Special Education
Law Quarterly
July 2007
Bulletin #10
IDENTIFYING AND DELIVERING EDUCATIONAL
SERVICES TO STUDENTS WITH SPECIFIC
LEARNING DISABILITIES:
NEW REQUIREMENTS IN IDEA 2004
I. Introduction
The United States Congress reauthorized the Individuals with Disabilities Education Act (IDEA)
as the Individuals with Disabilities Education Improvement Act (hereafter IDEA) in December
2004. The changes made to the statute were substantial. Most amendments were effective
in July 2006 despite the fact that the federal Department of Education (DOE) regulations that
further explain and guide implementation of the statutory changes were not issued until
September 2006. In addition to the federal law, the Washington State Office of the
Superintendent of Public Instruction (OSPI) has recently released the revised state
regulations—the Washington Administrative Code (WACs)—that align the state law with the
IDEA 2004. These state regulations become effective at the end of July 2007 and will guide
the day-to-day provision of special education services in Washington.
This Bulletin focuses only on the changes in IDEA 2004 that relate to students with learning
disabilities. Specifically, the Bulletin covers the amendments regarding identifying children
with specific learning disabilities (SLD), early intervening services (EIS), and Response to
Intervention (RTI) and how they relate to service delivery for students with learning
disabilities. For those readers interested in a comprehensive review of the IDEA 2004
changes, please see the resources listed at the end of this Bulletin. And to review the revised
Washington State regulations, check online at:
http://www.k12.wa.us/SpecialEd/default.aspx
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II. Who is a Student with Learning Disabilities under
Individuals with Disabilities Education Act (IDEA)
2004?
Any review of special education services relevant to students with learning disabilities
requires a discussion of how we define “learning disabilities.” Even if we—educators—can
agree on the need for specialized interventions for students with learning disabilities, how do
we decide who is in the group? Defining “disability” generally is difficult and much debated
in the other laws addressing rights to education for students with disabilities such as the
Americans with Disabilities Act (ADA), Section 504 of the Rehabilitation Act of 1973 (Section
504) and our Washington State Law Against Discrimination.1 Nonetheless, it is generally easier
to understand functional limitations related to physical impairments—such as low vision,
deafness, or the inability to walk—then it is to identify and label a functional difference or
limitation that is invisible such as a learning disability.
It is not only politicians and lawyers (who create the laws) who have disagreed over the years
about who should be labeled “learning disabled” but also medical professionals and
educators.2 There has generally been agreement, however, that an individual who
demonstrates a severe discrepancy between his/her academic ability and achievement has a
learning disability. If nothing else, this discrepancy model provided some objective measure
that educators could rely upon for determining eligibility under IDEA. And the model took
into account the fact that some students with very high academic potential (as generally
measured with an IQ test) could demonstrate a low achievement on reading and other
diagnostic tests due to a learning disability.
The discrepancy model is not the only way to measure a learning disability, however, and the
IDEA 2004 emphasizes alternative methods. Although IDEA allows states to continue to use the
discrepancy model, it does not allow states to require that it be used by local districts. In
other words, a discrepancy model at most can be available as an optional method of
determining eligibility for IDEA services on the basis of a learning disability. The IDEA now
recommends that districts’ assess a student’s response to “high-quality general education
instruction” as the method for determining the presence of a learning disability. Therefore,
educators must ensure that a student experiencing difficulties is receiving high quality
instruction, collect data on the student’s response and assess his/her response to this
intervention prior to labeling the child as “learning disabled.” Like No Child Left Behind and
the recent narrowing of the definition of “disability” under the federal nondiscrimination laws
mentioned earlier (and arguably the Washington Law Against Discrimination also), IDEA 2004
encourages states to serve students with learning difficulties within the general education
system first, before determining that they are eligible for IDEA.
