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 NJASP

New Jersey Association of School Psychologists

SLD bill and commentary

SLD bill language

New Jersey Association of School Psychologists (NJASP) version 

AN ACT concerning the identification of students with specific learning disabilities and supplementing chapter 46 of Title 18A of the New Jersey Statutes. 

      BE IT ENACTED by the Senate and General Assembly of the State of New Jersey: 

       1.  a.  The State criteria for determining whether a child has a specific learning disability under the federal “Individuals with Disabilities Education Act,” 20 U.S.C. s.1400 et seq., shall: 

(1) Permit the use of a process based on the student’s response to scientific, research-based intervention; and,

(2) Permit the use of other alternative research-based procedures for determining whether a student has a specific learning disability

(3) Effective 4 years from the date of enactment,  prohibit the use of a severe discrepancy between intellectual ability and achievement for determining whether a student has a specific learning disability

  1. Regardless of the SLD Identification framework, a comprehensive, multi-disciplinary evaluation is required. No single measure or assessment may be used as the sole criterion for eligibility 


  1. The State Board of Education shall promulgate regulations pursuant to the “Administrative Procedure Act,” P.L.1968, c.410 23 (C.52:14B-1 et seq.), necessary to effectuate the provisions of these sections. The regulations shall permit the use of methodologies for determining whether a student has a specific learning disability that is consistent with the provisions of this section.  

STATEMENT

The federal “Individuals with Disabilities Education Act”  (IDEA), 20 U.S.C. s.1400 et seq., requires states that receive federal special education funding to have in effect procedures to identify and evaluate students with disabilities who are in need of special education and related services. Federal regulations implementing the IDEA at 34 C.F.R. 300.307 provide that a State’s criteria for determining whether a student has a specific learning disability under the act: (1) must not require the use of a severe discrepancy between intellectual ability and achievement; (2) must permit the use of a process based on the student’s response to scientific,  research-based intervention; and (3) may permit the use of other alternative research-based procedures. 

However, New Jersey State Board of Education regulations at N.J.A.C.6A:14-3.5(c)12 currently only permit school districts to use two methodologies for determining whether a student has a specific learning disability under the IDEA: (1) a severe discrepancy between achievement and intellectual ability; and (2) use of a response to scientifically based interventions methodology. 

This bill requires the State to include the third approach under federal IDEA regulations and permit the use of other alternative research-based procedures for determining whether a student has a specific learning disability. Permitting the third method allows for research-based Pattern of Strengths and Weaknesses procedures for the identification of specific learning disabilities but does not specify it as the alternative research-based approach, which could limit other reliable, valid, and research-based methodologies.

Further, effective four years from the date of enactment, this bill requires the State to prohibit the use of severe discrepancy between intellectual ability and achievement for determining whether a student has a specific learning disability. The use of severe discrepancy criteria has a long-standing history of controversy and criticism. The approach has been discredited repeatedly within the scientific, medical, and educational communities with the prevailing view from many experts, that it should not be allowed. In view of knowledge in the field of learning disabilities, consideration of the federal definition and regulations of SLD, documented conceptual, technical, and psychometric limitations, and, potential bias and disproortinality concerns, the use of aptitude-achievement discrepancy method should be discontinued. 


The bill also directs the State Board of Education to promulgate regulations accordingly. 



Commentary

Brief commentary on a proposed bill submitted by NJASP re: state criteria for determining whether a student has a specific learning disability under the federal Individuals with Disabilities Education Act

  1.  Relevant Background Information

    1. Current New Jersey state regulations (N.J.A.C. 6A:14)  do not encompass the three models articulated under the federal “Individuals with Disabilities Education Act,” 20 U.S.C. s.1400 et seq., for determining whether a student has a specific learning disability. 

    2. N.J.A.C. 6A:14 allows for both the Severe Discrepancy model and Failure to Respond to Intervention (RTI) as permissible in SLD identification. 

      1. N.J.A.C. 6A: 14-5.5(c)12. i: “A specific learning disability can be determined when a severe discrepancy is found between the student’s current achievement and intellectual ability in one or more of the following areas:”

IDEA language: “Must not require the use of a severe discrepancy between intellectual ability and achievement for determining whether a student has a specific learning disability, as defined in §300.8(c)(10);”

  1. N.J.A.C. 6A: 14-5.5(c)12.ii: “A specific learning disability may also be determined by utilizing a response to scientifically based interventions methodology as described in N.J.A.C. 6A:14-3.4(h)6.” 

