All below comments relate to the following guidance document: VDOE Supplemental Guidance for Evaluation and Eligibility in Special Education. https://www.townhall.virginia.gov/L/GDocForum.cfm?GDocForumID=636&fbclid=IwAR0cK9wsOLsyWoGwKJkHxraj1c8flFf5GAThX1xPBesXawPqP8q_k4HbefA

 https://www.townhall.virginia.gov/L/GetFile.cfm?File=C%3A%5CTownHall%5Cdocroot%5CGuidanceDocs_Proposed%5C201%5CGDoc_DOE_4900_20210726.pdf&fbclid=IwAR2LCEb28HlDLE-5kh6tIPY71ja4ddFrWFTjkjjjJcNB2H-RhMJKZX-KuHM

IQ-Achievement Severe Discrepancy Method (pg 18) should be removed and not allowed.  The use of the discrepancy model has not been found as a valid indication of SLD.  

• When Congress reauthorized IDEA, they changed the law about how to identify children with specific learning disabilities. IDEA 2004 says schools “shall not be required to take into consideration whether a child has a severe discrepancy between achievement and intellectual ability in oral expression, listening comprehension, written expression, basic reading skill, reading comprehension, mathematical calculation, or mathematical reasoning.” (Section 1414(b))
• According to the IDEA 2004 regulations, States “Must not require the use of a severe discrepancy between intellectual ability and achievement for determining if a child has a specific learning disability ... must permit the use of a process based on the child's response to scientific, research-based intervention and may permit the use of other alternative research-based procedures for determining whether a child has a specific learning disability…” (CFR 300.307(a))
• https://www.asha.org/advocacy/federal/idea/idea-part-b-issue-brief-identification-of-specific-learning-disabilities/

Under RTI (pg 21-22) insert that the parents should be notified of what RTI is, the levels, how long to expect on each level, the amount/type/time of each service, and what data is collected/used for either graduating from RTI or moving the child through to an evaluation.  

• When RTI is being used to determine if a child is suspected of having SLD, the parents must be notified (consent is not required) about: (A) the state's policies regarding the amount and nature of student performance data that would be collected and the general education services that would be provided; (B) strategies for increasing the child's rate of learning; and (C) the parents' right to request an evaluation (§300.311(a)(7)). This notification must be documented in the eligibility determination. Thus, the state education agency (SEA) must have clear state policies pertaining to RTI that can be communicated to parents by the LEA. Furthermore, RTI must not be used to delay identification. Section 300.309(c) requires the school to promptly request parental consent to evaluate a child suspected of SLD who has not made adequate progress under RTI. https://www.asha.org/advocacy/federal/idea/idea-part-b-issue-brief-identification-of-specific-learning-disabilities/

Under screenings for SLD (pg 24, para 2) “The child should have a recent vision and hearing screening” should be amended to state the child should pass a COMPREHENSIVE vision and hearing screening.  Passing or not passing a visual acuity screening fails to consider a Functional visual issue (accommodative or convergence insufficiency), which is covered under IDEA.  The Department of Education’s Office of Special Education (OSE) 2014 policy letter to Michelle Kotler and the similar 2017 policy memo for ‘eligibility determinations for children suspected of having a vision impairment under idea’ both recognize convergence insufficiency as something covered under IDEA. Similarly, a comprehensive hearing exam should test at a large range of frequencies: the school only tests for hearing at 1000 – 4000 Hz.  Testing at lower frequencies, 250-500 Hz, may find that the student is not actually hearing the voicing cues at these frequencies; making it hard to hear the phonics separately in speech.  According to American Speech-Language-Hearing Association (ASHA), the Guidelines for Manual Pure-Tone Threshold Audiometry should be at measurements from 250-8000 Hz.  More info on how lower frequencies impact speech (often as a result of childhood glue ear):  https://www.phonak.com/us/en/hearing-loss/hearing-loss-in-children/hearing-tests-for-children.html  and https://hearinghealthmatters.org/hearingandkids/2013/4000-hz-tell/. Further, these tests should be done prior to standardized intelligence and educational testing as poor eyesight and hearing have both been known to affect the standardized tests – which are based on visual and hearing abilities. Specifying a range that must be tested (and under which disabilities (i.e. if the student is only suspected of being blind – then maybe no widened hearing range (as examined by pure-tone audiometry; but if suspected of speech or hearing then a widened hearing range is recommended) will standardize the hearing test through Virginia and should target the potential difficulties hearing at higher or lower frequencies when speech or hearing is indicated.  Or for speech/hearing evaluations - a comprehensive audiology test is required (to include speech testing (ability to hear speech in loud and quiet environments with different speech sounds), tympanometry, and otoacustic emissions).  As ASHA notes: Children with minimal to moderate and/or unilateral hearing losses are often identified late because they seem to hear and develop socially adequate speech and language. Speech is audible to them but, depending on the type and configuration of the hearing loss, parts of words or sentences may not be heard clearly. Therefore, it is often difficult for these children to understand what they hear.”https://www.asha.org/policy/gl2002-00005/  If speech and/or hearing are determined to be an issue by the team, then a full assessment should include the wider range of frequencies and the different types of tests beyond pure tone audiometry.  Testing the psych or educational standardized tests first may result in the tests pulling down the intelligence score – suggesting the child has less intelligence than they do.  It could be that the IQ test would then be a minimal estimate of the child’s actual intelligence because the child was handicapped by their hearing/vision issues.  That should be noted and considered prior to the educational and psych testing to allow for accommodations, modifications, or at least an assessment of whether the test is a minimal indication of the child’s abilities, or if it is an accurate representation.  

Finally, in the same section of vision and hearing testing – the LEA should indicate that additional testing when the child does not pass the school’s test should be paid for by the LEA under IDEA.  Just like pg 18, “If the school team determines that a medical is necessary, the cost of the medical evaluation must be covered by the LEA and completed within the evaluation timeline.”  If the school is mandating a test to rule out/consider for the evaluation – it should be covered. According to the final comments for IDEA part C “Concerning the comment about a lead agency’s payment and referral responsibility, the lead agency would be responsible for referring families to ophthalmologists or optometrists and also would be responsible for paying for diagnostic services, as required under §303.13(b)(5).” https://www2.ed.gov/policy/speced/reg/idea/part-c/idea-part-c-final-regs.doc  

Under Speech Language Disability (pg 26), you should also consider more than just swallowing ability as part of the functional assessment, looking at the structures of the mouth (tongue, tonsils, lips, which can affect ability to be able to pronounce certain words.  If the speech pathologist is unable to view the functional abilities – they should seek out a dentist who can highlight enlarged tonsils, soft palette issues, or other problems: https://greatspeech.com/what-to-expect-during-an-oral-mechanism-exam/

Additionally, please consider notification and documentation timeline requirements.  When schools can notify a parent a day or two in advance for making a meeting, the parent does not have time to adjust their schedules.  Schools should be required to provide ten calendar days notice of meetings – just like schools have 10 calendar days to respond to a request for an evaluation.  Similarly, parents should also have 10 days prior to a eligibility meeting (where the school has all of the assessments) to review the documents, gather their questions, contact an advocate/attorney, or seek other information to come to the meeting prepared.  As it currently is, schools have not provided those assessments or documents with enough time prior to meetings for parents or advocates to arrive prepared.  This should not happen.  Parents should have a standardized and reasonable number of days notice (i.e. 10 calendar days – even when potential weekends and holidays are included (i.e. thanksgiving) this gives parents time to be prepared when attending – and gives time to adjust schedules to make the important meeting).  If schools require a specific amount of time to respond, get organized, and review assessments for their response - then parents should also have a specific amount of time for the same.

Consider for schools requiring them to document a number of tries/ways to reach of parent before it can be said the parent ignored the notices (i.e. tried three times, two email one follow up phone call to email address and phone number of record - no response so school met without parent).  

Thank you for all the work that has went into this guidance document.  You are appreciated!

Please consider reviewing entire document to ensure person first language is used consistently throughout – a child/student with a disability instead of disabled, or a student who is a challenged by an Emotional Disability instead of as having an emotional disability.

Specific Learning Disability

“The child should have a recent vision and hearing screening, and the IQ or other measure of General Intellectual Ability should be in the normal range to rule out intellectual disability” and “Students with intelligence test scores between 70 and 85 frequently fall into the gap between general and special education” – Including these statements seems to imply that an average IQ score is required for special education eligibility, especially regarding the identification of a Specific Learning Disability.  The DSM-V generally refers to normal intelligence as scores above 70.  Also, the exclusionary criteria requires teams to rule out the classification of ID when determining eligibility for Specific Learning Disability and does not require obtaining an “average” IQ score.  This type of language puts a label on an explanation of something that is not explained.  It may lead to comments like, “your child or student is not eligible for SLD because their general intellectual ability is just not average."  We used to say, “just a slow learner”.  I think we should just stick to providing an explanation of what we know, based on our data, which would be that current data and information is consistent or not supportive of SLD.  Any additional explanation, especially to try to explain why a student is not eligible for SLD, can simply be unkind, unhelpful, and hurtful. 