A. Learning Disability Eligibility under Federal and State Law
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Special Ed Law Quarterly, Bulletin #10
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The place to start in reviewing the new federal requirements for determining eligibility for
special education services under the category of “learning disability” as well as the
Washington State regulations, is determining how the respective laws define learning
disability. Although it is common to use and hear the phrase “learning disability” to describe
students who are underachieving academically, the federal and state laws use the phrase
“specific learning disability” to describe the group of students who are eligible for IDEA
services. This Bulletin uses the legal definition of “specific learning disability” or SLD, but
both phrases are used interchangeably in practice.
1. Specific Learning Disability Defined
The IDEA 2004 regulations define “specific learning disability” as follows:
i) General. Specific learning disability means a disorder in one or more of the basic
psychological processes involved in understanding or in using language, spoken or
written, that may manifest itself in the 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.
ii) Disorders not included. Specific learning disability does not include learning problems
that are primarily the result of visual, hearing, or motor disabilities, of mental
retardation, of emotional disturbance, or of environmental, cultural, or economic
disadvantage.3
Washington State special education draft regulations follow the federal IDEA terminology and
define “specific learning disability” as follows:
(k)(i) Specific learning disability means a disorder in one or more of the basic
psychological processes involved in understanding or in using language, spoken or
written, that may manifest itself in the 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, that adversely affects a student's educational performance.
(ii) Specific learning disability does not include learning problems that are primarily
the result of visual, hearing, or motor disabilities, of mental retardation, of emotional
disturbance, or of environmental, cultural, or economic disadvantage.4
Although these definitions are quite comprehensive—covering both what is and what is not a
specific learning disability for purposes of special education eligibility—the quantity of the
functional limitation or problem required to qualify is not included. Therefore, to determine
actual eligibility, additional determinations are required. Meeting the IDEA definition is only
the beginning of the process; the additional considerations required are described below.
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2. Eligibility Determination
As mentioned above, Local Education Agencies (LEAs) are not required under the IDEA 2004 to
use severe discrepancy models which focus on the difference between a child’s ability and
achievement to determine eligibility for IDEA services.5 They are, however, authorized under
the new law to use “a child’s response to scientific, research-based intervention,” commonly
referred to as Response to Intervention or RTI, as part of their evaluation procedure.6 The
DOE regulations expand on this statutory language by requiring that states adopt criteria
consistent with the regulations regarding eligibility and (1) must not require use of severe
discrepancy analysis (intellectual ability compared to academic achievement), but (2) must
use a process based on child's response to scientific, research-based intervention, and (3) may
permit use of other alternative research-based procedures as defined in [another section of
the law].7
Additional procedures for identifying children with specific learning disabilities are found in
the DOE regulations to IDEA. First, the IDEA 2004 requires school districts to add members to
the team of qualified professionals who will determine eligibility. Specifically, the decision
must be made by the child’s parents and the child's regular education teacher or, if the child
does not have a regular education teacher, a regular education teacher qualified to teach a
child of that age or an individual qualified to teach a child of less than school age and at least
one person qualified to conduct individual diagnostic examinations—e.g., a school
psychologist, speech-language pathologist or remedial reading teacher.8
To determine the existence of a specific learning disability, the eligibility group must show
that the child:
(1) does not achieve adequately for age or meet State-approved grade-level standards
when provided with learning experiences/instruction appropriate for age or Stateapproved grade level standards in one of 8 areas (oral expression, listening
comprehension, written expression, basic reading skill, reading fluency, reading
comprehension, mathematics calculations, mathematics problem-solving);
(2) does not make sufficient progress to meet age or State-approved grade-level
standards in one of 8 areas when using process based on child's responses to scientific,
research-based intervention; or exhibits pattern of strengths and weaknesses in
performance, achievement, or both, relative to age, State-approved grade-level
standards, or intellectual development, determined by group to be relevant to
identification of specific learning disability; and
(3) findings are not primarily result (italics added) of other factors (visual, hearing,
motor disability; mental retardation; emotional disturbance; cultural factors;
environmental or economic disadvantage; limited English proficiency).9
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Special Ed Law Quarterly, Bulletin #10
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The inclusion of the phrase highlighted above, not primarily the result, suggests that
influence from these other factors is allowed in the eligibility determination rather than the
factors being mutually exclusive.
