New Jersey Department of Education Offices of Special Education and Title I English Language Learners (ELLs) and Special Education Question and Answer Document

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1. Can students be referred and/or evaluated for special education services while receiving bilingual/ESL services?
   
   Yes, neither federal nor state regulations prohibit a student who is receiving ESL services from being evaluated.  According to New Jersey Administrative Code (N.J.A.C.) 6A:14-3.4(f), "An initial evaluation shall consist of a multi-disciplinary assessment in all areas of suspected disability. Such evaluation shall include at least two assessments and shall be conducted by at least two members of the child study team in those areas in which they have appropriate training or are qualified through their professional licensure or educational certification and other specialists in the area of disability as required or as determined necessary.
   For further information on referral and evaluation please refer to N.J.A.C. 6A:14.3.4(f).

2. Can students receiving special education services receive bilingual/ESL services?
   
   Yes, a student who is determined eligible for special education and related services or eligible for speech-language services can continue to receive bilingual/ESL services. Districts should consider embedding special education services in the existing bilingual/ESL classes in order to provide the services in the general education setting.

3. Can bilingual/ESL students receive speech-language services? 
   
   Yes, according to N.J.A.C. 6A:14-3.6, "eligible for speech-language services" means a speech and/or language disorder as follows: A speech disorder in articulation, phonology, fluency, voice, or any combination, unrelated to dialect, cultural differences or the influence of a foreign language, which adversely affects a student's educational performance.

4. What should a school district do if they can't find a bilingual child study team member to complete a child study team evaluation?
   
   N.J.A.C. 6A:14-3.4(f)1 requires that evaluations be conducted in the language or form most likely to yield accurate information...unless it is not feasible to do so.  Therefore, a school district should make extensive efforts to locate a bilingual child study team member.  The school district may contract for services from another local school district or an approved clinic or agency.  A list of bilingual child study team professionals is available on the following website:http://www.nj.gov/njded/bilingual/resources/cst/. Additional resources that should be considered by the school district include the recruitment of bilingual paraprofessionals and the use of bilingual community professionals and bilingual professionals in the district.  In all instances, the school district must train personnel in the assessment process and the role of interpreters at meetings.

5. If a bilingual/ESL student is referred for special education, how should the parent be notified?
   
   Before a Meeting:
   Parental involvement through the referral and evaluation process is important and districts should make every effort to ensure parental participation at meetings.
   
   After a Meeting:
   Written notice must be provided to the parents within 15 days following a meeting of the IEP team. According to N.J.A.C. 6A:14-2.4:
   
   a) Written notice to the parent shall be provided and parent conferences required by this chapter shall be conducted in the language used for communication by the parent and student unless it is clearly not feasible to do so.
   1. Foreign language interpreters or translators and sign language interpreters for the deaf shall be provided, when necessary, by the district board of education at no cost to the parent.

b) If the native language is not a written language, the district board of education shall take steps to ensure that:

1. The notice is translated orally or by other means to the parent in his or her native language or other mode of communication;
2. That the parent understands the content of the notice; and
3. There is written documentation that the requirements of (b)1 and 2 above have been met.

6. How should special education eligibility be determined for English language learners?
   
   First, determine the dominant language of the child.  While the NJDOE does not mandate or endorse any particular assessment, examples include the Brigance Screening, Language Assessment Scale, IDEA Proficiency Test, Bilingual Verbal Abilities Test, or Woodcock-Munoz Test.  For additional resources you may consult the Center for Applied Linguistics Foreign Language Assessment Directory at www.cal.org/calwebdb/flad.
   
   Once the dominant language is determined, evaluations should be conducted in accordance with N.J.A.C. 6A:3.4(f).  If it is determined that the native language is dominant, then testing should be in the native language.  If tests are unavailable in student's native language, then use informal assessment measures (language sample, oral story retelling).
   
   According to N.J.A.C. 6A:14-3.5(b), "In making a determination of eligibility for special education and related services, a student shall not be determined eligible if the determinant factor is due to a lack of instruction in reading, including the essential components of reading instruction, or math or due to limited English proficiency."
   
   Additionally, according to N.J.A.C. 6A:15-1.4(g), "…additional programs and services shall be designed to meet the special needs of eligible ELLs and include, but are not limited to, remedial instruction through Title 1 programs; special education; school-to-work programs; computer training and talented education services."

7. What procedure(s) should be in place before an English Learner (EL) is appropriately referred to the Child Study Team?

   A strong I & RS and/or NJTSS process is necessary to determine whether an EL should be referred to the Child Study Team. Administrative Code does NOT require a specific timeframe before an EL can be referred (e.g., two years in ESL program, exit ESL program). A bilingual/ESL teacher should be represented on the I&RS/NJTSS committee to address normal processes of second language acquisition as opposed to the possibility of a learning disability.
   
   To ensure that ELs have had the “opportunity to learn,” implementation of effective instructional practices should be provided for all teachers who work with ELs in addition to a high-quality developmental ESL program. Progress monitoring over time in all settings with appropriate, documented interventions is the recommended process to decide if a referral is warranted.

