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APA Letter to Assistant Secretary Hager regarding the Individuals with Disabilities Education Improvement Act (IDEA), P.L. 108-446 September 6, 2005 John H. Hager Submitted Via Email to: Comments@ed.gov Dear Assistant Secretary Hager: On behalf of the 150,000 members and affiliates of the American Psychological Association (APA), I would like to thank you for the opportunity to comment on the June 21 st Notice of Proposed Rulemaking to implement the Individuals with Disabilities Education Improvement Act (IDEA), P.L. 108-446. We appreciate the time and consideration that the Department has taken to hold public meetings across the country and to draft these proposed regulations to ensure that our nation's children will have appropriate accommodations and access to services necessary to learn. APA, the world's largest organization representing the field of psychology, has a long-standing commitment to promoting the optimal development and education of children. APA's membership includes researchers, practitioners, and educators whose work has played a pivotal role in our society's understanding of the cognitive, social, and emotional development of children. Prevention and intervention initiatives for academic and emotional difficulties have also been a long-term focus of many of our members. I. Assessment for Determining Disability Status §300.304(b)(3) Specific Learning Disability The APA recognizes that the Department faces a formidable challenge in enhancing diagnosis and eligibility decisions for students with specific learning disabilities (SLD). APA supports evidence-based evaluation procedures and recognizes that the proposed regulations represent a laudable effort to include research-based developments more completely into the evaluation process. We believe that the Department's investment in research on assessment procedures and strategies will help to better identify and serve children with disabilities. APA supports the Department's efforts to encourage the states to include a process to determine whether a child “responds to scientific, research-based intervention” as an important part of the pre- referral and ongoing evaluation procedures for determination of SLD. The focus on early identification and intervention inherent in the Response to Intervention (RtI) model, as implemented in Pennsylvania and Iowa, for example, offers great promise, particularly for early reading fluency, as supported by the evidence base. Timely referral for instructional programs based on scientific research will help enable students with reading fluency difficulties to receive much needed assistance earlier than they now do. Yet, additional research on RtI across subject areas (with particular attention to areas other than reading), over time (to ensure retention of improvements), across grades, and across populations (including limited or non-English speakers) is critically needed, and should be supported, to ensure the RtI processes and associated classification decisions are reliable, valid, and unbiased when implemented in our nation's schools. Particular care should be taken to ensure that adequate training and technical support are provided to those involved in RtI implementation and decision-making to help ensure RtI fidelity and consistency, to ensure that those who implement RtI processes are appropriately trained and qualified, and to ensure that RtI does not result in inappropriate overidentification of ethnic minority students. APA also recommends that RtI should not be the sole criterion for determining SLD. As recognized in Section 602(30)(A) of the Act, a specific learning disability is “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 mathematical calculations.” Consistent with this legislative language, children who fail to respond to intervention should receive a comprehensive psychological and educational evaluation to rule out alternative causes before they are determined to have SLD. A comprehensive evaluation would also be consistent with Section 614(b)(3)(B) of the Act, which requires that the child be assessed in all areas related to the disability, including health, vision, hearing, social and emotional status, general intelligence, academic performance, communicative status, and motor abilities and that environmental, cultural and economic disadvantage must be ruled out. Failure to require a comprehensive assessment for children who fail to respond to intervention could be counterproductive both in terms of classification and instructional planning. An area on which there is general consensus is that IQ/achievement discrepancies should no longer be used to determine SLD. Research has failed to support the continued use of the IQ-achievement discrepancy for classification and for informing remedial instruction. However, in moving away from reliance on the IQ/achievement discrepancy model, it is important to distinguish between the atheoretical, global IQ-achievement discrepancy model and cognitive processing/ability assessment approaches that have evolved from recent advances in theory. Promising new lines of evidence from studies examining individual differences in processing and responses to intervention, as well as from neuroimaging studies, may yield fruitful insights to improve children's learning. In addition, cognitive processing models hold promise to address directly the definitional components of SLD cited earlier. Failure to support the continued use of cognitive process/ability assessment in view of these developments may have a chilling effect on efforts to infuse scientific advances into improvements in SLD classification and instructional practices. It is therefore critical that Departmental guidelines clarify that the proposed regulatory provision specifically authorizing states to prohibit use of the IQ/achievement discrepancy measure [§300.307 (a)(1)] does not encompass other promising cognitive processing models for assessment and intervention. As is the case with RtI approaches, additional research focusing on cognitive processing/ability approaches, as well as on approaches that combine RTI and cognitive processing, is needed and should be supported.
Whether this evaluation occurs prior to, concurrent with, or subsequent to application of intervention or prevention efforts, it is important to distinguish a learning disability from other conditions or factors so that intervention may be adapted to meet a child's needs. Prior to a determination that a child has a learning disability, for example, mental retardation and emotional and behavioral disorders known to adversely affect academic performance in school should be ruled out as causal factors for poor achievement.
IEP teams should be able to use a variety of assessment tools and strategies to gather relevant functional, developmental, and academic information, including information provided by the parent, that may assist in determining whether the child has a specific learning disability, as set forth in Section 614(b)(2)(A) of the Act and § 300.532(f). These tools should be reliable, valid for the purposes for which they are intended, unbiased, and administered by qualified professionals.
Any approach used to diagnose disability must be competently implemented with fidelity, particularly for assessment approaches that are likely or even expected to vary across student problems, ecological settings, or personnel, to ensure that decisions reflect student needs. Requiring LEAs to demonstrate that any assessment procedure used to identify students, including RtI and/or cognitive processing approaches, is reliable, valid for the purposes for which it is intended, unbiased, and implemented in the child's primary mode of communication, whenever possible, by appropriately trained and credentialed individuals, is critical to ensuring students' well-being.