IDEA 2004 attempts to replace the discrepancy analysis with a standard that arguably is a
more inclusive way to determine SLD in some children. For example, the new standard could
qualify students who previously did not meet the required discrepancy. An example would a
very low achieving student who also tested in the low range intellectually and thus did not
qualify under a discrepancy analysis because there was no discrepancy between ability and
achievement. On the other hand, the new standard also could exclude students who are very
"bright" and only achieving academically at average or above average levels but not at their
academic potential. Although too soon to assess how these changes will actually affect a
student’s eligibility, in some ways the new standard provides professionals greater flexibility
but without the "bright-line" decision-making guidelines under discrepancy analysis.
The new IDEA regulations also require that educators ensure that a student’s
underachievement is not due to lack of appropriate instruction in reading or math. In order
to satisfy this requirement, the teams must consider:
(1) whether scientifically-based data demonstrates that prior to or as part of the
referral process, the student was provided with appropriate instruction in a regular
education setting delivered by qualified personnel and
(2) data-based documentation of repeated assessments at reasonable intervals,
reflecting formal assessment of student progress during instruction.
It is important to note that not only must this information be provided to parents,10 but that
parents continue to have their notice and consent rights to any evaluation of their child for
special education services.
As implied above, and stated clearly elsewhere, the IDEA 2004 regulations now require that
educators determine eligibility after observing the student. Specifically, the regulations
require that the child is observed in the regular learning environment by someone other than
the child’s teacher in order to document academic performance and behavior in areas of
difficulty. The educators must decide to use information from observation in routine
classroom instruction and monitoring before referral for evaluation or at least one member
must conduct observation of academic performance in the regular classroom after referral for
an evaluation and obtaining parental consent.11 If the child is out of school or less than
school age, the district must observe the child in the environment appropriate for his/her
age.
Finally, the special education law requires that the determination of eligibility must be
documented in detail by the group. Specifically, the federal regulations require a statement
that includes the following components:
(1) whether the child has a specific learning disability;
(2) the basis for making the determination;
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Special Ed Law Quarterly, Bulletin #10
(3) relevant behavior noted during observation and the relationship of behavior to
academic functioning;
(4) educationally relevant medical findings, if any;
(5) whether the child,
(i)
does not achieve adequately for age or to meet State-approved standards and
(ii)
does not make sufficient progress to meet age or State approved grade-level
standards or exhibits pattern or strengths and weaknesses in performance;
(6) effects of other factors (visual, hearing, motor disability; mental retardation;
emotional disturbance; cultural factors; environmental or economic disadvantage;
limited English proficiency) on achievement level; and
(7) if the child participated in process which assesses response to scientific, researchbased intervention,
(i)
instructional strategies used and student data collected and
(ii)
documentation of parent notification about a) the State's policies about
amount and nature of student performance data collected and general
education services provided, 2) the strategies for increasing child's rate of
learning, and 3) parent's right to request an evaluation.12
The language above that requires data documentation and instruction based on scientific,
research-based interventions is one example of the incorporation of many of the core
concepts of No Child Left Behind (NCLB) in the reauthorized IDEA.
A final eligibility requirement in IDEA 2004 concerns the documentation of the professional
judgments of the group members. The law requires that each group member must certify in
writing whether the eligibility report reflects that member's conclusion; if not, then the
member must submit a separate statement presenting his or her conclusions. Although it is
not unheard of for special educators to write separate “minority reports” that differed from
the multidisciplinary team conclusions, this has not been a common practice and teams tend
to work out any disagreement over eligibility and/or Individualized Education Programs (IEPs)
content. It will be interesting to see if the new SLD eligibility regulations change the past
practice and make minority reporting more common.
