StudyDaddy Social Science Before the Individuals with Disabilities Education Act (IDEA) was reauthorized as IDEA 2004 (PL 108-446), the main criteria for a special education designation as a student with a specific learning di

Before the Individuals with Disabilities Education Act (IDEA) was reauthorized as IDEA 2004 (PL 108-446), the main criteria for a special education designation as a student with a specific learning di

CHAPTER 1

Introduction

OVERVIEW OF THIS BOOK

The goal of this book is to provide detailed guidance for educators who seek to establish multiple tiers of supports for students in their schools. The phrase multi-tiered system of supports (MTSS) refers to structures and procedures that schools offer to help each and every student be successful. Other phrases for an MTSS include response to intervention (RTI) and positive behavioral interventions and supports (PBIS). Both RTI and PBIS are types of tiered supports, but there are others as well. We have chosen to use the umbrella term MTSS to help readers learn about and use a comprehensive framework that can apply to all the students in a school. Note that we refer to such a system of supports in the singular, not plural. The reason for this is that the entire system needs to be integrated and universal, rather than separate mini-systems operating without connections to one another. In places, we refer to PBIS or RTI practices and research, but in all cases the larger framework of one, unified, MTSS is the goal.

The book is organized into six parts, each with several chapters designed to give practical and detailed guidance about how to set up and run an MTSS in your school. This book focuses on how to set up general schoolwide practices that are available to all students. The reason for the broader approach here is to offer educators the knowledge and skills to adopt as a mind-set and ethos rather than a set of isolated steps. Although details about specific procedures are provided, the first chapters in particular focus on prevention science and why all school personnel must learn and embrace a mind-set of prevention science as part of an MTSS in order for it to be successful over the long term. When first introduced, some educators thought that RTI and PBIS were passing fads that would eventually disappear. Instead, they now have lasted and been used in schools for almost 20 years (Walker et al., 1996). Those schools that have taken the time to set up the structures needed to support long-term implementation have observed improvements in student learning and staff engagement. We hope that this book will support educators in making schools successful for all students. Although the major goal of an MTSS is to provide supports when needed by any student, the book includes some information about how MTSS data can be used if a student is referred for special education.

PART I: PREVENTION SCIENCE IN SCHOOLS

Schools are complex social environments that face the challenge of providing effective instruction for students from diverse backgrounds. U.S. public schools have the responsibility to provide such instruction for any and all students who qualify for attendance. And, children ages 6 to 16 (and in some states 5 to 18) are required to attend school. Bringing about effective learning outcomes for all students on a daily basis is not easy, yet it is what educators do. The first section of the book (Chapters 2, 3, 4, and 5) explains the historical background and recent trends in U.S. public school policy that affect the daily work of teachers. Chapter 2 provides a history of the concept of prevention and how it has not historically been applied to public education. Following from an analogy made by Keith Stanovich (1986), Chapter 3 describes how important attention to details is in all aspects of an MTSS. Chapter 4 explains the many types of risk factors that public school students face and how such factors can influence school outcomes if not addressed. An important recent occurrence in public education is the development and adoption of the Common Core State Standards (CCSS). Chapter 5 explains the history of these Standards and how they are aligned with MTSS practices.

PART II: THE IMPORTANCE OF COLLABORATION AND TEAMS

The second section (Chapters 6, 7, and 8) focuses on the importance of collaboration in making an MTSS work. Like any major systems-level project, an MTSS cannot happen if only one person directs it. It must be developed and implemented by teams of educators who work together with common goals. These chapters explain how to set up and maintain effective school teams to support an MTSS. Part II begins with Chapter 6, in which the important roles and functions of specific types of teams are described. Chapter 7 offers guidance on how to set up the specific types of teams needed to support an MTSS. Finally, Chapter 8 explores what is necessary for teams to be effective, including how to develop a team’s identity and routines. This chapter is important for all readers, regardless of whether their school has many existing teams or is just getting started.

PART III: MAKING CHANGE HAPPEN

An MTSS is very much a systems approach to effective school outcomes. Such systems include the complementary and balanced integration of procedures that are activated when certain conditions are present. In order to understand and use an MTSS, it is important that educators know how complex social support systems operate and what it takes to bring about change within them. There is an emerging research base documenting what it takes for systems to function well and the chapters in this section (Chapters 9, 10, 11, 12, and 13) draw from this research. First, in Chapter 9, there is an overview about the existing research on the science of change. Using findings from Fixsen, Naoom, Blase, Friedman, and Wallace (2005), this chapter gives an overview of the stages of change in organizations. Chapter 10 then describes the first three of these stages—exploration, adoption, and installation—as well as how such stages need to be addressed to set up an effective MTSS. Then, in Chapter 11, we detail the two levels of implementation and how careful planning is needed at both. Chapter 12 explains how innovation is an inevitable part of an ongoing MTSS, but needs to be anticipated so that it will be effective. Chapter 12 also describes what is necessary to sustain an MTSS as a permanent approach to student academic and behavioral success in schools. Finally, Chapter 13 discusses how carefully planned daily school schedules are an essential part of effective MTSS practice because they make it possible for interventions to be conducted regularly.

PART IV: EFFECTIVE INSTRUCTION WITHIN AN MTSS

As noted, this book focuses heavily on the “big picture” of system-level support for all students. Part IV (Chapters 14, 15, 16, 17, and 18) examines essential research on effective instruction and how educators must use evidence-based instruction as the foundation for all parts of an MTSS. Chapter 14 reviews findings from a key meta-analysis, and other sources, about the most effective, research-based instructional practices for all grades and subjects. These practices are then juxtaposed in Chapter 15 with information about how to provide effective instructional sequences based on students’ needs. Recognizing that U.S. schools are now more diverse than ever, and expected to become even more so, Chapter 16 reviews the research base on how to support students who are English language learners (ELLs). Although there are many types of diversity in U.S. classrooms, all students are expected to learn English as the language of instruction and this chapter explains how an MTSS is well suited to support ELL students. Chapter 17 provides a conceptual foundation and details about why having treatment integrity at all stages of an MTSS is essential and feasible. Finally, Chapter 18 explains why an MTSS will only succeed in supporting all students when at least 80% of each school’s enrollment meets stated learning targets at Tier 1. With examples from a veteran MTSS leader, Chapter 18 details how the needs of each student can be addressed only when all students get effective instruction (Coyne, Kame’enui, & Simmons, 2004).

PART V: MTSS ORGANIZATIONAL STRUCTURE

In Part V (Chapters 19, 20, 21, and 22), the key organizational elements of an MTSS are explained. Some of the content of this section might be familiar to educators who have used certain components of an MTSS, but the descriptions in these chapters are designed to show how each step requires a comprehensive and well-designed infrastructure to be truly effective. There are four chapters in this section, starting with a discussion of universal screening. The conceptual foundations and practical requirements of universal screening are covered in Chapter 19. Using a cornerstone method pioneered by Stan Deno (1985, 2002) and colleagues, Chapter 20 explains why a detailed problem-solving process is a necessary component of an MTSS. Chapter 21 explains how progress monitoring is an essential pathway by which informative student data are collected in an MTSS. The last chapter in this section, 22, then gives detailed guidance on how to understand student progress data.

PART VI: CONNECTING MTSS WITH OTHER SUPPORTS

The final section of the book addresses the ways that an MTSS connects to other student supports already existing in schools. Chapter 23 explains how the final tier of an MTSS is a transition point where consideration of a student’s long-term educational needs is the focus. Chapter 24 returns to the foundations of the book by discussing how prevention science can benefit all students and prevent the need for some special education placements. This chapter explains how an MTSS does not replace special education, but is an important complement to such services. Next (Chapter 25) there is a discussion of the continuum of services for students who have a disability, including both Section 504 of the Rehabilitation Act and the Individuals with Disabilities Improvement Act. Specifically, Chapter 25 identifies how students supported by an MTSS, but who do not make expected gains, might also benefit from other supports as well. This chapter concludes with information about how an MTSS complements, rather than competes with, special education as a system to help all students access effective education.

The book concludes with a case example that describes how all of the components can be combined to develop, implement, and evaluate an MTSS at the district level. Using examples from schools and districts in which we have worked, Chapter 26 seeks to explain the process of setting up an MTSS as it unfolds. This case example will not match the exact experience of all readers, but provides an idea of the level of detail required to make an MTSS successful.

SUMMARY

This book is designed to provide educators at all grade levels and career stages with an understanding of the infrastructure and system components needed to support effective learning outcomes for all students. Starting with a review of some historical foundations and emerging trends, the chapters offer information about the importance of developing strong teams of educators to implement and sustain an MTSS. The key details of an MTSS, including evidence-based instruction, screening, problem solving, progress monitoring, and decision making are explained through the lens of comprehensive system-level supports for all students.




