SPECIAL EDUCATION LEGAL JOURNEY

DISABILITY SPOTLIGHT: DYSLEXIA

There is a movement in California to improve the identification and support for students who struggle with dyslexia. This movement also seeks to provide training for teachers on evidence-based approaches for teaching reading to students with dyslexia.

The International Dyslexia Association and National Institutes of Child Health and Human Development Dyslexia define dyslexia as a specific learning disability that is neurological in origin. It is characterized by difficulties with accurate and / or fluent word recognition and by poor spelling and decoding abilities.

To find out more about dyslexia you can visit Decoding Dyslexia (CA) at http://decodingdyslexiaca.org/what-is-dyslexia/

Dyslexia falls under IDEA as a specific learning disability. Having a diagnosis of dyslexia in and of itself doesn’t entitle a student to services or accommodations. To be eligible for special education is must be shown that the student needs special education and related services. If the student has a disability but does not need special education services then the student may be entitled to protections under Section 504 of the Rehabilitation Act.

The following are some important things going on related to dyslexia:

Office of Special Education and Rehabilitative Services’ (OSERS) letter to Colleagues (October 23, 2015)

On October 23, 2015, OSERS released a “Dear Colleague” letter to state and local educational agencies. The letter recognizes dyslexia, dyscalculia, and dysgraphia as specific learning disabilities under IDEA. The letter reiterates to state and local agencies that there is no prohibition to using the terms dyslexia, dyscalculia, or dysgraphia in an IDEA evaluation. It also affirms that there may be situations where personnel implementing the IEP could benefit from knowing the underlying disability. For example, if the child struggles with decoding as a result of dyslexia.

The letter gives direction to the state and local agencies on the types of assessment tools and strategies required. A variety of tools must be used to measure functional, developmental, and academic information. It directs IEP teams to determine whether the student is achieving adequately for the child’s age or to meet state-approved grade-level standards. The team must determine whether the child’s underachievement is not due to lack of appropriate instruction.

OSERS encouraged state and local agencies to review their policies, procedures, and practices regarding dyslexia, dyscalculia, and dysgraphia. OSERS also reminded the state and local agencies of the importance of addressing the unique educational needs of students with dyslexia, dyscalculia, and dysgraphia.

A copy of the letter may be found here: https://www2.ed.gov/policy/speced/guid/idea/memosdcltrs/guidance-on-dyslexia-10-2015.pdf

AB 1369 (Now Cal. Ed. Code Section 56334 and 56335)

On October 8, 2015, Governor Jerry Brown approved AB 1369. AB 1369 was legislation to assist school districts with identifying and providing services to children with dyslexia. Commentary for AB 1369 stated:

Existing law requires all children with disabilities residing in the state, regardless of the severity of their disabilities, and who are in need of special education and related services, to be identified, located, and assessed. Existing law provides that a pupil who is assessed as being dyslexic and meets certain eligibility criteria for the federal Individuals with Disabilities Education Act category of specific learning disabilities is entitled to special education and related services. Existing law defines a “specific learning disability” as a disorder in one or more of the basic psychological processes involved in understanding or in using language, and includes in that definition dyslexia and other specified conditions.

Cal. Ed. Code Section 56334 requires the state to include “phonological processing” in the description of psychological processes. Currently 5 C.C.R Section 3030(b)(10) states, in part, that a specific learning disability is “disorder in one or more of the basic psychological processes…” Cal. Ed. Code Section 56334 will now clarify phonological processing is a psychological process.

Cal. Ed. Code Section 56335 requires the California State Superintendent of Public Instruction, before the beginning of the 2017-2018 academic year, to establish guidelines for dyslexia to assist regular education teachers, special education teachers, and parents. The guidelines must relate to both the identification and assessment of students who may have dyslexia. The guidelines must also provide an evidence-based, multisensory, direct, explicit, structured, and sequential approach to instructing pupils with dyslexia.