The previous Washington Administrative Code (WAC) used the discrepancy model as the
method to identify children with SLDs.13 The new WACs change the state regulations to follow
the changes in IDEA 2004. The WACs state that schools may now a use severe discrepancy
model, a RTI, or a combination of both to determine if a student with a SLD is eligible for
special education—i.e., they allow what the federal law allows. The regulation reads as
follows:
In addition to the evaluation procedures for determining whether students are eligible
for special education, school districts must follow additional procedures for identifying
whether a student has a specific learning disability. Each school district shall develop
procedures for the identification of students with specific learning disabilities which
may include the use of:
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Special Ed Law Quarterly, Bulletin #10
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(1) A severe discrepancy between intellectual ability and achievement; or
(2) A process based on the student's response to scientific, research-based
intervention; or
(3) A combination of both.14
Relevant sections of the WACs dealing with the evaluation group, determination of learning
disability eligibility, and the RTI process mirror the federal guidelines and are found in the
WACS numbered 392-172A-03050 through 172A-03060. Section 392-172A-03074 outlines the
requirements for documenting the observation of students suspected of having a specific
learning disability and section 392-172A-03080 describes the requirements for the specific
documentation of the eligibility determination. Both incorporate the federal requirements.
Several of these sections elicited questions during the public comment period and the OSPI
responses—including some revisions to the draft regulations—are available on the website. If
you are interested in reading these WAC sections and/or the official responses to the public
comments, please see the online versions at http://www.k12.wa.us/SpecialEd/default.aspx
Two other sections describe the state guidelines on using the severe discrepancy model. The
first addresses the use of discrepancy tables for determining severe discrepancy. If a school
district chooses to use this method of identifying students, the WACs state that:
[The district] will use the OSPI’s published discrepancy tables for the purpose of
determining a severe discrepancy between intellectual ability and academic
achievement.
The regulations go on to state that these tables are “developed on the basis of a regressed
standard score discrepancy method that includes”:
a) The reliability coefficient of the intellectual ability test;
b) The reliability coefficient of the academic achievement test; and
c) An appropriate correlation between the intellectual ability and the academic
achievement tests.
Finally, for purposes of determining SLD eligibility, this WAC section states that, “the
regressed standard score discrepancy method is applied at a criterion level of 1.55.”15
The second new section that should be highlighted concerns the method for documenting
severe discrepancy. The regulation states that in applying the severe discrepancy tables, the
following scores will be used:
a) A total or full scale intellectual ability score;
b) An academic achievement test score which can be converted into a standard score
with a mean of one hundred and a standard deviation of fifteen; and
c) A severe discrepancy between the student’s intellectual ability and academic
achievement in one or more of the areas [oral expression, listening comprehension,
written expression, basic reading skill, reading fluency skills, reading comprehension,
mathematics calculation, mathematics problem solving] shall be determined by
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Special Ed Law Quarterly, Bulletin #10
applying the regressed standard score discrepancy method to the obtained intellectual
ability and achievement test scores using the tables referenced above.16
This all sounds very objective and numbers driven. However, our WACs also allow educators
to apply professional judgment to determine the presence of a specific learning disability.
Specifically, the regulation allows the evaluation group to use
data obtained from formal assessments, reviewing of existing data, formal assessments
of student progress, observation of the student, and information gathered from all
other evaluation requirements . . . to determine if a severe discrepancy exists. When
applying professional judgment, the group shall document in a written narrative an
explanation as to why the student has a severe discrepancy, including a description of
all data used to make the determination through the use of professional judgment.17
In addition to these potentially significant changes in the identification or students with SLD,
the IDEA 2004 was also amended to reflect a Congressional emphasis on delivering quality
instruction based on scientifically-based research, and ensuring that students who are
struggling in school receive services as soon as possible. Two of the major changes were
introducing the idea of Response to Intervention and Early Intervening Services. Although
students with a variety of disabilities and/or academic problems may receive services under
these programs, many will be those who do not qualify for the new eligibility requirements of
SLD and/or are at risk for becoming eligible. Both issues are addressed below.
