Specific Learning Disabilities


Exclusionary Factors  (added January 28, 2018) *

In order for an Eligibility Group to determine that a child has a specific learning disability, it must first rule out a numbef or exclusionary factors.  This has been true since the late seventies when OSERS issues its first guidelines for determining SLD eligibility.  There is, however, no official guidance as to what criteria a team should apply when making that determination.   NC has issued some brief guidelines that might be helpful and excerpts are provided below.  The Fact Sheets tend to be state specific in many aspects, but the original Fact Sheets may be accessed on the Special Education SLD Policy Addendum and Resources page.


Criterion 1: Rule Out of Lack of Appropriate Instruction

IDEA and NC Policies Governing Services for Children with Disabilities state:
“A child must not be determined to have a specific learning disability if the determinant factor for that
determination is any of the following:
• Limited English Proficiency;
• Lack of appropriate instruction and scientific research-based intervention in reading, including
the essential components of reading instruction as defined in Section 1208(3) of the ESEA (i.e.
phonemic awareness, phonics, vocabulary, fluency and comprehension); and/or
• Lack of appropriate instruction and scientific research-based intervention in math.”
The assurance that appropriate instruction is delivered is a required “special rule for eligibility
determination,” for all areas of disability under IDEA 300.306(b)(1)(i-iii) and is not unique to the use of
RtI as a component of a comprehensive evaluation. This criterion has remained unchanged in the policy
which becomes fully effective July 1, 2020.
The assurance of appropriate instruction
is intentionally placed first within the
graphic. In most instances, the assurance
of the provision of appropriate instruction
and intervention has been considered by
problem-solving teams well before an
evaluation and is brought forward as
existing data.
“One of the primary vulnerabilities of the
historical model of referring students for
eligibility evaluations is that lack of adequate
instruction was not ruled out as a cause of low
Kovaleski, VanDerHeyden and Shapiro, 2013

The explicit requirement is that the school/district must have a comprehensive assessment system that
allows for effective problem solving at all tiers and across student groups to assure that the majority of
students are responding to the instruction and intervention provided. Examples of data that can be
used to establish the delivery of appropriate instruction and intervention include the following:
• class and school wide data (e.g. universal screening, benchmark assessments) that indicate core
instruction results in the majority of students reaching grade level standards
• checklists/systematic observational data measuring integrity of instructional delivery
• evidence of teacher training and coaching in using evidence-based practices
• progress monitoring data indicating students receiving intervention are responding at sufficient
rates to return to core instruction alone.
To ensure that inadequate achievement and insufficient progress are not a function of
instruction/curriculum that is not effective for all learners, school teams are asked to consider a
student’s performance compared to culturally and linguistically similar peers whenever possible. This is
an important consideration to ensure the student’s learning profile is truly different and indicative of a
within child characteristic such as a disability and not merely a function of instruction/curriculum that is
not effective for all learners.
As LEAs prepare for full implementation of the SLD policy, effective July 1, 2020, close attention to the
assurance of appropriate instruction for all students is an important step to establish readiness.

“Is there common language/common understanding in your
LEA/school about the need to demonstrate effective core
instruction before referring a student for special education?”
Batsche, G., CASE Hybrid Conference 2015

This fact sheet, the fourth in a series, addresses Exclusionary Factors. This criterion provides
evidence that the student’s learning difficulties are not primarily the result of:
● Visual, hearing or motor disability;
● Intellectual disability;
● Emotional disturbance;
● Cultural factors;
● Environmental or economic influences; and/or
● Loss of instructional time due to factors that include, but are not limited to absences,
tardies, high mobility rates and suspensions.
In many instances, once a comprehensive evaluation is started, the IEP team will have existing
data gathered through problem-solving that can be utilized to document the extent to which
each factor has been addressed. If existing data does not provide the information needed, or
further questions are brought forward, a more extensive evaluation in the area(s) of
consideration should be conducted to rule-out the factor(s).

This does not mean the IEP team must completely rule out each of these factors. (emphasis added)
It is entirely possible for one or more of these factors to be influencing a student’s lack of achievement
and response to instruction/intervention and for the student to have an SLD. The IEP team must
determine the degree to which each factor affects the student’s performance. The existence of
the factors is not the issue; the issue is the degree to which each factor adversely affects
performance. The fundamental question is whether the poor performance is primarily the
result of any of these factors (NCLD RtI-Based SLD Identification Toolkit).
With the exception of “loss of instructional time” all of the above exclusionary factors exist in
current policy. Loss of instructional time is an exclusionary factor that has been added to the
North Carolina – SLD Policy Addendum.