CHAPTER 24

Education for All

As noted throughout this book, an MTSS is often thought to be about special education eligibility, but in truth it is not. As we have explained, an MTSS is a general education initiative designed to provide supports for all students. It is a mindset with corresponding practices that permeates every part of planning, teaching, assessing, and helping students. Nonetheless, guidance and regulation at both the federal and state levels formally includes MTSS procedures for one, and only one, special education eligibility category: specific learning disability (SLD). This chapter explains the history behind U.S. special education policies, how language about MTSS came to be included in federal and state laws, and lingering questions about whether applying labels to students’ learning needs makes sense at all. In many ways this chapter circles back to the basic premise of the book to connect education policy with the social context of children’s lives. For those eager to learn the details about how an MTSS might fit with special education decision making, Chapter 25 explains the details of using data from an MTSS for SLD eligibility decisions.

A HISTORY OF LEARNING DISABILITIES

There have always been some students who found school difficult. Until school attendance became mandatory in the United States starting in the 1890s, little attention was paid to students who struggled because they could generally leave school and be successful in their local communities. As the U.S. economic system went from a focus on local agriculture to the mass production of goods during the industrial revolution, the importance of school-based formal education increased. At about the same time as this economic shift, educators and psychologists began to conduct research into the source of student learning problems (Winzer, 1993). From the beginning, much of the research on what later became known as learning disability (LD) focused on reading problems. From the 1890s through the 1920s, researchers in Europe and the United States considered various possible causes for LDs. Research during this period built on interest in brain–behavior relationships that had begun in the early 1800s (Hallahan & Mercer, 2013; LD Online, 2013; Stanberry, 2013).

Several European physicians are credited with advancing the understanding of LD in the period before World War I. A German researcher, Adolph Kussmaul, coined the term word blindness to describe adults who had reading problems despite average intelligence and education. The British physicians James Hinshelwood and Pringle Morgan conducted autopsies of adults and children with specific reading problems. Their results suggested that there was a physical origin to the reading problems (Hallahan & Mercer, 2013). In the 1920s, Dr. Samuel Orton began work examining reading problems in U.S. children, leading him to conclude that children with average intelligence and reading difficulties could benefit from alternate reading instruction. Orton and his colleagues developed one of the first methods for teaching reading with systematic phonics instruction. Later termed the Orton–Gillingham method for the contributions of Anna Gillingham, this method was one of the first treatments for reading disability.

While much of the early research concerning students with school difficulties focused on reading, there was an awareness that some students struggled in other areas, too. Grace Fernald and Marion Monroe experimented with treatments in both clinic and school settings during the 1940s and 1950s. This early research created an awareness that not only were there children who were predicted to do well in school but did not, but also that there were instructional methods that could benefit these students. The term learning disability was developed by Samuel Kirk, who had been a student of Monroe’s. Kirk used the term in his 1962 text Educating Exceptional Children and then again at a public lecture in 1963 (Hallahan & Mercer, 2013). The term has been used ever since to describe children who have learning difficulties despite no other clear medical or psychological impairments.

In the late 1960s, the U.S. Department of Education began to consider how to offer supports for students with LD. Two task forces were commissioned to consider the needs of such students and how to define LD. These groups initially referred to LD symptoms as “minimal brain dysfunction” (Hallahan & Mercer, 2013). In 1969, advocates for children with LD succeeded in having the Children with Specific Learning Disabilities Act passed. This act provided small amounts of funding to support instruction for students with LD. It also included the first federal definition of LD, which was very similar to the definition in use today. When passing this act, many advocates and members of Congress thought that the percentage of students with LD was no more than 1–3% of all students.

The 1960s and 1970s were a period of major social change in the United States. In addition to advances in rights for African Americans, Hispanic Americans, indigenous peoples, and women, there were major gains on behalf of individuals with disabilities in the 1970s. Because of a history of not being allowed to attend public schools, many of the efforts to support students with disabilities during the 1960s and 1970s focused on making a case for these students’ rights under federal and state laws, as had been done for African American students (Winzer, 1993). The basic premise behind advocacy for students with disabilities is that all U.S. states are required to provide education for all students. Notably, some states initiated special education programs before a federal law was passed in 1975. For example, Massachusetts and Pennsylvania created laws requiring state special education programming before the landmark federal law Public Law 94-142 was passed by the U.S. Congress. The rationale for enacting such legislation was that the education clauses of each state’s constitution do not limit which students are allowed to attend school. Instead, the broad language found in most states’ constitutions refers to a requirement to provide education for all students.

Leading up to the passage of Public Law 94-142, two landmark legal cases established the legal rights of children with disabilities to access education. A 1971 lawsuit brought by the Pennsylvania Association for Retarded Citizens (PARC) succeeded in establishing the precedent that a state must provide access to education for all students, regardless of disability (Public Interest Law Center of Philadelphia, 2013). In another case in 1972, Mills v. Board of Education of the District of Columbia, the court made a similar ruling (Kids Together, Inc., 2013). These cases led the U.S. Congress to investigate the extent to which children with disabilities were being excluded from public schools. Findings showed that other states also prevented students with certain disabilities from attending school. Congress then took action to create a federal law requiring that all public schools provide instruction for all students, including those with disabilities. The focus of these legal cases was on the students’ right to be in school. None of these cases, nor the subsequent law, stipulated what type of instruction each student should receive. Instead, the impetus of the court cases that led to special education focused on the legal right of all students to attend school.

The first U.S. federal special education law was the Education for All Handicapped Children Act (EHCA), passed in 1975. Also known as Public Law 94-142, this law reiterated that all children have a right to a free and appropriate public education (FAPE) in the least restrictive environment (LRE). The court decisions that contributed to the passage of Public Law 94-142 related to students with mental retardation (the term used at the time) or other severe disabilities. Nonetheless, advocates for students with LD participated in the efforts to create a national special education requirement and specific learning disability (SLD) was included as one of the disabilities for which special education could be provided. The EHCA has been revised several times and is now called the Individuals with Disabilities Education Act (IDEA), which was most recently reauthorized in 2004.

The definition of SLD incorporated into Public Law 94-142 was largely the same as had been used in the 1969 act. Most advocates and LD organizations agreed with the definition, but there was a lack of clarity in how to measure SLD. With the passage of Public Law 94-142, the federal government funded five SLD research centers during the late 1970s and early 1980s. These centers were housed at different universities and sought to develop measurement tools that could be used to assess whether a student has an SLD and if the student responds to instruction over time. Notably, the centers came up with discordant findings that created additional confusion about how to identify and monitor students with an SLD (Hallahan & Mercer, 2013). Two trends related to SLD during the late 1980s and 1990s are worth recounting: the Regular Education Initiative (REI) and inclusion.

In the decade following the passage of the EHCA, there were renewed efforts to define SLD, this time by different organizations. These efforts reflected a lack of national consensus about exactly what an SLD looks like. At the same time, the number of students with an SLD grew rapidly and faster than any other special education category. Looking back, Hallahan and Mercer (2013) noted that from 1976 through 1999 the number of students identified as having an SLD doubled. This rapid growth in a category that had once been considered a mild disability was concerning to teachers, administrators, and policymakers. In an effort to address the higher than expected number of students with an SLD, the Reagan administration developed the Regular Education Initiative (REI; Ackerman, 1987; Hallahan, Keller, McKinney, Lloyd, & Bryan, 1988). This was an administrative letter to the state directors of special education that indicated that they should be sure that students with disabilities were educated in the “regular” (now called general) education classroom as much as possible. The REI was not very effective in reducing the number of students with an SLD who were receiving services. Critics noted that the REI ignored the need for teacher training (Coates, 1989; Semmel & Abernathy, 1991) and that it likely violated student rights to a free and appropriate public education (FAPE; Bryan, Bay, & Donahue, 1988; Chisholm, 1988).

The REI tried to help teachers understand the idea of FAPE, but it did not succeed in reducing the number of students with an SLD. During the 1990s, a new effort to focus on students with disabilities emerged. Known as inclusion, this initiative was led by advocates for students with more severe disabilities (Fuchs & Fuchs, 1994; Kubicek, 1994). Similar to the REI, inclusion focused on having all students with disabilities included in the general education classroom and curriculum as much as possible. In schools where full inclusion was adopted, all IEP services were supposed to be delivered in the general education classroom instead of in a specialized setting. While inclusion was aimed at giving students more access to the “normal” general education classroom, this was not always the outcome. The unintended consequence of the inclusion movement is that many students with disabilities stopped getting the very specialized services they needed.

RIGHTS AND INSTRUCTION

Broadly, special education has two primary missions: guaranteeing the rights of students with disabilities in schools and providing effective instruction for these students. At times, the special education community has seemed to focus more on one of these goals than the other. The initial efforts of Public Law 94-142 focused primarily on effective instruction for students with disabilities. This was a huge step forward for children who had previously not always been allowed to attend school at all. As the number of students with disabilities grew in the 1980s, there was a shift in policy focus to maintaining the rights of all students to access the general curriculum. By focusing more narrowly on the right to inclusion in the general education classroom, schools may have neglected the importance of effective instruction for all students. As the new century began, education policy began to focus much more on effective education for all students.

