Demystifying Dyslexia:

Riverside County Office of Education Special Education Legal Series

October 19, 2017

Presented By:

Summer D. Dalessandro

Karin M. Anderson

SUMMER D. DALESSANDRO | San Diego LozanoSmith.com

SUMMER D. DALESSANDRO PARTNER sdalessandro@lozanosmith.com

9444 Waples Street, Suite 285 San Diego, CA 92121

T 858.909.9002 | F 858.909.9022

EDUCATION J.D., University of San Diego School of Law

B.A., Cornell University

PRACTICE AREAS Special Education Students Charter Schools Labor & Employment

BAR ADMISSION California, 2004 Minnesota, 2007

OVERVIEW Summer D. Dalessandro is the Managing Partner of Lozano Smith's San Diego office. Ms. Dalessandro began her legal career with the firm in 2005. She is a noted education law attorney, representing K-12 school districts throughout the state in administrative hearings, federal court appeals, mediations, and the special education IEP process. In addition to special education matters, her practice encompasses the full spectrum of student-related, charter school, labor and employment, and board governance issues that school districts face.

Prior to joining the firm in 2005, Ms. Dalessandro served as a law clerk for Judge Robert E. May in the Superior Court of California, County of San Diego.

PRESENTER EXPERIENCE Ms. Dalessandro is a skilled trainer, lending her knowledge of educational issues to presentations in many areas of education law, including all aspects of student discipline, special education, investigations, and the Brown Act. She has presented before the California Council of School Attorneys (CCSA), Association of California School Administrators (ACSA), California Association of School Business Officials (CASBO) and California Association of Supervisors of Child Welfare and Attendance (CASCWA), among many others.

EDUCATION She received her J.D. from the University of San Diego School of Law and studied abroad in the area of international and comparative constitutional law at Oxford University. She received her B.A. from Cornell University. Ms. Dalessandro was admitted to the California State Bar in 2004, and is also admitted to practice law in the state of Minnesota.

COURT ADMISSIONS Ms. Dalessandro is admitted to practice before the Ninth Circuit Court of Appeals and the Southern, Central, and Northern Districts of California.

KARIN M. ANDERSON | San Diego LozanoSmith.com

KARIN M. ANDERSON ASSOCIATE kanderson@lozanosmith.com

9444 Waples Street, Suite 285 San Diego, CA 92121

T 858.909.9002 | F 858.909.9022

EDUCATION J.D., University of San Diego, School of Law

B.A., University of California, San Diego

PRACTICE AREAS Labor & Employment Special Education Students

BAR ADMISSION California, 2011

OVERVIEW Karin M. Anderson is an Associate in Lozano Smith's San Diego Office. Ms. Anderson specializes in the Labor and Employment, Special Education and Student aspects of educational law

ADDITIONAL EXPERIENCE Prior to joining Lozano Smith, Ms. Anderson served as Staff Attorney at the Center for Education Policy and Law in San Diego, where she performed substantial research to draft reports regarding various issues in education law. She also served as a summer law clerk with the legal services office of the San Diego Unified School District

EDUCATION Ms. Anderson received her Juris Doctor degree from University of San Diego School of Law. As a student, she earned several awards, including the Highest Grade in Class Award for "Tax I" and "Employment Discrimination", High Pass Award for "Lawyering Skills I", and earned the Honor Scholarship for the 2010­2011 academic year. Ms. Anderson graduated from the University of California, San Diego with a Bachelor of Science in Psychology.

COMMUNITY INVOLVEMENT Ms. Anderson regularly volunteers as a mentor to local high school students, providing guidance to help students achieve success in their education and college and career preparation.

Demystifying

Dyslexia

Riverside County Office of Education

Special Education Legal Series

October 19, 2017

Presented By:

Summer D. Dalessandro

Karin M. Anderson

Agenda

Background: Terms & AB 1369

California Dyslexia Guidelines

Assessments

Eligibility & FAPE

2

Background:

Terms & AB 1369

1

“

” -

Dyslexia & Related Terms

• Not defined in IDEA or Education Code

• CDE definition:

– SLD that is neurobiological in origin

– Difficulties with accurate and/or fluent word recognition

– Poor spelling and decoding abilities

– Typically result from a deficit in the phonological component of language

– Problems in reading comprehension and reduced reading

experience that can impede growth of vocabulary and

background knowledge

(International Dyslexia Association)

4

Dyslexia & Related Terms

Dyslexia is an alternative term

used to refer to a pattern of

learning difficulties characterized

by problems with accurate or

fluent word recognition, poor

decoding, and poor spelling

abilities. (DSM V, p. 67.)