Loss of instructional time is an important factor to consider and directly relates to consideration
that the student’s inadequate achievement is not primarily the result of lack of appropriate
instruction and/or the opportunity to learn. Loss of instructional time may be the result of
factors that include, but are not limited to, absences, tardies, high mobility rates, disciplinary
removals and suspensions. Sources for evidence include the following. These are provided as
examples and are not intended to be an exhaustive list.

Loss of Instructional Time
Attendance records; number of schools attended; tardies;
discipline records (in- and out-of-school suspensions); migrant
status and pattern of attendance; percent of instructional time

For further information on loss of instructional time see the section, Develop a Behavior/SocialEmotional
and Attendance Component to the MTSS System of Interventions in the NCDPI MTSS

OSEP Letters from 1989 to 2003 regarding Specific Learning Disabilities *

(Added January 17, 2018)

The following link is to excerpts from OSEP letters answering questions about Specific Learning Disabilities prior to the adoption of RTI by Congress in the 2004 IDEIA.  They were obtained by a SLD Task Force charged by the NC Dept. of Public Instruction with updating SLD identification procedures.  They are provided here mostly for historical information, but some of the information may still be relevant in how the definition of a specific learning disability is interpreted and applied. In most cases, the only information deleted were references to previous iterations of the IDEA regulations.

OSEP SLD Letterss from 1989 to 1997

Concerns about RTI Added 10/11/2017 by GMM

Since implementation of the IDEIA 2004, there have been many concerns  expressed about RTI.  Seven concerns reported in the 2006 Part B regs and OSERS’ responses follow.  Despite these concerns, RTI is now law of land (and at least eleven states only permit the use of an RTI methodology in determining SLD eligibility.)  Service providers are bound by those same federal regulations  to adhere to and apply the criteria in their state rules and regulations.

1.  “Many commenters stated that response to intervention (RTI) should be considered one component of the evaluation process and not the sole component.”

OSERS Response:  “[T]he evaluation of a child suspected of having a disability, including an SLD, must include a variety of assessment tools and strategies and cannot rely on any single procedure as the sole criterion for determining eligibility for special education and related services. This requirement applies to all children suspected of having a disability, including those suspected of having an SLD.”

2.  “Many commenters opposed the use of RTI models to determine whether a child has an SLD, stating that there is a lack of scientific evidence demonstrating that RTI models correctly identify children with SLD.”

OSERS Response:   “there is an evidence base to support the use of RTI models to identify children with SLD on a wide scale, including young children and children from minority backgrounds. These include several large-scale implementations in Iowa (the Heartland model; Tilly, 2002); the Minneapolis public schools (Marston, 2003); applications of the Screening to Enhance Equitable Placement (STEEP) model in Mississippi, Louisiana, and Arizona (VanDerHeyden, Witt, & Gilbertson, in press); and other examples (NASDE, 2005).1 While it is true that much of the research on RTI models has been conducted in the area of reading, 80 to 90 percent of children with SLD experience reading problems.”   The “1” is a footnote in the Regs; the text of that footnote follows.  

1. Tilly III, W. D. (2002). School psychology as a problem solving enterprise. In A. Thomas & J. Grimes (Eds.), Best Practices in School Psychology IV. Washington D.C.: National Association of  School Psychologists; VanDerHeyden, A.M, Witt, J.C, & Gilbertson, D. (in press). Effect of a problem solving intervention on the accurate identification of children. Journal of School Psychology; Marston, D., Muyskens, P., Lau, M., & Canter, A. (2003). Problem-solving model for decision making with high incidence disabilities: The Minneapolis experience. Learning Disabilities Research and Practice, 18, 187–200; Gresham, F., VanDerHeyden, A.M, & Witt, J.C. (in press). Response to intervention in the identification of learning disabilities: Empirical support and future challenges. School Psychology Review; National Association of State Directors of Special Education (2005). Response to intervention: policy considerations and implementations. Alexandria,VA: Author.

Another Point of View: Despite OSERS’ assertion above, independent reviewers (Hughes and Dexter, 2011) were concluding “RTI has a limited research base that supports its capability to address the issues of overidentification, disproportionality, reliability and validity, and consistency in identifying students with LD. This is concerning for a number of reasons. While IDEA 2004 requires that children suspected of having LD receive a comprehension evaluation, it is not clear if states are interpreting this mandate correctly.”