8. What are some other areas to consider when providing instruction to students who have limited English proficiency and are either classified or referred for an evaluation?

• Consider including bilingual or ESL professionals as part of the IEP team and solicit their input when considering the language needs of students with limited English proficiency.
• Contact your district's parent advisory group to better understand the needs of parents whose children have limited English proficiency and are receiving special education services.
• Utilize the district's pre-referral intervention system such as the Intervention and Referral Services committee (I&RS), Response to Intervention (RTI) or multi-tiered system of supports (MTSS). For more information on providing interventions to ELL can be found athttp://www.rtinetwork.org/learn/diversity/englishlanguagelearners or WIDA

9. Should IEP Teams for ELLs with disabilities include persons with expertise in second language acquisition?
   
   Yes. It is important that IEP Teams for ELLs with disabilities include persons with expertise in second language acquisition and other professionals, such as speech-language pathologists, who understand how to differentiate between limited English proficiency and a disability. The participation of these individuals on the IEP Team is essential in order to develop appropriate academic and functional goals for the child and provide specially designed instruction and the necessary related services to meet these goals.
   
   The IDEA regulation in 34 CFR §300.321(a) specifies that the participants on each child's IEP Team include:
1. The parents of the child;
2. Not less than one regular education teacher of the child (if the child is, or may be, participating in the regular education environment);
3. Not less than one special education teacher of the child, or, where appropriate, not less than one special education provider of the child;
4. A representative of the public agency who –
• Is qualified to provide, or supervise the provision of, specially designed instruction to meet the unique needs of children with disabilities;
• Is knowledgeable about the general education curriculum; and
• Is knowledgeable about the availability of resources of the public agency.
5. An individual who can interpret the instructional implications of evaluation results, who may be a member of the team described in paragraphs (a)(2) through (a)(6) of this section;
6. At the discretion of the parent or the agency, other individuals who have knowledge or special expertise regarding the child, including related services personnel as appropriate; and
7. Whenever appropriate, the child with a disability.

It is important that IEP Teams for ELLs with disabilities include a public agency representative, as described previously, who is qualified to provide or supervise the provision of specially designed instruction to meet the unique needs of ELLs with disabilities. This representative should be knowledgeable about the availability of agency resources needed to enable ELLs with disabilities to meaningfully access the general education curriculum. This will ensure that the services included in the ELL student's IEP are appropriate for the student and can actually be provided.

Under the IDEA, the IEP Team must consider a number of special factors in developing, reviewing, or revising a child's IEP. Under 34 CFR §300.324(a)(2)(ii), the IEP Team must "[i]n the case of a child with limited English proficiency, consider the language needs of the child as those needs relate to the child's IEP." Therefore, to implement this requirement, the IEP Team should include participants who have the requisite expertise about the student's language needs.

An IEP Team that includes appropriate members should be able to make thoughtful decisions about the content of an ELL's IEP, including the manner in which the student participates in the annual State ELP assessment. In addition, States and districts are encouraged to provide other IEP Team members with appropriate training in language acquisition and the unique needs of ELLs with disabilities.

The IEP team should consist of appropriate members who should be able to make thoughtful decisions about the content of an ELL's IEP.  Although bilingual and ESL teachers are not required members of the IEP Team, in order to effectively consider the needs of a student with limited English proficiency, the district should consider including them as members of the team and/or solicit input into the student's IEP.  
It is important to note, in accordance with N.J.A.C. 6A:14-2.4, foreign language interpreters shall be provided, when necessary, by the district, at no cost to the parent.

In order effectively include parents on the IEP team, team members should be trained in working with linguistically and culturally diverse parents.

10. When and how can an ELL with a disability be exited from ELL status?
    
    An ELL with a disability can be "exited" from ELL status when he/she no longer meets the definition of an ELL. This occurs when the student meets the State's definition of "proficient" in English. The district, school personnel, and the IEP Team may have input into the decision of whether a student is proficient in English in accordance with the district's multiple measures ELL exit policy.
    
    However, there is no provision in the IDEA that would authorize the IEP Team to remove the ELL designation before the student has attained English proficiency. In addition, other districts and/or school personnel do not have the authority under Federal law to remove a student's ELL designation solely because the student has an IEP.
    
    
11. What do school districts need to provide when evaluating ELL students for special education services and providing special education and English language assistance services?

School districts must ensure that ELLs who may have a disability, like all other students who may have a disability and need services under IDEA or Section 504, are located, identified, and evaluated for special education and related services as required by federal and state regulations. When conducting such evaluations, school districts must consider the English language proficiency of ELLs in determining the appropriate assessments and other evaluation materials to be used.  School districts must provide ELLs with disabilities with both the language assistance and special education and related services to which they are entitled.   (20 U.S.C. §§ 1400-1419; 34 C.F.R. pt. 300 (IDEA, Part B and its implementing regulations); 29 U.S.C. § 794 and 34 C.F.R. pt. 104 (Section 504 and its implementing regulations).