COBIDApresentation - Moritz College of Law

COBIDA Presentation
Ruth Colker
November 2, 2013
Topics for
• IDEA overview
• Section 504/ADA overview
• Child Find
• Preschool
• School-Age
• Specific Learning Disabilities
• Definitions
• Response to Intervention
• Independent Educational Evaluations
• IEPs
• Complaint Process
• Due Process Hearings
• Whose IDEA Is This?
• Ohio’s Operating Standards for Ohio
Educational Agencies serving Children with
Ohio Administrative Code
Sections 3301-51-01 to
• A child with a disability, who is between the ages
of 3 and 21, inclusive, is entitled to a free and
appropriate public education
• State has obligation to identify, locate and
evaluate children to determine if they are
entitled to special education and related services
• A child identified as disabled under IDEA is
entitled to an Individualized Education Program
in the least restrictive environment
• Procedural safeguards exist to ensure
compliance with these rules
IDEA Definition of Disability
A child who has one of the following disabilities and who, by
reason thereof, needs special education and related services:
• Autism
• Cognitive Disability
• Deaf-blindness
• Deafness
• Emotional Disturbance
• Hearing Impairment
• Multiple Disabilities
• Orthopedic Impairment
• Other Health Impairment
• Specific Learning Impairment
• Speech or Language Impairment
• Traumatic Brain Injury
• Visual Impairment, or
• Developmental Delay (for 3-5 year olds) (will discuss later)
Section 504/ADA Basics
• An entity that receives federal financial assistance may
not discriminate on the basis of disability
• “Discriminate” is understood to mean the provision of
“reasonable accommodations” to allow an individual to
fully participate in programs and activities
• If student is covered by both Section 504/ADA and
IDEA, must typically first pursue rights under IDEA.
ADA/Section 504 Definition
of Disability
• A physical or mental impairment that substantially
limits one or more major life activities of such
• “Major life activities” includes speaking,
learning, reading, concentrating, thinking, and
• An individual with a disability under ADA/Section
504 is entitled to “reasonable accommodations”
• Students in this category get a “section 504 plan”
rather than an IEP
• Students are only in this category if they do NOT
qualify as disabled under IDEA
Rights Under ADA/Section 504
• Entitled to Free
• Likely to be placed only in
Appropriate Public
regular classroom
• Only entitled to
• Valid evaluations
accommodations rather
• Meetings with appropriate than special programs
• Rights extend while in
• Appropriate placement
higher education
• Rights extend to non• Least restrictive
school activities
• Due process protections
When to Use Section 504/ADA
Hostile environment on the basis of disability
Refusal to permit student to bring a service animal to school
Inaccessible facilities
Segregated graduation and honors ceremonies
Denial of admission to before of after school child care programs
Refusal to allow participation in sports activities
Refusal to permit to attend event unless accompanied by a
• Pattern of assigning students with disabilities to inferior facilities
• Exclusion from summer camp or social program
• Obtain sign language interpreter for parent to attend school
Examples of Use of Section
• Child with a moderate case of cystic fibrosis could attend
regular classes if accommodated by the provision of
respiratory therapy services during the day.
• A child with sickle cell anemia could attend regular classes if
provided with home or hospital tutoring during infrequent
crisis situations that necessitate absence from school
• A child with spina bifida might be capable to attending regular
classes if provided with catherization services
• A child with diabetes could attend field trips as part of a
regular school program if accommodating by ensuring the
child’s meals during trips satisfy his medication requirements.
Section 504/ADA or IDEA?
• Child with ADHD who needs breaks or extra time
• Child with diabetes who needs insulin injections
• Child with learning disability who needs specialized
• Child with mobility impairment who needs adaptive
physical education
• Child with ADHD who needs specialized writing
instruction to help with organization
Child Find:
A child 3 to 5 years old who is experiencing a
delay in one or more of the following areas:
• Physical development
• Cognitive development
• Communication development
• Social or emotional development
• Adaptive development
AND who, by reason thereof, needs special
education and related services
Child Find: Preschoolers
• School district may “choose” to use
developmental delay category; not
• A developmental delay may be
substantiated by a delay of two
standard deviations below the mean in
one or more of the areas of
development or 1.5 standard deviations
below the mean in two or more of the
areas of development.
Jimmy at age 3: Need to know
anything else?
