April 25, 2016

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A Fresh Look at IDEA Eligibility Criteria

By Robert Garda

The thirty year old eligibility criteria of the Individuals with Disabilities Education Improvement Act (IDEA) should be re-considered by Congress during the next re-authorization.  The apparently simple eligibility criteria – a child must have an enumerated disability and as a result of the disability must need special education and related services – are in fact among the most complex requirements of the IDEA and spawn significant litigation, scholarship, and controversy.  The critics of the eligibility criteria can be divided into two basic camps: those that believe they are too stringent and call for eligibility to be expanded, and those that believe they are too broad and include mere instructional casualties and difficult to educate students rather than exclusively students with disabilities.  Based on changes made during the 2004 re-authorization, Congress appears to fall into the latter camp.  It should take even further steps to clarify and narrow IDEA eligibility during the next re-authorization.

The 2004 re-authorization of the IDEA embodied a dramatic educational paradigm shift to resolve the problems of over-identification and minority overrepresentation.  For the first time, Congress reached into the general education system to remedy the over-identification crises by legislating a certain level of individualized instruction before eligibility attached.  It did this in two ways.  First, it required, under very limited circumstances, for schools to provide “early intervening services” to students before finding a child IDEA eligible.  It also permitted states to use RTI as well as the more traditional severe discrepancy test to establish that a child qualified under SLD.  Both of these changes required a low level of “individualized instruction” in the general education classroom and departed significantly from the one-size-fits-all educational model embodied in the old IDEA, wherein individualized instruction was exclusively the domain of special education. 

But the re-authorization fell short of solving the eligibility crisis because its steps were too incremental.  The IDEA simply cannot redefine general education to include individualization until special education releases its monopoly over individualized instruction.  This can only be done by redefining “special education” and who “needs” it in the stagnant thirty-year-old eligibility criteria.

Eligibility under the IDEIA and all of its predecessor statutes hinges on finding that the child has an enumerated disability and “needs special education.”  The broad definition of “special education” – the adaptation of instructional content, methodology or delivery – permits some decision-makers to find that children requiring any adaptation to the general education environment need “special education” and are eligible.  The non-existent definition of “need” leads to diverging views as to what level of services a child must be provided in general education before a “need” for special education is found.  With little statutory guidance, decision-makers often find that if a child would benefit from any level of individualized instruction then eligibility should attach.  The problem with this approach is that today’s increasingly diverse students require a certain level of differentiated instruction in the general classroom.  It is better to address diverse needs in the general education classroom than to classify children as disabled and rely on special education as the exclusive venue to address their unique learning styles, cultural backgrounds and different abilities.

The next re-authorization should reclaim special education from overrepresented African-Americans and instructional casualties and place it back in the hands of the genuinely disabled by having “special education” relinquish its exclusive grip on individualized instruction, thus allowing certain unique student needs to be served in regular education without IDEA eligibility attaching.  To do so, Congress should redefine “special education” to be limited to only significant instructional adaptations that are not provided all students, regardless of disability.  Congress should also insure that a child should not be found in “need” of special education until all available accommodations and regular education interventions have proven to be unsuccessful in the general education setting.  These circumscribed definitions prohibit the placement of students into special education if their individual needs can properly be served through general education.  It is only by limiting the definition of “special education” and when it is “needed” that general education can truly embrace and provide individualized instruction.  So long the IDEA eligibility criteria allow administrators, teachers and eligibility teams to find that a student needing any level of individualization belongs in special education, differentiated and individualized instruction will be relegated to “special education” and will be excluded from the general education classroom.

Robert Garda is the Fanny Edith Wynn Distinguished Professor of Law at Loyola University of New Orleans.  He teaches and publishes in the field of education law with an emphasis on special education law and policy.

March 2, 2016(1)

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The Changes We Need In Federal Special Education Policy

Administrators in public schools are well aware of the fact that the Department of Education issues "Dear Colleague" letters on many issues from time to time. Often these create controversy and confusion. One of these, the November 16  Letter about a free appropriate public education, is discussed below.

November 16, “Dear colleague” Letter by the US Department of Education about a FAPE: A school attorney’s response

By Miriam Kurtzig Freedman

 The seven-page Letter tells educators—presumably, general and special educators—that holding students with disabilities to “rigorous academic standards and high expectations” is a “shared responsibility for all of us,” and that these students should be taught the “same challenging academic content and achievement standards [as] all children in the State”… at the “grade level in which the child is enrolled” The Letter raises many concerns.

 First, it is unclear whether the general education teachers and administrators’ perspective was taken into account.  Their voice and leadership in this “shared responsibility,” especially as most services are provided in general education classrooms, is vital. Two special education Department offices authored this Letter—OSEP (Office of Special Education) and OSERS (Office of Special Education and Rehabilitative Services). Where is general education’s OESE—Office of Elementary and Secondary Education?  While this Letter presumes to be about special education, it is also very much about general education.  OESE needs to be at the planning table especially since the Letter urges the same standards for all students “regardless of nature or severity of the disability.”  Without input from general education, this Letter is simply a one-sided approach—like the tail wagging the dog.   

 Second, while no one disagrees about the importance of holding all students to high standards and expectations, I fear that the Letter downplays the cornerstone of special education law—individualization.  The Individuals with Disabilities Education Act (IDEA) provides services to meet eligible students’ unique needs. Yet, this Letter appears to gloss over the reality that, even with similar curricular standards, students’ rate of learning and ability to master skills and concepts will differ, as they are impacted by the nature and severity of their disability.  The concept of “closing the gap” (Letter, at page 5), while prominent in this Letter, is inconsistent with the IDEA!    

Special education focuses on whether students make gains in their areas of need—not on how they measure up against others. For some students with disabilities, the gap between them and their non-disabled peers will widen over time.  That does not mean per se that they are failing to learn, or that their teachers are failing to teach them. Sadly, this Letter leads us to see failure even when students succeed—in direct contrast to the law’s mission and good education practice.

Third, in order to include students with disabilities in general education settings, this Letter favors the use of modifications of assignments, audio and other aids—inadvertently creating a trap for schools. Such methods often bypass the student’s unique needs and entitlement to a FAPE (free appropriate public education). The sad reality is that schools that follow this Letter’s approach may lose at due process hearings and in the courts because the approach can be viewed as a way to get students to “pass” and get “through” school—without providing the individualized benefit the law requires.   

In sum, general education teachers and administrators who currently work in our schools need to lead the effort and be at the table to build schools that truly educate all students—from the most needy to the most advanced.  Their input is especially vital now, given the Department’s push for inclusion to occur in general education classrooms.  The Department should aid schools in their efforts to comply with current legal mandates, not divert them to paths that contradict the law. 

Miriam Kurtzig Freedman has written six books (including the influential Fixing Special Education) on law and education and has spent her career in public education as a teacher, hearing officer, and an attorney representing public schools.