Emotional Disability and Social Maladjustment

I appreciate the guidance relating to some of the criteria for Emotional Disability including “marked degree” and “long period of time”.  However, there seems to be too much focus on Social Maladjustment, especially since Social Maladjustment is not exclusionary in and of itself and the category of Emotional Disability tends to only apply to less than 1% of students in Virginia.  It is another example of putting a label on something to explain the unexplained.  The language used also seems to be comparing or implying that Social Maladjustment is synonymous with Conduct Disorder.  I have never known Social Maladjustment to be viewed as a diagnostic category and it can also be made based on judgments of others, not data, and usually from those in a position of power.  On the other hand, Conduct Disorder is included in the DSM-V as a mental disorder.  Conduct Disorder is also a risk factor for the development of many additional mental disorders.  A focus on Social Maladjustment distracts teams from the bigger picture of focusing on the criteria of Emotional Disability.  Some of the differences and signs listed as Social Maladjustment (i.e substance abuse, poor motivation, situation specific vs. pervasive) and many other behavioral and physical symptoms can be signs of other more common mental disorders such as anxiety and depression.  The aspect of “control” can lead to inaccurate perceptions and beliefs about behavior, behavioral challenges, and behavioral/emotional disorders.  Focusing on whether a child has and does not have control of their behavior misses the more important message of how behavior can be a form of communication and that what we may see is only a small glimpse into the bigger story.  For many of our youth, that bigger story may often lead to tears instead of anger.  How Social Maladjustment tends to be situation specific instead of pervasive and responds to behavioral interventions offers no hope for recovery for individuals challenged by other behavioral or emotional issues.  Behavioral interventions can be effective for students with Emotional Disabilities too, and I am not sure it would be a distinguishing factor.  Focusing on Social Maladjustment can also pass blame and shame to the students and families we are trying to help, which leads to distance instead of connections.  We are battling the stigma associated with mental health enough, and I know we can do better. 

Thank you for considering these comments!  

Comment is related to this guidance/document: https://www.townhall.virginia.gov/L/GetFile.cfm?File=C%3A%5CTownHall%5Cdocroot%5CGuidanceDocs_Proposed%5C201%5CGDoc_DOE_4900_20210726.pdf&fbclid=IwAR1QsnfKeliUYnne6LjfeGNwDAvuZYEzdGXjxsuTsC7t5VL-kYBj1BCPHd0

For Visual Impairments – consider specifically clarifying how Virginia’s definition on functional impairments correspond to IDEA and the U.S. Department of Education Office of Special Education.  For example, IDEA Part C Subpart A Section 303.13(b)(17) Vision services mean “referral for evaluation and assessment of visual functioning, referral for medical or other professional services necessary for the habilitation or rehabilitation of visual functioning disorders, and orientation and mobility training for all environments, visual training and additional training necessary to activate visual motor abilities.  This would include convergence insufficiency and other functional eye impairments.  Note that visual impairment for IEP includes if there is an adverse effect on child’s educational performance to include “a functional vision loss where field and acuity deficits alone may not meet the aforementioned criteria” (convergence insufficiency: https://www.nei.nih.gov/learn-about-eye-health/eye-conditions-and-diseases/convergence-insufficiency The US Education Department's Office of Special Education Programs 2017 policy memo: https://sites.ed.gov/idea/idea-files/policy-memo-eligibility-determinations-for-children-suspected-of-having-a-visual-impairment-under-idea/   Further information: https://sites.ed.gov/idea/idea-files/policy-letter-november-12-2014-to-michelle-kotler/  

It's my understanding the Guidance Document does not cite underlying research to substantiate the claim, "Research shows that cultural and linguistic differences may result in an impact of up to 35 standard score points on the particular test and individual student's cultural background and language skills." (page 19)

I further understand 35 standard score points is 2 and 1/3 standard deviations and a significant difference.  If this is glossed over - indeed discounted - and allows school districts to find students not eligible for needed services, this creates an even greater problem.

Please cite the research used and qualify how it may or may not impact parameters for providing students with necessary services to ensure a robust education for all Virginia students.

Thank you.

I oppose VDOE's proposed Supplemental Guidance re eligibility which  raises concerns for EL, Black and Brown, and low-income students getting services.  The language on page 19 is a slippery slope as it builds in too much room for bias and subjectivity:

What is the underlying research to support the Guidance Document’s claim that "Research shows that cultural and linguistic differences may result in an impact of up to 35 standard score points on the particular test and individual student's cultural background and language skills." 

Further, that would be more than 2 standard deviations which is a significant difference.  School districts should not be provided a loophole to find students ineligible for needed services. They already do a poor job of properly identifying and serving students who need services, particularly Black and EL students.  If a child cannot read well and independently then the child needs intervention. 

The timing of this, in the midst of a pandemic that is already disproportionately impacting Black and EL students, and students with disabilities is appalling.

Your language is dangerous—if a student doesn’t perform well, they should receive help, not a mob of penny pinching administrators supposing the reasons why a student didn’t perform well on tests. 
My daughter’s reading difficulties were originally explained away as inadequate instruction—she’s dyslexic and the IEP team was all to happy to ignore that fact and make us wait another year. You waste too much time on this nonsense! Just help kids and cut out these stupid IEP team meeting debates (as you propose below).

This language should be deleted immediately. Really, it’s shameful.

Please remove the language in the proposed Supplemental Guidance that allows IEP teams [with what special insights into other cultures?] to make subjective and vague determinations to deny Special Ed eligibility based on guesses re a low-scoring student's abilities that were not captured in standard testing.  I am familiar with a case in N Va in which a manifestly needy  student [as judged by his teacher and school expert] was tragically delayed a full year in determination of eligibility based on school staff's vague hopes [ultimately shown to be futile] that despite the evidence from previous years he might make progress during that next year without Special Ed help. 

Page 5:

Under General Meeting Strategies bullets--Add a bullet:

• Allocate adequate time for the meeting to ensure all team members can participate effectively. 

Under General Meeting Strategies bullet--Provide training:

• This training should occur before the meeting.  Please develop an on-line training that is available to all team members, including the parent, so they are informed of their role on the team.  This takes up too much time during the meeting. 

Under "Use Visuals" - the scores from the testing should be provided as Standard Score and percentages, so everyone on the team understands how the child ranks based on their peers.  A handout to explain the scores would be very helpful.  All testing and scores should be provided at least 24 hours prior to the meeting with an explanation of how to interpret the scores for each assessment.  

Under Differential medical and educational diagnosis bullet--this is unclear in most LEAs, specifically as it relates to Dyslexia, as they state they don't diagnose it.  It is a myth that dyslexia is a medical diagnosis. Dyslexia becomes an educational problem when a child does not learn to read.  Dyslexia is a specific learning disability (SLD), which is diagnosed in the schools.  I would recommend VDOE consider that when including that statement. 

Page 6 under Strategies that may be used to increase consistency between and among teams include:  Please include a statement that Directors should not tolerate falsified data included in any IDEA documents (specifically Eligibility forms, IEPs or progress reports).

Under Heading: Information to Consider When Receiving a Referral from Mass Screening,
an Individual, or Early Intervention--how are students referred when they are not in the LEA?  Specifically, those children in homeschool or private school setting?  Under IDEA Child Find, LEAs are responsible for identifying ALL children eligible for Special Education. 

Page 7 first sentence: "access to high quality instruction".  During Due Process, LEAs are stating that children in homeschool or private schools are not receiving "access to high quality instruction" as a means to justify not providing FAPE.  Who on the Eligibility team makes this decision??  Especially if they are not going to observe the Homeschooling or Private School instruction.  

Figure 1 needs to be enlarged.  It is hard to read. 

Page 8: This statement needs to be expanded with examples:  This includes consideration of existing data (such as external evaluations and information provided by parents, current classroom-based, local, or state assessments, classroom-based observations, and the student’s response to research-based interventions) as well as any new data or assessments collected as a result of the evaluation.

I provided the LEA with a Riverside School administered Phonological Awareness Test 2 (PAT2) used to identify deficits in phonological processing and phoneme-grapheme correspondence, which indicated my child had all the markers for Dyslexia.  The LEA would not consider this data and indicated nowhere in the document did it reference "Dyslexia".  It appears that LEAs will only consider documents that diagnose disabilities.  Your guidance needs to be clear that existing data should be used to inform diagnosis of a child's disability.  If the LEA members of the team do not understand the results, they should reach out to an expert that can interpret the results.  This goes back to the appropriate members on the eligibility team. 

Please expand on "current classroom-based, local, or state assessments" and provide examples.  My LEA does not record any grades below a "50" in the grade book.  A child may receive a 12 or a 32 as a grade and those are elevated to a 50.  My LEA also does not weigh grades, so a coloring sheet has the same weight as a test, which skews classroom-based grades.  This should be a concern to the VDOE as many LEAs do not provide an accurate account of the child's classroom-based assessments.  