3. Many commenters recommended adding the concept of psychological processing disorders to the eligibility criteria.

OSERS Response:  “The Department does not believe that an assessment of psychological or cognitive processing should be required in determining whether a child has an SLD. There is no current evidence that such assessments are necessary or sufficient for identifying SLD. Further, in many cases, these assessments have not been used to make appropriate intervention decisions.”

Author’s Comment:   There continues to be strong disagreement in some professional circles regarding OSERS’ rationale and conclusion.  In a 2011, a number of researchers (Hale, et. al., 2011) concluded in part that “Consistent with many cognitive and neuropsychological assessment and intervention studies now available in peer‐reviewed publications, the evidence presented here suggests that using technically‐adequate measures to explore psychological processing strengths and deficits, and concomitant achievement deficits could lead to better practice in SLD identification and service delivery.”   There is nothing in the comments from the 2006 Part B Regulations above that would prevent an IEP team from requesting psychological processing assessments if it determined they would be helpful in determining PLAAFP and improving the appropriateness of the child’s IEP.

4.  “[A] few commenters stated that the use of alternative research based procedures should be removed because there is no indication that these procedures will assist in identifying a child with an SLD and because the Act does not use this term.”

OSERS  Response:  “there are alternative models to identify children with SLD that are based on sound scientific research and gives [sic] States flexibility to use these models. For example, a State could choose to identify children based on absolute low achievement and consideration of exclusionary factors as one criterion for eligibility. Other alternatives might combine features of different models for identification. We believe the evaluation procedures in section 614(b)(2) and (b)(3) of the Act give the Department the flexibility to allow States to use alternative, research based procedures for determining whether a child has an SLD and is eligible for special education and related services.”

5.   “Many commenters stated that response to intervention (RTI) should be considered one component of the evaluation process and not the sole component.}

OSERS Response:  “Consistent with § 300.304(b) and section 614(b)(2) of the Act, the evaluation of a child suspected of having a disability, including an SLD, must include a variety of assessment tools and strategies and cannot rely on any single procedure as the sole criterion for determining eligibility for special education and related services. This requirement applies to all children suspected of having a disability, including those suspected of having an SLD.”

Author’s Comment:  OSERS went on to say that neither RTI nor the IQ/Achievement discrepancy methodology was sufficient in and of itself to determine eligiblity.  SEAs and LEAs continue to try to ignore the dictum that they “cannot rely on any single procedure as the sole criterion for determining eligibility for special education and related services.”

6.  ” Many commenters stated that eligibility criteria based on RTI models will result in dramatic increases in referrals, special education placements, and legal problems.”

OSERS’ response:  “We do not believe that eligibility criteria based on RTI models will result in dramatic increases in referrals and special education placements. Well-implemented RTI models and models that identify problems early and promote intervention 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.”

Author’s Comment:  Comer (2015) National headcount statistics (and for most states) have shown a slow but steady decline in the number of children identified as SLD since 2001 (p.25-26).  To our knowledge, there has been no litigation in federal courts challenging a school’s use of RTI in making an eligibility determination for SLD.  Hughes and Dexter (2011) cited eight studies showing a decrease in headcounts  . . . but those studies could not “prove” causation.

7.  “Several commenters stated that the lack of a specific timeline means that an evaluation could be indefinitely delayed and children denied services. Several commenters recommended adding language to the regulations to ensure that RTI models could not be used to delay an evaluation of a child suspected of having a disability, access to special education and related services, or protections under the Act.”

OSERS’ Response:  “We also understand the commenters’ concerns that the requirements in § 300.309(b) may result in untimely evaluations or services and that parents must be fully informed about the school’s concerns about their child’s progress and interventions provided by the school. Therefore, we will combine proposed § 300.309(c) and (d), and revise the new § 300.309(c) to ensure that the public agency promptly requests parental consent to evaluate a child suspected of having an SLD who has not made adequate progress when provided with appropriate instruction, which could include instruction in an RTI model, and whenever a child is referred for an evaluation. We will also add a new § 300.311(a)(7)(ii) to ensure that the parents of a child suspected of having an SLD who has participated in a process that evaluates the child’s response to scientific, research-based intervention, are notified about the State’s policies regarding collection of child performance data and the general education services that will be provided; strategies to increase their child’s rate of learning; and their right to request an evaluation at any time. If parents request an evaluation and provide consent, the timeframe for evaluation begins and the information required in § 300.309(b) must be collected.”

