The Office of Special Education and Rehabilitative Services (OSERS) has recently issued guidance on dyslexia, dyscalculia, and dysgraphia, advocating for the use of those specific diagnostic terms, rather than the identification of the student-specific pattern of deficiencies and/or weaknesses.
According to the letter, parents, advocacy groups, and national disability organizations believe that State and local educational agencies (SEAs and LEAs) are reluctant to reference or use dyslexia, dyscalculia, and dysgraphia in evaluations, eligibility determinations, or in developing the individualized education program (IEP) under the IDEA. The letter goes on to encourage SEAs and LEAs to use the “labels” of dyslexia, dyscalculia and dysgraphia more freely in special education evaluations and IEPs. While at first blush the guidance appears fairly benign, it does raise some significant concerns for school entities.
The Guidance
The guidance provided by OSERS states that students who have dyslexia, dyscalculia, and dysgraphia may qualify as having a disability under the IDEA exceptionality of specific learning disability and notes that there is nothing in the IDEA that would prohibit a school team from including those specific terms in the evaluation or IEP documents. The guidance was written in response to a purported reluctance on the part of school entities to do so, and opines that school entities should not prohibit the use of these terms in special education documents. Moreover, the guidance implies that, in some circumstances, the term should, in fact, be included in the IEP or evaluation report.
A number of education-related organizations, including the Council of Administrators of Special Education (CASE), joined together to draft a letter detailing the reasons why the use of the terms in special education documents may not be necessary and/or appropriate. Their well-reasoned monograph largely fell on deaf ears. While it went out of its way to describe all of the parent and disability-rights organizations who were advocating for the position that OSERS ultimately took, OSERS fails to address any of the concerns presented arguing against the recognition of the triple “D” labels. This one-sided approach to addressing the issue does nothing to alleviate the legitimate concerns of schools, and it raises doubts about the objectivity of the guidance provided.
The Concerns
The guidance raises a number of concerns. First, the guidance at least suggests that school entities should “identify” students who have such disabilities, which may move school psychologists into the area of making a medical diagnosis, something the law does not require, and something the school psychologist may not be qualified to do based on his/her licenses and certifications. The terms “dyslexia” and “dysgraphia” are listed in the DSM-V as “alternate terms” to describe particular types of specific learning disorders. While the IDEA’s child find obligation has always required school districts to locate students
with a disability and identify the student’s educational needs, CASE accurately points out that the IDEA disability categories “are educational eligibility criteria, rather than a medical or mental health diagnosis of a disease or disorder.”
A medical or mental health diagnosis is not required for eligibility, and providing a name for a particular disability does not change the underlying specific needs of the child that resulted in an eligibility determination. In addition, in Pennsylvania, school psychologists may not be qualified to diagnose a mental health diagnosis under the DSM-V.
Second, there is concern that if school entities begin using such specific terms, parents may insist that the student receive certain services arguing that a child has dyslexia and, accordingly, must receive a specific list of “dyslexia services.” Indeed, as the CASE letter points out, suggesting services based upon a label instead of a specifically-identified set of needs is precisely what the IDEA seeks to avoid. The individuality of each program and its ability to meet the needs of each specific child is at the very core of the IDEA.
Finally, there is some very legitimate concern that the guidance will lead to an assumption that a student with one of these conditions is automatically eligible under the IDEA, which may not always be the case. Rather, school entities must look at each student on a case-by-case basis to determine whether the student has a qualifying disability and whether the student requires specially designed instruction as a result. Where they result in a need for specially-designed instruction, these disabilities will always result in IDEA qualification. With respect to whether they do, in fact, result in a need for specially-designed instruction, however, the determination must be made on a case by case basis, likely with some students qualifying and others not under the IDEA. For those students who do not qualify under the IDEA, schools should be sure to review eligibility under Section 504.
Bottom Line
Schools should be cautious about this new guidance and ensure that a determination of eligibility and services is based not upon a label, but, instead, upon the specific needs of the student. If you have any questions about this guidance, please contact your legal counsel or one of the Special Education attorneys at KingSpry.
Dyslexia, dyscalculia, dysgraphia are a group of learning disorders that are generally characterized by a student’s difficulty in reading, working with numbers and writing, respectively.
School Law Bullets are a publication of the school law attorneys of KingSpry’s Education Law Practice Group. John E. Freund, III, is our editor. The article is meant to be informational and does not constitute legal advice.