5

Dyslexia & Related Terms

Dyscalculia Dysgraphia

• Brain disorder • Difficulty with handwriting

• Severe difficulty in making • Impacts ability to express

arithmetical calculations ideas

• Numbers and math • Where to put pencil and

concepts how to form letters

• “Math learning disability” • Student forgets what he or

or “math dyslexia” she meant to express

6

2

Dyslexia & Related Terms

• Phonological Processing

–Distinguish sounds at the syllable, word, and

sentence level

–Auditory processing most strongly related to

mastering reading and written language

–Impairs ability to segment written word into

phonological components

7

AB 1369 – Legislative Concerns

• Students not found eligible

• IEP team misstatements

• Lack of education

8

AB 1369

Educ. Code 56334

•“Phonological processing” added to definition of SLD

Educ. Code 56335

•Requires state to develop guidelines

9

3

AB 1369 – Potential Consequences

• Identify more students as eligible for special

education

• Existing federal regulations define SLD as:

–“a disorder in one or more of the basic psychological

processes . . ., including conditions such as

perceptual disabilities, brain injury, minimal brain

dysfunction, dyslexia, and developmental aphasia.”

(34 C.F.R. 300.8(c)(10).)

• Are Districts seeing increase in SLD eligibility due to

dyslexia?

10

AB 1369

• “Phonological processing” now referenced in CA definition of SLD

– Disorder in one or more of the basic psychological

processes involved in understanding or in using language,

spoken or written:

• attention,

• visual processing,

• auditory processing,

• phonological processing,

• sensory-motor skills,

• cognitive abilities. (5 C.C.R. 3030(b)(10).)

11

AB 1369

State Guidelines for Dyslexia

• Assistance to identify, assess and educate students

• Guidelines to address:

– Educational Services

• “evidence based, multisensory, direct, explicit, structured and sequential approach to instruction pupils who have dyslexia

• Characteristics

• Remediation Strategies

• Information to distinguish dyslexia vs. normal development

(Educ. Code 56335.)

12

4

2017 California Dyslexia Guidelines

CA Dyslexia Guidelines

Signs of Dyslexia

• Children with dyslexia may have trouble with:

- Reading fluently

- Rhyming

- Spelling

- Learning a foreign language

- Recognizing sight words

14

CA Dyslexia Guidelines

Students Reading Below Basic

Achievement Levels 90%

80%

70%

60%

50%

40%

30%

20%

10%

0%

in CA Nationally

4th Graders 4th Graders with disabilities

15

5

CA Dyslexia Guidelines

Universal Screening

MTSS/Rtl Assessment/IEP

16

CA Dyslexia Guidelines

• Universal screening of all students,

beginning in kindergarten

• General education teachers,

reading specialists, RtI specialists

• Evidence-based and user-friendly

• Areas to include?

17

CA Dyslexia Guidelines

This figure is viewable on the

California Department of

Education Website.

18

6

l

i

i

i i

CA Dyslexia Guidelines

Don’t forget!

• Developmental, medical, family, and school

history

• Teacher reports, self-reports, parent-reports

• Social and emotional status

• Current classroom performance

• English language proficiency*

19

CA Dyslexia Guidelines

Teaching Strategies

• Evidence-based Instruction

• Structured Literacy

Instruction

• Accommodations

• Progress Monitoring

20

21

CA Dyslexia Guidelines

Accommodations

Reducing homework

calcu ator

aud obook

Text to speech

Extra t me

Graphic organizers

Word pred ct on software

7

CA Dyslexia Guidelines

Assistive Technology

• Used to maintain or improve functional capabilities • IEP teams required to

consider AT

• AT assessments identify specific tools

• District responsible for purchase & training

22

Assessments

Assessments

Disagree with suspicion

of dyslexia?