B. Response to Intervention (RTI)
Response to Intervention is a new approach introduced in IDEA 2004 to determine whether a
struggling child actually has a disability as defined by IDEA or simply needs more intensive
regular education support to be successful in the classroom. In fact, IDEA 2004 does not use
the phrase “Response to Intervention” but rather the phrase “response to scientific researchbased intervention.” However this federal terminology is commonly referred to as “Response
to Intervention” or either RTI or RtI. This Bulletin uses RTI.
RTI has been defined by the National Center on Research in Learning Disabilities (NCRLD) as
“[a]n assessment and intervention process for systematically monitoring student progress and
making decisions about the need for instructional modifications or increasingly intensified
services using progress monitoring data.”18 Although students with a variety of difficulties
could benefit from the RTI process, it is aimed at identifying students with learning
disabilities earlier than generally possible with traditional discrepancy models. An underlying
assumption of RTI is that most students should benefit from a quality, regular education
curriculum and therefore educational difficulties may be based on inadequacies in
instruction/curriculum.19
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Special Ed Law Quarterly, Bulletin #10
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OSPI has described RTI as an “integrated approach to service delivery that encompasses
general, remedial and special education through a multi-tiered services delivery model.”20 It
usually consists of three levels of intervention and individualization, though it can vary. If a
child does not respond to the first level of intervention, the child will typically be moved to
the next level of RTI instruction and so on through the various tiers until the appropriate
interventions are identified.
Core Characteristics of RTI, as identified by the NCRLD are:
1. Students receive high quality instruction in their general education setting.
2. General education instruction is research-based.
3. General education instructors and staff assume an active role in students’ assessment
in that curriculum.
4. School staff conducts universal screening of academics and behavior.
5. Continuous progress monitoring of student performance occurs.
6. Continuous progress monitoring pinpoints students’ specific difficulties.
7. School staff implements specific, research-based interventions to address the
student’s difficulties.
8. School staff uses progress-monitoring data to determine interventions’ effectiveness
and to make any modifications as needed.
9. Systematic assessment is completed of the fidelity or integrity with which instruction
and interventions are implemented.
10. The RTI model is well described in written documents (so that the procedures and
criteria used in schools can be compared to the documents).
11. Sites can be designated as using a “standardized” treatment protocol or an
individualized, problem-solving model.
12. A child may be separately assessed for a disability at any time throughout the RTI
process.
This last point is important to highlight. RTI may not be used as a means of delaying or
refusing to conduct a special education evaluation if the LEA suspects that the child has a
disability or if the parents request that the school evaluate the child.21
1. RTI in federal and state law
Under IDEA 2004, if a school suspects that a student has a SLD, the school must be allowed by
state law to use a process based on the child’s response to specific, research-based
intervention to determine eligibility, and may permit the use of other alternative researchbased procedures. Not responding or making sufficient progress within that intervention is an
indication that learning disabilities may lie at the root of the child’s academic difficulties.22
States can choose the manner in which they implement a RTI process as one part of a
comprehensive evaluation.23 However, RTI cannot be the only tool used to determine if a
child is eligible for special education and does not replace the need for a comprehensive
evaluation.24
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Special Ed Law Quarterly, Bulletin #10
WAC 392-172A-03060 spells out the process by which SLD students may be identified through
RTI in our state. Washington State school districts that use RTI must adopt procedures that
include the following elements:







Universal screening and/or benchmarking at fixed intervals at least three times
throughout the school year;
Provide a high-quality core curriculum designed to meet the instructional needs of all
students;
Use scientific research-based interventions for students identified as needing
additional instruction;
Use scientific research-based interventions that are appropriate for the student’s
identified need, implemented with fidelity;
Use a multi-tiered model, developed to deliver both the core curriculum and strategic
and intensive scientific research-based interventions in the general education setting;
Frequently monitor individual student progress in accordance with the constructs of
the multi-tiered delivery system and consistent with the intervention and tier at which
it is being applied; and
Decision making using problem solving or standard treatment protocol techniques
based on, but not limited to, student centered data that includes curriculum based
measures, available standardized assessment data, intensive interventions, and
instructional performance level.
