You Asked! – Question 23

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Q23:  Must my student have a “severe discrepancy” in order to be found eligible for special education under the category of specific learning disability?

A:  Under CA law, the use of a “severe discrepancy” model may be considered but must not be required [34 CFR 300.307(a)(1) and 5 CCR 3030(b)(10)(B)].*

California has regulations that guide the process for determining whether a student has a specific learning disability. Dyslexia is specifically listed as an example of a qualifying condition under Specific Learning Disability [5 CCR 3030(b)(10)].  In general, three alternatives are permitted:

  1. The student has a severe discrepancy between intellectual ability and achievement in oral expression, listening comprehension, written expression, basic reading skill, reading comprehension, mathematical calculation, or mathematical reasoning. The decision as to whether or not a severe discrepancy exists shall take into account all relevant material which is available on the pupil [5 CCR 3030(b)(10)(B)].

OR

  1. The student does not achieve adequately for his age or to meet state-approved grade-level standards in one or more specified areas when provided with learning experiences and instruction appropriate for the student’s age or state-approved grade-level standards, even when educators use processes based on the student’s response to scientific, research-based intervention [5 CCR 3030(b)(10)(C)(1) and 5 CCR 3030(b)(10)(C)(2)(i)], such as RtI2 or MTSS.

OR

  1. The student exhibits a pattern of strengths or 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 a specific learning disability, using appropriate assessments…” [5 CCR 3030(b)(10)(C)(2)(ii)].

Ask the IEP team which of the above alternatives were considered in determining a student’s eligibility for special education.

Use of severe discrepancy models has been highly criticized by the US Department of Education (USDOE).  The USDOE states that there are many reasons why the use of the “severe discrepancy” model “should be abandoned” stating that using it is “potentially harmful to students as it results in delaying intervention until the student’s achievement is sufficiently low so that the discrepancy is achieved.”  USDOE referred to the use of the severe discrepancy model as a flawed “wait to fail” model [USDOE Commentary and Explanation About Proposed Regulations for IDEA 2004].

As a side note, according to dyslexia expert, Dr. Louisa Moats, “since the 1980s scientists have debunked the practice of using IQ tests in reading disability diagnoses and relying on discrepancy formulas to identify students who are eligible for special instruction in reading (Siegel, 1989; Stanovich, 1991; Fletcher et al., 2007). Compulsory IQ testing in child evaluations leads to under-identification of reading disabled students in the lower half of the IQ continuum. These students in the lower half of the IQ distribution are often those from less advantaged life circumstances, but their reading difficulties are not distinguishable in cause or remedy from students with higher IQs. The use of IQ-achievement discrepancy as a classification tool or gateway to remedial instruction is prejudicial, unnecessary, and invalid and should have been abandoned decades ago.” [Source: “Can Prevailing Approaches to Reading Instruction Accomplish the Goals of RTI?” IDA Perspectives on Language and Literacy, Summer Edition, Volume 43, pgs. 15-22].

* –  Please be advised that in California, IQ testing of African-American students is prohibited [refer to Larry P. v. Riles, 495 F. Supp. 926 (N.D. Cal 1979), 793 F. 2d 969 (9th Cir. 1984), 37 F. 3d 485 (9th Cir. 1994).  Also, see article from CA Association of School Psychologists (CASP Today Spring 2013 – Larry P. Edition, pgs. 7, 17)].

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You Asked! Question 11

Q11:  I am a teacher and suspect one of my students may be displaying signs of dyslexia. What should I do?  Is it okay to alert the parents as to my concerns?

A:  Teachers see student performance in the educational environment directly. You are a critical source of information to parents and the special education team, who depend on your expertise and experience. It is important to understand that early identification and appropriate intervention with students who show the warning signs of dyslexia are essential for better outcomes later on.  If you have any reason at all to suspect that a student may have a disability that may be interfering with learning (not simply “academics”), you are legally obligated to refer the student for evaluation under the “Child Find” obligation of the special education law ((20 U.S.C. § 1412(a)(3)(A); 34 C.F.R. § 300.111(a); Ed. Code, §§ 56171, 56300 et seq.). Child Find does not prevent you from discussing your concerns with a parent—in general, such discussions are a regular part of a teacher’s job. The parent also has the right to make a referral for special education assessment. However, Child Find is not based on action or inaction of a parent- once an educator has a reason to suspect that a child may have a disability, your legal obligation is triggered to refer the student for assessment, at which point the special education team should provide the parents with an assessment plan for consent to assess. Getting a decision in writing allows parents to use their rights under the law—including the right to refuse evaluation, or the right to challenge the district’s refusal.

Be aware that the threshold for suspecting that a child has a disability and referring for evaluation is relatively low. The question is whether the child should be referred for an evaluation, not whether the child actually qualifies for services.  After all, we can’t know the answer to that question until we have assessment data. The student should not have to fail a course or be retained in a grade in order to be considered for assessment.  The fact that a student is making adequate educational progress is not a valid reason not to assess.

“Child find” duty requires children to be identified and evaluated “within a reasonable time after school officials are on notice of behavior that is likely to indicate a disability”. A state or LEA “shall be deemed to have knowledge that a child is a child with a disability if [among other things] … the behavior or performance of the child demonstrates the need for such services”.

(Source:  Department of Education State of Hawaii v. Cari Rae S., 2001, 158 F. Supp. 2d 1190; 71 Fed. Reg. 46580 (Aug. 14, 2006))

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