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State Says EGRPS Doesn’t Need to Follow Michigan Criteria for Identifying Learning Disabilities

The Michigan Department of Education Office of Special Education (MI-OSE) says school districts no longer need to follow the Michigan Criteria for determining existence of specific learning disabilities (SLD) for special education.

“The OSE Michigan Criteria for Determining the Existence of a Specific Learning Disability (October 2010) is a guidance document rather than a rule of regulation. Districts cannot be found to meet or not meet the requirements in using it.”

—Michigan Department of Education Office of Special Education,

April 25, 2013

The MI-OSE issued the above statement in response to allegations against East Grand Rapids Public Schools that the EGRPS SLD-eligibility policy violated numerous provisions of the Michigan Criteria. You can see a copy of the MI-OSE’s letter here.

The MI-OSE used the above statement to dismiss multiple allegations against EGRPS that East Grand Rapids Public Schools SLD-eligibility policy was not compliant with the Michigan Criteria.

EGRPS Superintendent Sara Shubel confirmed the State’s dismissal of allegations in the board minutes from May 20, 2013.

The MI-OSE’s statement, however, is completely false.

The Individuals with Disabilities Education Act (IDEA) requires school districts to follow the Michigan Criteria.

When the Michigan Criteria was released, the MI-OSE issued The MI-OSE issued Memorandum OSE-EIS 10-07. This May 14, 2010 memorandum says the Michigan Criteria was created pursuant to IDEA regulation §300.307(a).  §300.307(a) says “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 memorandum itself says school districts must follow the Michigan Criteria.

§300.307(b) says school districts must use the State criteria adopted pursuant to §300.307(a) in determining whether a child has a specific learning disability. A school district’s failure to follow the Michigan Criteria would be a violation of federal regulation §300.307(b).

Not only does §300.307(b) require school districts to follow the Michigan Criteria, but §300.122 requires children with disabilities to be evaluated in accordance the Michigan Criteria developed under §300.307(b).

Finally, not only are school districts required to follow the Michigan Criteria under §300.307(b) and §300.122, but §300.201 requires school districts to have in effect policies, procedures, and programs that are consistent with the State policies and procedures established under §300.122. The Michigan Criteria was established under §300.307(b) and §300.122. Therefore, even the EGRPS SLD-eligibility policy itself must comply with the Michigan Criteria.

Failure to follow the Michigan Criteria appears to create several federal violations of IDEA regulations, including §300.307(b), §300.122, and §300.201. The MI-OSE’s assertion that school districts cannot be found to follow or not follow the Michigan Criteria is completely false. And the MI-OSE used that assertion to dismiss State Complaint allegations against EGRPS.

The MI-OSE also said the complainant in the State Complaint against EGRPS failed to identify a student that was adversely affected by the EGRPS SLD-eligibility policy. This was used as another reason to dismiss the allegations against EGRPS. §300.153 does not require the complainant to identify a specific student. The MI-OSE’s own newsletter states, “A complaint does not have to identify a specific student to be investigated;” see page 7 of the MI-OSE’s December 2003 newsletter. Question and Answer B-9 of the USDOE “Questions and Answers on IDEA Part B Dispute Resolution Procedures” clearly communicates states are required to resolve State Complaints regarding systemic noncompliance. “A State complaint alleging systemic noncompliance could be one that alleges that a public agency has a policy, procedure, or practice applicable to a group of children that is inconsistent with Part B or the Part B regulations.” A policy compliance question does not require identification of a student.

No one from the MI-OSE signed the letter dismissing the State Complaint allegations, even thought Michigan State Complaint Procedures at the time required a signature.

OSE History of False Statements used to Dismiss State Complaints

The Michigan OSE apparently has a history of presenting false information to dismiss numerous State Complaints. Per review of the OSE’s March 19, 2012 Verification Letter issued by the US Department of Education Office of Special Education, despite clear and regular USDOE guidance spanning a decade, the Michigan OSE was found to be dismissing State Complaint allegations that alleged (1) denial of appropriate services or (2) failure to provide free and appropriate education (see pages 5-6 in the Verification Letter Part B Enclosure for details). Federal regulations require the MI-OSE to address these State Complaint allegations, and failing to do so was a violation of Part B of IDEA. In dismissing these State Complaints, complainants were apparently notified such matters should be resolved through Due Process Complaints, not State Complaints, a far more costly process for parents. The USDOE required the MI-OSE to go reopen and address the State Complaint allegations that were improperly dismissed.