These procedures must be used to establish that:

The student’s general education core curriculum instruction provided the student the
opportunity to increase her or his rate of learning;
 Two or more intensive scientific research-based interventions were implemented with
fidelity and for a sufficient duration, in addition to or in place of a general education,
and did not increase or allow the student to reach the targets identified for the
student; and
The duration of the intensive scientific research-based instruction was long enough to gather
sufficient data points below the student’s aim line to demonstrate student response for each
of the interventions through progress monitoring to determine the effectiveness of the
interventions.
2. Practice Considerations
Washington State is encouraging schools to wait until they have scaled up their RTI efforts
before using it for SLD determinations. OSPI has made it clear that there is no “cookie
cutter” model for implementation of RTI but that flexibility is required. Due to the state’s
cultural and linguistic diversity in student populations, resources, geographic areas, and rural,
urban and suburban populations, it is expected that no two school districts or even school
buildings will implement RTI in precisely the same way.
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Special Ed Law Quarterly, Bulletin #10
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In order to assist schools in designing and implementing effective RTI programs effort, OSPI
has developed a comprehensive manual titled Using Response to Intervention (RTI) for
Washington’s Students. It explains the principles and components of the RTI process,
guidelines related to decision making within a RTI system, recommends how to use RTI data in
identifying SLDs, answers common questions, and identifies additional resources to use in
developing district RTI systems.25 It is available online at
http://www.k12.wa.us/SpecialEd/pubdocs/RTI/RTI.pdf
There is an increasing amount of other information available to school professionals on how to
implement a RTI process, including how RTI works in conjunction with special education
services at and with students who are members of cultural, racial or linguistic minorities.
Some of these RTI resources are available at http://www.k12.wa.us/SpecialEd/RTI.aspx.
Although there are few reported “problems” with implementation of RTI as of yet, possible
issues have been raised in the literature. Whether these concerns will present barriers to
implementation are not going to be clearly understood for a few years, but they may be
useful food for thought as educators begin the process of introducing RTI in their buildings. In
summary the following issues have been the focus on academic commentary.
1. Broad policy concerns including the fact that (a) effective implementation places a
heavy load on public school teachers who do not have the training or incentives to
achieve its optimistic goals; (b) RTI alters the definition of learning disabilities by
changing the way in which students are identified, ultimately shifting the category of
children protected by IDEA by using a universal standard based on average
performance; and (c) RTI focuses on low achievement rather than processing
difficulties, failing to get at the root source of the problem.26
2. General implementation questions including, (a) what if a student’s teachers are not
highly qualified [as required under IDEA and NCLB]? (b) What if the children’s parents
do not receive documentation of achievement at regular intervals? (c) In practice, will
RTI actually expedite the receipt of student assistance? and (d) How do we judge
assessments and do assessments accurately reflect what students need to know?27
3. Concerns related to the amount of time special educators will have to work with noneligible students. Related to this issue is the “problem” of students who are enrolled
in private schools as a group that has been highlighted as presenting possible
complications for public educators who are required under IDEA 2004 and state law to
determine whether they are in need of special education services. Since the leading
non-discrepancy based model is now Response to Intervention, and public school
districts do not control the bulk of a private student’s instructional day, it is
questionable how the public school can obtain meaningful results under designated
time constraints.28
In addition to RTI, Congress introduced another “new” idea to IDEA 2004 that has the
potential to impact the services provided to students with learning disabilities who may not
have the level of difficulty required to qualify for special education services. It is described
below.