1. Pre-referral procedures;

2. Deny assessment and

provide prior written

notice; or

3. Assess.*

*Most conservative and

defensible approach

24

8

”

Assessments

Should Districts reference

“dyslexia” on IEP &

evaluation documents?

MAYBE

25

Assessments

• Reference to “dyslexia”

on assessment plan:

–not necessarily required

if District can otherwise

prove the assessment

plan covers all areas of

suspected disability.

(Capistrano Unified

School Dist., OAH Case

No. 2010050368.)

26

Eligibility & FAPE

Are Districts required to

reference“dyslexia on IEP &

evaluation documents?

NO “While IDEA does not prohibit the use of the terms dyslexia, dyscalculia, and

dysgraphia in eligibility determinations, there is no requirement under IDEA that

a disability label or ‘diagnosis’ be given to each student receiving special

education and related services, so long as the child is regarded as having a

disability and receives needed special education and related services.”

(Letter to Unnerstall, OSERS 4/25/2016.)

27

9

“ ”

Eligibility & FAPE

Are Districts required to

diagnose dyslexia in District

assessments?

NO “. . . there is no requirement under IDEA that a disability label or

‘diagnosis’ be given to each student receiving special education and

related services, so long as the child is regarded as having a disability

and receives needed special education and related services.”

(Letter to Unnerstall, OSERS 4/25/2016.)

28

Ask the Audience . . .

• Parent verbally informs District that Student has dyslexia.

• Parent disagrees with District’s psycho-educational assessment

– Claims it failed to assess in the area of dyslexia and/or phonological processing.

• Parent requests IEE for “dyslexia.”

How should the District respond?

29

Assessments

The other side of

Avila v. Spokane School District 81 . . .

30

10

Eligibility & FAPE

Eligibility

Is every child with dyslexia

eligible for an IEP?

NO 32

Eligibility

Specific Learning Disability

• Disorder in one or more basic psychological processes

• If no severe discrepancy:

– Pupil does not achieve adequately and one of:

• RTI model, OR

• Pattern of strengths and weaknesses

• Learning problems are not primarily result of hearing, vision

or motor disabilities, ID, ED, or economic disadvantage

• Adverse impact on educational performance

• Child requires special education

33

11

’

Eligibility

If a pupil who exhibits the

characteristics of dyslexia or

another related reading

dysfunction is not found to be

eligible for special education and

related services…, the pupil s

instructional program shall be

provided in the regular education

program. (Educ. Code 56337.5.)

34

Eligibility - Reminder

District has a duty to share available RTI data

–Without parent request

–Even if using severe discrepancy model

(M.M. v. Lafayette School Dist. (9th Cir. 2014) 767 F.3d 842)

35

Eligibility & FAPE

Student v. Sacramento City Unified School District, OAH Case No. 2015110163 (April 27, 2016)

Facts

• Initially eligible due

to ADHD

• Student remained

in private school

36

12

Eligibility & FAPE

Facts

• Later enrolled in public Waldorf school of

choice as general education student

• Teacher recognized reading difficulties, and

initiated Student Study Team meeting

• Informally enrolled in reading group with

Resource Specialist

37

Eligibility & FAPE

• Reassessed and deemed

eligible due to ADHD

• Parents consented to IEP

with exceptions:

1. Wanted a description of

specific reading

intervention

2. Wanted SLD eligibility

38

Eligibility & FAPE

Claimed denial of FAPE:

• Failed to specify individualized, evidence-

based interventions to address dyslexia and

dyscalculia

• Failed to identify a specific methodology

39

13

Eligibility & FAPE

Lessons Learned

• Focus on student needs vs.

eligibility category

• Address whether specific

methodology is required for

FAPE

40

Eligibility & FAPE

Student v. River Springs Charter School, OAH Case No. 2015110494 (July 29, 2016)

Facts

• 13 year old eligible due

to SLD in reading skills,

reading comprehension

and math reasoning

• 2013 IEP offered 5

academic goals and SAI

for 90 min/week

41

Eligibility & FAPE

Facts

• Triennial psycho-ed report showed:

– average intelligence,

– attention processing deficits and auditory processing disorder

in area of working memory and phonological processing,

– Functioning well below grade level in all academic areas

• Student met 3 IEP goals and partially progressed on 2

• Increased difficulty and workload of 6th grade was too much

for Student to handle

• Quiz and test scores were low despite accommodations

42

14

Eligibility & FAPE

• Private assessment

recommended Charter School

provide dyslexia services such

as how to decode, reading

comprehension and spelling

– Recommended SAI for many hours

per day every day

• 2014 IEP offered 4 academic

goals and only 60 min/week

SAI

43

Eligibility & FAPE

Did District deny FAPE by to offer Student appropriate specialized academic instruction & services targeting dyslexia?

