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NASP Communiqué, Vol. 36, #3
November 2007
Deciphering the
Federal Regulations
on Identifying
Children With
Specific Learning
Disabilities
By Robert Lichtenstein, NCSP, & Mary Beth Klotz, NCSP
Of all the mandates that govern the practice of school
psychology, perhaps none affects the day-to-day functioning
of school psychologists more than the federal
rules concerning identification of specific learning disabilities
(SLD). The field is still adjusting to the most recent shift in
these rules, which might be considered the third phase of SLD
identification directives in the 32-year history of the federal
special education law, that is now the Individuals With Disabilities
Education Improvement Act of 2004 (IDEA).
Phase 1 lasted all of 2 years. When the federal special education
law was first introduced (the Education For All Handicapped
Children Act of 1975), school personnel had only the
definition of specific learning disabilities—largely unchanged to this day—as a guide: “[A] disorder in one or more of
the basic psychological processes involved in understanding or in using language, spoken
or written, which disorder may manifest itself in the imperfect ability to listen,
think, speak, read, write, spell, or do mathematical calculations.” While seemingly a
perfectly good definition, it gave school psychologists little to go on when it came to
interpreting assessment data. There was little scientific evidence to indicate what these
psychological processes were, and how they should be measured. More often than not,
assessment logic operated in reverse: a child who was struggling academically was evaluated,
and the low points of a cognitive test profile were presumed to be those causative
processes. As school personnel interpreted the definition loosely and inconsistently,
SLD prevalence rates escalated rapidly.
Bringing SLD prevalence rates under control was a major focus of the 1977 federal
special education regulations. These regulations ushered in Phase 2, in the form of the
ability–achievement discrepancy model. Consequently, WISC-wielding school psychologists
were hired by the boatload, and states introduced formulas to operationalize
what exactly constituted a severe discrepancy. School administrators were able to
use these criteria to defend school team decisions to deny services. The only problem
was that ability–achievement discrepancy formulas proved to be deficient in essential
psychometric attributes—most particularly, validity. Studies revealed that IEP Teams,
more often than not, disregarded federal and state mandates for making SLD identification
decisions—whether from recognizing the shortcomings of the ability–achievement
discrepancy rules or from a desire to rescue instructional casualties from regular
education. Remarkably, the ability–achievement discrepancy requirement endured
for over 25 years.
New SLD Identification Procedures
We now enter phase 3, as IDEA 2004 allows school districts and states to opt out of an
ability–achievement discrepancy model, and offers a new consideration for making SLD identification decisions:
(A) … when determining whether a child has a specific learning disability …, the
local educational agency shall not be required to take into consideration whether
the 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.
(B) … In determining whether a child has a specific learning disability, a local
educational agency may use a process which determines if a child responds to
scientific, research-based intervention as a part of the evaluation procedures.…”
(P.L. 108–446, Section 614(b)(6)).
It is this section of IDEA 2004 that has spurred unprecedented attention to responseto-
intervention (RTI) procedures. The U.S. Department of Education, Office of Special
Education and Rehabilitative Services, Office of Special Education Programs (OSEP)
elaborated upon this and other aspects of IDEA 2004 by issuing the companion regulations
on August 14, 2006. The good news is, the regulatory language is thorough and
detailed. The bad news is, it is exceedingly difficult to understand and interpret. What
follows is an attempt to elucidate the arcane language and logic of these regulations.
Two major resources were consulted for this article: (1) OSEP’s Analysis of Comments
and Changes that accompanied the regulations (Assistance to States for the Education
of Children With Disabilities and Preschool Grants for Children With Disabilities;
Final Rule, 2006, pp. 46646–46661) and (2) OSEP’s IDEA 2004 website. The federal
regulations regarding SLD identification are reprinted verbatim in the online version
of this article. The federal regulations regarding SLD identification are reprinted verbatim following the references for this article.
State Criteria Required
The IDEA regulations on SLD identification begin with the requirement that each state
must adopt criteria for SLD identification consistent with the federal SLD regulations.
OSEP regarded this as necessary to promote consistency within a state and in keeping
with the obligation of states to carry out their child find responsibilities. States often
provide guidelines or technical assistance to school districts regarding appropriate
practices. In this case, the state guidance has been elevated to the status of a mandate,
or legal requirement, because IDEA regulations say states must adopt these criteria
and school districts must use them. While it is possible that a state will simply echo
the federal regulations with its criteria, the regulations clearly suggest that states can and should elaborate further on acceptable practice and required procedures. This is
especially relevant as school districts try to determine how to incorporate elements
of RTI into the special education system.