Dyslexia Guidelines Work Group

In response to Cal. Ed. Code Section 56335, the Superintendent of Public Instruction has created a Dyslexia Guidelines Work Group to develop program guidelines for dyslexia. The meetings have been recorded and can be viewed on their website at http://www.cde.ca.gov/sp/se/ac/dyslexia.asp.

Contact Our Office

If you have any questions regarding this or any other special education issue, feel free to contact our office via email at specialedlegaljourney@comcast.net.

(Note: This Blog/Web Site is made available for educational purposes only as well as to give you general information and a general understanding of the law, not to provide specific legal advice. The website has been designed to be a resource for information on matters that might be of interest to current or potential clients but does not establish that relationship. For further information visit my Disclaimer page- https://specialedlegaljourney.com/about/disclaimer/)

PREPARING FOR AN EFFECTIVE IEP MEETING

The members of the IEP team have busy schedules. Finding a date and time that works for all members can be a logistical nightmare. When the members are able to come together it is critical that everyone be ready to discuss the necessary issues and work together to aid the student at the heart of the meeting.

In order for an IEP meeting to be productive it is important for each member to prepare in advance. Here are some things to think about as you get organized:

There is a Student Behind Every Meeting: Each IEP team member should spend time thinking about the student. Behind every IEP meeting is a student with individual needs. Every member of the team should be focused on meeting the needs of the student.

Each Team Member Deserves to be Treated Respectfully: IEP team members are not drones. They are real humans with real feelings. Each member should be prepared to discuss their position on each issue without making personal attacks towards other members of the IEP team. Judgmental statements and blame have no place at an IEP team meeting and don’t help the team members work together.

Identify Agenda Items: Each member of the IEP should have an idea of the items they would like to have discussed at the IEP meeting. Items on an agenda can be checked off during a meeting so nothing is missed.

Reports: Any party who intends to share a report at the IEP meeting should circulate said report among the IEP members before the IEP meeting.

School districts are required to provide a copy of an assessment report at no cost to the parent. (20 U.S.C. Section 1414(b)(4)) The law does not provide a timeline to determine how far before an IEP the assessment reports must be provided. In my opinion, a parent should not attend an IEP meeting where the assessment reports were not provided. If you have not had the opportunity to review the reports then you may not be able to fully participate in the meeting. (34 C.F.R. Section 300.322)

Federal Law does not give the school district the right to request copies of assessment reports obtained by parents at their own expense. For various reasons, sometimes parents don’t provide copies of the reports to the IEP team before the meeting. In deciding whether to provide copies to the IEP team members the parents need to determine whether the IEP team will be able to consider the report if they aren’t provided a copy. If the IEP team is provided a copy of the report they are required to give it consideration.

Draft IEPs and Goals: It is not illegal for a school to prepare a draft IEP to be used at the meeting. It is only illegal to prepare a final IEP. School representatives should make it clear that any draft IEP is a draft only and will not impact a parent’s ability to provide input into the final IEP. The district should provide a copy of the draft IEP to the parents so they can review it before the IEP.

It is not typical for parents to draft an IEP but they may want to think about what goals they would like to have included in the IEP. In my experience it is helpful to send goals I think are necessary to the IEP team members before the IEP.

Anticipate the Problem Issues: Review past correspondence and, if appropriate, prior IEP documents. Identify any problematic issues that may arise during the IEP meeting. For any problematic issues you anticipate brainstorm options for resolution to discuss at the IEP meeting.

Anticipate Difficult Moments: When members of the IEP team disagree over a particular issue the meeting can quickly deteriorate. Do not get overwhelmed about these situations. The IEP team members need to remember that preparation of the IEP is a collaborative process. Brainstorm ways to deal with difficult moments.