• Reducing SAI time not justified

• SAI time insufficient to address

decoding, reading

comprehension and spelling

• Charter School knew Student

was not making progress

44

Eligibility & FAPE

Lessons Learned

• It is difficult to reduce

services on an IEP

• Ensure goals and services

are sufficient to address the

identified areas of need

regardless of specific

condition

45

15

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Questions

46

47

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16

{SR265155}

September 2017

Number 50

CLIENT NEWS BRIEF California Department of Education Issues Dyslexia Guidelines

The California Department of Education (CDE) has published new guidelines for

serving students with dyslexia. The California Dyslexia Guidelines can be found

here.

Assembly Bill (AB) 1369, which became effective on January 1, 2016, required

the CDE to develop and disseminate the guidelines in time for use no later

than the beginning of the 2017-2018 school year.

The guidelines are not mandatory, but they offer practical methods to identify

and comprehensively assess students with dyslexia that are likely to assist local

educational agencies (LEAs), including school districts and county offices of

education, in complying with the “child find” mandate of the Individuals with

Disabilities Education Act (IDEA) to identify, locate and evaluate all children

with disabilities to ensure that they receive special education and related

services if they qualify.

In addition to practical methods to identify students with dyslexia the

guidelines also contain tools for comprehensive assessments and evidence-

based interventions. Advice and tools offered in the guidelines include:

Universal screenings, beginning in kindergarten and continuing each

year, increase the likelihood of early identification of and intervention

forstudents with dyslexia. The guidelines’ extensive list of dyslexia characteristics, broken down by age group and grade level, will support

classroom teachers in screening for students with dyslexia.

Assessments must cover essential reading, writing and spoken

language areas, such as phonological awareness, encoding, reading

comprehension and rapid naming. Speech and language pathologists

and school psychologists can refer to the guidelines’ appendix of

assessment tools and instruments to measure students’ phonological

processing abilities when they assess for special education eligibility.

In addition to practical instruction on teaching methods, the guidelines

suggest various accommodations and assistive technology that may

help students with dyslexia fully participate in the classroom.

The guidelines also note that a student who has dyslexia does not

necessarily need special education or related services and is not

automatically eligible for services. However, the guidelines remind

LEAs not to delay evaluating a student for special education eligibility if

the LEA suspects or has reason to suspect that the student has dyslexia

and needs special education as a result.

As the new academic year begins for schools across California, it is a good time

to review the eligibility criteria for specific learning disability, with special

attention paid to phonological processing and dyslexia. The guidelines provide

an opportunity for school districts to identify students who are struggling,

September 2017

Number 50

Anahid Hoonanian

Senior Counsel

Los Angeles Office

ahoonanian@lozanosmith.com

Vivian Chen

Associate

Walnut Creek Office

vchen@lozanosmith.com

As the information contained herein is necessarily general, its application to a particular set of facts and circumstances may vary. For this reason, this News Brief

does not constitute legal advice. We recommend that you consult with your counsel prior to acting on the information contained herein.

© 2017 Lozano Smith

{SR265155}

CLIENT NEWS BRIEF September 2017

Number 50

provide interventions and ensure compliance with laws protecting students with disabilities.

If you have any questions about the California Dyslexia Guidelines or special education in general, please contact the

authors of this Client News Brief or an attorney at one of our eight offices located statewide. You can also visit our

website, follow us on Facebook or Twitter or download our Client News Brief App.

As the information contained herein is necessarily general, its application to a particular set of facts and circumstances may vary. For this reason, this News Brief

does not constitute legal advice. We recommend that you consult with your counsel prior to acting on the information contained herein.

© 2017 Lozano Smith