OSEP DEAR COLLEAGUE LETTER on IDEA/IEP Terms (October 23, 2015)

400 MARYLAND AVE ., S.W. WASHINGTON, D.C. 20202 -2600 www.ed.gov The Department of Education ’s mission is to promote student achievement and preparedness for global competiveness by fostering educational excellence and ensuring equal access. UNITED STATES DEPARTMENT OF EDUCATION OFFICE OF SPECIAL EDUCATION AND REHABILITATIVE SERVICES THE ASSISTANT SECRETARY October 23, 2015 Dear Colleague: Ensuring a high -quality education for children with specific learning disabilities is a critical responsibility for all of us. I write today to focus particularly on the unique educational needs of children with dyslexia, dyscalculia, and dysgraphia, which are conditions that could qualify a child as a child with a specific learning disability under t he Individuals with Disabilities Education Act (IDEA) . The Office of Special Education and Rehabilitation Services (OSE RS ) has received communications from stakeholders , including parents, advocacy groups , and national disability organizations, who believe that State and local education al ag encies (SEAs and LEAs) are reluctant to reference or use dyslexia, dyscalculia, and dysgraphia in evaluation s, eligibility determinations, or in developing the individualized education program (IEP) under the IDEA. Th e purpose of this letter is to clarify that there is nothing in the IDEA that would prohibit the use of the terms dyslexia, dyscalculia, and dysgraphia in IDEA evaluation , eligibility determinations , or IEP document s. Under the IDEA and its implementing regulations “specific learning d isability ” is defined, in part, as “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 calculati ons, including conditions such as perceptual disabilities, brain injury, minimal brain dysfunction, dyslexia , and developmental aphasia. ” See 20 U.S.C. §1401(30) and 34 CFR §300.8(c)(10) (emphasis added) . While our implementing regulations contain a list of conditions under the definition “s pecific learning disability,” which includes dyslexia, the list is not exhaustive . However, regardless of whether a child has dyslexia or any other condition explicitly included in this definition of “specific learnin g disability, ” or has a condition such as dyscalculia or dysgraphia not listed expressly in th e definition , the LEA must conduct an evaluation in accordance with 34 CFR §§300.304 -300.311 to determine whether that child meets the criteria for specific learning disability or any of the other disabilities listed in 34 CFR §300.8, which implements IDEA’s definition of “child wit h a disability .” For those students who may need additional academic and behavioral supports to succeed in a general education environment, schools may choose to implement a multi -tiered system of supports (MTSS), such as response to intervention (RTI) or positive behavioral interventions and supports (PBIS). MTSS is a schoolwide approach that addresses the needs of all students, including struggling learners and students with disabilities, and integrates assessment and intervention within a multi -level instructional and behavioral system to maximize student achievement and reduce problem behaviors. MTSS, which includes scientific , research -based interventions , also may be used to identify children suspected of having a specific learning disability . With a multi -tiered instructional Page 2 – Dear Colleague: Dyslexia Guidance framework, schools identify students at risk for poor learning outcomes, including those who may have dyslexia, dyscalculia, or dysgraphia ; monitor their progress ; provide evidence -based interventions ; and adjust the intensity and nature of those interventions depending on a student’s responsiveness. Children who do not , or minimally , respond to interventions m ust be referred for an evaluation to determine if they are eligible for special education and related services (34 CFR §300.309(c)(1)) ; and those children who simply need intense short -term interventions may continue to receive those interventions. OSERS reminds SEAs and LEAs about previous guidance regarding the use of MTSS , including RTI , and t imely evaluations, 1 specifically that a parent may request an initial evaluation at any time to determine if a child is a child with a disability under IDEA (34 CFR §300.301(b)), and the use of MTSS, such as RTI , may not be used to delay or deny a full and individual evaluation under 34 CFR §§300.304 -300.311 of a child suspected of having a disability . In determining whether a child has a disability under the IDEA, including a specific learning disability, and is eligible to receive special education and related services because of that disability , the LEA must conduct a comprehensive evaluation under §300.304 , which requires the use of a variety of assessment tools and strategies to gather relevant function al, developmental, and academic information abou t the child. This information, which includes information provided by the parent, may assist in determining : 1) whether the child is a child with a disability ; and 2) the content of the child’s IEP to enable the child to be involved in , and make progress in, the general education c urriculum. 34 CFR §300.304(b)(1). Therefore, information about the child’s learning difficulties , including the presenting difficulties related to reading, mathematics, or writing , is important in determining the nature and extent of the child’s disability and educational needs . In addition , other criteria are applicable in determining whether a child has a specific learning disability . For example, the team determining eligibility considers whether the child is not achieving adequately for the child’s age or to meet State -approved grade -level standards when provided with learning experiences and instruction appropriate for the child’s age or the relevant State standards in areas related to reading, mathematics, a nd written expression . The team also must determine that the child’s underachievement is not due to lack of appropriate instruct ion in reading or mathematics. 