IDEA language: “Must permit the use of a process based on the student’s response to scientific, research-based intervention;”

  1. N.J.A.C 6A:14 does not include the third criterion that states “May permit the use or other alternative research-based procedures for determining whether a student as a specific learning disability, as defined in §300.8(c)(10);”


  1. Rationale for the elimination of Severe Discrepancy as a permitted method for identification of students with Specific Learning Disabilities

    1. Although New Jersey state regulations allow for both the Severe Discrepancy model and Failure to Respond to Intervention as permissible in SLD identification, most school districts employ the Severe Discrepancy model, with wide variability regarding criteria and questionable fidelity and integrity. 

    2. Shortly after the authorization of IDEA 2004, the U.S. Department of Education Commentary and Explanation described the reasons why discrepancy models should be abandoned but it remained in regulation as one option. Related to long-standing controversy and criticism of a Severe Discrepancy approach, although federal regulations allow its use as one option, states are prohibited from using Severe Discrepancy as the sole method allowed in order to determine eligibility. 

    3. The prevailing model for identifying students as SLD in NJ, the Severe Discrepancy model, has been discredited repeatedly within the scientific, medical, and educational communities. A position paper developed by experts in the field convened by the National Center for Learning Disabilities  articulated the prevailing view that the Severe Discrepancy method should not be allowed for identification and eligibility purposes. Although many states have moved away from this model, even prohibiting its use, some states, including New Jersey, still allow it. 


  1. Rationalization for inclusion of the third criterion for SLD identification: “May permit the use of other alternative research-based procedures for determining whether a student has a specific learning disability, as defined in §300.8(c)(10);”

    1. Inclusion will allow and encourage school-based Child Study Teams to use identification procedures that are consistent with current core research principles. 

    2. Further, the adoption of “alternative research-based procedures”, allows for research-based patterns of strengths and weaknesses (PSW) methods for the identification of specific learning disabilities. Although this method is not explicitly referenced in the Federal Regulations, it is a practice used in many states for determining whether a student has a SLD. PSW is one alternative research-based procedure and is consistent with the “determination of eligibility” language articulated in §300.309: “the student exhibits a pattern of strengths and weaknesses in performance, achievement, or both, relative to age, state-approved grade-level standards, or intellectual development,… “

    3. However, the bill does not specifically name PSW or any other alternative procedure as thethird method. 

      1. Although all research-based models of PSW assume basic tenets, methodology among the different approaches may vary. In consideration of the third method of identification, the emphasis should be on the phrase research-based, as opposed to mandating or strongly suggesting a particular alternative procedure. 

      2. Scientific research, as well as conceptual and practical understanding of learning disabilities, continues to grow within this still evolving field. With continued inquiry comes better articulated models of practice and, potentially, new reliable and valid research-based methods. Using language consistent with the federal code will allow the use of PSW, but will not “lock” districts into a specific methodology, either by mandate or inference.

      3. The use of the federal language, as opposed to a specific model, will provide latitude for school districts and child study teams to utilize the research-based identification method that is deemed the best “fit” for their specific population, as long as the district can provide documentation regarding the research-based policies and procedures for determining eligibility. 

    4. An integrative approach, using both RTI and Alternative Research-Based Procedures, eg., PSW,  is recommended as a student-centered method for assessment, identification, and eligibility purposes. Further, an integrated approach fulfills the mandates requiring a multi-disciplinary,comprehensive evaluation and a “determination of eligibility” as articulated in §300.309: “the student exhibits a pattern of strengths and weaknesses” in performance, achievement, or both, relative to age, state-approved grade-level standards, or intellectual development,… “ Districts would be able to delineate an integrated, research-based, approach under the umbrella of this third method. 


  1. Conclusions and Implementation Recommendations

    1. In view of knowledge in the field of learning disabilities, consideration of the federal definition and regulations of SLD, and, well-documented conceptual, technical, and psychometric limitations, potential bias, and disproportionality concerns, the use of the aptitude-achievement discrepancy method should be discontinued. 

    2. The elimination of the use of Ability - Achievement Discrepancy model is consistent with a shift in the current delivery of services for students, from a “refer-test-place” model to an instructional consultation, collaborative problem-solving approach as seen in the current NJDOE New Jersey Multi-Tiered Systems of Support (NJTSS) framework. 

    3. The proposed permitted criteria, 1) the student’s response to scientifically based intervention; and,  2) the use of other alternative research-based procedures; or, 3) the integration of both approaches; can improve understanding of student underachievement across general and special education.

    4. Regardless of the SLD Identification framework, a comprehensive, multi-disciplinary evaluation is required. No single measure or assessment may be used as the sole criterion for eligibility.  

    5. The bill also directs the State Board of Education to promulgate regulations accordingly. 



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