A related question concerns the extent to which states can preclude certain practices,
such as the use of an ability–achievement discrepancy as the basis for decision
making. This is addressed in the Analysis of Comments and Changes with the clarification
that “States are free to prohibit the use of a discrepancy model,” the rationale
being that “States are responsible for developing criteria to determine whether a child
is a child with a disability” (p. 46646).
Alternative Research-Based Procedures
In addition to explicitly permitting school districts to use “a process based on the child’s
response to scientific, research-based intervention,” the IDEA regulations permit the
use of “other alternative research-based procedures.” What exactly this refers to is unclear.
The Analysis of Comments and Changes does provide two examples—(1) absolute low
achievement with consideration of exclusionary factors and (2) combining features of
different models—but does not suggest these are the leading or preferred alternatives
(p. 46648). The caveat is that any such alternative must be research based. The intent is
to allow for flexibility as practice continues to be informed by scientific research.
Group Members
The group that determines SLD eligibility is described in §300.308 of the regulations.
OSEP decided to retain the language from the previous regulations given the diversity
of comments from the field and the lack of consensus. The group that makes the
determination of SLD eligibility (which, technically, is not synonymous with the IEP
Team) must include, in addition to the child’s parents and a teacher as defined in
§300.308(a), “at least one person qualified to conduct individual diagnostic examination
of children, such as a school psychologist, speech-language pathologist or remedial
reading teacher” (§300.308). OSEP declined to require that school psychologists,
speech-language pathologists, or other specific support services personnel (e.g., reading
teachers, social workers, educational therapists) always be part of the school team,
leaving this to be decided at the local level so that “the composition of the group may
vary depending on the nature of the child’s suspected disability, the expertise of the
local staff, and other relevant factors” (Analysis of Comments and Changes, p. 46650).
SLD Identification Criteria
The guts of the SLD identification criteria are found in the beginning of the section labeled
“Determining the existence of a specific learning disability” (§300.309(a)). In order
to meet the SLD criteria, three conditions must be met, as shown in Figure 1.
Underachievement. The first condition is underachievement in one of the eight
specified academic areas: the seven areas previously used for ability–achievement comparisons,
to which “reading fluency skills” has been added and “mathematical reasoning”
has been changed to “mathematical problem solving.” Underachievement is
defined by the phrase, “[T]he child does not achieve adequately for the child’s age or
to meet State-approved grade-level standards ... when provided with learning experiences
and instruction appropriate for the child’s age or State-approved grade level
standards” (§300.309(a)(1)).
The reference to state-approved grade-level standards is in keeping with the federal
effort to further align IDEA with ESEA (the No Child Left Behind Act of 2001). One
aspect of this involves gauging performance against criterion-based curricular expectations
rather than comparing the child to others in the class or in the school district.
As stated in the Analysis of Comments and Changes, “The performance of classmates and
peers is not an appropriate standard if most children in a class or school are not meeting
State-approved standards” (p. 46652). The Analysis further advises not to regard
current grade placement as the standard for comparison when a child has not been
permitted to progress to the next grade (p. 46652).
Models of identification. The second condition is the part that allows for different
models of identification. A range of different possibilities is encompassed by the wording
of §300.309(a)(2). The first option is a clear reference to an RTI approach: “The child does
not make sufficient progress to meet age or State-approved grade-level standards in one
or more of the areas identified in paragraph (a)(1) of this section when using a process
based on the child’s response to scientific, research-based intervention.”
The second option is inclusive and amorphous, and perhaps the most intriguing part
of the criteria: “The child exhibits a pattern of strengths and weaknesses in performance,
achievement, or both, relative to age, State-approved grade-level standards, or
intellectual development, that is determined by the group to be relevant to the identification
of a specific learning disability, using appropriate assessments.…” OSEP has
not provided specific guidance on how to interpret what is meant by a “pattern of
strengths and weaknesses,” other than noting in the Analysis of Comments and Changes,
“Patterns of strengths and weaknesses commonly refer to the examination of profiles
across different tests used historically in the identification of children with SLD” (p.
46654). As OSEP guidance makes clear, the reference to “across,” rather than within,
tests is very intentional.
The regulations leave to the judgment of the decision-making group the determination
of whether a pattern is “relevant to the identification of a specific learning disability” (§309(a)(2)(ii)). What is noteworthy, however, is that the pattern of strengths
and weaknesses applies to performance and/or achievement. “Performance” presumably
refers to functioning in the classroom (more on this concept later in this article).