IEP TEAM MEMBERS

Each member of an IEP team brings important information to the meeting. An IEP team must include:

at least one parent;
a representative of the local educational agency;
a regular education teacher of the child if the child is, or may be, participating in the regular education environment;
a special education teacher or provider of the child;
an individual who can interpret the instructional implications of assessment results;
a school district representative capable of authorizing school resources; and
as appropriate, the student or an interpreter. (20 U.S.C. Section 1414(d)(1)(B)(i), (iv-vi); Cal. Ed. Code Section 56341(b)(1), (5-6).

Parents (20 U.S.C. Section 1414(d)(1)(B)(i); Cal. Ed. Code Sections 56304, 56342.5.):

Parents are an important member of the IEP team. Federal and State law require that parents of a child with a disability must be afforded an opportunity to participate in meetings with respect to the identification, assessment, educational placement, and provision of a FAPE to their child. A parent who has an opportunity to discuss a proposed IEP, and whose concerns are considered by the IEP team, has participated in the IEP process in a meaningful way. (Fuhrmann v. East Hanover Board of Education (3d Cir. 1993) 993 F.2d 1031, 1036.)

Regular Education Teacher (20 U.S.C. Section 1414(d)(1)(B)):

If the student will be placed in a regular education classroom, Federal Law requires the inclusion of at least one regular education teacher on the IEP team. It is necessary for the regular education teacher to be one who has instructed the child in the past or will instruct the child in the future. (M.L. v. Federal Way School District 394 F.3d at p. 643.)

School District Representative:

The school district is required to send a representative who is able to provide or supervise special education and be knowledgeable about the general education curriculum. They must also be knowledgeable about the availability of resources of the school district and have authority to commit the necessary resources to implement the IEP.

Other Members of the IEP Team:

You are entitled to bring other professionals, consultants, and related service providers to the IEP meeting. You can also bring a friend, family member, or other individual to be your extra set of eyes and ears. You can bring an advocate and attorney, if necessary.

PROPER ASSESSMENT

Obtaining the necessary assessments is a critical process in special education. Assessments play an important role in evaluation, diagnostic, and eligibility decisions. They also play an important role in the development of the IEP including goal setting, placement, and instructional decisions.

Assessment Plan (Cal. Ed. Code Section 56321(a)):

The school is required to provide an assessment plan within 15 days of their receipt of your written referral for special education services. If the request is made near a vacation in excess of five schooldays then those vacation days are not counted. Also, if the request is made within 10 days of the end of the school year then the assessment plan shall be provided within 10 days after the commencement of the subsequent regular school year.

Type of Assessment (Cal. Ed. Code Section 56320(f) & 34 C.F.R. Section 300.304):

A student with a suspected disability must be assessed in all areas of suspected disability. The assessment must be made by a multidisciplinary team of professionals who are knowledgeable of that disability. The team of professionals must use a variety of assessment tools to gather relevant functional and developmental information. No single measure or assessment may be used by the IEP team.

A parent may ask for an assessment in an area that the district has not identified in the assessment plan. If the district refuses to do an evaluation, the parents may be entitled to an independent evaluation at the school district’s expense.

Independent Educational Evaluation (34 C.F.R. 300.502):

A parent who disagrees with the district’s evaluation may have a right to an independent educational evaluation at the expense of the district. The district must either provide information to the parent to allow them to obtain the independent educational evaluation or file a due process claim.

Many parents obtain independent evaluations regardless of whether the district pays for them or not. If the parents obtain an independent evaluation, at the public expense or their own expense, then the IEP team must consider the evaluations.

