Government and Professional Relations Committee

Legislative Update (January 12, 2023)

RECENT SLD LEGISLATION FAQs 

Isn’t the bill already passed?

No. A version of the bill has been passed by the Senate but still needs to go through Assembly. 

So, what is the status? 

Currently, there are two identical bills introduced in the Assembly that are referred to the Assembly Education committee. Once the committee schedules the bill there will just be one bill considered. Neither bill has been discussed in committee but NJASP GPR representatives have meetings with the chair of the Education committee and the sponsors of the Assembly bill. At these meeting, we hope to encourage movement on the legislation in the Assembly and discuss some differences between the original version of the bill endorsed by NJASP versus the current Senate version which includes revisions added following introduction in committee but prior to readings on the Senate floor.

What happens next? 

At some point, there will be a reconciliation of the Senate and the Assembly bill wording since a bill only receives final legislative approval when it passes both houses in identical form. After anticipated legislative passage in both houses, the bill will be sent to the Governor. Only when the Governor (hopefully) signs the bill will it become law. Following adoption, the NJDOE is tasked with revising state regulations to reflect the provisions. It is difficult to estimate how long this might take but once the bill moves from committee to the Assembly floor, things move relatively quickly. 

Why were amendments made to the Senate bill after it passed in the Education Committee? 

It is not unusual for amendments to be made during a bill’s second reading on the Senate or House floor but regarding this bill we are not sure why the amendments were made nor who lobbied for the changes, since the current bill is different than the version that was initially supported by NJASP. However, the fundamental objectives of both bills are the same: prohibition of discrepancy method and permitting “alternative research-based methods” for identification of SLD. As noted above, at some point, the different versions will be reconciled.

What are the differences between the current Senate bill versus the version supported by NJASP? 

The wording of the bill originally supported by NJASP mirrors federal special education code as opposed to specifying a specific “alternative research based” procedure. Both bills support the inclusion of this third criterion for SLD identification which will allow and encourage school-based Child Study Teams to use identification procedures that are consistent with current core research principles. However, the proposed NJASP language does not specifically name PSW or any other alternative procedure as the method whereas the Senate bill, while not requiring a particular methodology, does include a direct reference to the approach, thus, implying an expectation to utilize this method. Further, in consultation with legislators, (including the chair of the Assembly Education committee and legislative aides), the prevailing view is “the simpler the better…keep the bill language as concise as possible…avoid too much technical language.”

But given that PSW is the most widely used “alternative research-based procedure”, why not just name it in the bill? 

After much discussion, NJASP leadership consensus was to use language consistent with the federal regulations rather than designate or reference a particular methodology, and, in addition, include a statement emphasizing the requirement of a “comprehensive, multidisciplinary evaluation” (even though the requirement was already mentioned elsewhere in the code). The language, i.e., “alternative research-based procedures”, does allow 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 and is one alternative research-based procedure consistent with the “determination of eligibility” language already articulated in the code (“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,… “). 

So why not just cite PSW in the actual bill language? There are several reasons why consistency with the federal language was recommended. 

First, 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. 

Second, 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 used for determining eligibility. 

Third, 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.

Finally, PSW was not explicitly named in the bill because inclusion of specific methodology, even when it is stated that teams are not limited to that particular methodology, tends to cause practitioners to fall back on using only it as a fail-safe technique. Yes, using a pattern of strengths and weaknesses method is the most widely used and accepted “alternative research-based procedure”, but while many practitioners are currently comfortable using PSW, it is not viewed positively by everyone. However, controversy regarding SLD identification and eligibility is not surprising given that there is controversy regarding the actual definition of a learning disability. Although a practice may be acceptable at the time of enshrining into law, over time, developments in the field may very well make such usage less desirable. But unless that law keeps being revised to keep pace with ever-evolving research, an old, discredited procedure may still be readily resorted to automatically by many practitioners. The use of severe discrepancy is a relevant example of that. Given how long it has taken this bill to progress through the legislative process, it is clearly not practical to revise the law whenever a change seems indicated. This is exactly why the federal language is concise, only citing “alternative research-based procedure”, rather than naming or describing examples of such procedures. Additionally, elsewhere in the code there are already mandates for both 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, … “ From a practical standpoint, it is advisable to keep the actual bill language as simple as possible, consistent with federal language, in order to accomplish the primary goals that motivated this advocacy in the first place: Prohibit a discredited and harmful identification method and permit the identification method allowing for alternative research based procedures, with the emphasis on research based not a specific procedure. 