 Peabody Developmental Motor Scale (Gross Motor)
2nd percentile
10th percentile
2nd percentile
Receipt and Propulsion: 4th percentile
 Total Score:
1st percentile
 SIB-R Adaptive Behavior Assessment
1st percentile
Social communication
6th percentile
 Total Score:
8th percentile
Child Find: IDEA language
 All children with disabilities residing in the State … who
are in need of special education and related services, are
identified, located, and evaluated and a practical method
is developed and implemented to determine which
children with disabilities are receiving needed special
education and related services. (IDEA language)
 Ohio timeline:
School district provides parents with Prior Written Notice
within 30 days of referral, either agreeing or refusing to
conduct an evaluation. Request could come from parent or
the school’s screening/review team.
Once parental consent is received, the school district
conducts the evaluation within 60 days.
Child find considerations
Child Find obligation is an
“affirmative duty” of the school
Obligation helps neutralize what
Supreme Court called the school’s
“natural advantage.”.
Legal standard: Claimant “must
show that school officials
overlooked clear signs of disability
and were negligent in failing to
order testing, or that there was no
rational justification for not
deciding to evaluate.”
When is school’s evaluation “appropriate”?
 Variety of assessment tools and strategies to gather relevant
functional, developmental, and academic information, including
information provided by the parent
 Not use any single measure or assessment as the sole criterion
 Use technically sound instruments that may assess the relative
contribution of cognitive and behavioral factors, in addition to
physical or developmental factors
 Provided and administered in the language and form most likely to
yield accurate information
 The child must be assessed in all areas of suspected disability
 Special rules for assessing specific learning disabilities, including use
of scientific, research-based intervention
Delays in initial evaluation
 The 60-day timeline for conducting the evaluation does not
apply to a school district if:
The parents of the child repeatedly fails or refuses to produce
the child for the evaluation; or
The child enrolls in a new school district of residence after the
60-day period has begun.
 When determining the existence of a specific learning
disability, the 60-day timeline also can be extended with
mutual written agreement between the parents and
eligibility team if it is determined that additional data are
needed that cannot be obtained within the 60-day timeline.
 Notice: RTI is NOT a reason to unilaterally slow down the
60 day evaluation timeline.
Learning Disabilities
 School District is not required to use “a severe
discrepancy between intellectual ability and achievement
for determining whether a child has a specific learning
 May use “a process based on the child’s response to
scientific, research-based intervention” [RTI]
Ohio Dyslexia Statute (ORC 3323.25)
 Creates Dyslexia pilot project for early screening and
intervention services
 Defines dyslexia as “a specific learning disorder that is
neurological in origin and that is characterized by
unexpected difficulties with accurate or fluent word
recognition and by poor spelling and decoding abilities
not consistent with the person’s intelligence, motivation,
and sensory capabilities, which difficulties typically result
from a deficit in the phonological component of
language.” (3323.25(D)).
DSM-5: Specific Learning Disorder:
Criterion A: Persistent Difficulties
 (A) Difficulties learning and using academic skills, as
indicated by the presence of at least one of the following
symptoms that have persisted for at least 6 months,
despite the provision of interventions that target those
 1. inaccurate or slow and effortful word reading
 2. difficulty understanding the meaning of what is read
 3. difficulties with spelling
 4. difficulties with written expression
 5. difficulties mastering number sense
 6. difficulties with mathematical reasoning
Criterion B: Affected academic
skills are well below average for
 (B) The affected academic skills are substantially and
quantifiably below those expected for the individual’s
chronological age, and cause significant interference
with academic … performance … as confirmed by
individually administered standardized achievement
measures and comprehensive clinical assessment.
 Notes: Prefers standard score at least 1.5 standard
deviations below the population mean for age (78 or
less) but more lenient threshold (1 SD) can be used
when other evidence is available.
Criterion C: Readily apparent in
the early school years
 (C) The learning difficulties begin during school-age
years but may not become fully manifest until the
demands for those affected academic skills exceed the
individual’s limited capacities (e.g., as in timed tests,
reading or writing lengthy complex reports for a tight
deadline, excessively heavy academic loads)
Criterion D: Are considered
 (D) The learning difficulties are not better accounted for
by intellectual disabilities, uncorrected visual or auditory
acuity, other mental or neurological disorders,
psychosocial adversity, lack of proficiency in the
language of academic instruction, or inadequate
educational instruction.
 Notes: “Specific learning disabilities may also occur in
individuals identified as intellectually ‘gifted.’”