Problems with the EGRPS SLD-Eligibility Policy

Grade-Level Norms Not Allowed

The first part of determining SLD eligibility is determining whether the child is not achieving adequately for the child’s age or is failing to meet state-approved grade-level standards. Consistent with  §300.309(a)(1), the Michigan Criteria says a child may satisfy the first part of SLD eligibility if the child does not achieve adequately (1) for the child’s age, or (2) to meet State-approved Grade-level standards. Yet, the EGRPS SLD-eligibility policy doesn’t allow a child to demonstrate inadequate achievement for SLD eligibility through either of these methods. The EGRPS SLD-eligibility policy mandates an entirely different standard—that a child must demonstrate inadequate achievement relative to national grade-based norms (e.g., ninth percentile or lower). Neither §300.309(a)(1) nor §300.309(a)(2)(ii) nor the Michigan Criteria allow the use of grade-level norms in determining whether or not a child is SLD eligible. While a child’s scores with respect to grade-level norms may be calculated as part of a special education evaluation, such scores may not be used to rule in or rule out SLD eligibility. State-approved grade-level standards are not expressed as norms but represent benchmarks for all children at each grade level. Using grade-based normative data is not an appropriate standard for identification of SLDs.

Here’s why grade-level norms were not included in the IDEA regulations as permissible SLD-eligibility criteria: “The first element in identifying a child with SLD should be a child’s mastery of grade-level content appropriate for the child’s age or in relation to State-approved grade-level standards, not abilities. This emphasis is consistent with the focus in the ESEA on the attainment of State-approved grade-level standards for all children. State-approved standards are not expressed as ‘‘norms’’ but represent benchmarks for all children at each grade level. The performance of classmates and peers is not an appropriate standard if most children in a class or school are not meeting State- approved standards. Furthermore, using grade-based normative data to make this determination is generally not appropriate for children who have not been permitted to progress to the next academic grade or are otherwise older than their peers. Such a practice may give the illusion of average rates of learning when the child’s rate of learning has been below average, resulting in retention. A focus on expectations relative to abilities or classmates simply dilutes expectations for children with disabilities.”  71 Federal Register 156 (August 14, 2006), p 46652.

Failure to Achieve for the Child’s Age Not Permitted

Consistent with  §300.309(a)(1), the Michigan Criteria says a child may satisfy the first part of SLD eligibility if the child does not achieve adequately for the child’s age. The EGRPS SLD-eligibility policy doesn’t allow that option.

Inadequate Achievement May not be Demonstrated by Failure to Meet State-Approved Grade-Level Standards

Consistent with  §300.309(a)(1), the Michigan Criteria says a child may satisfy the first part of SLD eligibility if the child fails to meet state-approved grade-level standards. The EGRPS SLD-eligibility policy doesn’t allow that option. Remember, state-approved grade-level standards are not expressed as norms or percentiles.

Single Assessment

Consistent with §300.304(b)(2), the Michigan Criteria says no single benchmark or measure may be used to determine whether a child is or is not SLD eligible. The EGRPS SLD-eligibility policy says a child must be at or below the 9th percentile grade-level national norms on a single individually administered achievement measure in order to be SLD-eligible. Therefore, a single assessment could be used to rule a child not SLD-eligible.

The USDOE Office of Special Education and Rehabilitative Services publishes Policy Letters here. In a December 2013 Policy Letter, the USDOE says, it would be inconsistent with the IDEA for a child, regardless of whether the child is gifted, to be found ineligible for special education and related services under the SLD category solely because the child scored above a particular cut score established by a policy.

Single Measure

Consistent with §300.304(b)(2), the Michigan Criteria says no single benchmark or measure may be used to determine SLD eligibility. The EGRPS SLD-eligibility policy says a child must be at or below the 9th percentile grade-level national norms on FOUR separate assessments. Four assessments, but a single measure.

What to Do

Given the Michigan OSE’s apparent penchant for presenting false information to dismiss State Complaints, potentially affected EGR parents may wish to talk to a special education attorney or special education advocate for advice. Affected parents may also want to explore Due Process Complaints, which provide for an impartial hearing officer and allow parents to pursue alleged violations that occurred within the last two years. (State Complaints only have a one-year look-back period.) Potentially affected parents should consult with professionals for appropriate guidance.

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