No Child Left Behind

In 2001, newly elected U.S. president George W. Bush signed a law passed by Congress known as the No Child Left Behind Act (NCLB; West, 2003). This law was based on research and preparation done primarily during the Clinton administration that focused heavily on achieving effective learning outcomes for all students. The catalyst of the NCLB was growing awareness that U.S. students were falling behind those from other industrialized nations in key measures of student achievement (see also Chapter 5). To address this concern, NCLB included key provisions designed to hold teachers and schools accountable for student outcomes. For example, under NCLB, at least 95% of all students were required to participate in the state’s annual assessment. Unlike the past, students with mild disabilities like an SLD would not be exempted from this requirement. In addition, each school would be required to submit data to the state indicating whether or not it met key schoolwide learning objectives toward all students’ adequate yearly progress (AYP). States were required to publish each school district’s record of progress, indicating whether each school met its own stated goals toward AYP. The goal of NCLB was to increase the learning outcomes of all students, but its broad reach acknowledged that schools are responsible for the learning of all students, including those with disabilities.

THE PRESIDENT’S COMMISSION ON SPECIAL EDUCATION

Since the 1975 passage of the U.S. federal special education law, studies have shown that educational outcomes for students with disabilities have not improved as much as hoped. Kavale and Forness (2000) found that students with disabilities often made much less progress than general education students when an inclusion model was used. In response to evidence that students with disabilities were lagging behind other students, President George W. Bush appointed the President’s Commission on Excellence in Special Education (PCESE; Federal Register, 2001). The charge to commission members was to identify what changes were needed in special education to make it more effective. In this regard, the PCESE focused more on effective practices than ensuring access to general education programs. The PCESE was important in the history of special education because it identified how the needs of students with disabilities were sometimes overlooked as a result of efforts to ensure their inclusion in general education. The recommendations of the PCESE were then incorporated, alongside provisions from NCLB, into the revision of the Individuals with Disabilities Education Improvement Act (IDEA), which was passed by the U.S. Congress in 2004.

INDIVIDUALS WITH DISABILITIES EDUCATION IMPROVEMENT ACT OF 2004

This new version of the law included several notable changes regarding eligibility for special education services. Part D, Subpart 3(C)5F of the statute noted that the intent of the law included:

providing incentives for whole-school approaches, scientifically-based early reading programs, positive behavioral interventions and supports, and early intervening services to reduce the need to label children as disabled in order to address the learning and behavioral needs of such children …

This language is notable for emphasizing both scientifically based instruction as well as a focus on whole-school programs to reduce the number of students needing special education. Compared with earlier versions of the IDEA, the 2004 law recognized that prevention and early intervention would be important in efforts to support children with disabilities. The implementing regulations (2006) took the essence of both science and prevention even further and included important changes in prereferral requirements as well as in how school teams could determine if a student has an SLD (see Chapter 25).

The IDEA 2004 regulations incorporated the definition of scientifically based research from NCLB and also allowed schools to use up to 15% of their portion of IDEA funds to pay for professional development and delivery of prevention services (§300.225). Although the definition of an SLD was not changed from prior versions of the law in relation to the SLD category, additional guidance was provided that clarified the identification process. As noted in the general history above, there have long been questions about exactly how to identify an LD. For many years the standard method was to administer an IQ test and an academic achievement test, and see if the student’s achievement was significantly below what was expected given the student’s IQ score. This method was developed based on the general definition of LD originally created by Kirk (1962), but it has not been confirmed to be an accurate way to identify an SLD. The use of IQ–achievement discrepancy scores has long been debated in the research literature and has generally been found to be inaccurate in showing whether a student has an SLD (Floyd & Kranzler, 2013; Francis et al., 2005). IDEA 2004 remedied the reliance on such a discrepancy for identifying an SLD in §300.307:

(a) General. A State must adopt, consistent with §300.309, criteria for determining whether a child has a specific learning disability as defined in

§300.8(c)(10). In addition, the criteria adopted by the State—

  1. (1)Must not require the use of a severe discrepancy between intellectual ability and achievement for determining whether a child has a specific learning disability, as defined in §300.8(c)(10);

  2. (2)Must permit the use of a process based on the child’s response to scientific, research-based intervention; and

  3. (3)May permit the use of other alternative research-based procedures for determining whether a child has a specific learning disability, as defined in §300.8(c)(10).

This language was a significant departure from earlier regulations because, for the first time, it barred states from requiring evidence of an IQ–achievement score discrepancy. Critics of the discrepancy method urged the changes seen in the IDEA 2004. It is important to note that the regulations did not bar all uses of IQ–achievement discrepancies, but rather barred states from requiring them. This means that local school districts could still chose to use them.

In addition, for the first time the regulations included a provision that required states to allow school teams to use data from a tiered-supports model such as an MTSS. In 2006, the most commonly used term for such supports was RTI and this term was used in the rule. The rule also allowed for the use of other methods that might not have been defined at the time that the rule was passed. This new language provided more options for how to identify an SLD than ever before in federal rules. Nonetheless, much of the real work needed to provide school personnel with working definitions and procedures about SLD was left to the states, primarily due to the nature of U.S. governance and the right of states to determine educational practices in their jurisdiction. Hauerwas et al. (2013) conducted a comprehensive review of all 50 states’ regulations and guidance concerning SLD identification practices. This study revealed that the majority of states left decisions about SLD identification procedures up to the local school districts. Similar to findings from Zirkel and Thomas (2010), Hauerwas et al. showed that only 11 states required the use of RTI data as the primary source of data in the identification of an SLD. Thus, although federal law has allowed such data for SLD identification since 2006, few states have opted to mandate it and the majority of the process is guided by local school district policies and procedures.

Concurrent with the development of alternate procedures to identify an SLD, important research was ongoing into behavioral and social supports for all students. Based on work started at the University of Oregon, a comprehensive model of tiered supports for students’ school behaviors became known as PBIS. Although not expressly written into the law or regulations concerning special education identification, PBIS has a very strong record of providing support to prevent significant behavioral and social difficulties (Sugai & Horner, 2010). While there is no mandate to do so, school teams can certainly use data from tiered PBIS as part of the process to consider a student’s educational needs. For SLD and all other eligibility categories, using as many sources of data as possible in the process of determining a student’s needs is simply best practice.

From the beginning in 1975, special education rules have required that teams use more than one source of data, and a general standard is to use at least three sources of data. The information gathered from tiered supports is one of the best possible sources of data concerning a student’s current school performance. For this reason, school teams are urged to set up systems that collect such data and to use them regularly when a student is referred for special education services. Kovaleski, VanDerHeyden, and Shapiro (2013) offer excellent guidance about the exact data and steps needed to determine whether a student meets the criteria for SLD and special education services; these steps are reviewed in Chapter 25.

While MTSS data offer important information about recent student performance, it is essential that all educators understand that using tiered supports cannot interfere with a parent’s right to request an evaluation. As with all prior versions of the law, the IDEA 2004 retained a parent’s right to request an evaluation at any time. Once a referral for an evaluation has been initiated, the procedures fall under the due process protections of the law, including the requirement that any evaluations be completed in a timely manner. The protection of a parent’s right to request an evaluation was reiterated in an administrative memo from the U.S. Office of Special Education Programs (OSEP) in November 2007 (Musgrove, 2007). As articulated in the 2007 memo, no school team can delay a comprehensive evaluation on the basis of ongoing intervention. Thus, once a formal request has been made, the required deadlines for completion of the comprehensive evaluation must be followed. Even when a parent has initiated a request, the evaluation can include data from tiered supports as long as the collection of the data does not delay the evaluation process. For example, if a student is having math difficulties and the school had already begun providing daily Tier 2 math intervention with weekly progress monitoring, the progress data could be included in the evaluation as another source of information. But it would not be appropriate to delay any part of the evaluation for the purpose of collecting more data or trying another intervention.

The revisions present in IDEA 2004 were the culmination of many years of efforts to make identification of an SLD easier and more accurate. Despite the many years of effort to understand and identify students’ learning needs, some researchers and advocates have suggested that requiring the use of a “label” or category such as those employed for SLD identification has hampered true breakthroughs in supporting effective school outcomes for all students. The final section of this chapter considers how noncategorical approaches to supporting students might be a better alternative.

DO LABELS MATTER?

Since the beginning of special education, there have been discussions and debates about whether the students served needed to be identified by their diagnosis or category. During the period of time leading up to passage of Public Law 94-142, there were debates surrounding the effects of such “labels.” Massachusetts, which passed one of the first state special education laws in 1973 (i.e., Chapter 766), intentionally created a state system of special education that was noncategorical (Brown-Chidsey, Seppala, & Segura, 2000). Testimony in hearings on the Massachusetts law included references to studies of how “labeling” students according to specific disabilities would hurt them in terms of self-esteem and school performance. In passing the federal special education law, the U.S. Congress decided to include categories and this requirement has continued through the 2004 revisions. Indeed, the OSEP requires that states submit counts of how many students are being served under each eligibility category each year. As of 2014, Iowa was the only remaining U.S. state to use a noncategorical system for identifying and supporting students with disabilities.