How does the NASP Federal Public Policy and Legislation Platform align with the NJASP recommended wording of the bill?

There are two references to SLD in the platform: 

• Prohibit the use of ability-achievement discrepancy model as an allowable method of identification of a student with a learning disability 

• Directs relevant federal research centers and provides increased investments to support rigorous special education related research on topics including, but not limited to models of identification of specific learning disabilities

The NASP platform is consistent with our own efforts, i.e, eliminating the discrepancy model. The pitfalls of the discrepancy method are articulated by all of the major stakeholders in any discussion. The second item refers to the need for “increased…rigorous” research to models (plural) of SLD identification - not any one model, reflecting the controversy and sometimes ambiguous nature of conceptualizing SLD.  While an integrated model, utilizing RTI and a pattern of strengths and weaknesses is a viable option, and perhaps the “best” that we currently have, the need for rigorous research emphasizes that as understanding of SLD identification evolves, our identification practices should follow. 

So, once it is passed, we can’t use ability-achievement discrepancy to determine eligibility anymore? 

No, but you will have time to prepare for the elimination of Severe Discrepancy methods. One important amendment recommended for the most recent version of the bill is the four-year timeline for implementation following passage. However, since ability-achievement discrepancy has been repeatedly criticized and discredited, districts are encouraged to abandon the practice sooner if they haven’t already done so.

Should we be worried about our jobs since IQ - achievement discrepancy won’t be required? 

No. Remember that the identification of SLD requires a “comprehensive multidisciplinary evaluation”. Although the full-scale IQ is not relevant in SLD determination (except for ruling out cognitive impairment as an exclusionary factor), the school psychologist’s assessment information is critical in determining a student’s cognitive strengths and weaknesses for not only eligibility decisions but to inform intervention, regardless of whether a student qualifies for special education or not. Hopefully, a by-product of the legislation might be a move away from the CST “gate keeper” role, and more to “what does the student need and how might be best provide it?” Additionally, a change in identification practices, coupled with improved MTSS frameworks, could support a positive shift in your professional role, i.e., provide more opportunities for teacher consultation and supporting student mental and behavioral health. 

What about using Response to Intervention to determine eligibility? 

Although within our state, there does not appear to be widespread use for identification purposes, Response to Intervention (actually a non-response to intervention) has always been an option in both state and federal special education code for SLD identification and is the only method that is required as part of the state code. However, this does not mean that districts are allowed to go through a cycle of RTI, say “it doesn’t work”, and then, presto, the student is eligible. 

First, it is not just “response to intervention” but response to “scientifically based interventions methodology”. Next, there is a distinction between RTI in determining eligibility vs RTI as pre-referral intervention. And finally, the code states: 

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.  

[This identical statement is also included for emphasis in the NJASP sponsored version of the bill.] 

Additionally, it is important to remember that RTI procedures are just one component of a school’s MTSS framework and is a general education initiative. Regardless of the SLD identification framework, the fidelity, integrity, and effectiveness of the general education tiered intervention system will have a significant impact on referrals for CST evaluation and hence, classification rate. How to reduce special education referrals and classification? Improve the general education system of tiered supports.

Further, an integrative approach, using both RTI and Alternative Research-Based Procedures, e.g., 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, … “ With passage of the proposed legislation, districts would be able to delineate an integrated, research-based approach under the umbrella of this third method while fulfilling other mandates articulated in the special education regulations.  

In addition to ongoing legislative advocacy efforts, how will NJASP support its members?

• NJASP will continue to provide quality and affordable professional development from national experts and school-based practitioners. 

• NJASP will continue collaboration with other school-based stakeholders and the NJDOE to support the implementation of the anticipated changes in procedures and practices.

• NJASP will continue to solicit your comments, questions, and contributions, so once again we will come together in the service of students, families, school staff, and our profession. 

How can I get more involved?

First, if you are not yet a NJASP member, I would encourage you to join so you do not miss any legislative updates and will get first dibs (and discounts) on any professional opportunities. Next, volunteer for a NJASP committee that is involved in this work. If you are not sure if joining a committee is for you or have questions about the commitment, contact a committee chair to learn more. There is always a way to be part of the conversation! Here is a link to a description of the committees with contact information NJASP Committees. And you can always reach out to me directly for more information {Email: Terri Allen}