Author’s Comment:  Despite the language above from the 2006 Part B Regulations, this has been a continuing concern.  OSEP in a letter to State Directors (2011) reemphasized the right of parents to refer at any time and stated unequivocally that the evaluation must be completed within federal or state timelines.  This apparently did not resolve the problem because, once again, OSEP in a Letter to State Directors (2016) reiterated that RTI may not be used to delay or deny an evaluation under the IDEA.  Although repeatedly addressed, the issue has apparently not been resolved.

Fact or Fiction

1. Implementation of RTI reduces disproportionality:  Fact or Fiction?

The Office for Civil Rights had high hopes for RTI in reducing disproportionality.  Minneapolis, one of the models for RTI cited in the 2006 Part B Regulations, reportedly began using what was then popularly known as “the problem solving model” in compliance with a consent agreement it had signed with OCR to reduce disproportionality.  Horry County Schools, which was modeled after Heartland (also cited in the 2006 Regs), was required by its SEA to use a two stage model, RTI the first, but then testing by private psychologists to confirm an IQ?Achievement discrepancy.  Until 2003, when OCR signed an agreement with the state to start using the problem solving model statewide, tranforming Horry from an ugly duckling into a beautiful swan.  But was OCR’s working hypothesis fact or fiction?

Answer:  Still undecided.  Hughes and Dexter (2011) reported on two research studies, both conducted with what they regarded as flawed methodologies.   Their conclusion was “In summary, the research we found does not provide strong support for decreasing proportionality. Marston et al. (2003) did present some encouraging data; however, concerns about the analysis procedures and the research design quality call into question the validity of their results.” (Click on link above for more detailed information.)

2.  Implementation of RTI will reduce the differences in placement criteria between school districts for SLD:  Fact or Fiction?  

Answer:  Again, the research on this has been very limited and inconclusive, according to Hughes and Dexter (above).    OSERS did not, in the Part B Regulations, claim that RTI would increase consistency between districts.  Instead, it relied upon its regulatory requirement that LEAs adopt and apply the criteria approved by their SEAs.  Their goal in doing so, at least, was to reduce inconsistency within a state if not between states.   However,  consistency is not universally regarded as desirable,  For example, the National Center on Response to Intervention has recommended that districts recommends “The Center recommends that universal screening should occur three times per year. At a minimum, screening should occur once per year in order to evaluate program effectiveness, establish local norms and cut scores, and provide data for next year’s teacher.”  Obviously, if both high and low performing schools use local norms to determine cut scores, children identified in one of those schools might not be eligible in the other.  This advice, however, is seemingly in conflict with the advice provided by OSERS in the 2006 Part Regs, in which they said ” The first element in  identifying a child with SLD should be a child’s mastery of grade-level content appropriate for the child’s age or in relation to State-approved grade-level standards, not abilities. This emphasis is consistent with the focus in the ESEA on the attainment of State-approved grade-level standards for all children. State-approved standards are not expressed as ‘‘norms’’ but represent benchmarks for all children at each grade level. 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.” At least one study cited by Hughes and Dexter 2011 has concluded that in fact the disparities in placement criteria are similar to those that had been found using the IQ/Achievement methodology.  Whether that is problematic, however, depends on one’s point of view

Does Ralph have a Specific Learning Disability?  (Added 2/4/2017) *

A Word presentation showing why when using an IQ/Ach discrepancy methodology different evaluators could reach diametrically different conclusions (another reason for abandoning the universally discredited historic intra-individual discrepancy methodology.)  The state in this example required a 1.5 standard deviation (22.5 point) discrepancy between ability and achievement.

The Concerns above are not, however, exhaustive.  What follows are just a couple of them


Ralph name graphics

Case Study Ralph SLD or not

130-RTI Model

Response to Intervention *

While ten years have passed since publication of the 2006 Federal Regulations for the IDEA, the most recent review by the RTI Network in 2012 indicated that only eight states had adopted RTI exclusively in grades K-12 for identifying children with SLD, but a number of other states have mandated its use in part:

Status of RTI *

As of March 2012, the 14 states that mandate RTI for identification of specific learning disabilities (SLD) at least in part are—with those who do so by law in bold font—as follows:

  • completely and exclusively: Colorado, Connecticut,  Florida, Idaho,Louisiana, Rhode Island, West Virginia, and Wisconsin
  • completely with the option of adding severe discrepancy: Georgia,Illinois, and Maine
  • partially: Delaware (reading and math), New Mexico (Grades K–3), andNew York (reading in Grades K–4)

Additionally, Iowa’s regulations require districts to use either RTI or the third option in the IDEA regulations (§ 300.307[a])—“other alternative research-based procedures.”

