept. The term "adversely affects" is used in the Part B regulations at 34 CFR § 300.7 in the phrase "adversely affects a child's educational performance." An operational definition of "educational performance" is included in a letter to William M. Lybarger, Ed.D. dated September 14, 1990 (copy enclosed). That letter states that a child's educational performance must be determined on an individual basis, and should include non-academic and academic skills. Since the measurement of "educational performance" is different for each child, the Department has not developed a single definition for this term. Similarly, the term "adversely affects" must be determined on an individual basis. [/QUOTE]
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