When U.S. special education policy was taking shape in the 1970s, there was a vigorous debate about whether a categorical system was in the best interests of students. Ultimately, Congress decided to include labels for the categories of disabilities (then called handicaps) that children might have. As early as 1977, there were calls for revising the categories being used in special education eligibility. Hallahan and Kauffman (1977) wrote a persuasive argument for doing away with categorical assignments for the so-called mild disabilities of “learning disabled, emotionally disturbed, and educable mentally retarded” (p. 139; these terms were those used at the time). Their justifications for collapsing these categories into one and using behavioral data to evaluate educational needs were that the definitions for these categories were imprecise and that many of the defining features overlap among the three. In supporting efforts to implement noncategorical tiered supports, Hallahan and Kauffman suggested that:

children should be considered candidates for special education on the basis of specific social or academic performance deficits, and not judged solely on standardized test scores or clinical impressions. Children should be grouped for instruction according to their performance on remedial tasks. Such grouping would demand continuous assessment of the child’s performance and flexibility in grouping children differently at different times, depending on the nature of the task and the child’s progress. Chronological age, sex, and characteristic social behavior must be considered in grouping children for games and other social experiences, but specific academic skill level must be the criterion for grouping for remedial academic instruction. (p. 146)

These suggestions include many of the practices essential for an MTSS. In order to group children, screening would be conducted, and students receiving extra help would be monitored through “continuous assessment” such as progress monitoring. Hallahan and Kauffman recognized that for some students with disabilities, truly diagnostic or categorical methods were appropriate. For example, for students with hearing and vision impairments, the category of service directly indicated the instruction needed. Their argument was that for students with highly similar and overlapping mild “disabilities,” a dynamic and flexible needs-based system would be better. Such programming would rely on the students’ specific and current learning needs instead of an arbitrary and difficult to measure label such as learning disability or emotional disturbance. Thirty years after Hallahan and Kauffman’s article, Sabornie, Evans, and Cullinan (2006) conducted a review of data showing learning outcomes among the three groups of students with mild disabilities (e.g., LD, emotional disturbance [ED], mild intellectual disability). The results indicated that indeed a continuous grouping of students with mild disabilities might be just as effective as the categorical method still in place as of IDEA 2004. It is important to note that Hallahan and Kauffman had made this suggestion well before the number of students with mild disabilities had skyrocketed.

As several chapters have noted, a continuing concern about special education has been the growing number of students who are served. In fact, MTSS practices were developed in part because so many students are being served in special education and some question whether all of them have a true disability. Ironically, in the early days of special education, there were concerns that too few students were being supported. Edgar and Hayden (1984) described how some special education teachers and administrators worried that their efforts to identify children with disabilities (known as Child Find) were not sufficient because fewer students than expected were identified for services. Interestingly, Edgar and Hayden also noted that “definitions of handicapping conditions, whether they are included in legislation or whether they are derived from other sources, must be reviewed periodically. We must continue to impose upon ourselves a system of checks and balances—a system that does not allow a compounding of errors” (p. 525). This statement from 1984 resonates with many of the issues that have surrounded the implementation of tiered supports in recent years. If all children might need support at one time or another, what is the correct role of special education and what role should categorical labels have in support systems?

In the years 1981–1994, the number of students in special education did rise. In 1981, about 8% of the total school population received special education services and by 1994 that number was about 10% (Edgar & Hayden, 1984; Reschly, 1996). More noticeable was the jump in the percentage of students who received special education in the category of SLD. In 1981, 3% of students were identified with an SLD; this percentage matched the estimated population prevalence of school-age children with an SLD (Edgar & Hayden, 1984). By 1994, the percentage of students receiving special education who qualified under the SLD category was 51%, fully half of all students receiving special education services (Reschly, 1996). This jump began in the 1980s and is what spurred the U.S. Department of Education to advocate for the REI. In reviewing the large increase in the number of students with an SLD, Reschly (1996) noted that there were problems both in the process of such an identification as well as in programming for them.

A related issue in SLD research includes long-standing concerns with the reliability of the assessments commonly used to identify an SLD. As Reschly and others have pointed out, it’s not really possible to distinguish between students with an SLD and those who are “slow learners” (Reschly, 1996). Once a student has been identified with an SLD, few of the older, traditional measures used for identification can assist with instruction planning, although more recently this challenge has been addressed through the use of curriculum-based measurement (CBM). In addition to these technical problems, there are important social and psychological ones as well. As the number of students with an SLD increased, the percentage of identified students who were racial, linguistic, or cultural minorities was disproportionate to the total number of those students in schools (Reschly, 1996). Additionally, some students identified as having an SLD experienced a negative stigma and perceived themselves to be less capable than other students.

Given the drawbacks to using categorical systems of support, other methods have been suggested. Deno’s (1985) problem-solving model was articulated as one possible alternative approach. Reschly (2005) reviewed the ongoing concerns with categorical service delivery and offered an updated description of how problem-solving-based methods could eliminate the problems with categorical services while improving outcomes for more students. Previously, Reschly (1996) provided guidance on how funding a noncategorical system need not be more expensive than categorical approaches. Recently, Gage, Lierheimer, and Goran (2012) updated and expanded the review conducted by Sabornie et al. in 2006. The Gage et al. study reviewed outcomes from students with mild disabilities as well as students with mild autism, attention deficit hyperactivity disorder (ADHD), and speech or language impairments. All of the latter categories have shown an increasing number of students in recent years. Gage et al. found that, except for students under the emotional disturbance category who had significant acting-out behaviors, all of the students showed similar outcomes and probably could have been grouped together by learning needs instead of by special education category.

Despite years of discussion and research, many supports for students are still organized in relation to specific categories of disability. It appears unlikely that special education is going to change this practice in the near future, but using an MTSS does offer a more flexible and noncategorical option for students who present with mild difficulties. Instead of placing students in mutually exclusive groups that never interact, an MTSS begins with all students together for initial instruction. For those students who need extra help, Tier 2 provides additional instruction but does not remove students from their Tier 1 core activities. For the small number of students who require intensive support, Tier 3 adds even more instructional time. Again, the students remain with classmates for most of the day, but get specific extra help when needed. Importantly, the tiers are fluid in that students can move back and forth between support at different tiers if they need more or less help, creating a dynamic approach to supporting all students.

The noncategorical and inclusive approach to supporting students used in an MTSS will stay that way only if educators can prevent themselves from adopting categorical language and behavior that they might have used in relation to special education. There is a danger that we might think of students in terms of “Tier 2 kids” rather than as Omar, Lilly, or Karen. While some form of organizational structure for any system is essential, this structure can become a barrier when it takes over the system and hides the reason—the function—of the instruction. When we stop thinking of students as individuals with unique learning needs, we have moved to a reliance on the system, instead of ourselves as educators, as agents of change. An MTSS works when all of the educators in a building agree on core principles and carry them out daily in their work with children. The “system” cannot do this work by itself. The system is people who care that every student has access to an effective education.

SUMMARY

The intersection of tiered supports with special education happens when a student does not make effective progress toward learning goals. One category of special education services, SLD, has an interesting history of diagnostic challenges. Ongoing research and discussions from the 1960s through the 1990s contributed to a shift in federal policy concerning SLD identification. As revised in 2004, the IDEA allows the use of data collected during specific interventions as part of one particular method for identification of SLD. Progress data collected during interventions can be used as part of a comprehensive evaluation for the other eligibility categories as well, but it must be accompanied by additional required criteria. A parent’s right to initiate an evaluation for special education at any time was retained in the IDEA 2004 and the OSEP confirmed this protection in 2007.

Improving student outcomes does not depend on what we call the learning problem(s). Rather, it depends on using effective instruction at increasing levels of intensity and monitoring student outcomes. The use of categorical labels as part of systems to support students who are struggling has existed for over 40 years in U.S. education. Despite these labels, the number of students needing help has grown larger over time. Using an MTSS offers a noncategorical method of supporting students based on their educational need so that they can achieve specific learning goals. By focusing on the student’s current learning need, tiered supports can be brief and dynamic so that all students can access them if needed. For those students with moderate to severe disabilities, special education is a very important resource. Nonetheless, research suggests that students with diverse learning difficulties, that may or may not be mild disabilities, can achieve improved learning outcomes without labels.

