Written by Sussan, Greenwald & Wesler
Many parents know that a child with a specific learning disability may qualify to receive special education and related services. But what is a specific learning disability, and how does a school district determine if a child has one? Some parents wonder why their child who already has a diagnosed learning disability is not receiving services from their school. Federal and state law provide guidance as to what constitutes a specific learning disability for purposes of a child receiving his or her free, appropriate education, and when such a disability requires the school to classify a child and to provide an Individualized Education Program.
The IDEA
The Individuals With Disabilities Education Act (“IDEA”), 20 U.S.C. Section 1400. et seq. protects children with specific learning disabilities. Under IDEA, school districts that receive federal funding must provide a free, appropriate public education (“FAPE”) “to all children with disabilities residing in the State between the ages of 3 and 21, inclusive.” 20 U.S.C. Section 1412(a)(1)(A). One of the statutory definitions of a “child with a disability” is a child who has a “specific learning disability” and who “by reason thereof, needs special education and related services.” (While this article focuses on specific learning disabilities, the statute also encompasses children with other disabilities, including those who require services due to emotional disturbance, traumatic brain injury, cognitive impairments, autism, and other health impairments.)
The New Jersey Code
The New Jersey Administrative Code further defines “specific learning disability” or “SLD” for purposes of IDEA as “a disorder in one or more of the basic psychological processes involved in understanding or 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.” N.J.A.C. 6A:14-3.5(c)(12).
But on what basis does a school district or child study team make the determination that a child has an SLD? The New Jersey Code names two methods that schools may be used to find an SLD: (1) the severe discrepancy method; and (2) the response to intervention (“RTI”) method.
Schools Must Use More Than One Tool
An important caveat is that whichever method a school district uses, the Federal law mandates that eligibility determinations include a comprehensive evaluation using a variety of assessment tools. See USDOE Office of Special Education Programs Policy Letters, at J.A.40-J.A.45. New Jersey case law has established that the determination of whether a child is disabled for purposes of IDEA “must be based on more than a formula-driven numerical assessment of a child.” M.B. and K.H. o/b/o J.B., Plaintiffs, v. South Orange/Maplewood Board of Education, 55 IDELR 18, 110 LRP 44825, U.S. District Court, New Jersey 09-5294 (SRC) August 3, 2010. Thus, parents have an important role in asking questions, and an opportunity to bring to the case study team additional information about their child.
The “Severe Discrepancy” Method
The “severe discrepancy” method is based on the idea that a large gap between a child’s potential and his performance may indicate the presence of an SLD. To find such a discrepancy if it exists, the child study team may administer an intelligence or IQ test, and an academic achievement test to a child who is suspected of having an SLD. This testing is part of the IDEA requirement that a school test the child in all areas of suspected disability.
The intelligence test (or “IQ” test) measures the child’s potential and is often included in the “Psychological Evaluation” which is shared with the parents. One example of an IQ test is the Wechsler Intelligence Test Scale for Children.
The performance test looks at academic achievement and is often included in an “Educational Evaluation” which is shared with the parents. One example of a test of academic performance is the Woodcock-Johnson Tests of Achievement.
Both the intelligence testing and performance testing should include the child’s standardized scores and percentage rankings. The school will look at low scores and high scores, clusters of scores and patterns, to assess whether a child has an SLD. In general, the school is looking at a range of scores. When the percentiles assessing the child’s potential differ widely from the percentiles for achievement, such a “severe discrepancy” may evidence a learning disability. A large variation among subtests of a single test may also be significant.
The New Jersey Code provides that if the school district uses the severe discrepancy methodology, it must establish procedures that use a statistical formula. Some districts use computer programs to help them use such formulas and analyze these tests. Some have established cut-offs for discrepancies that qualify as severe enough to evidence a specific learning disability. Some reports include a list for each test subsection of the percentage by which the child’s performance differs from what would be expected based on the child’s IQ scores. A deviation of more than 1.5 standard deviations between potential and performance is often considered significant. At the child’s eligibility meeting or re-evaluation meeting, an individual who is able to explain the testing results is required to be present. Parents should feel free to ask questions about the tests of potential and performance used, and how the school interprets them.
Schools Must Go Beyond “Severe Discrepancy” Calculations
Parents should also know that schools may not use numerical “severe discrepancy” cut-offs as the sole criterion in determining whether a child has a specific learning disability, or whether the child’s disability affects his or her educational performance. The courts have made clear that “Federal and state special education law prohibit reliance on any one test, formula, or procedure determining eligibility.” M.B. and K.H. v South Orange/Maplewood, supra.
What this means for parents is that classroom observation, informal assessments, functional performance, and input from parents, including private evaluations and assessments (from learning specialists and physicians) all matter.
The “Response to Intervention” Method
As an alternative to the severe discrepancy model, New Jersey law also permits the child study team to gather evidence of an SLD by looking at the child’s “response to scientifically based interventions.” This method is often referred to as “RTI.”
RTI denotes a process by which schools identify students at risk of low achievement, and intervene with teaching methods in the hope of addressing the student’s needs and avoiding the need to make a referral to the child study team. RTI programs vary but frequently consist of a number of levels of interventions. The child remains in general education, while the school provides the interventions and monitors the child’s progress.
A child’s failure to succeed despite RTI may evidence a learning disability, as may further assessment of a child through RTI. Parents should know that whether or not a child is making progress in RTI, a parent or teacher may nevertheless refer the child to the child study team for evaluation under IDEA. A parent who suspects that his or her child has an SLD does not need to wait for RTI services to begin, or end, in order to make a request for an evaluation. IDEA’s 2004 regulation is clear that RTI services may not be used to delay a parental request for evaluation.
My Child Has a Specific Learning Disability; Now What Happens?
If the team determines that a child has an SLD, that child may be eligible for special education and related services; to be eligible, the SLD must affect his educational performance. Parents should know that in assessing a child’s performance, as with assessing learning disability, various assessment tools—not just grades or test scores—can be important in determining whether the disability is interfering with the child’s access to FAPE. Classroom observations and informal assessments are important in ensuring the child’s disability does not operate to deny him education access. Once the IEP team determines that a child does, in fact, have a specific learning disability that affects his or her educational performance, work can then begin to design a special education program (in the general classroom, a resource room or another setting) with related services (such as speech or occupational therapy) to address that student’s needs and provide FAPE.