The list, of course, expands each year, but progress in adopting a problem solving model has come slowly.   North Carolina, for example, will not switch to an all problem solving (RTI) model until the year 2020.


Questions and Answers on RTI

In January, 2007, OSERS/OSEP issued a paper entitled Questions and Answers on Response toIntervention (RTI) and Early Intervening Services (EIS).     The publication was intended to provide a general response to questions already received.  This document itself raised some additional questions addressed in OSEP letters summarized below.  (Click on OSEP Letters )nrcld

In July, 2005, under contract with the United States Department of Education, Office of Special Education Programs, the National Research Center on Learning Disabilities, produced a document entitled Responsiveness to Intervention in the Specific Learning Disabilities Determination Process.  The purpose of this 13 page document was to provide a conceptual overview of responsiveness to intervention (RTI)—including hypothetical examples of how RTI might operate within a school setting and for a particular student—and to discuss its role within the larger context of specific learning disabilities (SLD) determination.

Also for official state guidance by state click on:  Spedlaw/State Regulations. Response to Intervention, also known as the problem solving model, has been implemented nationwide since its implementation in 2006 with varying degrees of fidelity.  LEAs are obliged to work within the context of their respective state guidelines, and when they do, defensible results will occur.

RTI remains a highly defensible methodology from a legal perspective.   In the years since the passage of the IDEA 2004, we have not seen one single case wherein RTI was anything more than a peripheral issue.  As our illustrative court cases discussed below, of course, that is not necessarily a guarantee against being successfully sued over a failure to identify and address children’s needs,  IEPs that fail to deliver FAPE or about children exited as a knee jerk reaction based only on teacher reports of good behavior and classroom grades.

Fidelity of Implementation *

treatment integrity 2

RTI is a measurement.  It isn’t an intervention.  It really isn’t even a methodology.  If the interventions are not implemented with fidelity, the measurements are meaningless.  Garbage in, garbage out (GIGO.)  So . . .how do schools ensure that the treatments provided at every tier, but especially at Tier III, are implemented with integrity?  There have been numerous state and non governmental attempts to address that issue, which speaks to the extreme importance of the issue.  Just a few of them are presented below.

RTI Action Network:  Defining Fidelity of Intervention within the Context of  RTI Implementation.

The purpose of developing the white paper is to uncover the misunderstandings that naturally occur as implementation of RtI evolves within a school or district.. The Consortium writing group graciously allowed me to share some of what has been written to date in hopes it will further your own thinking and conversations.

National Center on Response to Intervention:   Using Fidelity to Enhance Program Implementation Within an RTI Framework.

This training module was developed for teams implementing a response to intervention (RTI) framework. This module shares information, resources, and activities to enhance participant’s knowledge of fidelity and why it is important to consider within an RTI framework. The module describes (1) considerations for evaluating fidelity across the essential components of RTI, (2) discusses options for measuring fidelity, (3) provides examples of measurement tools, and (4) suggestions to improve fidelity through coaching, supportive school culture, and identification of barriers.

NCRI: Fidelity of Implementation within a Response to Intervention (RtI) Framework 2010.

Montana Guidelines: Fidelity

NRCLD: Response to Intervention

Fidelity of implementation is the delivery of instruction in the way in which it was designed to be delivered (Gresham, MacMillan, Boebe-Frankenberger, & Bocian, 2000). Fidelity must also address the integrity with which screening and progress-monitoring procedures are completed and an explicit decision-making model is followed. In an RTI model, fidelity is important at both the school level (e.g., implementation of the process) and the teacher level (e.g., implementation of instruction and progress monitoring).

Florida: Fidelity of Implementation

The RTI process must be implemented with fidelity, meaning that teachers must adhere to curriculum and assessment protocols. The ultimate aim of a fidelity system is to ensure that both the school process of RTI and classroom instruction at various tiers are implemented and delivered as intended. This aim must be balanced with the school’s existing resources.

National Center on Intensive Intervention: Monitoring Fidelity  A number of tools for monitoring the fidelity of interventions.

APQC Education: No surprise here: Fidelity is critical to RTI implementation

Best-practice school districts have a process to monitor the fidelity of RTI implementation to maintain the integrity of the RTI framework

Research on Response to Intervention *

Does RTI work?  Although reduced class size and the problem solving model may seem to have little in common, both were innovations piloted in a number of schools during the end of the 20th century.  What both had and have in common is that neither innovation was in and of itself an intervention.  Both presented schools with opportunities to provide children with more researchindividualized attention.  What they did with those opportunities determined whether, in the long run, they had positive, negative, or no effects.    So the most important research is research that tells us “what works.”