Page 8: "Data collected focuses on the student’s performance in the school environment and on individually administered tools and other measures (Refer to Table 1)."  Many LEAs are using only portions of evaluations, such as the Woodcock Johnson or not providing the subtest scores on the Weschler.  It should be clear that all portions and subtests should be provided and interpreted to the Eligibility team.  Many LEAs are denying students designation as a Specific Learning Disability because they score within the "normal" ranges, however, the subtest scores can be up to one standard deviation from the mean, which indicates a reading disability.  Many LEAs have decided not to share this data so they are not responsible for diagnosing reading disabilities. 

Page 9: Table 1. Comprehensive Assessment Data Sources and Examples:  Please provide an exhaustive list with many more examples and include Wechler, Feifer Assessment for Reading, Assisted Technologies, etc.  Please include EVERY assessment that is available to the LEA.  This is important for the parents of the IEP Team so they can do research and determine the best evaluations to ask for based on their child's struggles.  We told the LEA that our daughter was struggling to read and they did not perform the correct assessments to determine she had dyslexia.  It should also be very clear that ALL of this data should be provided to ALL the team members including the parents.  My daughter's Benchmark Tests were withheld during her eligibility meeting.  We had no idea she had such low scores in reading and math.  It took 9 months to get her eligibility correct because the LEA was not sharing all of the information in their possession with the entire team. 

Page 11:  Data showing a student’s level of responsiveness to
strategies or interventions provided gives the team insight into the student’s unique
learning potential--When are LEAs to provide these interventions or strategies?  This needs to be clear.  My daughter transferred from a private school and the LEA was informed that she struggled to read and had a D in reading in her private school.  The LEA did not provide her with ANY interventions for six months.  

Page 14: Components of the grading system (e.g., participation, homework, assessment)-Please be advised that LEAs inflate grades and this should be discussed so parents are aware that actual grades may not be accurage.  In HCPS a child can receive no grade lower than a 50.  This can elevate a child's grades that has learning disabilities and mask their actual abilities. 

Page 14: It is critical that this identification occurs in a timely manner and once an LEA receives a referral, the evaluation process is initiated.  How is the VDOE ensuring that each LEA has a process in place to identify children that are homeschooled or in the private school setting that may be eligible for special education?

Page 15: One model for selecting research and or evidence-based interventions is the SISEP Hexagon Tool.-Please make it very clear where you can find "evidence-based interventions".  It does not appear that the LEAs are aware of evidence-based reading instruction for Dyslexia. 

Page 15: When an intervention is being implemented with fidelity but the student is not making progress, this suggests that the intervention needs to be modified -Please provide additional information on the timeframe for "not making progress".  Should this time period be 6-weeks, 12-weeks, etc.  How does the Team know when the child is not making progress?  It should not be subjective.  It should be included in a program so all members of the team can see the results.  Please provide examples of how progress can be tracked. Also, please define fidelity.  The team should not wait a year to determine if a child is making adequate progress. 

Page 18:Challenging behaviors may result from a number of other factors, such as exposure to adverse events or situations, a major change or disruption in the family, or stressors
experienced by the child, parents, or caregivers.  Please add instruction may not be appropriate and causing the child undue stressors.  This happened to our child. She was not receiving the appropriate instruction for her Dyslexia and she was extremely stressed. 

Page 19:   Discussion of why results differ may reveal additional explanations including lack of high-quality instruction due to ongoing teacher vacancies, implementation of interventions not matched to student area(s) of need, or cultural mismatch for classroom activities or evaluation tasks. The way this is written, it appears to provide the LEA with a lot of options to dismiss the child's learning differences.  Please rewrite so the LEA does not use this discussion to dismiss eligibility.  

Page 21: “Specially designed instruction” is defined in Virginia regulations as “adapting, as appropriate to the needs of an eligible child under this chapter, the content, methodology, or delivery of instruction: (34 CFR 300.39(b)(3)).  Please provide MORE examples of specially designed instruction.  

Page 22: specialized reading program by a trained instructor--Can you please expand on "trained".  Trained and Certified to deliver an evidence-based reading program are VERY different.  A teacher may have a two day training on Orton Gillingham approach, but this does not qualify them to teach this type of reading instruction to a child.  This is a HUGE problem in the LEAs. 

Page 22: Again, it would be helpful to provide examples when you state, "It should be noted that specially designed instruction is fundamentally different from accommodations or differentiated instructional approaches."  For example, an Orton Gillingham approach to provide specialized instruction for reading is not the same as providing assistive technologies so a child can have the document read aloud by the computer. 

Page 22 and 23: The following examples are accommodations or differentiated
instruction approaches that might include allowing additional movement breaks,
reading of text to a student either by an adult or via computer software, allowing a
student to choose their partner on a project rather than being teacher assigned,
providing enlarged print, offering repeated instructions, checking for understanding,
providing help with organization (e.g., conducting more frequent checks of progress
on lengthy assignments, allowing time to organize materials and backpack at the end
of the day), allowing minimizing time near distractions (e.g., near a noisy hallway,
excessive talking, close proximity to a heating/air source), and allowing additional
wait time for a student to process information and/or formulate a response. --These accommodations are VERY good and often the eligibility team gets specialized instruction and accommodations confused.  It would be helpful to give more information on specialized instruction.  

Page 24: "Therefore, it is acceptable for qualified personnel to provide adaptations, as appropriate, to the needs of an eligible student with a disability with the content, methodology, or delivery of instruction. Additionally, under the guidance, supervision, and collaboration of qualified personnel, other staff (such as a general education teacher and/or
paraprofessional), may provide and assist in providing specially designed instruction
for students with disabilities." This statement is NOT correct.  An individual may be qualified to teach special education, but they may not be qualified to teach specialized reading instruction and this is critical to convey.  Many Dyslexic children are being taught by personnel that are not qualified to instruct these specialized reading programs such as Wilson, etc. because they are not qualified (by Wilson) to do so.  Please rephrase this section, it is very subjective as written. 

 Page 24:  Please provide examples under:  modified content, methodology, and delivery.  For example, Delivery of Wilson reading instruction to a child with Dyslexia. 

Page 25: Please provide examples of the 'variety of measures' you have listed.  

After page 25, the page numbers start with 1, 2, 3, etc.  This needs to be corrected. 

Page 26: "Teams should consider all possible causes for the discrepancy including the
regulatory requirement to rule out Lack of appropriate instruction in reading,
including the essential components of reading instruction;" -Please be advised that this is being used by LEAs to disqualify students from special education.  LEAs are stating that children from private schools are not being provided appropriate instruction because they are not being taught in their LEA and this is non-sense.  This appears to provide the LEAs with an option for finding children not eligible.  Be very careful in how you state this.  

Page 26: "Unless otherwise defined by the LEA in local policy, the eligibility team’s
determination of a significant discrepancy should be based upon three or more
measures of the student’s performance in the same area of concern as noted on the
referral for suspected disability or student’s last eligibility decision."-Who determines the "three or more measures"?  Where is this written into law or Virginia regulation?  

Page 26: "Use of tests with appropriate diagnostic accuracy are preferred." --What are these tests?  Please provide names or examples of tests with appropriate diagnostic accuracy.

Page 27: " When considering scores from standardized and norm referenced measures, individual subtest scores should not be used in isolation. Scores within + 1 standard deviation from the mean are generally considered within normal limits. In conjunction with
guidance from the test administration manual, scores more than -1.5 standard
deviations below the mean may be considered significant."  Is this statement correct?  Please reference the source of this statement.  Who indicates that -1 SD from the mean is considered within normal limits?  Please be very careful when providing these broad stroke statements. 

Page 27: "Test administration manuals provide guidance for determining if the score differences are significant."--This is a huge problem for parents at these meetings, because they do not have access to their test administration manuals and the LEA Psychologists have a hard time explaining what is considered significant.  It would be helpful is VDOE would provide these manuals somewhere on their website so parents could understand the data more clearly. 

Page 27: "When student scores differ between subtests, this is referred to as a relative strength or relative weakness. A single relative weakness may be uncommon (e.g., statistically significant) but does not meet the requirement to document significant discrepancy on its own."  --Please provide an example.  This is confusing. 

Page 27: "The IDEA and Virginia regulations permit students to be found eligible for more than one disability area."--This is a huge problem in my LEA.  They tend to want to find students with Dyslexia eligible for ADHD and totally disregard Dyslexia.  They indicate to parents that the student can't focus and that's why they can't read.  Please provide more guidance on the importance of finding the student eligible for the appropriate disability area.  

Page 28: "Evaluating Young Children"--How are children being identified by the LEA if a child is homeschooled or in a private school setting?

Page 30: "After consent to evaluate is provided, evaluators may work with classroom teachers during the evaluation period to discuss implementation of strategies in the classroom."  --This should be required that evaluators work with classroom teachers to implement interventions. 