According to this wording and the Analysis of Comments and Changes (p. 46651), intraindividual
differences in performance or achievement may be applicable to meeting
this criterion, whereas a profile of cognitive strengths and weakness is not. The Analysis
provides the guidance on this point that, “… an assessment of intra-individual differences
in cognitive functions does not contribute to the identification and intervention
decisions for children suspected of having an SLD” (p. 46651).
Assessment of intellectual development. It is explicitly noted in the Analysis of Comments
and Changes that “The Department does not believe that an assessment of psychological
or cognitive processing should be required in determining whether a child
has an SLD” (p. 46651). Nevertheless, assessment of intellectual functioning continues
to be recognized in the regulations. Intellectual development is one of the standards—
along with age expectations and state-approved grade-level standards—against which
strengths and weaknesses in performance or achievement patterns can be compared.
This is the clause that allows for comparisons between intellectual development and
achievement. While the regulations make no reference to ability versus achievement or
to ability–achievement discrepancy, the Analysis acknowledges that use of the term
intellectual development “is consistent with the discretion in the Act in allowing the continued
use of discrepancy models” (p. 46651). Again, the qualifier “relevant to the identification
of a specific learning disability” must be considered. Not just any discrepancy
between intellectual development and achievement meets this condition. The
decision-making group must determine that the relationship between the pattern of
achievement and level of intelligence is diagnostically significant.
Comprehensive evaluation. Also to be considered with respect to use of intelligence
tests is the regulatory language concerning all special education evaluations:
“The child is assessed in all areas related to the suspected disability, including, if appropriate,
health, vision, social and emotional status, general intelligence, academic performance,
communicative status, and motor abilities” (§300.304(c)(4)). Essentially,
the regulations respect the expertise of the professionals who conduct the evaluation
to determine what data are relevant for eligibility determination and educational planning
purposes. Furthermore, the obligation to conduct a comprehensive evaluation
remains intact. The Analysis of Comments and Changes states that “[A]n RTI process
does not replace the need for a comprehensive evaluation” (p. 46647). Technical assistance
materials from OSEP emphasize the importance of conducting a “comprehensive
evaluation,” even though the term does not appear in the statute. Interestingly,
the term does appear in the IDEA regulations index, and refers the reader to section
§300.304 (c)(6), which describes the evaluation requirements in detail.
As noted in the Analysis of Comments and Changes, an alternative model wherein the
child would meet this second condition is low achievement relative to age or gradelevel
expectations, while considering exclusionary factors (p. 46648). Concerns expressed
by those who anticipate that an SLD identification model founded on low achievement
would result in dramatic increases in referrals and special education placements are
noted in the Analysis. OSEP rejected this reasoning, however, stating that “Well-implemented
RTI models and models that identify problems early and promote interventions
have reduced, not increased, the number of children identified as eligible for special
education services, and have helped raise achievement levels for all children in a
school”(p. 46652).
Exclusionary factors. The third condition that must be met is the long-established
exclusionary clause. The exclusionary factors listed in §300.309(a)(3) cannot be the
primary reason that the child has met the first two conditions. The list has been expanded
to include the rule-outs applicable to all special education eligibility determinations;
namely, that a child may not be determined to have a disability if the reason is
lack of appropriate instruction in reading or math, or limited English proficiency. The
list also makes a noteworthy adjustment in the wording of the IDEA 2004 definition
of SLD in referring to “cultural factors,” rather than cultural disadvantage.
Appropriate instruction, progress monitoring, and time lines. Parts (b) and (c)
of §300.309 and all of §300.311 lay out important new requirements that relate to RTI.
First, §300.309(b) requires implementation of elements of an RTI approach, regardless
of the identification model used, to ensure that underachievement is not due to
lack of appropriate instruction in reading or math. The evaluation team must review
(1) data demonstrating that the child was provided with appropriate instruction in regular
education settings, delivered by qualified personnel, and (2) documentation of
repeated assessments of achievement “at reasonable intervals” to reflect student
progress during instruction. The documentation of student progress must be provided
to parents. While the passage makes no reference to curriculum based measurement,
this would clearly be a means of fulfilling the repeated assessments requirement.
Second, §300.309(c) specifies that the school district must promptly request parent
consent for a special education evaluation if the child “has not made adequate
progress after an appropriate period of time.” School districts must adhere to the established
time frame (i.e., 60 days, unless the state has established some other timeframe)
in conducting special education evaluations unless “extended by mutual agreement
of the child’s parents and the evaluation team.” This suggests that a school district is
best served by providing appropriate instruction and documenting student progress
prior to referral, in Tiers 1 and 2, as described in the NASP Position Statement on Identification
of Specific Learning Disabilities (NASP, 2007). The evaluation team could also
obtain RTI data as part of the special education evaluation, such as when a parent
requests a formal evaluation and prior documentation is lacking. However, absent the
parent’s agreement to an extension, the school district would be on a tight timetable
to obtain such data.