Contents of the Assessment Report (Cal. Ed. Code Section 56327):

The personnel who assess the student shall prepare a written report that shall include, without limitation, the following: 1) whether the student may need special education and related services; 2) the basis for making that determination; 3) the relevant behavior noted during observation of the student in an appropriate setting; 4) the relationship of that behavior to the student’s academic and social functioning; 5) the educationally relevant health, development and medical findings, if any; 6) if appropriate, a determination of the effects of environmental, cultural, or economic disadvantage; and 7) consistent with superintendent guidelines for low incidence disabilities (those effecting less than one percent of the total statewide enrollment in grades K through 12), the need for specialized services, materials, and equipment. (Cal. Ed. Code Section 56327) The report must be provided to the parent at the IEP team meeting regarding the assessment. (Cal. Ed. Code Section 56329(a)(3))

Failure to Conduct Appropriate Assessments:

A procedural violation by the district does not automatically require a finding at the student’s right to a free and public education (FAPE) was violated. If a district fails to conduct appropriate assessments in all areas of suspected disability there may be a procedural denial of FAPE. (Park v. Anaheim Union High School Dist. 4 (9^th. Cir. 2006) 64 F.3d 1025. A procedural violation results in a denial of a FAPE only if the violation: (1) impeded the child’s right to a FAPE; (2) significantly impeded the parent’s opportunity to participate in the decision-making process; or (3) caused a deprivation of educational benefits. (20 U.S.C. Section 1415(f)(3)(E)(ii); Cal. Ed. Code Section 56505(f)(2); W.G. v. Board of Trustees of Target Range School Dist. No. 23 (9th Cir. 1992) 960 F.2d 1479, 1484.)

EFFECTIVE LETTER WRITING

Writing letters can be an effective way to communicate with your child’s school. You can use letters to communicate information, concerns, and ideas. Letters become a permanent record in your child’s file so it is important to be thoughtful about what you write. Do not write a letter with the intent to blame, judge, or offend the reader. Remember, this is a business letter.

Here are some tips to help you with the writing process:

Brainstorm Why You Are Writing. The first step in the letter writing process is always to sit down and brainstorm your purpose. Make an outline of each issue, idea, or concern. Identify what laws or facts support your position. Finally, identify what action you would like the reader to take in response to your letter. Brainstorming will help you to clearly state the main purpose for your letter and provide succinct information to support your issue, idea, or concern.
Introduce Yourself. Make sure your letter identifies your child and your relationship to the child. If this is your first communication with the reader give them a quick background of your situation. Don’t dilute the letter with unnecessary facts. Providing too much introductory information or history will detract from the main point of your letter.
Capture the Reader’s Attention. Identify each idea, concern, or issue in a separate paragraph. Give a brief description of the supporting laws and facts from your brainstorming list. If you are requesting the reader take action, make sure you clearly state your request.
Remove any Negative Emotional Language. Writing your letter in an angry, threatening, or demanding tone will not force the result you want. It will only create barriers to effective communication.
Have a Third Party Read the Letter. Find someone who is not emotionally attached to the situation to read your letter and provide feedback. A third party can review your letter with fresh eyes. Ask the third party to identify the main point(s) of the letter and what resolution you are seeking. If the third party is unable to identify these items then the recipient may struggle understanding in the same way. Ask the third party whether there are any emotional statements that would potentially offend the reader.
End Your Letter on a Positive Note. End your letter formally and with respect to the reader. You can summarize in one or two sentences the main point of your letter. Thank the reader for giving your letter consideration.

REQUEST FOR ASSESSMENT

If a parent suspects their child has a disability which is impairing the student’s ability to access their education, the parent may make a written request for an evaluation of their student. The written request must contain a statement of consent to evaluate the student. The letter should be sent to the school administration. The school has 15 calendar days, with some exceptions, to propose an assessment plan. The school has 60 calendar days to determine the student’s eligibility and areas of need.

Here is a sample letter which may aid you in requesting an assessment.

Dear Name of Principal or Special Education Administrator:

I am writing to request that my child, Name of Child, be evaluated for special education eligibility and services under the Individuals with Disabilities Education Act (IDEA).

My child has been struggling with identify your areas of concern, using supporting evidence such as academic work samples, teacher communications, report cards, etc.

Name of Teacher and I have been working informally to help Name of Child We have tried Give examples of tactics that have been tried.

I understand that I am giving written consent for my child to be evaluated. Please notify me of your assessment plan and provide any other information you have regarding the evaluation process.