Nevertheless, a major goal of Congress in 2004 in modifying its identification requirements was in finding a way to slow and hopefully reverse the expansion of children identified as SLD by effectively preventing SLD through early intervention.   Some sample figures:

In 2004-2005, federal headcount figures showed  2,798,000 children were identified with a SLD or 5.7 percent of the total population.   In 2011-2012, 2,303,000 children were identified with a SLD or 4.7 percent of the total population.

In 2014, the National Center for Learning Disabilities published  The State of Learning Disabilities, Third Edition.  (2014 State of LD)

As of 2014, the actual declines in SLD identification had varied greatly.  States that used a multi tiered model exclusively are marked in bold/red.   Those that used a tiered model in part are marked in bold/black.   Three states requiring the use of RTI but allowing LEAs to add discrepancy are marked in bold/green.   Of course all of the states permitted LEAs to use a research based response to intervention model.

Decline of 25 to 46 percent:  Montana, Idaho, Texas, Missouri, Mississippi, Rhode Island
Decline of 13 to 24.9 percent:  Maine, New Hampshire,  Massachusetts, West Virginia, Florida, Alabama, Louisiana, Arkansas, Indiana, Illinois, Michigan, Wisconsin, Nebraska
Decline of  1 to 12.9 percent:  Alaska, California, Oregon, Nevada, Arizona, New Mexico, Wyoming, North Dakota, South Dakota, Minnesota, Iowa, Kansas, Oklahoma, Tennessee, Kentucky, South Carolina, Virginia, Maryland, Delaware, Pennsylvania, Ohio, Vermont, New York Connecticutt
No change to +17 percent:  Washington, Utah, Colorado, Georgia, North Carolina

Improvements have been made in reading instruction provided in general education, making reading difficulties—a characteristic of most students classified as having LD—less prevalent in our nation’s elementary schools.
Some other research investigating the various aspects of the problem solving model is presented below.

RTI Action Network: Research Support for RTI

To assist you in making informed judgments about the evidence base for RTI, Charles Hughes and Douglas Dexter of Penn State University present a summary of the nature and extent of published research conducted on RTI. To that end, they have identified studies examining the efficacy of RTI programs as well as research focusing on typical components used in the RTI process.

Links to eight separate reports summarizing RTI research are included.

The National Association of State Directors of Special Education published  nasdeguidance on RTI in August 2007, entitled Response to Intervention:  Research for Practice.  (232 pages.)  Recommended reading for a comprehensive review of the issues, benefits, and potential problems in implementing RTI if not done with treatment integrity.

In November, 2015, the United States Department of Education published a research summary entitled Evaluation of Response to Intervention Practices for Elementary School Reading.  * (308 pages.)  “The main findings were that (1) the prevalence of self-identified “full” implementation of an RTI framework for early reading was higher (86%) in the impact sample than in the reference sample (56%); (2) schools in the impact sample adjusted the delivery of reading programs and were more likely to serve students who met eligibility criteria than students who did not meet eligibility criteria; and (3) students who met eligibility criteria did not show improvement in reading skills and in grade 1 actually showed small, but negative impacts of intervention.”  Dr. Jack Fletcher provided a Summary in the same month, in which he concluded: “The study did not show that RTI practices were ineffective.”  Mark Shinn provided an even more detailed analysis, “Much Ado About a Little,” 17 pages,  in which he includes a detailed critique of the methodology.


Dyslexia *

Many school psychologists in years past believed that dyslexia was not a disability covered by the IDEA.  While those times are hopefully long past, the reality is that confusion in the field remains widespread.   For a more comprehensive discussion of  Dyslexia and its place, past and current, with respect to IDEA eligibility, see our web page on  Dyslexia

Also see  our  links under Sped Resources/Reading and Sped Resources/Learning Disabilities.

math 1

 Adding Math to an IEP for a Child Identified Based on Reading *

OSEP has in a 2008 OSEP Letter on SLD said s that once a child has been identified as SLD, it is the child’s needs, not the label, that drives the IEP, and if the IEP team determines that the child needs math services, all it has to do is add math as an additional goal area to the IEP.   It would not be necessary to find a severe discrepancy between math and IQ even if  your school system  used the historical discrepancy methodology in determining eligibility.