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C. Early Intervening Services
IDEA 2004 provides states with the option of using some of their Part B funding to implement
Early Intervening Services (EIS). Our recently adopted state special education regulations
describe the EIS rules if a Washington school district chooses to implement such a program.29
Such services are based on catching problems early in the school experience for primary and
secondary students (excluding preschoolers), with an emphasis on the early grade levels (K3rd).30 Under the federal regulations, EIS are activities that support students who are not
currently eligible for special education but need additional support to be successful in the
general curriculum, and can include activities to support the development of RTI.31 In fact,
parental notification is not required for screening by a specialist or teacher to determine
appropriate instructional strategies for these children as the screening is not an evaluation for
special education services.32
EIS can include professional development for teachers and other school staff to allow them to
deliver “scientifically based” academic instruction and behavioral interventions including
scientifically based literacy instruction.33 EIS can also include providing educational and
behavioral evaluations, services and supports, and where appropriate, instruction on the use
of adaptive and instructional software. The law is very clear that EIS do not create any right
to free appropriate public educational services under IDEA nor can they be used to delay
“appropriate evaluation of a child suspected of having a disability.”34
If a state chooses to introduce EIS, local districts are authorized under the federal special
education law to use up to 15% of their Part B funds (funds to implement services to children
ages 3-21 years), minus any maintenance of effort reductions, in combination with other
funds, to create and implement an EIS program.35 Appendix D to the IDEA contains two
examples of how EIS would impact the Part B funds available to the district. First, if 15% of
the funding available for early intervening services is greater than the local maintenance of
effort reduction (50% of the increase in the LEA grant over the prior year's grant) or if the 15%
of the available funding is less than the local maintenance of effort reduction. This limitation
means that some LEAs will not be able to engage in early intervening service delivery, based
only on the amount of their Part B grant in the current and prior year.
The calculations involved are straightforward but clearly a state decision either way will
impact the funds available for Part B services. In reality, a state will need to make decisions
about how much funding can be made available for EIS without jeopardizing services for
special education students. The financial considerations involved in using Part B monies for
early intervening when LEAs are already struggling to provide services to students with IEPs
may also discourage school districts in implementing early intervening services.
Early Intervening Services are essentially another tool provided to schools by IDEA 2004 to
take early and deliberate action to assist struggling students. The rationale is
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Special Ed Law Quarterly, Bulletin #10
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commonsensical—the earlier students’ learning problems are identified, the earlier students
can be helped, reducing the likelihood that they will require more remediation. Not only are
such services beneficial to students to maximize their opportunities to succeed, but
implementation of EIS would also theoretically be less expensive—at least in the long-term—
for state educational agencies. However, we won’t know whether that is true or not for a
few years. In order to collect that data, if funds are used for an EIS program, the districts
must report to OSPI the number of students served and those that become eligible for special
education within two years.36
As mentioned in the earlier discussion of RTI, EIS can be considered one aspect of the RTI
process. How these two “new” interventions may impact the outcomes for students who have
historically been identified and served under IDEA is unknown at this time. Some schools
implemented aspects of RTI and EIS in their buildings before the IDEA 2004 amendments but
for many schools these interventions are new. It will take several years of implementation of
the IDEA amendments that address identification and delivery of services to students
struggling academically before educators and policy makers will have the data they need to
evaluate whether the Congressional goal of improved academic performance for students is
positively affected by changes in the law.
III. Online Resources on Learning Disabilities, RTI and
EIS
Federal Department of Education:
US Federal Dept of Education (IDEA 2004 website): http://idea.ed.gov/
Series of Documents issued by OSEP to assist school districts in implementing IDEA 2004.
Eligibility for SLD at
http://idea.ed.gov/explore/view/p/%2Croot%2Cdynamic%2CTopicalBrief%2C23%2C
State Education Department (OSPI):
Office of Superintendent of Public Instruction, Special Education (2006). Using Response to
Intervention (RTI) for Washington’s Students
Washington State Office of Superintendent of Public Instruction
http://www.k12.wa.us/specialed/IDEA_2004.aspx
Additional Resources on RTI: http://www.k12.wa.us/SpecialEd/RTI.aspx resources for RTI
National Education Resources:
FAQs on SLD from the National Center for Learning Disabilities.
http://www.ncld.org/index.php?option=content&task=view&id=283
Copyright © 2007 by University of Washington.