Documentation Requirements
Other documentation requirements are itemized in §300.311. This is an updating of what
was described as the “multidisciplinary team report” in previous IDEA regulations,
designed to ensure that all relevant data were obtained and all eligibility criteria have
been met. This documentation requires the decision-making group to acknowledge that
it has addressed each of the criteria shown in Figure 1. If an RTI approach has been in
effect, the school team must document (a) the instructional strategies used, (b) the student
data collected, and (c) that parents were notified of state policies, strategies for
accelerating the child’s learning, and the parents’ right to request an evaluation.
Observations
The section on observation, which has undergone some fine-tuning, also has relevance
to the earlier discussion about “a pattern of strengths and weaknesses in performance,
achievement, or both.” Neither the regulations nor the accompanying Analysis of Comments
and Changes defines or clarifies the meaning of performance. Presumably, performance
refers to functioning in the classroom setting. Evidence to support this interpretation
can be derived from the explanation in the Analysis as to why observation of
the child in the child’s learning environment is a required component of the evaluation:
“Objective observations are essential to assessing a child’s performance and
should be a part of routine classroom instruction” (p. 46659).
The new regulations provide a more elaborated description of the observation, as
follows: “The public agency must ensure that the child is observed in the child’s learning
environment (including the regular classroom setting) to document the child’s
academic performance and behavior in the areas of difficulty” (§300.310(a)). This
wording makes it clear that the observation is a strict requirement. The child’s learning
environment is not restricted to the regular classroom setting. Additionally, the
observation should address behavior as well as academic performance, which is consistent
with the requirement in §300.311(a)(3) to document relevant behavior. The
regulations specify that observation may be conducted prior to referral (e.g., as part
of a Tier 2 problem-solving process), in which case parent consent is not required; or
after a referral for special education evaluation, in which case the observation must
be conducted by a member of the decision-making group and requires parent consent
(§ 300.310(b)).
Conclusion
As the regulations are implemented, IDEA 2004 will become more of a reality. The new
regulations reflect a continuing effort to effect significant reforms in identification
procedures and service delivery for children with SLD, mild disabilities, and other
learning problems.
References
Assistance to States for the Education of Children
With Disabilities and Preschool Grants for Children
With Disabilities; Final Rule, 71 Fed. Reg.
46540 (Aug. 14, 2006) (to be codified at 34
C.F.R. Parts 300 and 301). Retrieved September
19, 2007, from http://www.ed.gov/legislation/
FedRegister/finrule/2006-3/081406a.pdf
National Association of School Psychologists
(2007). Position Statement on Identification of
Students With Specific Learning Disabilities.
Retrieved September 19, 2007, from
http://www.nasponline.org/about_nasp/position
papers/SLDPosition_2007.pdf
U.S. Department of Education, Office of Special
Education and Rehabilitative Services, Office of
Special Education Programs. Identification of
Specific Learning Disabilities. Building the legacy:
IDEA 2004. Retrieved September 19, 2007, from
http://idea.ed.gov/explore/view/p/%2Croot%2C
dynamic%2CTopicalArea%2C13%2C
IDEA Regulations of August 14, 2006
§ 300.307 Specific learning disabilities.
(a) General. A State must adopt, consistent with § 300.309, criteria for determining whether a child has a specific learning disability as defined in § 300.8(c)(10). In addition, the criteria adopted by the State--
(1) Must not require the use of a severe discrepancy between intellectual ability and achievement for determining whether a child has a specific learning disability, as defined in § 300.8(c)(10);
(2) Must permit the use of a process based on the child's response to scientific, research-based intervention; and
(3) May permit the use of other alternative research-based procedures for determining whether a child has a specific learning disability, as defined in § 300.8(c)(10).
(b) Consistency with State criteria. A public agency must use the State criteria adopted pursuant to paragraph (a) of this section in determining whether a child has a specific learning disability.
§ 300.308 Additional group members.
The determination of whether a child suspected of having a specific learning disability is a child with a disability as defined in § 300.8, must be made by the child's parents and a team of qualified professionals, which must include--
(a)(1) The child's regular teacher; or
(2) If the child does not have a regular teacher, a regular classroom teacher qualified to teach a child of his or her age; or
(3) For a child of less than school age, an individual qualified by the SEA to teach a child of his or her age; and
(b) At least one person qualified to conduct individual diagnostic examinations of children, such as a school psychologist, speech-language pathologist, or remedial reading teacher.
§ 300.309 Determining the existence of a specific learning disability.