CHAPTER 25

Recognition and Support for Disabilities

SECTION 504 PLANS AND SPECIAL EDUCATION

Throughout this book we have emphasized how an MTSS is a general education initiative and is designed to support all students. While this is true, there are important ways that an MTSS connects with services for students who have identified disabilities. In the United States, there are two major laws related to school-age students who have disabilities: Section 504 of the Rehabilitation Act of 1973 and the Individuals with Disabilities Education Act (IDEA). Although these are federal laws, they have requirements that must be implemented by the states. This chapter provides information about how tiered supports have connections to U.S. laws and regulations for school-age students with disabilities. In addition, it explains how MTSS data have a unique role in the rules pertaining to the identification of students with a specific learning disability (SLD).

SECTION 504 PLANS

U.S. federal legislation passed in 1973 provides supports and protections for individuals of any age with disabilities. Known as Section 504 of the Rehabilitation Act, this law was primarily designed to prevent employment discrimination against people with disabilities. Nonetheless, the law applies to all organizations that receive federal funding, including public schools. Key provisions of the law prohibit denying (1) “qualified individuals the opportunity to participate in or benefit from federally funded programs, services, or other benefits”; and (2) “access to programs, services, benefits or opportunities to participate as a result of physical barriers” (U.S. Department of Health and Human Services Office of Civil Rights, 2015). All schools that receive federal funding must comply with Section 504. In the United States, any student who has a documented history of a recognized disability might be eligible for accommodations under Section 504.

History

The Rehabilitation Act was passed in 1973 as U.S. soldiers, some disabled, were returning from service in Vietnam. Because of the general unpopularity of the Vietnam War, some veterans experienced difficulty reentering the workforce. The early 1970s also saw the culmination of efforts to expand civil rights for many groups, including African Americans, indigenous peoples (i.e., Native Americans), women, and people with disabilities. It was in this historical and social context that the Rehabilitation Act was passed. The Rehabilitation Act provided protections for all persons with disabilities so that they could find employment. Section 504 of the act is where specific language that affects schools is found. Section 504 requires that any organization that receives funding from the U.S. government (i.e., federal sources) must provide services for those with identified disabilities. The original version of Section 504 only applied to a small percentage of students, though, as it focused primarily on assistance for individuals with physical disabilities.

In 1990, the U.S. Congress passed the Americans with Disabilities Act (ADA). This act was designed to provide more comprehensive protections for anyone with a disability, but used the same definition of disability as that in Section 504 (Zirkel, 2009). ADA emphasized that a disability affects a person’s major life activities such as learning and working. In addition to barring employment discrimination, it also prohibits discrimination against individuals with disabilities in state and local government services, public accommodations, commercial facilities, and transportation (U.S. Department of Justice). Unlike Section 504, ADA did not include any contingencies in relation to federal funding (Zirkel, 2009). In other words, ADA is the “law of the land” regardless of an organization’s funding source(s). Therefore, all U.S. schools must comply with the ADA and provide necessary supports for all students and staff who have recognized disabilities.

The ADA was revised in 2008 and the revisions included changes to Section 504 as well (Cortiella & Kaloi, 2010). Interestingly, these amendments put a special emphasis on ensuring that veterans of the wars in Iraq and Afghanistan did not face discrimination due to disability. These changes have implications for schools as well, whether they receive federal funding or not. The most significant changes relate to the list of major life activities protected under ADA and 504. In addition to basic physical activities, the covered activities now include eating, sleeping, walking, standing, lifting, bending, reading, concentrating, thinking, and communicating. Except for sleeping, the newly added activities are all things likely to happen in schools on a daily basis. Zirkel (2009) noted that the expanded disability definition in the revision is open-ended rather than restricted like the eligibility categories in IDEA.

Cortiella and Kaloi (2010) suggested that students in schools who might not have been eligible for Section 504 supports previously might be now as a result of the 2008 amendments. In addition to expanding the list of covered activities, the revisions also explicitly made clear that if a person’s condition is in remission or treated through medication, services under Section 504 and ADA cannot be denied. In other words, evidence of the condition must be documented when symptoms are present and/or nonmedicated, but effective treatment is not a reason to deny services. As a result of these changes, students with conditions like asthma, diabetes, or attention deficit hyperactivity disorder (ADHD) whose disabilities are ameliorated by medications might be eligible for support services.

For many years after the passage of Section 504, and the original special education law—the Education of All Handicapped Children Act (EHCA) of 1975—many educators thought that Section 504 did not apply to schools because such protections were covered under EHCA and its successor, the IDEA. In 1991, the Office of Civil Rights (OCR) issued a policy memorandum that reminded schools that they actually are responsible for enforcing Section 504 as well as the IDEA (Shaw & Madaus, 2008).

The OCR memo clarified that when a student was found to have a disability but was not eligible for special education, he or she might be eligible for a Section 504 plan. As Madaus and Shaw note, Section 504 is separate and distinct from special education and is, therefore, a general education policy. Although Section 504 is a general education requirement in all U.S. states, research by Madaus and Shaw showed that many general educators had never received any training on the subject.

Section 504 Implementation

Section 504 has now been around for over 40 years, yet very little research has been conducted about its implementation. One reason for limited research is that it does not require as much procedural paperwork as the IDEA. Still, general patterns in Section 504 implementation are present. As noted, Section 504 requires that a person have a disability that significantly interferes with a major life activity. For school-age students, any condition that affects being able to engage in daily school activities might qualify. As noted, the 2008 ADA amendments include a more inclusive definition of disability than either Section 504 or the original ADA. In order for a student to be eligible for Section 504 supports, there must be evidence of a disability. Zirkel (2009) suggested that any student who has compelling evidence of a disability might qualify for supports under Section 504. In some cases, the student might have been referred for a comprehensive evaluation for special education and the team decided that he or she was not eligible. If the team concludes that a disability is present but the student does not need special education, then a Section 504 plan could be created. In any situation when a school-age student has evidence of a recognized disability, application of Section 504 rules should be considered.

Another situation in which a student might be found eligible for a Section 504 plan is when the family has documentation of a disability but has already decided that special education is not needed. For example, a student who has orthopedic impairments and uses a wheelchair but does not need any specialized instruction could have a Section 504 plan to ensure access to all parts of the school building. Such a plan might include being allowed to use the school’s elevator even though other students are not allowed to use it. In other cases, students who previously had special education services might benefit from Section 504 plans. Students who are deaf or hard of hearing but who do well in school when using hearing aids with a directional microphone might have had special education in the primary grades but no longer need such services as long as preferential seating and use of the assistive technology is available. School-based Section 504 plans are a way for educators to make sure that all students, regardless of disability, are able to have physical access to the school building and the curriculum.

Section 504 plans are different from special education because they should be fully implemented by general education teachers. The types of supports included in Section 504 plans vary from ensuring a student’s access to a classroom with a wheelchair ramp to instructional accommodations. While definitions of accommodations vary from school to school, they typically include adjustments to the learning environment to make it accessible for a specific student. Examples include having students with hearing and vision impairments sit near the front of the room as well as repeating directions for a student with ADHD. The expanded definition of disability under the revised ADA makes available a broader array of services that a student might need.

One way to think about the difference between Section 504 plans and special education is to make a distinction between accommodation and modification. Accommodate means to “make room for.” In relation to education, accommodations are steps taken to make sure that students with disabilities can access the general education curriculum. Section 504 plans should rely entirely on accommodations that allow students to access their education. This is different from educational modifications, which entail changing the instructional materials and/or expectations of students. Modifications are used in special education because the student’s disability requires altering the instruction itself in order for the student to be successful in school.

Section 504 and an MTSS

Section 504 is perfectly aligned with an MTSS because they share the same goal: giving students access to learning. The main difference between Section 504 plans and an MTSS is the scope. Section 504 plans are individualized for each student who needs one. Generally, it is up to the student to demonstrate a need for a Section 504 plan and provide documentation of the disability. An MTSS is a universal system for supporting all students and seeks to discover which students need extra help and provide it to them. In this regard, an MTSS is a policy extension of the thinking behind Section 504. When Section 504 was passed, the mindset was that all persons (in the case of schools, students) have a right to certain opportunities (e.g., education). By creating a law to this effect, Congress sought to make employment and education options more equitable for those with disabilities. This was not a bad idea, but it was a reactive effort rather than a preventive effort. In other words, the right to access was given, but individuals with disabilities would have to advocate for themselves and document eligibility. As noted in many chapters of this book, an MTSS is prevention based, so it does not wait for a student to fail, but identifies what every student needs and provides it.

Another way of thinking about how Section 504 and an MTSS are two different ways to reach the same goal is to compare standard protocol and problem-solving efforts to support students (see also Chapter 20). Standard protocol methods involve using the current best science as the starting point for all individuals. Such methods are often used in fields other than education. For example, in medicine, the standard protocol for treating a fever in children is to use acetaminophen (e.g., Tylenol). It is used because it has been shown to be very effective and safe in the vast majority of children who have fevers. But if a child has muscle aches and no fever, acetaminophen is not recommended. Instead, ibuprofen (e.g., Advil), which is a medication that reduces pain from inflammation, is a better choice because of its anti-inflammatory properties. The same idea can be used in education. Research shows that all children benefit from direct instruction of decoding skills as a step toward learning how to read. Given that this is generally useful for all children, schools can adopt a standard protocol that includes teaching decoding as part of reading instruction. The benefit of standard protocols is that they create an efficient way to provide effective programming for a large number of people. The downside to a standard protocol is that it will not work for 100% of students. For this reason, problem-solving methods are also important.