Page 40: "Complete and attach the specific disability worksheets for all categories
that were considered."  This is a huge problem with LEAs.  They may only consider one disability, such as ADHD and complete ONE worksheet OHI, instead of completing the worksheet for SLD, which would clearly show the student that struggles with reading and math may have another disability such as Dyslexia or Dysgraphia.  It is very rare that an LEA identifies these disabilities because they indicate they do not diagnose "medical" disabilities It's a huge problem.  I would like to see the schools required to complete all of the worksheets to ensure the parents on the team understand if their child has multiple disabilities. 

Page 43: "Virginia regulations governing eligibility permit the use of multiple approaches for
identification of a specific learning disability (SLD). Each LEA must use at least one of
the three federally and state permissible methods in the evaluation of a student who
is suspected of having an SLD."--You state earlier that LEAs should gather assessment data from a variety of sources and now you state that there are multiple approaches for ID of SLD--this needs to be reviewed. 

Page 51:  "These permissible methods define SLD differently and, when used in the evaluation process, do not consistently identify the same group of children as being eligible
under the SLD category (CASE et al. 2019). As such, it is incumbent upon the LEA to
clearly identify the method(s) and associated procedures to be used in their division
as to avoid identification discrepancies across schools.--THIS IS A HUGE PROBLEM ACROSS THE COMMONWEALTH OF VIRGINIA.  The VDOE needs to provide LEAs with more Schools need more training on how to identify students under the SLD category.  Dyslexia students are NOT being identified because they are often twice-exceptional and very smart.  They have memorized words or learned work-arounds to be successful, so their grades do not show issues.  Please consider the best assessments and indicators to identify or Dyslexia students.  1 in 5 have Dyslexia. 

Page 53:  "Response to Scientifically-Based Intervention or RTI Method"  --What if a child is not provided with response to interventions?  My daughter was in a private school and they provided no interventions even though she had a D in reading and we told them she struggled to read.  Why aren't schools immediately providing these interventions when there is a suspicion of disability?

Page 55: "Subtest scatter and visual inspection of scores does not constitute a pattern of strengths and weaknesses."--Many LEAs are not providing subtest scores to parents or the eligibility team to review. 

Page 56: "Additionally, there should be evidence that the student participated in rigorous and differentiated instruction in the area of concern with the goal of accelerating achievement towards grade level standards. --IF a child is homeschooled or at a private school, how does the team receive the evidence?  What types of evidence?  That the school is accredited? By Whom? LEAs are stating that children did not receive this appropriate instruction and denying special education. 

Hello, I write in opposition to this guidance. I am concerned that this guidance could be used by school teams to fail to identify and offer services to students with learning disabilities.  No studies are cited to support the specific claims, which could represent as much as 2 and 1/3 standard deviations.  

I note that this guidance will apply not only to standardized tests, but also to the norm-referenced assessments commonly used in schools precisely to identify students at early age for learning disabilities.  If bias exists in the instruments, then let's fix the instruments.  However, far greater harm will be done to students with specific learning disabilities by failing to identify them based on undocumented claims of bias in the instrument.

Please support the important progress being made in critical early identification and intervention of ALL students with learning disabilities and do not adopt this guidance. 

I reviewed the proposed VDOE supplemental guidance.  I wholeheartedly object to this guidance being accepted into VDOE policy and guidance documents due to the following items which are unacceptable as currently proposed:

 "Research shows that cultural and linguistic differences may result 
in an impact of up to 35 standard score points...." 

VDOE must provide a footnote that cites the referenced research.

"...depending on the particular test and individual student’s cultural background and language skills"

Allowing a public school evaluator to assess a student's "cultural background" and its possible impact on performance on an assessment test is wholly unacceptable.  Entering the concept of "cultural background" into VDOE policy documents requires a full definition of said concept.  I shudder to think of the questions an evaluator would have to ask in order to define "cultural background" and the labels that would be applied to sort and categorize different backgrounds.  How would assessors seek to define a student's "cultural background?"  How would assessors and school systems record and track "cultural background" and which "cultural backgrounds" would be considered as a possible explanation for a child's performance on a test or assessment that is up to "35 standard score points" below expected results for age and/or grade level. 

Bottom line, test or assessment scores that demonstrate failure to perform within cceptable norms based on student  AGE and/or GRADE LEVEL should trigger eligibility for services.  VDOE should not enable districts to turn its back on children who can't complete assessment tools within acceptable standards by merely explain away the poor performance using a highly subjective standard.  Incidentally, the data that a school district would have to compile to define cultural background likely cannot be compelled from a student and parents based on protections under federal law from discrimination based on national origin, ethnicity, religion, and other similar factors.

"Careful consideration of bias and diagnostic accuracy or error rates is 
suggested when examining performance on norm referenced or standardized 
tests. Teams should discuss the impact of regional dialectal differences, common 
family or cultural customs, lack of practice, and other factors that while 
appropriate for the individual student, may result in a lower score due to 
inappropriate comparison with the test norming population."

There is nothing about the two sentences above that isn't wrong.  The tests and assessments exist to compare a student to a baseline.  If a student qualifies for services based on assessment results, then Virginia public schools must provide that child services.  School districts cannot be given a blank ticket to write off a student's eligibility because, in their opinion, which is based on factors they haven't defined and are not standardized or implemented equitably across the state, they subjectively deemed the child's poor test performance can be dismissed as inaccurate.

Prior to the implementation of this change, examine existing data to ascertain the following:

1) Are we fulfilling our Child Find obligations, and

2) Are children being ‘found’ early

Children from particular demographic groups are unfairly impacted by policies that may exclude them from moving through the SpEd eligibility process.  Exclusionary factors (such as the one being considered) essentially create  additional barriers for some children,  delaying consideration for eligibility, denying early intervention and unfairly disadvantaging particular groups.  This is not appropriate  

I oppose the VDOE supplemental special education guidance which would seem to restrict eligiblility for special education services, which all children in need should receive. I have particularly concerns that this guidance would be disproportionately harmful to Black, Brown, and other students of color and to English language learners. 

I am a speech-language pathologist and a special education researcher, and I support the changes proposed to the VDOE Guidance Document, which are themselves based on the thoroughly-researched JLARC report. I see comments which appear to fundamentally misunderstand the purpose of proposed language encouraging IEP teams to consider students' cultural background, language, and the innate bias of many standardized assessments. This guidance does not act as a barrier preventing racial and ethnic minorities from accessing necessary special education services, but rather acts as a safeguard against racist eligibility decisions.

Skiba and colleagues (2008), in a peer-reviewed publication titled "Achieving Equity in Special Education: History, Status, and Current Challenges," note that "...the disproportionate representation of minority students in special education programs has its roots in a long history of educational segregation and discrimination." Readers will note that Black children are particularly overrepresented in special education, particularly in the more subjective eligibility categories. Based on their 2006 data drawn from the US Department of Education, Black children are more than 3x more likely to be found eligible under the category of Intellectual Disability, and 2.25x more likely to be found eligible under the category of Emotional Disturbance. Clearly, Black children are not actually more likely to have Intellectual Disabilities or Emotional Disturbance, so we can observe how special education can be a racist institution in the absence of culturally-responsive eligibility decisions. These children may be separated from their peers and provided with instruction far below their potential due to misidentification, both of which are violations of their right to a free and appropriate public education (FAPE). Educators must consider culture, dialect, and assessment bias in order to protect students' FAPE. This has been regarded as best practice for longer than I've been certified, and our guidance documents must be updated to reflect this best practice.

I understand that non-practitioners may be wary of these changes. I will address some of the issues I've seen contested in previous comments:

• Cultural differences absolutely factor into assessment, as well they should. For example, in general American culture, eye contact is expected and polite. If a teacher were correcting a child, the child would be expected to look at the teacher. Aversion to eye contact may be regarded as rude (at best) or as a red flag for Autism. However, this is not true across all cultures. In some, making eye contact during a rebuke would be a sign of rudeness. Likewise, in general American culture, children are expected to initiate conversation with peers and adults, whereas other cultures strictly forbid children from initiating conversation with adults. In examples like these, failing to understand and consider cultural differences may lead to a typically-developing child from a minority cultural background to be incorrectly identified for special education, thus violating their FAPE.
• Dialectal differences must be considered in the eligibility decisions regarding speech and language disorders. Dialectal differences are not disorders. A language disorder occurs when children do not acquire language skills (i.e., phonology, morphology, syntax, semantics, pragmatics) as readily as their language-typical peers. This makes it more difficult for them to express themselves or understand others. However, dialectal differences are separate issues. If a child is raised in a community which uses nonstandard English features (e.g., omitting certain tense endings, or using atypical syntax like "He got no idea,") then their way of speaking does not indicate a disorder. They learn language perfectly fine, they just learn a different variation of the language. These children should not be placed in special education, because they do not have a language disorder. However, culturally-insensitive assessment practices may mark students' dialectal variations as errors, and yes, these errors could add up to a difference of 2+ Standard Deviations. Further, an IEP team that does not know the difference between dialect and disorder may find this student eligible for special education services, despite the absence of a disorder. Certainly, a child may have both a dialectal difference and a language disorder. That is why it's important to use culturally-responsive assessment practices. The IEP team should work with parents to identify which "errors" simply reflect how the child's community speaks, and which errors are indeed representative of a language-learning disorder. Children with dialectal differences will not be excluded from special education if they do indeed have a language disorder, but they must be protected from special education if they do not.
• Standardized assessments often carry racial and cultural bias, and failing to consider this bias may lead to overrepresentation of minorities in special education. In addition to the example of language assessments being used to inappropriately diagnose dialectal differences as a disorder, there are plenty more examples of how this bias manifests. Standard scores are used as a comparison to the "average" child, but the norming samples of most assessments do not actually reflect the average child. They often reflect convenience samples, which are often White children from White communities near universities- not a representative sample of how diverse children may respond. Further, there can be bias innate within the assessment itself. I've seen old assessments which measured intelligence by asking the child how to operate a payphone. While at the time, that might have been a reasonable question for a child growing up in a normal culture, a child moving from an underdeveloped country may not have known anything about payphones. That doesn't mean that they have a learning disorder, they just didn't have the requisite cultural exposure. I've personally administered a test which measures social pragmatic interaction with a question worded like "Johnny wants to invite Mike to his birthday party. What are three things Johnny needs to tell Mike?" The "correct" responses include things like the date, time, and location of the party. However, I've heard of children from rougher areas responding with answers like "Don't bring any weapons." That response would be marked incorrectly if the test administrator didn't use their subjective judgment to consider the student's cultural background, but doesn't indicate a disorder at all if that is an appropriate concern in that child's community. These are just a few examples of why it's important for IEP teams to consider test bias in determining whether standardized scores actually reflect students' performance and ability.
• Several commenters are asking for research supporting the claim that cultural and linguistic differences may impact scores by up to 35 standard score points. A quick Google search pointed me to this publication: Ortiz, S. (2005). The Culture-Language Test Classifications (C-Ltc) And Culture-Language Interpretive Matrix (C-LIM). New York: St Johns University. I haven't read this particular publication, but based on my experiences described above, I have no doubt that cultural and linguistic differences can have such a dramatic impact. This is why test examiners need to be mindful of the bias of standardized assessments.

Despite these examples of why the Guidance Document needs language encouraging culturally-responsive assessment practices, I still understand the concerns of those who fear that this will be used to keep students out of special education services. However, that hasn't been my experience, and research like that of Skiba and colleagues suggest that this is the opposite of what happens in reality. I am more concerned about students placed in special education who do not require it. Special education isn't an opportunity for lower-achieving students to receive extra help, it's an opportunity for students with disabilities to receive the services they need to access their educational potential. Putting students without disabilities into special education is not only a violation of FAPE, but it is a disservice to the student. There are plenty of other opportunities for lower-achieving students to receive the support that they need, but it does more harm than good to give them an unwarranted label, separate them from their typically-developing peers, and hobble them with a curriculum that prevents them from reaching their full potential.

I don't think there's a grand conspiracy to keep children out of special education - at least not in my experience in several schools and districts. If anything, educators have (in my experience) been quick to refer a child to special education, even when the child doesn't have a disability, in order to "pass the buck" to someone else. Instead, educators need to do their due diligence to provide appropriate instruction in the least restrictive environment (i.e., not special education). This proposed language isn't racist; it's anti-racist, because it encourages IEP teams to push past the entrenched racism of general American cultural norms and assessment tools, to make decisions that accurately determine a student's educational needs. Opponents of this guidance must remember that eligibility decisions are made by the IEP team, which includes parents. Indeed, my experience in Virginia is that parents often have the strongest voice on the IEP team. Parents will still have a voice in their child's placement, for better or for worse, but these changes will encourage educators to implement culturally-responsive assessment practices to help guide these placement decisions.

I support the changes to eligibility requirements by including cultural and linguistic differences.  As a field we should be considering all aspects of the student when conducting an evaluation to include bias and cultural and/or linguistic differences.

I support this Supplemental Guidance for Evaluation and Eligibility.  The document provides clarification of terms and procedures that can help improve the consistency of decision making across school districts in Virginia.  When decisions are consistent, students with and without educational disabilities, are identified as such no matter where they live in Virginia.

In addition, I agree with the comments made by Reed Senter.  Standardized assessments frequently are racially and culturally biased both in their content and their normative sampling.  It is important for evaluators to consider that and to use comprehensive assessment practices to gather sufficient information for unbiased decision making. With sufficient information, clearly defined terms, and outlined procedures, eligibility teams will be able to make more accurate and consistent decisions.

Special education services should be provided to students with educational disabilities so that they can reach their potential.  But for students without educational disabilities, those same services would hinder them from reaching their potential.  

Appendix A: Autism: I know that Asperger's Disorder, in particular, has not been diagnosed for many years in the State of Virginia due to 'the inequity inferred pertaining to other children with less 'functional' Autism' according to my child's original diagnostic physician, and many others in the neurological field following the original diagnosis, involved in numerous additional evaluations since. 

The following linked documents are over 10 years old, and referencing sources up to 20 years ago or more. Additionally, some links within are no longer operable, and, while thorough, at nearly 200 pages of total material combined, I strongly suggest the documents be updated, revised and abbreviated for reasonable consumption and utilization. 

https://www.doe.virginia.gov/special_ed/disabilities/autism/technical_asst_documents/autism_guidelines.pdf

https://www.doe.virginia.gov/special_ed/disabilities/autism/technical_asst_documents/autism_models_of_best_practice.pdf

Thank you for the opportunity to offer suggestions as a highly engaged parent of a child with sophisticated neurological challenges including Autism and other medical conditions, who has been fiercely advocating for my child's needs for a number of years.

Wendy Little

Supplemental Comments to Prior post 9/1/21 (Comment ID 99888):

Exclusionary factors to IDEA eligibility of culture, linguistics, dialectical, and instructional should not apply to specific learning disabilities (SLDs) which are neurobiological at birth and impacts a students' ability to read, write, and do mathematics.  

On page 30 of the Guidance for Evaluation and Eligibility, VDOE states: "Researchers (Ortiz and Ochoa, 2005) report that students with cultural and linguistic differences may score substantially lower (up to 35 points) than peers due to language and cultural differences."  However, Oriz and Ochoa's 2005 article on the Assessment of Culturally and Linguistically Diverse Learners does not account for the neurobiological markers present AT BIRTH in students with dyslexia, dysgraphia, dyscalculia, who are eligible for SLD.

The IDEA exclusionary factors already create barriers and delays to early SLD identification and intervention which significantly disadvantages students and has disproportionate adverse consequences for Black, Latino, and EL students.  VDOE should remove this barrier in its Guidance document, not perpetuate.  This barrier provides too much opportunity for subjectivity and bias for neurobiological conditions that are present at birth, and for which scores of 35 standard points below the standard deviation is likely indicative of profound SLD, not cultural or linguistic differences, or poor instruction.

Recommendation: Please provide guidance for carving out an exceptions to the consideration of any exclusionary factors for SLD based on scoring anomalies.

The Virginia Council of Administrators of Special Education (VCASE) provides this public comment generally in support of the proposed Supplemental Guidance for Evaluation and Eligibility in Special Education. VCASE represents more than 350 members who supervise the special education services for more than 160,000 Virginia students with disabilities.

This supplemental guidance is in response to recommendations from the JLARC Report on Special Education in Virginia released in December, 2020 that were included in legislation passed during the 2021 General Assembly session and signed by the Governor.  These guidelines provide clearer and more thorough explanations and expectations for the training, procedures, parental involvement, monitoring and oversight of local teams who determine eligibility for special education services. 

The supplemental guidelines provide updated and more thorough explanations of terminology that will bring more clarity to parents and staff throughout the student evaluation and eligibility processes.  This supplemental guidance emphasizes that local evaluation and eligibility teams should have the training in evaluation and eligibility determination that ensures thorough, consistent, and unbiased consideration of a wide variety of student information before a student is found eligible for special education services.

The supplemental guidance for evaluation and eligibility provide well-explained definitions of terms and evaluation procedures that promote unbiased and non-discriminatory consideration for eligibility.  As thoroughly described in the supplemental guidance, these considerations are explained specifically to prevent the over-identification and under-identification of students who are Black, brown or English language learners. These guidelines do not, contrary to some public comment, function as barriers to access of special education services for these populations.  The supplemental guidance  serves to emphasize that consistent diligence is practiced as eligibility teams consider student eligibility, while being aware of some of the inherent biases in assessments as well as cultural, economic, and environmental factors that may emerge in eligibility discussions. In the consideration of a learning disability, the guidance notes, “The presence of an environmental, cultural, or economic disadvantage does not automatically exclude a student from possible eligibility for learning disability. Eligibility teams should carefully examine individual student factors and data to determine the degree to which each factor adversely affects their educational performance.” (p.25)  This individualized approach must continue to ensure that students who are found eligible for special education do in fact have a disability that adversely affects their learning as required by federal law.