(a) The group described in § 300.306 may determine that a child has a specific learning disability, as defined in § 300.8(c)(10), if--
(1) The child does not achieve adequately for the child's age or to meet State-approved grade-level standards in one or more of the
following areas, when provided with learning experiences and instruction appropriate for the child's age or State-approved grade-
level standards:
(i) Oral expression.
(ii) Listening comprehension.
(iii) Written expression.
(iv) Basic reading skill.
(v) Reading fluency skills.
(vi) Reading comprehension.
(vii) Mathematics calculation.
(viii) Mathematics problem solving.
(2)(i) The child does not make sufficient progress to meet age or State-approved grade-level standards in one or more of the areas identified in paragraph (a)(1) of this section when using a process based on the child's response to scientific, research-based intervention; or
(ii) The child exhibits a pattern of strengths and weaknesses in performance, achievement, or both, relative to age, State-approved grade-level standards, or intellectual development, that is determined by the group to be relevant to the identification of a specific learning disability, using appropriate assessments, consistent with § 300.304 and 300.305; and
(3) The group determines that its findings under paragraphs (a)(1) and (2) of this section are not primarily the result of--
(i) A visual, hearing, or motor disability;
(ii) Mental retardation;
(iii) Emotional disturbance;
(iv) Cultural factors;
(v) Environmental or economic disadvantage; or
(vi) Limited English proficiency.
(b) To ensure that underachievement in a child suspected of having a specific learning disability is not due to lack of appropriate instruction in reading or math, the group must consider, as part of the evaluation described in § 300.304 through 300.306--
(1) Data that demonstrate that prior to, or as a part of, the referral process, the child was provided appropriate instruction in regular education settings, delivered by qualified personnel; and
(2) Data-based documentation of repeated assessments of achievement at reasonable intervals, reflecting formal assessment of student progress during instruction, which was provided to the child's parents.
(c) The public agency must promptly request parental consent to evaluate the child to determine if the child needs special education and related services, and must adhere to the timeframes described in § 300.301 and 300.303, unless extended by mutual written agreement of the child's parents and a group of qualified professionals, as described in § 300.306(a)(1)--
(1) If, prior to a referral, a child has not made adequate progress after an appropriate period of time when provided instruction, as described in paragraphs (b)(1) and (b)(2) of this section; and
(2) Whenever a child is referred for an evaluation.
§ 300.310 Observation.
(a) The public agency must ensure that the child is observed in the child's learning environment (including the regular classroom setting) to document the child's academic performance and behavior in the areas of difficulty.
(b) The group described in § 300.306(a)(1), in determining whether a child has a specific learning disability, must decide to--
(1) Use information from an observation in routine classroom instruction and monitoring of the child's performance that was done before the child was referred for an evaluation; or
(2) Have at least one member of the group described in § 300.306(a)(1) conduct an observation of the child's academic performance in the regular classroom after the child has been referred for an evaluation and parental consent, consistent with § 300.300(a), is obtained.
(c) In the case of a child of less than school age or out of school, a group member must observe the child in an environment appropriate for a child of that age.
§ 300.311 Specific documentation for the eligibility determination.
(a) For a child suspected of having a specific learning disability, the documentation of the determination of eligibility, as required in § 300.306(a)(2), must contain a statement of--
(1) Whether the child has a specific learning disability;
(2) The basis for making the determination, including an assurance that the determination has been made in accordance with §300.306(c)(1);
(3) The relevant behavior, if any, noted during the observation of the child and the relationship of that behavior to the child's academic functioning;
(4) The educationally relevant medical findings, if any;
(5) Whether--
(i) The child does not achieve adequately for the child's age or to meet State-approved grade-level standards consistent with § 300.309(a)(1); and
(ii)(A) The child does not make sufficient progress to meet age or State-approved grade-level standards consistent with § 300.309(a)(2)(i); or
(B) The child exhibits a pattern of strengths and weaknesses in performance, achievement, or both, relative to age, State-approved grade level standards or intellectual development consistent with § 300.309(a)(2)(ii);
(6) The determination of the group concerning the effects of a visual, hearing, or motor disability; mental retardation; emotional disturbance; cultural factors; environmental or economic disadvantage; or limited English proficiency on the child's achievement level; and
(7) If the child has participated in a process that assesses the child's response to scientific, research-based intervention--
(i) The instructional strategies used and the student-centered data collected; and
(ii) The documentation that the child's parents were notified 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.
(b) Each group member must certify in writing whether the report reflects the member's conclusion. If it does not reflect the member's conclusion, the group member must submit a separate statement presenting the member's conclusions.