A problem-solving approach involves looking carefully at the needs of each individual and coming up with a unique solution for each person. This can be very effective, but it is not efficient, or perhaps even possible, for each student. When there is a large number of students who have needs, stopping to create a unique solution for each one is probably going to take a long time, delay care for some, be difficult to sustain, and perhaps not be successful. For this reason, problem solving is best used as a second or third stage of support. Health care does this all the time. When a child’s fever does not respond to Tylenol, the physician will then consider other treatments. The same is often true when a course of antibiotics is prescribed. If the first one does not work, then a second, or sometimes a third, is needed. Again, the same principles apply in education. When a student does not find success with the standard protocol(s), then problem solving is the right course of action.

MTSS Standard Protocols

Tiered supports typically include standard teaching protocols at Tier 1. This is most evident at Tier 1 where the programming is referred to as “core” instruction. As explained in Chapters 5 and 15, schools should select one core instructional program for each area of the curriculum. By having such core programs, there is one standard set of materials and methods provided for all students. In addition to making access to instruction equitable, using a core program is the best way to help the majority of students meet the stated learning goals. As noted many times in this book, not all students will be successful with Tier 1 alone. For the up to 20% of students who are still struggling despite an otherwise effective Tier 1 standard protocol of instruction, Tier 2 provides additional instruction in the specific area(s) of the students’ need. In this regard, Tier 2 can have elements of both a standard protocol and problem solving.

Tier 2 involves providing students with additional instruction in one or more specific areas of need. It is always in addition to Tier 1 because students who are struggling need more time to learn and practice. Typically, Tier 2 sessions are provided three to five times per week for about 30 minutes each with small groups of students. The small-group format makes Tier 2 a standard protocol because all students in the group receive the same instruction. This is helpful because it means that more students can benefit from support at the same time. The choice of what instruction to use with each Tier 2 group is based on analysis of the students’ prior performance in the classroom and on screening assessments (e.g., AIMSweb, DIBELS, FastBridge, SWIS). For the support to be effective it needs to be matched to the students’ current learning needs. In order to make that match, some amount of problem solving is needed. Brown-Chidsey and Steege (2005, 2010) referred to the use of both a standard protocol and problem solving as a hybrid approach to supporting students. The use of both types of support at Tier 2 is what makes such intervention both effective and practical.

Many—even most—students who participate in Tier 2 will make the needed gains and not need more intensive support. Nonetheless, a small number of students will not find success and will need the more intensive methods used at Tier 3. By definition, Tier 3 supports are based on problem-solving activities. This is because by the time that Tier 3 becomes a consideration, several standard protocols have been tried and not worked. It would be foolish to keep trying such group-based methods when a student needs a more individualized solution. Tier 3 interventions are typically provided individually and include either additional minutes of intervention or a replacement core program. All such materials are selected based on the student’s data from Tiers 1 and 2 and should be carefully matched to a specific learning need. Tier 3 problem solving requires more resources than the other tiers, but it is required by the 5% or fewer students who have not been successful with Tier 1 + Tier 2.

The original vision of Section 504 plans included the intensive and individualized problem solving that is found in Tier 3. The problem with this approach is that the intensity of the process limits how many students can be effectively supported. An MTSS, however, is geared toward helping as many students as possible with the fewest resources needed. This does not mean that an MTSS is less effective, just that it uses a public health prevention mindset that prioritizes how resources are distributed based on evidence of need. As mentioned earlier in this book, the term triage is widely used to describe the process of determining who needs what treatment. It is often used in emergency settings where physicians and nurses need to know quickly which patients to see first. Using an MTSS with a combination of standard protocol and problem-solving steps is a form of triage in education. It helps teachers identify which students need help the most and soonest.

Using an MTSS complements the requirements of Section 504 by providing a structured system for identifying which students need help in order to be successful in school. When implemented correctly, an MTSS goes beyond the basic requirements of Section 504 because it includes universal screening, as well as supports, for students regardless of disability. Still, an MTSS is a very good approach to addressing the new requirements of the 2008 ADA/Section 504 amendments. The 1973 language in Section 504 focused on severe and profound impairments, which are now typically identified well before a child reaches school age. Students with significant disabilities likely will have an individualized education program (IEP) before, or soon after, entering school. The students whose difficulties have not yet been detected and who might have a mild disability are those with some of the conditions recently added to the law, particularly reading, concentrating, thinking, and communicating. These are activities necessary for many aspects of school success and which can be supported very well using an MTSS.

Specifically, students with mild disabilities that affect their reading, concentrating, thinking, and communicating are likely to respond well and benefit from tiered supports. This is because when a condition is mild, it may not be noticed in nonschool settings. So, a student who did fine in home-based or preschool play settings could find the more challenging demands of school difficult. Tier 2 interventions are designed to provide such students with a brief but consistent “nudge” toward meeting learning goals. Some students will benefit quickly from these supports and not need them for a long period. Others may require sustained intervention because the expectations for students become more demanding each year. Either way, the supports provide exactly the kind of general education triage that the updated provisions of Section 504 require.

As noted throughout this book, a small number of students will not show progress despite participating in tiered supports. Such students might have either a persistent form of a mild disability or a more moderate undiagnosed condition. The good news is that the MTSS data can be used as part of the process of determining if a student has a disability that requires either more intensive Section 504 supports or special education. Importantly, at any point in time the parents of a child with school difficulties can request a comprehensive evaluation, and schools must not use tiered supports as a way to avoid providing special education services. In terms of meeting the requirements of Section 504, an MTSS offers schools a perfect system to identify and help all students. For those students with mild disabilities who don’t need an IEP, tiered supports can be used within Section 504 plans to meet their needs. For those students who might have more persistent difficulties or a disability that requires special education, the MTSS process offers a way to document and identify the nature of the student’s needs. And if a student is eventually diagnosed with a disability, he or she can be provided with either a Section 504 plan that uses the tiered supports or an IEP.

IDEA 2004

The IDEA of 2004 included important changes designed to improve outcomes for students with disabilities. Using findings from the President’s Commission on Excellence in Special Education (PCESE; see Chapter 24; Federal Register, 2001), IDEA 2004 included an emphasis on effective instruction for students with disabilities.

Purposes of Special Education

There are two primary goals for special education: ensuring that student rights are protected and providing effective instruction. In order for special education to be effective, it is important that both students’ rights and effective instruction are considered. As noted in the findings of the PCESE (Federal Register, 2001), the history of U.S. special education programming has not fulfilled the promise of effective instruction. Too many students with disabilities do not achieve each state’s learning outcomes. Sadly, many students with disabilities end up dropping out of school (Goss & Andren, 2014).

The mechanism by which students are found eligible for special education is the team meeting. Congress included a requirement that a team made up of the student’s parent(s), teacher(s), and other professionals be responsible for determining whether a student is eligible for special education. The team method was included because of prior school practices in which school personnel only, sometimes a single person, made decisions about whether a student could attend school or not. Importantly, the team must include at least one of the student’s parents or a legal guardian. Again, this was because parents had rarely been included in decisions about their child’s access to instruction in the past. The goal of having a team-based decision process was to ensure that all of the right stakeholders would be involved in determining a student’s educational program.

Starting with the 1975 federal law, there have been specific categories of disability supported through special education. The current categories are shown in Table 25.1 (National Dissemination Center for Children with Disabilities, 2013). There are a total of 14 categories, but one of these, developmental delay, can be used with children ages 3–9 only. It is important to understand that these categories are not diagnoses. Instead they are general descriptors of the most common behaviors and symptoms that a school-age child with a disability is likely to demonstrate. In order for a student to qualify for special education, several conditions must be met. First, there needs to be evidence of a disability. Such evidence often consists of a diagnosis made by a licensed physician, psychologist, or other health care provider. Such a diagnosis will be based on the student’s presenting symptoms as well as the classification system used by that professional to identify various conditions. Two frequently used classification systems are the Diagnostic and Statistical Manual of Mental Disorders (DSM) published by the American Psychiatric Association (2013) and the International Classification of Diseases (ICD) published by the World Health Organization (2010). A diagnosis based on either DSM or ICD criteria does not, by itself, mean that a student will be eligible for special education.