School divisions are held federally accountable through the reporting of eligibility, special education services, and student discipline outcome data to ensure that there are no policies or practices in place that promote the disproportionate representation of black, brown, and other minority groups in special education.  “Indeed, disproportionality is and must remain a top concern for parents, educators, school professionals, policymakers, and advocates. It is imperative that the evaluation process is free from bias and discrimination.” *  The supplemental guidance document further details that the student response to systematic, evidence-based general education instructional interventions should be reviewed for age-appropriate students to ensure that the learning problems are not due to a failure to provide appropriate general education instruction.  This process further safeguards Virginia students’ access to quality instruction, with inclusive practices promoting differentiated core instruction for most children with and without disabilities in general education classrooms.

It is clear that this Supplemental Guidance for Evaluation and Eligibility reflects the recommendations of the JLARC Report as supported by the General Assembly and adds clarity and definition to the complicated processes of special education evaluation and eligibility.  VCASE looks forward to implementation of these guidelines that will be an effective resource for special education eligibility teams throughout the Commonwealth of Virginia.

* From Whittaker, M. & Ortiz, S. (2019) What a Specific Learning Disability Is Not: Examining Exclusionary Factors, as cited in the guidelines

Timeline Issue

The notice of this proposal indicates that VDOE proposes a September 16, 2021, effective date for these guidelines. Given the following factors, this timeline must be extended in order to allow for revision, and possibly even for additional comment. The factors are:

(1) The seriousness of the decisions that will be made according to these guidelines, once they are put into effect, demands greater scrutiny;

(2) The fact that these guidelines are proposed in response to JLARC’s criticisms about vagueness and lack of specificity in VDOE’s current guidelines for evaluation procedures and determination of eligibility means that they should strive for clarity and specificity;

(3) Common themes in the substantive comments that have been posted in opposition to the application of these proposed guidelines are that they invite subjectivity and that they perpetuate a bias against students of color and students who are English Language Learners who also are students with disability; and

(4) The discussion of Trauma, Toxic Stress, and Adverse Childhood Experiences in these proposed guidelines fails to clarify that a child who has had such experiences may also simultaneously be eligible for special education services as a child with a disability.

Trauma, Toxic Stress, and Adverse Childhood Experiences Issue

The proposed guidelines address “Trauma, Toxic Stress, and Adverse Childhood Experiences.” The discussion (pages 17-18) recognizes that research has concluded that these experiences may adversely affect the developing brain and result in long-term consequences, including impairments in concentration, memory, executive functioning, language development, and the ability to self-regulate emotions and behaviors. Yet, instead of stating clearly that a child with a history of such experiences may also be deemed to have a disability as defined by IDEA, the discussion seems to invite subjectivity in this assessment, and concludes with the suggestion that the student might be adequately supported with strategies and interventions other than special education services.

I suggest that in order to achieve clarity and avoid subjectivity, a definitive statement should be inserted toward the end of the discussion of Trauma, Toxic Stress, and ACEs, as follows (revision in italics):

… Some of these effects can present similarly to other conditions, such as attention deficit hyperactivity disorder (ADHD), as well as other IDEA disability categories. Data indicating that the child has experience with such events cannot be used to exclude the child from further consideration for eligibility as a child with a disability. Rather, additional data related to the suspected area(s) of disability must be considered in conjunction with the child’s history regarding trauma, ACEs, or toxic stress. Additionally, there are a range of responses to trauma, ACEs, and toxic stress depending on individual factors. Thus, absent a determination of eligibility for special education services under IDEA after full consideration and appropriate assessment, a tiered system of supports may be beneficial in providing preventative strategies and interventions to support students who have experienced trauma, ACEs, or toxic stress.

Other Revision Issues

The JLARC report concluded that the current guidance from VDOE regarding evaluation and eligibility were too vague, such that they were open for varying interpretations by local school divisions, which was resulting in a situation in which a child with a disability could be provided special education services, or not, based upon which attendance zone or school division they live in. Clearly, it is expected that the vagueness cited by JLARC will be cured with specificity and clarity in the new guidelines. What was expected was that a model would be established. Acceptable thresholds would be recognized, even if not mandated, and that best practices for making decisions about cultural and linguistic differences would be provided. Yet, while the VDOE proposed guidelines add more words to the pre-existing guidance, the lack of clarity and standards remains a problem. The crux of that problem is that the proposed guidelines encourage subjectivity, even about decisions for which legal or professional standards have been established.

In contrast to the subjectivity of VDOE’s currently proposed guidelines, the comments that have been posted in this forum since August 24, 2021, in many instances present the level of clarity and specificity that VDOE should be striving toward. In other words, the comments generated here should be considered and incorporated by VDOE in a substantially revised proposal. This would necessitate an extension of the effective date that has been proposed by VDOE. It is possible that with an extension, VDOE will collect even more useful suggestions. Although it is not my intent to restate all of the points raised in posts to date, some of the posts point out areas for which specific and objective guidance can be provided through revisions:

• Evaluation of vision and hearing requires certain comprehensive assessments which can be identified, not mere screening;

• RtI cannot be used to delay evaluation of a child suspected of having a disability;

• Mere evidence of a child’s cultural and linguistic “differences” is not, without further assessment, a factor that rules out that child’s eligibility for special education;

• Some language in the guidelines appears to be racially biased;

• A child’s actual or assumed lack of proficiency in the English language due to family history does not in and of itself rule out a possible neurological disability, and there are assessments that measure these factors objectively;

• An eligibility team may not refuse to give weight to an independent evaluation on the basis that it does not purport to be a medical diagnosis; • IQ test scores reported by psychologists should not be categorically dismissed as insignificant;

• Subtest scores in psychoeducational assessments are significant and should not be disregarded;

CommentID: 99928

When determining if a school suspects that a child has a disability, the document provided guidance on page 10:

"Teams should consider the impact of cultural and linguistic differences and socio-economic factors on student performance when determining whether a disability is suspected."

The largest group of disabled children in VA are children in the SLD category.  Many of these children struggle with dyslexia, dyscalculia, and dysgraphia, so it was surprising to read that the state of VA believes that a child's culture, linguistic difference, or socio-economic status should be considered.  Dyslexia, dyscalculia, and dysgraphia are brain based learning differences and these conditions are not corelated with a child's race, culture, or language.  The guidance should read that race, culture, and/or economic status play no role in a child disability. 

I understand that you may be worried about evaluation tools that are biased, but to give the following guidance is deeply misleading:

"Research shows that cultural and linguistic differences may result in an impact of up to 35 standard score points depending on the particular test and individual student’s cultural background and language skills. Teams should discuss the impact of regional dialectal differences, common family or cultural customs, lack of practice, and other factors that while appropriate for the individual student, may result in a lower score due to inappropriate comparison with the test norming population."

How would this guidance play out for the single largest disabled group of students, dyslexic students?  Again, dyslexia is a brain based learning disability, and a child is not more or less likely to be dyslexic because they are Black, Brown , or poor.  This guidance would lead to a delay in disabled children being identified and receiving very important early interventions.

It's not difficult to determine if a child has a problem with phonological processing and rapid naming.  Schools NEED support in identifying children with disabilities.

I would encourage the VDOE to closely examine how well schools identify how well Black, Brown, and ELL dyslexic children in the early grades when early intervention is critical.  I think you will find the numbers of Black, Brown, and ELL SLD children in K, Grade 1, and 2 shockingly low . . . . that's a MAJOR problem.  Please look at the data and let the data guide your conversations.  

The proposed language will lead to more delay.  The goal should be early identification and early intervention.  This language will promote delay.

I fully support the Supplemental Guidance for Evaluation and Eligibility in Special Education document.  The guidance provides clear guidance that improves consistency when making decisions.  Cultural bias must be considered in order to make accurate decisions related to eligibility.  A difference in the speech or language of a child's community is not the same as an impairment in the ability to learn language.   I believe that the language in the guidance is a protection of the child's rights rather than a hindrance to accessing services.  Not considering cultural bias will lead to the overidentification of students.  Considerations should be given to general education rather than placing students in a more restrictive category or setting.  I agree with the language "discrepant from typical" and using multiple data sources to making an eligibility determination.   The section "Evaluations Using Augmentative and Alternative Communication (AAC)" is a critical component of the guidance document. Independence, the decreased reliance on others, and authorship are essential considerations when making decisions related to eligibility and the IEP.  Not considering independence and authorship places the Local Education Agency in jeopardy of supporting practices that are not backed by evidence or science.