34 CFR §300.309(a)(1) and (b). Section 300.311 contains requirements for specific documentation of the child’s eligibility determination as a child with a specific learning disability , and includes documentation of t he information described above. Therefore, there could be situations where the child’s parents and the team of qualified professionals responsible for determining whether the child has a specific learning disability would find it helpful to include information about the specific condition (e.g., dyslexia, dyscalculia, or dysgraphia) in documenting how that condition relates to the child’s eligibility determin ation. 34 CFR §§300.306(a)(1 ), (c)(1) and 300.308. 1 See OSEP Memo 11 -07 (January 21, 2011) available at: www.ed.gov/policy/speced/guid/idea/memosdcltrs/osep11 -07rtimemo.pdf Under 34 CFR §300.307(a)(2) -(3), as part of their criteria for determining whether a child has a specific learning disability, States must permit the use of a process based on the child’s response to scientific, research -based intervention, and may permit the use of other alternative research -based procedures in making this determination. Page 3 – Dear Colleague: Dyslexia Guidance Stakeholders also request ed that SEAs and LEA s have policies in place that allow for the use of the terms dyslexia , dyscalculia, and dysgraphia on a child’ s IEP , if a child’s comprehensive evaluation supports use of these terms . There is nothing in the IDEA or our implementing regulations that prohibits the inclusion of the condition that is the basis for the child’s disability determination in the child’s IEP . In addition, the IEP must address the child’s needs resulting from the child’s disability to enable the child to advance appropriately toward s attaining his or her annual IEP goals and to enable the child to be involved in , and make progress in , the general education c urriculum. 34 CFR § §300.320(a)(1 ), (2), and (4). Therefore , if a child’s dyslexia, dyscalculia, or dysgraphia is the condition that forms the basis for the determination that a child has a specific learning disability, OSERS believes that there could be situations where an IEP Team could determine that personnel responsible for IEP implementation would need to know about the condition underlying the child’s disability (e.g., that a child has a weakness in decoding skills as a result of the child’s dyslexi a). Under 34 CFR §300.323(d), a child’s IEP must be accessible to the regular education teacher and any other school personnel responsible for its implementation, and these personnel must be informed of their specific responsibilities related to implementing the IEP and the specific accommodations , modifications, and supports that must be provided for the ch ild in accordance with the IEP. Therefore, OSERS reiterates that there is nothing in the IDEA or our implementing regulations that would proh ibit IEP Teams from referencing or using dyslexia, dyscalculia, or dysgraphia in a child’s IEP . Stakeholders request ed that OSERS provide SEAs and LEAs with a comprehensive guide to commonly used accommodations 2 in the classroom for students with specifi c le arning disabilities, including dyslexia, dyscalculia , and dysgraphia . The IDEA does not dictate the services or accommodations to be provided to individual children based solely on the disability category in which the child has been classified, or the specific condition underlying the chi ld’s disability classification . The Office of Special Education Programs (OSEP) funds a large network of technical assistance centers that develop materials and resources to support States, school districts, schools , and teachers to improve the provision of services to children with disabilities , including materials on the use of accommodations . The U.S. Department of Education does not mandate the use of , or endorse the content of , these products, services, materials , and /or resources ; however, States and LEAs may wish to seek assistance from entities such as the National Center on Intensive Intervention at: http://www.intensiveintervention.org , the Center for Paren t Information and Resources available at: http://www.parentcenterhub.org , and the National Center on Accessible Education al Materials available at: http://aem.cast.org/ . For a complete list of OSEP -funded technical assistance centers please see: http://ccrs.osepideasthatwork.org/ . In implementing the IDEA requirements discussed above, OSERS encourages SEAs and LEAs to consider situations where it would be appropriate to use the terms dyslexia, dyscalculia, or dysgraphia to describe and address the child’s unique, identified needs through evaluation, eligibility, and IEP documents . OSERS further encourages States to review their policies, 2 Although the IDEA uses the term “accommodations” primarily in the assessment context, OSERS understands the request to refer to the various components of a free appropriate public education , including special education, related services, supplementary aid s and services, and program modifications or supports for school personnel , as well as accommodations for students taking assessments . Page 4 – Dear Colleague: Dyslexia Guidance procedures, and practices to ensure that they do not prohibit the use of the terms dyslexia, dyscalculia, and dysgraphia in evaluation s, eligibility, and IEP document s. Finally, in ensuring the provisio n of free appropriate public education , OSERS encourages SEAs to remind their LEAs of the importance of addressing the unique educational needs of children with specific learning disabilities resulting from dyslexia, dyscalculia, and dysgraphia during IEP Team meetings and other meetings with parents under IDEA . I hope this clarification is helpful to both parents and practitioners in ensuring a high -quality education for children with specific learning disabilities, including children with dyslexia, dyscalculia, and dysgraphia. If you have additional questions or comments , please email them to sld@ed.gov . Sincerely, /s/ Michael K. Yudin