TABLE 25.1. Categories for Special Education Services According to the Individuals with Disabilities Improvement Act (IDEA) of 2004

  1. 1.Autism

  2. 2.Deaf-blindness

  3. 3.Deafness

  4. 4.Emotional disturbance

  5. 5.Hearing impairment

  6. 6.Intellectual disability

  7. 7.Multiple disabilities

  8. 8.Orthopedic impairment

  9. 9.Other health impairment

  10. 10.Specific learning disability

  11. 11.Speech or language impairment

  12. 12.Traumatic brain injury

  13. 13.Visual impairment (including blindness)

  14. 14.Developmental delay: If a state or local education agency chooses, this term can be used for children ages 3–9 only

In addition to a diagnosis, there must be evidence that the student’s disability has an adverse effect on the student’s education such that specially designed instruction is necessary. While states can develop their own definitions of adverse effect, some indicators of student learning outcomes that are often used to show whether a student’s education is adversely effected by his or her disability include outcomes on statewide, district-level, and classroom assessments, as well as disciplinary evidence and evidence of functional impairment. There are more specific criteria in the IDEA 2004 regulations for specific learning disability. For all disability categories, there should be evidence across multiple sources of data that the student’s ability to access his or her education is adversely effected by his or her disability before he or she is considered for special education. The purpose of this criterion is based on the reality that some students with diagnosed disabilities may make very effective progress in school and not need a special education. For example, a student with cerebral palsy that affects his or her legs may need crutches, a walker, or a wheelchair, but not necessarily specialized instruction. The school would be required to meet the physical access provisions of the ADA and provide ramps and elevators, but these must be provided no matter what and are not specific to special education.

The final criterion for special education eligibility is evidence that the student will benefit from specialized instruction that addresses the needs presented by his or her disability. This is the other side of the requirement that a student’s education is adversely effected by his or her disability. When a student who has a disability is not making effective progress, it is generally assumed that he or she would benefit from specialized instruction. In this situation, a team is likely to decide that the student qualifies for special education. Then, the team’s next job is to develop an IEP that addresses the student’s specific learning needs. As with eligibility, IEP development must be team based so that no single person is making decisions about the student’s future and that the parent(s) or guardian(s) are involved in the process. Once completed and approved by the parent(s), the IEP is a legally binding document that the school is required to implement with integrity.

Many Bumps on the Road of Life

The special education procedures outlined above are designed to ensure that students who have diagnosed disabilities and who are not making effective progress in school are able to access education just like children who do not have disabilities. The problem with limiting access to additional supports like special education is that having a diagnosed disability is not the only reason that a student might experience school difficulties. There are many reasons that a student could have non-disability-related problems in school. School difficulties can arise from many events that occur outside of school such as frequent family moves, parent unemployment, military deployment, and unexpected illness or death of a family member. All of these circumstances are likely to affect a student’s school progress in some way. When a student experiences any of these difficult life events over a prolonged time, or encounters multiple such events, he or she is even more likely to struggle in school (see Chapter 4 about risk factors).

A challenge that special educators have faced in the years since Public Law 94-142 was passed is that special education is often seen as the only way that a student can get extra help in school. When additional help in school was limited to special education alone, many nondisabled students either “slipped through the cracks” because there was no system of supports available, or were found eligible for special education despite not having a true disability. An MTSS is designed to provide additional supports for all students so that none can slip through the cracks. Unfortunately, there is no way to guarantee that school will go easily for every student every day, week, or year. But educators can ensure that there are supports available for all students over both short- and long-term circumstances. Tier 1 is a long-term support designed to help every student have a good start with school progress. Most students will succeed with Tier 1 by itself, but some will need Tier 2 + Tier 3. These tiers are generally short-term supports to help students get through brief periods of school difficulty. If a student demonstrates persistent difficulty despite tiered supports, then the school team must consider whether the student has a disability that is influencing school progress. Special education is another long-term support that is designed to ensure that students with disabilities receive access to effective instruction in relation to the disability.

SPECIAL EDUCATION ELIGIBILITY

IDEA 2004 included language that allows school-based teams to use data from an MTSS as part of the process of determining whether a student has an SLD. Although MTSS data can be used as part of a comprehensive evaluation, it is important that all teachers understand that the MTSS process cannot be used to delay special education referral or services. Melody Musgrove, then director of the Office of Special Education Programs at the U.S. Department of Education, sent a memo to all of the U.S. state directors of special education in November 2007 reminding them that MTSS (then called RTI) procedures could not be used to delay access to special education services (Musgrove, 2007). Specifically, Dr. Musgrove reminded state directors that “States and LEAs [local educational agencies] have an obligation to ensure that evaluations of children suspected of having a disability are not delayed or denied because of implementation of an RTI strategy” (Musgrove, 2007, p. 1). This reminder is very important for those who seek to implement an MTSS because it reiterates that parents of students with suspected disabilities have the right to obtain a comprehensive evaluation paid for by the school district. This evaluation is then used by the team to decide whether a child qualifies for special education services. While MTSS procedures have the potential to provide additional data about how a student is doing in school, they must never be used to delay the process of referring a student for special education.

IDEA Language

The section of IDEA that includes reference to MTSS data is §300.307. This section is specific to the identification of an SLD only. It includes three options for how to identify an SLD (see Chapter 24 for details):

  1. 1.Unless prohibited by state law, a number based on the difference between the student’s IQ and the score on a test of achievement in the area of concern (i.e., reading, math, or writing);

  2. 2.Data showing the child’s response to scientific, research-based intervention; or

  3. 3.Another research-based procedure.

It is important to note that §300.307 gave states the option to bar the use of an IQ–achievement difference, but states cannot require this method.

State Rules

Since education in the United States is governed by the states, each state must create its own special education rules and regulations. A state’s rules must meet the minimum federal standards (i.e., IDEA), but have the option to go beyond the federal standard. As of 2014, 16 states had adopted special education rules that require the collection and use of RTI data as part of the process of determining whether a student has an SLD (Zumeta, Zirkel, & Danielson, 2014). Of these 16 states, four have additional language requiring supplemental testing. Georgia, Idaho, and Maine require cognitive testing to document the student’s cognitive processing, and Louisiana requires additional testing to document the student’s strengths and weaknesses. The remaining 34 states allow school teams to utilize any one of the three methods included in the IDEA.

The presence of different methods for identifying an SLD has created confusion among educators. Although this section of IDEA 2004 was designed to reduce the overall number of students with an SLD, it has led to more diverse practices for SLD identification. Some states have developed detailed guidance about how to use MTSS data for SLD decisions, while others have not (Boynton Hauerwas, Brown, & Scott, 2013). Despite the availability of such guidance in many states, there does not appear to be any relationship between a state’s MTSS guidance and the percentages of students with an SLD in that state. Since 2005, the national number of students identified as having an SLD has gone down, but there have been significant increases in certain other categories such as autism and other health impairment (Cortiella & Horowitz, 2014). The lack of alignment between states’ MTSS policies and the number of students with an SLD is a good reminder that an MTSS is not about screening students for special education. Instead, it is about helping all students be successful in school. Nonetheless, if a student does not respond to carefully selected and implemented interventions, then it might be appropriate to consider whether the student has an SLD. In such cases, student data collected during MTSS activities is the best starting point for such an evaluation.

Specific Procedures

In states where specific procedures for using MTSS data as part of an evaluation for an SLD are required, those should be followed consistently and carefully. In those states without such procedures, there are two excellent resources that can be used by team members. These resources are also likely to be helpful for those working in states that require use of the MTSS data method. The first resource is a book by Kovaleski et al. (2013) titled The RTI Approach to Evaluating Learning Disabilities. The second is an online toolkit from the National Center for Learning Disabilities (NCLD; 2014).

Kovaleski et al. (2013) developed a model for identifying an SLD that includes four criteria. Two of these are criteria that must be “ruled in.” The other two are factors that must be “ruled out.” The four criteria are

Rule in

  1. 1.Failure to meet one or more specific learning standards.

  2. 2.A pattern of strengths and weaknesses—or—lack of progress in response to scientifically based instruction.

Rule out

  1. 3.Other type of impairment, cultural factor, environmental issue, or limited English proficiency.

  2. 4.Lack of effective instruction by qualified personnel as shown through repeated assessments.

In addition to the four criteria, there must be an observation of the student in the learning environment.

Ruling In

The first step of the Kovaleski et al. (2013) criteria comes from §300.308 of IDEA 2004 and involves examining the student’s academic achievement data and determining whether he or she has failed to meet age- or grade-level standards in one or more of the following areas:

  1. 1.Oral expression

  2. 2.Listening comprehension

  3. 3.Written expression

  4. 4.Basic reading skills

  5. 5.Reading fluency

  6. 6.Reading comprehension

  7. 7.Mathematics calculation

  8. 8.Mathematics problem solving

If there is evidence that the student has not met one or more identified standards in any of the above areas, then the team can proceed with the evaluation. It is important to note that if the student is meeting all standards in the above areas, consideration of an SLD is not appropriate. Only by “ruling in” low performance in one of the eight areas listed in IDEA 2004 can a team move forward with an evaluation for an SLD.