Page 14 of 15
Special Ed Law Quarterly, Bulletin #10
For those interested in a very comprehensive resource on the changes in the special
education law related to specific learning disabilities, including determining eligibility, NICHY
has made their training materials available on-line
http://www.nichcy.org/training/contents.asp#eval3
1
It is important to remember that many disabled students who are not found eligible for IDEA
services, may be eligible for educational services under Section 504 of the Rehabilitation Act (Section
504), the Americans with Disabilities Act of 1990 (ADA) as well as the Washington State Law Against
Discrimination (RCW 49.60). The definition of who is covered—i.e., who is disabled—under these laws
differs. Section 504 of the Rehabilitation Act of 1973 is a civil rights law that prohibits discrimination
against individuals with a disability under any program that receives federal assistance. Public school
districts, institutions of higher education, and other state and local education agencies receive these
funds and therefore must follow Section 504. Specifically, schools must identify, evaluate and develop
plans to ensure that students have the same access to educational opportunities as nondisabled
students. ADA extends the nondiscrimination protections of Section 504 to private employers, state
and local governments, and any privately owned business or facility open to the public. It prohibits
discrimination against an individual by reason of their disability. All IDEA eligible students are
protected by Section 504 and the ADA. RCW 49.60 is a civil rights statute that prohibits discrimination
based on the presence of any sensory, mental, or physical disability in public areas.
2
See an interesting chapter “Rethinking Learning Disabilities” at
http://www.edexcellence.net/library/special_ed/special_ed_ch12.pdf
3
34 CFR §300.8(c)(10)(i)(ii).
4
WAC 392-172A-01035 k(i), (ii).
5
20 USC §1414(b)(6)(A).
6
20 USC §1414(b)(6)(B).
7
34 CFR §300.307.
8
34 CFR §300.308.
9
34 CFR §300.309(a)(1)(2).
10
34 CFR §300.309.
11
34 CFR 300.310.
12
34 CFR §300.311.
13
WAC 392-172-128
14
WAC 392-172A-03045
15
WAC 392-172A-03065
16
WAC 392-172A-03070
17
WAC 392-172A-03070(2).
18
National Center on Research in Learning Disabilities (NCRLD) (2006). Retrieved on June 31 from
http://www.ncld.org/
19
Hozella, P. (n.d.). Training Module 6: Early Intervening Services and Response toIntervention, Slides
and Discussion. Office of Special Education Programs, U.S.Department of Education at 9. Retrieved on
May 15, 2007 from www.nichcy.org/training/6-discussion.doc
Copyright © 2007 by University of Washington.
Special Ed Law Quarterly, Bulletin #10
20
Page 15 of 15
. Office of Superintendent of Public Instruction, Special Education (2006). Using Response to
Intervention (RTI) for Washington’s Students at 2.
21
Id at 10.
22
Id at 12.
23
Department of Education, Office of Special Education and Rehabilitation Services Policy Letter
(March 2007).
24
IDEA §1414(b)(2)(B),
25
Office of Superintendent of Public Instruction, Special Education (2006). Using Response to
Intervention (RTI) for Washington’s Students at 1.
26
Townsend, N. Framing a Ceiling as a Floor: The Changing Definition of Learning Disabilities and the
Conflicting Trends in Legislation Affecting Learning Disabled Students. 40 CREIGHTON L. REV. 229 (2007).
27
Blackwood, E.M. Special Education: Will the “Improvements” Decrease Protections for Parents and
Students? 32 SUM VT. B.J. 52 (2006
28
Weber, M. Services for Private School Students under the Individuals with Disabilities Education
Improvement Act: Issues of Statutory Entitlement, Religious Liberty, and Procedural Regularity, 36
J.L. & EDUC. 163 (2007).
29
WAC 392-172A-06085.
30
71 Fed. Reg. at 46627.
31
34 CRF §300.226
32
34 CFR § 300.302
33
34 CFR §300.226(b)
34
34 CFR §300.226(c)
35
34 CFR §300.2269(a).
36
WAC 392-172A-06085(4)(a)(b).
Copyright © 2007 by University of Washington.