Although the letter makes the point in a number of ways, the key line seems to be:

“Part B of IDEA and the Department’s final regulations do not impose any limitation on the services to be provided to a child identified as having a specific learning disability based on the areas of severe discrepancy between intellectual ability and achievement that the LEA identifies in making that determination.”

The same rationales would also apply in a state where speech/language services were considered special education to a child identified as SLI in the area of language.   If as a result of that disability a team determined that a child needed remediation in reading from a resource room teacher, all it would need to do is add the additional goal area to the IEP.  (And parenthetically since there is no space on the IEP form to document how the team believed reading, for example, to be linked, in reality all the team needs to do is add the service.  Justification would be based on the evaluation documenting strengths and weaknesses or PLAAF .  For Comments in the FR, click on OSERS Comments re PLAAF.  )

For an overview of the issues that led to the adoption of an alternative methodology for the identification of children with Specific Learning Disabilities, the following Executive Summaries from presentations made at a Summit meeting in Washington, D.C. in 2001 provide an excellent introduction to the major issues confronting Congress and the Department of Education in developing a new approach, alternatively referred to as the problem solving model or response to intervention.


Extending the Timeline when evaluating a child for SLD

The 2006 FR established a 60 day timeline from consent to test to the completion of the evaluation.  States may establish other timelines (for example, in NC, the timeline is 90 days from the date a referral is received to the date a child is found not eligible or an IEP is developed.)  Regardless, if a child is suspected of a specific learning disability (and ONLY if a child is being evaluated to see if he or she has a specific learning disability),  irrespective of what timeline is in effect, Section 300.309 of the 2006 (Determining the Existence of a Specific Learning Disability) says

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)

OSERS was explicit in saying that unless a state determined otherwise,

Congress was clear in limiting the exceptions to the 60-day timeframe to the situations in section 614(a)(1)(C)(ii) of the Act. Therefore, we do not believe it is appropriate to include in the regulations other exceptions, such as permitting a parent and a public agency to mutually agree to extend the 60-day timeframe or to include exceptions to the timeframe, that would be in addition to those in the Act and listed in § 300.301(d)

Several commenters expressed a concern that if a child was referred, 60 days might not be enough to complete the research based scientific interventions called for in a response to intervention/instruction methodology.   OSERS response was that

” Models based on RTI typically evaluate the child’s response to instruction prior to the onset of the 60-day period, and generally do not require as long a time to complete an evaluation because of the amount of data already collected on the child’s achievement, including observation data. RTI models provide the data the group must consider on the child’s progress when provided with appropriate instruction by qualified professionals as part of the evaluation.”

However they recognized that an eligibility group might determine it needed more data before determining eligiblity and, referencing Section 300.309, wrote:

If the eligibility group determines that additional data are needed and that these data cannot be obtained within the 60-day timeframe (or the timeframe established by the State), new § 300.309(c) (proposed § 300.309(d)) allows the extension of the timeframe with mutual written agreement of the child’s parent and the eligibility group. 


Observations and Consent *

There has been some confusion over whether or when prior written consent must be obtained before doing an observation to be considered by an eligibility group in determining SLD eligibility.

Section 300.305 of the 2006 FR requires the IEP team and  qualified professionals to review existing evaluation data on the child including evaluations provided by the parents of the child; current classroom based, local, or State assessments and classroom-based observations; and observations by teachers and related services providers.   Written parental consent is not required for this review, nor is it required for classroom observations completed by teachers and/or related service providers.

Section 300.310 gives the team two options.  (1) It can use observational data obtained prior to when the child was referred (prior written consent not required.  Or (2) It can conduct an observation AFTER the child has been referred, but in that case, prior written consent would be required.   

A new § 300.310(b) has been added to require the eligibility group to decide to (A) use information obtained 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 (B) 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 is obtained.  p. 46544 2006 Federal Regulations

Whether or not the observational data considered was obtained prior to the referral or after the referral, the person who conducted the evaluation should be a part of the eligibility team.  As OSERS wrote in the Preface,

If information is available from an observation conducted as part of routine classroom instruction that is important for the eligibility group to consider, the eligibility group should include the person who conducted that routine classroom. This will eliminate redundant observations and save time and resources. Parental consent is not required for observations conducted as part of routine classroom instruction and monitoring of the child’s performance before the child is referred for an evaluation  p 46659  2006 FR

Illustrative Court Cases . . . *

Child Find/SLD

child find

The case is Addison v. Compton (a.k.a. Compton v. Addison.)  It began with a parent complaint in 2004.  And it ended in 2012 when the United States Supreme Court declined to hear an appeal from Compton regarding the Ninth Circuit’s decision in the case.   The child, named Addison, had had serious learning problems but was never referred.   The parents had filed a complaint based on the school system’s failure to fulfill its Child Find obligations under the IDEA.   An Administrative Law Judge (ALJ) had decided  in favor of the parents, the Ninth Circuit affirmed, but the school system appealed because, it claimed, that the Ninth’s decision would open the door for schools to be sued for educational malpractice.   (See our page on Blind Deference.)