 Notes: “Since specific learning disorder typically persists
into adulthood, reassessment is rarely necessary, unless
indicated by marked changes in the learning difficulties
(amelioration or worsening) or requested for specific
315.00 (F81.0) With impairment
in reading
 Word reading accuracy
 Reading rate or fluency
 Reading comprehension
 Note: Dyslexia is an alternative term used to refer to a
pattern of learning difficulties characterized by problems
with accurate or fluent word recognition, poor decoding,
and poor spelling abilities. If dyslexia is used to specify
this particular pattern of difficulties, it is important also
to specify any additional difficulties that are present,
such as difficulties with reading comprehension or math
Ohio’s ETR Form
 Part 3: Documentation for Determining the Existence of a
Specific Learning Disability
 Required Notification: that RTI being used (if applicable)
 Documentation of RTI (if used)
 Patterns of strengths and weaknesses (if used alternative
research-based procedures)
 Exclusionary factors
 Documentation that underachievement is not due to a lack of
appropriate instruction
 Observation
 Medical findings
 Part 4: Eligibility Determination (3 boxes must be checked
 Not due to lack of appropriate instruction
 Meets state criteria for disability
 Child demonstrates need for specially designed instruction
 Federal law gives states option to use RTI to define SLD
 State law gives discretion to individual school districts
 DSM-5 doesn’t reference RTI but notes academic
difficulties lasted at least 6 months and were not
remediated by good, regular instruction
 Gifted student with dyslexia is recognized under DSM-5
and Ohio’s state standards but hard to fit into
requirement that have achievement 1.5 SD below mean
for age.
 Dyslexia not in federal law or state list of disabilities but
mentioned in state pilot statute and DSM-5.
What is RTI?
 The child does not make sufficient progress to meet age
or state-approved grade-level standards in one or more
area when using a process based on the child’s response
to scientific, research-based intervention
 To ensure that underachievement is not due to lack of
appropriate instruction, document 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
 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
RTI Tiers
RTI Evaluation (Ohio Regulations)
 Begins when sufficient data have been gathered and analyzed under
conditions of targeted and intensive individualized intervention
conditions, when there is evidence of an inadequate response to
intervention on the part of the child, and the group determines that
the child’s needs are unlikely to be met without certain specialized
instruction in addition to the regular classroom instruction;
 Employs interventions that are scientifically-based and provided at
appropriate levels of intensity, frequency, duration, and integrity,
relative to the child’s identified needs;
 Is based on results of scientifically-based, technically adequate
assessment procedures that assess ongoing progress while the child
is receiving scientifically-based instruction, and that have been
reported to the child’s parents;
 Includes the analysis of data to determine whether a discrepancy is
present between actual and expected performance;
Learning disabilities & RTI
January 21, 2011 OSEP opinion letter states that RTI
cannot be used as a way to delay evaluation
• “It would be inconsistent with the evaluation
provisions at 34 CFR 300.301 through 300.111
for an LEA to reject a referral and delay provision
of an initial evaluation on the basis that a child
has not participated in an RTI framework.”
Independent educational evaluations
 34 C.F.R. § 300.502
 (b) Parent right to evaluation at public expense.
(1) A parent has the right to an independent
educational evaluation at public expense if the parent
disagrees with an evaluation obtained by the public
(2) Parent is entitled to evaluation at public expense
unless agency demonstrates at a due process hearing
that its evaluation is appropriate …
(4) The public agency may ask for the parent’s reason
why he or she objects to the public evaluation.
However, the public agency may not require the parent
to provide an explanation and may not unreasonably
delay …
(5) A parent is entitled to only one independent
educational evaluation at public expense each time the
public agency conducts an evaluation with which the
parent disagrees.
When is school’s evaluation “appropriate”?
Variety of assessment tools and strategies to gather
relevant functional, developmental, and academic
information, including information provided by the parent
Not use any single measure or assessment as the sole
Use technically sound instruments that may assess the
relative contribution of cognitive and behavioral factors, in
addition to physical or developmental factors
Provided and administered in the language and form most
likely to yield accurate information
The child must be assessed in all areas of suspected
Special rules for assessing specific learning disabilities,
including use of scientific, research-based intervention
Individualized Education Program
 A written statement, developed, reviewed and revised in
a meeting of an IEP team to identify the individualized,
specially designed instruction, related services,
accommodations, modifications and supports that a
school district will provide for a child with a disability.