It is absolutely essential that speech language pathologists accurately assess and account for linguistic diversity when making eligibility decisions in order to ensure that students' civil rights are not violated by mistakenly stating that a student has a handicapping condition because they come from a dialectal background.  The Guidance Document proposed by the VDOE will support school-based speech language pathologists in making accurate clinical decisions that reduce the over-representation in Special Education services of students who come from linguistically diverse backgrounds.   Students who have language differences, not disorders, are appropriately served through supplemental services that are delivered through general education rather than declaring that the student has a handicapping condition in order to receive special education services.   The proposed document establishes critically necessary guidance for speech-language pathologists who serve students throughout the Commonwealth of Virgina

(As a disabled person I utilize Identity First Language. For readers who are also disabled and prefer Person First, please accept this of my respectful acknowledgement of your preference)

I am a special education advocate and parent of disabled students in the Central Virginia region. My experience centers mostly on supporting lower socioeconomic families with advocacy and the primary disabilities I support are neurodivergencies including autism, ADHD, specific learning disorders including dyslexia and dysgraphia, and emotional disabilities such as anxiety.

I have several concerns reading this proposed document; primarily how it may affect disabled black, indigeounous, and other people (students) of color, otherwise known as BIPOC. Some of the recommendations within are baffling to me in the inequity they could cause. When counteracting systemic racism it is important to consider whether a law or policy is overtly racist or discriminatory, but it is also equally if not more important to consider how a policy may be implemented and whether the effect of implementation would be racist or discriminatory. That to say, Virginia educators and the Virginia Department of Education must still actively examine their own systemic racism. 

One of my greatest frustrations as an advocate in my region is the delayal of identification. Students are referred to RTI which is then not even monitored with fidelity. Students are given the wait and see approach. I see students with unidentified learning disabilities become angry, aloof, and develop “a pervasive mood of unhappiness” at school. It is only after they become behavior problems that disabilities are identified. More than once I have seen this pattern escalate to students being subjected to frequent restraint in their frustration at school all while schools delay evaluating. It is unfathomable how harmful and traumatic these delayals are on our students. A large part of my practice is supporting newly identified dyslexic students (SLD) in middle school, whereas the prime time for intervention and remediation is early elementary.

The demographic that suffers the most from these delayals and denials is our disabled BIPOC students who must first face the implicit bias based on their race before their vulnerabilities as a disabled student. Black students are over identified as Intellectually Disabled or Emotionally Disabled due to bias in our schools, whereas the early identification and support of their needs remains underwhelming statistically.

Specific to this document my concerns as follows:

Pg 19- “Research shows that cultural and linguistic differences may result in an impact of up to 35 standard score points depending on the particular test and individual students' cultural background and language skills.” 

Thirty-five points is 2.3 standard deviations. Whereas some SLP commenters seem to believe this is supportive in speech assessment the truth is this is for all normed tests. Thirty-five points is a misinformed or malaligned team refusing to move on a child’s needs until they have fallen near totally off the bell curve. For scale, on a cognitive assessment, that equates to failing to identify unless a child’s perceived score approaches or exceeds what is typically considered  intellectually disabled; the implication being only severely impacted BIPOC would ever be identified if schools propose 35 point margins.

Also, confounding is the implication that a test with a 35 point margin of error would make it to the eligibility committee. An examiner is supposed to be trained in selecting tests which reduce cultural and linguistic bias. Examiners are supposed to be trained in screening out dialectal and linguistic differences in scoring. Examiners are supposed to apply confidence intervals, which support the dampening of these potential biases. Examiners are supposed to provide assurances that the evaluations are reasonably accurate. If they have made it that far and have only a test they can’t verify within two deviations, then how are they supposed to expect the other members who do not have specialized training in their field to make any more accurate conclusions?

As this standard would be applied only to students with cultural and linguistic differences it could mean failure to identify specific learning disabilities in disabled BIPOC entirely. Therefore, effectively segregating disabled BIPOC students  from resources that could help attain functional literacy or above. This perpetuates the cycle of poverty in many communities and feeds the school-to-prison pipeline.  The carelessness of this statement is profound, all while it is offered without a single citation, and has all the potential to wield systemic racism against BIPOC students. It’s inclusion diminishes the credibility of the VDOE as a source of reputable authority and is discriminatory in nature.

Pg 24- “Students with intelligence test scores between 70 and 85 frequently fall into the gap between General and special education. While they may not qualify for special education, it is important to develop interventions within general education to address their needs. Effective instructional practices can build academic resilience and ameliorate the important, but often ignored, risk factor for borderline intellectual functioning. (Shaw, 2008 p. 291)

Firstly, it should be noted this quote is highly abridged from the original author who stated, “Recent educational trends (e.g., the use of response to intervention models of special education eligibility, implementation of inclusive education, and the accountability components of No Child Left Behind) have increased awareness and may serve as a catalyst for improving the education of students with borderline intellectual functioning.”

Regardless, there are many children whose general IQs fall within this range even with significant cognitive strengths. Additionally, there are many who have achievement that is not commensurate with even this modest cognitive despite high level instruction and even school-wide Tier 2 interventions and who benefit from identification for explicit instruction, such as structured literacy for phonemic awareness. Whereas the law identifies intellectual disability as below two standard deviations this implies ranges above ID are now to be considered exclusionary factors. The inclusion of this quote gives localities a plausible reason to shift the definition of intellectual disability regardless of whether it gives students better outcomes. All this while many localities still struggle with providing inclusive, supportive, and differentiated work in general education.

Juxtapose this with the 35 point testing variance proposed for cultural and linguistic differences and another profound concern arises; BIPOC could be disproportionately misidentified as cognitively falling into the 70-85 range by matter of statistics and therefore denied special education.

Pg 5- On a relatively minor note, I find it counterproductive to recommend a staff monitor time when many localities make it standard practice to block off 30 minutes to an hour for even the most complex meetings.  Districts are very good at “respecting everyone’s time” by making a meeting table 2-3 times, but fail to respect parent’s time by allocating a reasonable time for discussions. This practice is inequitable to families who have to take time off work and/or get childcare, etc for meetings and this statement could further that practice.

Pg 5 “Team Leader”- IDEA does not define or require a team leader. While assigning a person as meeting facilitator is helpful, coining the term Team Leader, when many localities try to imply to families that school-based members have more authority within the meeting can support the harmful culture in which some parents' voices in their children’s education are being muffled.

Pg 6-7 Autism- The document fails to address the clause of 34 CFR 300.8(c)(1) “autism does not apply if a child's educational performance is adversely affected *primarily* because the child has an emotional disturbance.” Whereas the VDOE went to length on other categorizations to address commonly debated points there is silence here. Many localities are refusing to consider autism when even slight emotional needs are present, such as when a child has social anxiety, even though this condition is often secondary in nature to autism’s social interaction difficulties. Guidance on the term primarily would support teams in making meaningful and individualized decisions.

The language on page 19 is a slippery slope as it builds in too much room for bias and subjectivity from the testing adults:

"Careful consideration of bias and diagnostic accuracy or error rates is suggested when examining performance on norm referenced or standardized tests. Research shows that cultural and linguistic differences may result in an impact of up to 35 standard score points depending on the particular test and individual student’s cultural background and language skills. Teams should discuss the impact of regional dialectal differences, common family or cultural customs, lack of practice, and other factors that while appropriate for the individual student, may result in a lower score due to inappropriate comparison with the test norming population. 

Rather than examining the student for cultural background and language skills - the better approach is to examine the testing instrument being used to assess the student.  The test instrument needs to be assessed for cultural and linguistic appropriateness.  

It is more appropriate to consider the language spoken and/or dialect used by the child before selecting a standardized assessment tool and make sure that the assessment tool is appropriate.  We should not be looking at the child’s differences to explain testing results but rather look at the test, not the child.  

Educators should refrain from creating assumptions about students or their families based on general cultural, ethnic, or racial information.

When you allow the adults to subjectively look at the ethnic and regional dialectal differences of the family and the child, then you are opening a huge pathway to the dark side of testing that Virginia has exploited for racist purposes in the past. 

The evaluation of all children no matter what cultural or social background are not served by evaluation of their ability to learn or their level of disability that is not scientifically measured. We cannot have a system that assigns arbitrary numbers not based on proven research to the evaluation process. This violates the whole idea of having a more effective eval process. This document as is will only increase the amount of children falling through the gaps of special ed into the school to jail pipeline. This document is dangerous to the well being of children who need these services. 

I would like to truly understand past correlation what peer reviewed, research based data this is about? As well as if the study was replicated, & the size of data set groups to truly understand the validity of the research this recommendation is based on. Why is it when clearly defined terms are requested, this is the result? Is there a specific reason that the language used in this proposed amendment as with most governing guidelines has difficult to understand phrasing and language? Not every person attended college, some parents of special education students have disabilities too. Why does the burden fall to the parents/caregivers to have to figure it all out just to get access to what children need for an appropriate education? I also don't understand why it is a negative impact if a child were to receive a service they might not "need". Versus implementing possible additional exclusionary language; when multiple decades worth of replicated, peer reviewed, research based data exists indicating: Early Intervention is Key.? I simply have more questions after reading this proposed amendment, in addition to ones I've had previously. How are the children themselves being appropriately served? I have seen some intentionality on the part of some districts trying to be better. That is great, collaborative efforts are wonderful. Yet, we still have systemic issues with early intervention and the socio-economic, minority, & ESL communities. As well as lack of full testing to get a complete picture of the student & their needs as reasonable & customary to access an appropriate, free, public education. My reference is to the cultural and language amendment specifically. My comments & concerns extend itself to the totality of the system and the equitable rights of all students, including those impacted by disabilities. 