I would be happy to discuss Name of Child with you. During the day I can be reached as Daytime Phone Number.

Thank you for your attention to this matter.

Sincerely,

Your Name

SPECIAL EDUCATION DATA (K-12)

There are many disabilities which can impact a student’s ability to access their education. According to www.kidsdata.org, in 2005, the breakdown for disabilities for which student’s were receiving special education services included:

California	Percent
Autism	12.6%
Deaf	0.5%
Deaf-Blindness	0.0%
Emotional Disturbance	3.4%
Hard of Hearing	1.4%
Intellectual Disability	6.1%
Learning Disability	39.6%
Multiple Disability	0.9%
Orthopedic Impairment	1.7%
Other Health Impairment	10.6%
Speech or Language Impairment	22.3%
Traumatic Brain Injury	0.2%
Visual Impairment	0.5%

The most commonly provided special education service is extra academic support. Other services include speech and language services, physical and occupational therapy, and psychological and counseling services. The schools also provide older students with the transition to adulthood.

DISABILITIES COVERED BY INDIVIDUAL WITH DISABILITIES ACT

Early Intervention

The Center for Disease Control (CDC) estimates that about one in six, or about 15%, of children have one or more developmental disabilities. The CDC recommends parents educate themselves so they can recognize early signs of a developmental disability. Early intervention can have a significant impact on the need for special education in the school years. The Individuals with Disabilities Education Act (IDEA), Part C, identifies early intervention as infant through age 2. The state is responsible for providing early intervention programs for infants and toddlers.

Disability

IDEA identifies “children with disabilities” as individuals between the ages of three and 22 with one or more of the following conditions:

Autism

Deaf-blindness

Developmental Delay

Emotional disturbance

Hearing impairment (deafness)

Intellectual disability

Multiple disabilities

Orthopedic impairment

Other health impairment

Specific learning disability

Speech or language impairment

Traumatic brain injury

Visual impairment, including blindness

The disability must adversely impact his academic performance. (20 U.S.C. Section 1401(3)) Youth between the ages of three and 22 receive special education services through their local school district if they attend a public institution.

Specific Learning Disability

20 U.S.C. Section 1041(30) identifies children with a specific learning disability as a disorder in 1 or more of the basic psychological processes involved in understanding or in using language, spoken or written, which disorder may manifest itself in the imperfect ability to listen, think, speak, read, write, spell, or do mathematic calculations. Such disorders include: perceptual disabilities, brain injury, minimal brain dysfunction, dyslexia, and developmental aphasia.

Other Health Impairments: ADD and ADHD

Other health impairments include asthma, ADD/ADHD, diabetes, epilepsy, cardiac conditions, hemophilia, leukemia, rheumatic fever, sickle cell anemia, and nephritis. Of these, ADD and ADHD are probably the most common. ADD and ADHD may make a child eligible under IDEA if the disability adversely impacts his or her academic performance.

If a child does not qualify for an IEP under IDEA then the parents may want to look into 504 plans. I will highlight 504 plans in a later blog.

HEADING BACK TO SCHOOL

As students get ready to head back to school there are things parents can do to get ready for the transition.

Know Your IEP.

A student’s Individualized Education Plan (IEP) should be up-to-date and appropriate for the student. An IEP should contain present levels of academic achievement, measureable goals, and list appropriate accommodations. Reviewing the IEP will help identify if there are any missing elements or allow for evaluation on whether it needs to be updated. You can also follow up with the school to make sure that the necessary services have been scheduled.

Write A Back to School Letter to the Teacher.

It is important to establish communication with your student’s teacher early. A back to school letter introducing your student is a great way to share facts about your student. You can highlight your student’s strengths and alert their teacher of the challenges you anticipate your child will face. It is also important to let them know if any strategies which have worked in the past. It is important to key in on a couple main points. If your letter is too long it may not be read.