Important Components
 Child’s Profile
 Present Levels of Performance
 Child’s performance in comparison with peers
 Academic Achievement
 Functional Performance
 Measurable Annual Goals
 There should be numerous annual goals
 Benchmarks for Each Goal
 Summary Sheet of Specially Designed Instruction
Components of a Measurable Goal
WHO: Sarah
DOES WHAT: will be able to read Dolch sight words
TO WHAT LEVEL OR DEGREE: at her instructional level with
readability of 75 of 100 words with 100 % accuracy
UNDER WHAT CONDITIONS: while using a text
IN WHAT LENGTH OF TIME: by the end of the school year
MEASUREMENT OF PROGRESS: Progress will be measured
through short-cycle assessments with parents receiving 9 week
Another Example of an IEP Goal
 WHO: Tommy
 DOES WHAT: will make inferences by answering “what will
happen next” questions
 TO WHAT LEVEL OR DEGREE: with 80 % accuracy in 4 out of 5
 UNDER WHAT CONDITIONS: given a second grade reading
 IN WHAT LENGTH OF TIME: by the end of the year
 MEASUREMENT OF PROGRESS: Short cycle assessments and
work samples sent home to parents every nine weeks.
Inappropriate Uses of Percentage
 80 % is often used indiscriminately even when it is not
measurable or it is inappropriate as a goal
 Karen will stay on task 80 % of the time
 Karen will cross the street safely 80 % of the time
 Percentage is used when task doesn’t lend itself to
 Karen will identify the main idea with 95 % accuracy
 Karen will ask questions when confused 80 % of time.
What is wrong with this IEP Goal?
 Tommy will:
 Correctly articulate the R, S and L sounds in conversational
speech with 80 % accuracy
 Respond appropriately when asked a “wh” question in 8 out
of 10 trials across 4 consecutive sessions
 Take conversational turns when conversing with an adult in
4 out of 5 structured conversational activities over four
consecutive sessions, and
 Increase sentence length from 4-5 words to 7-8 works with
prompts and modeling across four consecutive sessions.
What is wrong with this IEP Goal?
 Parent will make sure that student
empties backpack after school each
day and brings appropriate work and
supplies to school each day on 4 of 5
 A specific statement of what the child should know and
be able to do in a specified segment of the year
 Goal: reading 75 of 100 sight words independently by
end of year
 First benchmark: match 75 of 100 sight words to
appropriate text with 80 % accuracy in 4 of 5 trials by end
of first grading period
 Second benchmark: read 60 of 100 sight words with use of
visual prompts by end of second grading period
Summary of Specially Designed Instruction
 List all supports and services for the goal:
 Beginning and end dates
 Amount of time
 Provider and location
 Instructional grouping
 Accommodations
 Any supports for school personnel needed to provide the services
Adequacy of Individualized Educational
Educational benefits standard
 Supreme Court repeatedly focuses
on the importance of “access to
specialized instruction and related
State satisfies its FAPE requirement
by “providing personalized
instruction with sufficient support
services to permit the child to
benefit educationally”
The “basic floor of opportunity”
consists of “access to specialized
instruction and related services
which are individually designed to
provide educational benefits”
Statute and Regulations
 IDEA Findings: education for
children with disabilities can be
made more effective by “having
high expectations for such children
and ensuring their access to the
general education curriculum in
the regular classroom, to the
maximum extent possible”
 Department of Education
regulations: Children can be
classified as disabled and therefore
entitled to a FAPE “even though
they are advancing from grade to
Complaint Process
• An organization or individual may file a written
complaint about an alleged violation that occurred not
more than one year prior to the date of the complaint
• State has 60 days to:
• Carry out an investigation
• Give complainant opportunity to provide additional
• Provide school district with an opportunity to
• Review all relevant information and determine if
school district is violating IDEA
• Issue a written decision
• If find denial of appropriate services, then must:
• Include corrective action appropriate to address
needs of the child and
• Appropriate further provision of services for all
children with disabilities
• Parents often obtain relief through complaint process.
Due Process Hearings
Due Process Complaint filed by parent
School District answers complaint within 10 days
Parties schedule a resolution meeting or mediation
If matter not resolved within 30 days then Due Process
Hearing held
A decision is supposed to be reached within 45 days of
the expiration of the 30 day resolution period
Timeline can be expedited in the event of an
emergency matter like an expulsion
Ohio has two-tier system so either party can appeal
decision by Hearing Officer.
Parents rarely prevail and almost never prevail without
a lawyer.
Hope you found this helpful.
• Ruth Colker, Disabled Education (NYU Press 2013)
• Ruth Colker & Julie K. Waterstone, Special Education
Advocacy (LexisNexis 2011).
• Ruth Colker & Paul Grossman, The Law of Disability
Discrimination (LexisNexis 2013) (8th Edition)
• Ohio Poverty Law Special Education Workshop, Workshop
Materials (August 2012)

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