We are particularly concerned that, because RtI is not yet a standardized procedure, it may vary substantially within and across LEAs with respect to implementation. Contemporary research shows strong support for tightly controlled RtI efforts, but has also shown that efforts to bring RtI to scale have yielded substantial variability in implementation fidelity within and across school sites. LEAs must demonstrate that variations do not result in poor reliability, inadequate validity, or bias, particularly when procedures are applied to vulnerable populations (e.g., students whose minority, economic, or linguistic status places them at risk). In bringing evidence-based practice to scale in a wide range of settings (e.g. rural/suburban/urban, homogenous or heterogeneous student populations, and high/middle/low SES locations), infrastructure development and challenges can limit or even eliminate beneficial outcomes because the original studies were conducted on a smaller scale. Although cognitive processing models are standardized and are typically administered by trained, competent examiners, nonetheless we are concerned about uncritical adoption of these approaches by LEAs as well. Because these approaches are recently developed, LEAs will need assistance to demonstrate their reliability, validity, utility, and absence of bias across a wide range of students.
With accurate and consistent identification of the construct, scientific progress allows for the discovery of new etiologies and effective prevention and intervention efforts. The science of learning disabilities cannot be advanced in the absence of accurate classification of a group of individuals to study. §300.8 (4)(i) Child with a Disability: Definition of Emotional Disturbance II. Behavioral Interventions §300.226 Early Intervening Services APA applauds the inclusion of behavioral supports as part of the early intervening services that may be provided to students who have not yet been deemed eligible under IDEA. We are also pleased that “teachers and other school staff” are included in paragraph (b)(1) to receive professional development to enable them to provide “scientifically based academic and behavioral interventions.” We urge the Department to provide specific guidance to LEAs on the utilization of existing related services personnel for these activities. Related services personnel already have specialized training in the development and provision of behavioral and academic interventions that are linked to improved academic achievement. Utilizing these staff members for early intervening services would improve collaboration between general and special education staff, and improve coordination of IDEA with the No Child Left Behind Act. III. Personnel Standards §300.156 Personnel Qualifications To ensure the most effective use of IDEA funds, we believe that all children should receive services from qualified related services personnel. APA supports the proposed language that the qualifications of related services personnel be consistent with state-recognized certification, licensing, registration or comparable requirements that apply to the professional discipline. We agree with the proposed language that these requirements for related services personnel should not be waived on an emergency, temporary, or provisional basis. APA recommends that the Department include, under paragraph (d) Policy in this section, details of SEA obligations and steps that LEAs could take to recruit, hire, and retain highly qualified personnel, such as establishing caseload/classroom size standards, access to loan forgiveness programs, professional development opportunities, funding for necessary educational materials and facilities, and clerical and technological support. IV. Communication among Parents, Teachers, and Other School Personnel §300.174 Prohibition on Mandatory Medication APA strongly supports the proposed language under paragraph (b) Rule of Construction that states “nothing in paragraph (a) of this section shall be construed to create a federal prohibition against teachers and other school personnel consulting or sharing classroom-based observations with parents or guardians regarding a student's academic and functional performance, or behavior in the classroom or school, or regarding the need for evaluation for special education or related services under §300.111.” We believe that this language is imperative to ensure that the lines of communication between school personnel and parents remain open regarding the needs of the child. It remains our concern that, without this language, such policies would be interpreted as a prohibition on certain discussions between school personnel and parents and would have a detrimental effect on the identification of students with mental health and behavioral needs. The data from the 1999 Surgeon General's Report on Mental Health, the 2003 report of the President's New Freedom Commission on Mental Health, and other sources indicate that the under-identification and misidentification of children and adolescents with mental disorders is already an alarming problem. V. State and Individual Eligibility and Service Issues §300.154 Methods of Ensuring Services APA supports the proposed language emphasizing the importance of developing, implementing, and enforcing state interagency agreements. We believe such agreements will improve collaboration across child-serving agencies and reduce disputes of responsibilities. Discipline Procedures: §300.530 Authority of School Personnel APA recommends the elimination of the newly proposed §300.530 (e)(1) “clarifying that a manifestation determination would not need to be conducted for removals of not more than 10 consecutive school days or that otherwise does not constitute a change of placement.” Cessation of services should be prohibited, since it is inappropriate and does not address the root of the problem. Furthermore, loss of progress due to lack of services is particularly difficult for students with emotional and behavioral disorders. When education and supportive services are denied, students are more likely to become involved in anti-social activities. School dropout rates and delinquency would then increase, and communities would be less safe. § 300.167-168 State Advisory Panel The IDEA statute provides for the inclusion on the state advisory panel of “representatives of other state agencies involved in the financing or delivery of related services to children with disabilities.” Under this provision, the Department should expressly encourage states to include representatives from state mental health agencies on the state advisory panel. We are pleased that the statute already includes representatives from state mental health agencies on the state interagency coordinating councils [Section 641(b)(1)(11)]. §300.324 Development, Review, and Revision of IEP APA recommends that the Department strengthen the regulations under (2) (i) Consideration of Special Factors by: 1) encouraging school districts to draw upon the extensive body of research regarding the effectiveness of positive behavioral supports, interventions, and services in improving academic outcomes, improving classroom behavior and reducing disciplinary referrals; and 2) encouraging districts to provide both individual and systemic research-based interventions to address both the individual child's needs and improve the overall school climate. Thank you for your consideration of these comments submitted by the APA concerning the proposed regulations to implement IDEA. We welcome the opportunity to work with the Department in helping to improve the identification of, and provision of services for, children with disabilities to further their academic achievement. For additional information, please contact Ellen Garrison, Ph.D., or Deborah Cotter in the APA Public Policy Office at (202) 336-6062. Sincerely,
L. Michael Honaker, Ph.D.
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