 I fully support the Supplemental Guidance for Evaluation and Eligibility in Special Education document.  This guidance gives standards for making eligibility decisions and parameters to improve consistency.

Additionally, cultural bias (of assessment tools, etc.) must taken into consideration when making decisions related to eligibility.  A difference in the speech or language of a child's community is not the same as an impairment in the ability to learn language.  The language in the guidance provides protection to a child's rights rather than discriminate against  their cultural linguistic background.  Ignoring cultural bias can lead to the overidentification of students. 

INTENSE Considerations should be given to general education rather than placing students in a more restrictive category or setting due to failure to provide adequate general education. 

"Discrepant from typical" is essential language along with the use of using multiple data sources to making an eligibility determination.   

In regards to the section "Evaluations Using Augmentative and Alternative Communication (AAC)":  this is vital aspect of this document to ensure that evidence based practices are upheld.  Teams must give consideration to AAC user independence, the decreased reliance on others, and authorship when making decisions related to eligibility and the IEP.  

I support this Supplemental Guidance for Evaluation and Eligibility.  The document provides clarification of terms and procedures that can help improve the consistency of decision making across school districts in Virginia.  When decisions are consistent, students with and without educational disabilities, are identified as such no matter where they live in Virginia.

I also echo the comments of other speech language pathologists stating that identifying cultural and dialect differences is essential in accurate identification of a student with a disability, rather than identifying a student with a disability when in reality they have a linguistic or cultural difference. 

Special education services should be provided to students with educational disabilities so that they can reach their potential.  But for students without educational disabilities, those same services would hinder them from reaching their potential.

Of all of the recommendations described in the JLARC report, I'm not sure why the VDOE chose to dedicate our limited resources to this 128-page document.  After reading this document in its entirety, it was difficult to find changes that are in any way an improvement over the existing evaluation and eligibility resources.  I do support the following:

• Response to Intervention (RTI) not encouraged for students 5 and under
• Medical diagnoses not required for evaluation (although this should have been included earlier in the document and applied to all categories of eligibility)
• Transition to the preferred  and culturally-sensitive term "hard of hearing"
• Conduct disorder does not rule out emotional disability 

The document begins with a desultory mention of encouraging parental participation.  However, the contribution of parental participation is quickly diminished by the mention of a team leader and the notion that "all team members do not have the same experience and knowledge" as others. It also mentions adhering to time limits when those of us regularly attending meetings know you are lucky to be scheduled for more than thirty minutes.  LEA's are encouraged to "clarify" local policies/procedures but not to provide written documentation to parents.  The document also fails to address providing copies of evaluations to parents prior to the eligibility meeting.  How does this encourage meaningful, equal parental participation?

The entire document is poorly organized, includes redundant information, and has page numbering issues.  It is also troubling that there was no information provided on the individual or individuals who participated in the drafting of this document.  

The most egregious content of this document is the encouraged, frequent consideration of cultural, linguistic, and socioeconomic differences. Eligibility teams do not have the knowledge and resources to appropriately consider experiences that are significantly different than their own.  Rather than this overblown document, the VDOE would better serve special education stakeholders by documenting which evaluation measures have been deemed appropriate tools for diverse student life experiences.

Further, when asked to consider a student's history of quality instruction, it is hypocritical for the VDOE to emphasize this when the most recent NAEP report placed Virginia dead last in fourth-grade reading and mathematics. Continuing to discriminate based on cultural and socioeconomic assumptions perpetuates those very inequities.  How are families supposed to escape generational illiteracy and the resulting socioeconomic difficulties, if schools do not address this issue head-on?

Eligibility and evaluation were not intended to be the convoluted, discriminatory mess that this document supports. The VDOE should engage a diverse selection of special education stakeholders and educational equity experts to commission a do-over.  

September 15, 2021

While it states on pg. 1 of this document that the intent is not to change any federal or state regulation, in fact, this document does change regulatory criteria for eligibility in the category of Specific Learning Disability.

First, in Step 5 of the Specific Learning Disability Worksheet it states that "[t]he student does not have learning problems that are primarily the result of: . . . 4. cultural factors, an environmental or economic disadvantage,".  The language in the VA regulations at 8 VAC 20-81-10 for the definition of Specific Learning Disability says, ". . . environmental, cultural, or economic disadvantage".  Later in 8 VAC 20-81-80(T)(2)(c), the language is "(4)  Environmental, cultural, or economic disadvantage".  Even the proposed document itself on pg. 57 uses the terms "Environmental, Cultural, or Economic Disadvantage."  To expand the term "cultural disadvantage" to include any "cultural factors" in this eligibility worksheet expands the realm of reasons an Eligibility Team could exclude a student with a learning disability from receiving special education.  It could cause confusion on Teams and introduce cultural bias into the decision-making process for eligibility.  While the document states on pg. 28 that use of these forms is optional, because these forms are being used as the foundation of VA IEP (the new IEP writing program used by ~110 districts in VA now), it is important that the language in the worksheet remain consistent with regulations.

Second, Step 6 regarding documentation of an adverse effect on educational performance is not an eligibility criterion found in the IDEA, federal regulations, or VA regulations for the disability category of SLD.  To include it in this worksheet or any guidance document is to expand eligibility criteria beyond federal and VA regulations.  This unlawful eligibility requirement prevents otherwise eligible students with learning disabilities from qualifying for the disability category of SLD in VA.  As noted above, roughly 1/2 of VA districts already use VA IEP (and more will be added in future years), therefore, districts are being mislead into applying illegal criteria for eligibility determinations.  This Step 6 must be removed from the Specific Learning Disability Worksheet.

The Virginia Department of Education (VDOE) has created a guidance document from a white supremacy lens that contains subtle but numerous embedded racial insults and microaggression that wrongfully reinforce flawed and harmful stereotypes about communities with cultural differences.

A person's race is a “social construct,” not brain function, and should not be used to cause roadblocks. The lack of diplomacy used in creating this guidance is startling.

The VDOE falsely claims the guidance documents meet the recommendations from the Audit and Review Commission.
The Joint Legislative Audit and Review Commission (JLARC) identified and articulated what parents and advocates have been saying for years. The VDOE has failed in its duties to enforce and provide sufficient oversight to protect the rights of parents and students with disabilities.

Page 10 

Consider Cultural, Linguistic and Socio-Economic Differences

Teams should consider the impact of cultural and linguistic differences and socio-economic factors on student performance when determining whether a disability is suspected.  

Some examples of differences that may impact a student’s learning and engagement in school include:

 ? Cultural expectations of formal schooling or of school in general 

? Different cultural norms (e.g., developmental milestone expectations)  

? Transiency in education (e.g., at least two moves in a single school year or teacher changes) 

? Responsibilities at home  

? Socio-economic factors 

? Primary language other than English 

? Level of academic language proficiency  

? Use of a dialect or variety of English other than Standard American English 

? Exposure to trauma 

? Access to structured activities or learning and practice opportunities

 Access to nurturing relationships or interactions 

? Family access to health care and other social determinants of health  

These statements are vague, racially inaccurate, insensitive, and perpetuate a false narrative about BIPOC families and the BIPOC community! 

The statements do not provide a “clear” or even accurate definition of what “environmental, cultural, or economic factors” are and how they would cause a student not to be eligible for special education and related services.

Page 19
“Teams should discuss the impact of regional dialectal differences, common family or cultural customs, lack of practice, and other factors that, while appropriate for the individual student, may result in a lower score due to inappropriate comparison with the test norming population.”

The VDOE is disingenuous in the above statement. The testing companies have developed evaluations tools that address appropriate norming. Test like The Preschool Language Scales-5 Spanish Screening Test for Early Childhood Educators (PLS-5) is designed to evaluate a broad spectrum of speech and language skills for Spanish-speaking children.

The VDOE should instead require Teams to use cross-cultural standardized tests when assessing language, intelligence, and cognitive abilities with culturally different individuals.

The special educational teams in Virginia lack the skill and expertise to discuss a students’ cultural experience. Black students attending Virginia public schools already don’t have access to equitable treatment. In Virginia, black students with and without disabilities are disproportionately expelled, suspended, restrained, and secluded.

This guidance will prevent and interfere with black, brown, and English learners with neurological disorders from getting services needed because of the embedded racism and subjectivity within this guidance. Advocating 4 Kids, Inc supports ALL other comments that oppose the guidance document.

Cheryl A Poe