The second criterion comes from IDEA 2004 section §300.309 and includes two options. The team can use data that show that either (paraphrased from IDEA 2004):

  1. 1.The student did not make sufficient progress to meet age- or state-approved grade-level standards in one or more of the areas identified in criterion 1 after using a process based on the student’s response to scientific, research-based intervention; or

  2. 2.The child exhibits a pattern of strengths and weaknesses in performance, achievement, or both, relative to age, state-approved grade-level standards, or intellectual development.

Notably, option 2 is not as specific as option 1 and there remains uncertainty about exactly what scores should be used for this option. Kovaleski et al. (2013) recommend that teams use option 1 and gather the data from progress assessments used during an MTSS process. When using option 1, the team would consider whether the student’s data indicate a lack of improvement as a result of one or more interventions. More details about how to interpret student progress data can be found in Chapters 21 and 22. If the student’s data confirm that the student did not make sufficient progress to reach the grade-level standard, then the team moves on to consider whether there is another reason for the student’s lack of progress.

Ruling Out

Criterion 3 of the Kovaleski et al. (2013) method involves considering whether the student’s lack of progress is due to the presence of another type of disability, cultural factors, environmental deprivation, or limited English proficiency. Specifically, the team must consider whether any of the following factors are a better explanation for the student’s academic difficulties:

  1. 1.Visual impairment

  2. 2.Hearing impairment

  3. 3.Orthopedic impairment

  4. 4.Intellectual disability

  5. 5.Emotional disturbance

  6. 6.Cultural factors

  7. 7.Environmental disadvantage

  8. 8.Limited English proficiency

If the team concludes that any of the above offers a better explanation for the student’s school difficulties, then an SLD is not identified. But if the team rules out all of the above factors, it can consider the other rule-out criterion.

The fourth and final criterion in the Kovaleski et al. (2013) method is to consider whether the student received appropriate and adequate instruction by qualified personnel. There are two primary indicators of appropriate instruction. First, the credentials of the teacher can be verified. All states have requirements for teachers and, therefore, it should be the case that the teacher(s) of any student referred for an SLD evaluation was certified or licensed by the state’s department of education. The second indicator of effective instruction is information about the learning outcomes of other students in the same classroom. As noted by Kovaleski et al., the easiest way to determine whether most of the students in a classroom are making effective progress is to review triannual screening data. Triannual screenings are a cornerstone of an MTSS and show the relative progress of all students in each classroom. They are important because they indicate whether the selected Tier 1 core programs are working for the majority of students in a specific population.

As described in Chapter 18, it is important that at least 80% of students in every classroom, grade, school, and district meet specific goals for mastery of basic academic skills. As with many aspects of prevention and public health, it is understood that some students will not meet these learning goals. Over time, it has been shown that if 80% or more of students meet the goals as a result of Tier 1 core instruction, then the teachers are doing their job well and the curriculum is a good match for the students. Therefore, the second step in determining if appropriate and adequate instruction was provided for a student referred for an SLD is to examine the triannual screening data for the student’s classroom and grade. Such data will show whether 80% or more of students met the grade-level goal in the fall, winter, and spring of each academic year. If the data show that 80% or more of students have met the goal, and the student in question has had good attendance, then the adequacy of instruction is confirmed. But if less than 80% of students in the referred student’s classroom or grade (depending on grade level) have met the goal, or the student has had poor attendance, then the adequacy of instruction cannot be confirmed.

What If the Adequacy of Instruction Cannot Be Confirmed?

This is a difficult question, but a very important one. If data show that less than 80% of the students in a classroom did not meet the benchmark goals for the grade, additional data review is needed. First, the team should check to see if 80% or more of the students in last year’s classroom met the benchmark. If so, then the referred student will have experienced at least 2 years of ineffective instruction and really needs help as soon as possible. If the referred student is 2 or more years behind the benchmark goal for his or her grade, then additional support is justified, regardless of inadequate instruction. Technically, Title I programs were designed to address the needs of such students. But if the student is behind fewer than two grade levels, the focus of support needs to be at the Tier 1 classroom level.

In addition to reviewing the classwide data for the referred student, the team will need to look at the Tier 2 and Tier 3 data to consider whether these interventions were provided accurately and with integrity. If the team concludes that all of the interventions were provided with adequate integrity, then the referred student’s ongoing difficulties can be interpreted as a manifestation of an SLD. But if there were problems with the implementation of the intervention(s), the team should suspend the evaluation and request that more data be collected under conditions in which the intervention is implemented correctly.

In jurisdictions where the RTI method has been adopted as the only pathway to determining the presence of an SLD, if the team concludes that the instruction or intervention provided to a student—at any level—was incomplete or inadequate, then it must suspend the evaluation process and seek to gather more data. This is very important because data resulting from inadequate instruction are not reliable. The team will need to consult with the student’s parents about such situations and explain why more data are needed. If a parent insists that the evaluation be completed according to the initial deadline, then the team might need to use diagnostic teaching procedures in order to gather enough data in a timely manner. Diagnostic teaching refers to instruction designed to show whether a student has learned specific knowledge or skills. Diagnostic teaching is a method of working with one student individually in a way that shows whether the student learns from each lesson. It is an effective method for identifying learning problems because it shows whether the student made progress during each brief lesson.

Observation

IDEA 2004 requires that there be an observation of the student in the student’s current learning environment. SLD is the only IDEA category that requires such an observation. The observation can be conducted by any member of the IEP team except the current classroom teacher. The purpose of the observation is to see how the student behaves and responds to classroom instruction. A variety of observation methods can be used, but systematic recording procedures are recommended. Systematic recordings include collection of data about a student’s classroom behaviors at specified time intervals. There are a number of published systematic recording methods including the behavior observation of students in schools (BOSS; Pearson Education, Inc., 2014). There are both paper and online versions of the BOSS and it is very easy to use.

The NCLD Toolkit

The National Center for Learning Disabilities (NCLD) published a toolkit for school teams seeking to complete an MTSS data-based evaluation of an SLD. The toolkit is organized around six criteria that must be met to verify the presence of an SLD:

  1. 1.Failure to meet age- or grade-level state standards in one of eight areas when provided with appropriate instruction.

  2. 2.Lack of sufficient progress in response to scientific, research-based intervention in the area(s) identified in criterion 1.

  3. 3.Findings are not primarily the result of a visual, hearing, or motor disability; an intellectual disability, emotional disturbance, cultural factors, environmental or economic disadvantage, or limited English proficiency.

  4. 4.Underachievement is not due to lack of appropriate instruction in reading or math.

  5. 5.Observation(s) of student in the learning environment documents academic performance and behavior in areas of difficulty.

  6. 6.Specific documentation for eligibility determination includes required components.

Criteria 1–5 of the toolkit are the same as those found in Kovaleski et al. (2013). The additional requirement is that there be specific documentation of all five criteria. The NCLD website includes many resources for the toolkit, including descriptions and examples of each criterion and a form that teams can use to assist them with compiling the required documentation (NCLD, 2014).

If a student’s data show that he or she failed to meet grade-level standards—both initially and after scientifically based instruction—and that he or she was provided with appropriate and effective instruction, as confirmed by observations and repeated assessments, then the student can be identified as a student with an SLD. The biggest challenge that school teams face in using MTSS data for SLD identification is having the necessary data. In order for the team to have such data, the school will need to have established and implemented MTSS policies and procedures several years before. Once such systems are put into place, the data needed for SLD identification will be available. Until such systems are in place, schools should focus on creating teams, making sure they work effectively, gathering screening and progress data, and verifying the integrity of all levels of instruction. With such components in place, use of MTSS data for SLD identification is possible.

SUMMARY

Using an MTSS is well aligned with the requirements of both Section 504 of the Rehabilitation Act and IDEA 2004. The MTSS method fits with Section 504 because it includes both standard protocol and problem-solving components that address students’ learning needs. Tiered supports ensure that students, regardless of disability, have access to help when school is difficult. Although broader in scope than Section 504, an MTSS includes universal supports that help to distribute school resources in relation to all students’ needs. Importantly, when tiered supports are in place, schools will have the additional instruction and data needed to document accommodations for students with disabilities.

An MTSS has important connections with special education as well. While U.S. special education provides procedures so that students with disabilities who are struggling in school can access IEPs, many students have difficulties in school that are not related to a disability. Circumstances such as frequent family moves, parent unemployment, military deployment, and unexpected illness or death of a family member can mean that a student falls behind in school and fails to meet grade-level goals. An MTSS offers a way to support all students, regardless of disability, and ensure that any short-term difficulties that students face do not have to become long-term handicaps. Nonetheless, it is essential that all educators understand that the use of an MTSS cannot result in delaying a student’s referral for a comprehensive evaluation for special education services. There are specific steps that teams must follow in order to use MTSS data for special education decision making. By following these steps, teams will ensure students’ rights and have important data for effective decision making.

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