Since the U.S. Supreme Court decided not to hear the appeal, the decision of the Ninth Circuit stands as precedent.

Compton v. Addison, March 22, 2010.  Ninth Circuit.
Key Words:  Child Find; Specific Learning Disability
Published:  Yes
Decided for:   The Parent

Citing Forest Grove v. T.A., a previous Supreme Court decision, the majority on the Ninth Circuit argued that it should regard the IDEA a s a whole, based on the Supreme Court’s finding that “a “reading of the [Individuals with Disabilities Education] Act that left parents without an adequate remedy when a school district unreasonably failed to identify a child with disabilities would not comport with Congress’ acknowledgment of the paramount importance of properly identifying each child eligible for services.”   (See our web page on Forest Grove v. T.A..)

Applying that standard, the Ninth rejected the school’s argument that it had no “clear notice” regarding the availability of an administrative hearing for Child Find cases; found for the parents in the matter of attorney fees; and found that ” that claims based on a local educational agency’s failure to meet the “child find” requirement are cognizable under the IDEA, and that here, the School District had clear notice of this fact. Accordingly, the district court’s orders granting judgment on the pleadings and awarding attorneys’ fees are AFFIRMED. “

Additional Commentary: Wrightslaw

Additional background: The ALJ Decision and the 2007 District Court decision.

Comprehensive Evaluation


Back in the 1980’s, some of us thought that if we gave an intelligence test and a achievement test and found a child ineligible because he or she didn’t meet the state discrepancy criterion, we were in compliance with the requirement that our decisions not be based on a single assessment.  I mean, we were considering two test scores, right?  Not in the opinion of this New Jersey judge.

August 21, 2014.  V.M. v. Sparta Township, July 3, 2014 (New Jersey District Court)
Key Words:  Dyslexia, discrepancy, sole criterion
Decided for:  The parents
Published?  Yes
The Decision (Link):  V.M. v Sparta, District Court, 2014

The district court judge found using a discrepancy formula as the sole criterion for determining eligibility fatally flawed.

In this case, a student diagnosed with ADHD, dyslexia, and deficits in reading, writing, and arithmetic was found ineligible for services by his school system.   The school system appealed, and after eight days of hearings, the hearing officer upheld the decision of Sparta.   The parents appealed that decision to federal court.   The problem here that the district court identified was not in the comprehensiveness of the evaluation process, but in the thoroughness of the decision making process in determining eligibility based on that information.  Because after gathering all the required data, the school just considered two test . . . the cognitive assessment and the achievement evaluation and whether the scores were substantially discrepant.

The school’s decision not to label the student appeared from the text of the eligibility report to have been solely based upon their finding that

“B.M.] does not meet criteria for specific learning disability because there is not a severe discrepancy between current achievement and intellectual abilities in one or more of the prescribed areas.”

The school psychologist was asked whether all of the other information she had collected was applied in determining eligibility.   She replied that it was helpful in understanding the student.

The questioning proceeded.

“Q. So do they — but do they help determine whether the student will be eligible for special education and related services?

  1. Not in terms of that discrepancy formula.
  2. I asked you — does this play into the determination in any way for determining whether a student would be eligible for special education and related services?
  3. It just gives us—
  4. Yes or no.
  5. — No.”

The district court judge only determined that the parents prevailed on the issue of identification; the parents were also seeking compensation for services they had provided and for their attorney.   Those issues were referred back to the Magistrate judge.   .

For our article on applying evaluation data in a defensible way to identify students when using a discrepancy metholology, see:  Yes, Virginia

While federal regulations now require LEAs to consider the state’s criteria for identifying children as SLD whether using the historical discrepancy or an RTI methodology, those same regulations ALSO say

Consistent with § 300.304(b) and section 614(b)(2) of the Act, the evaluation of a child suspected of having a disability, including an SLD, must include a variety of assessment tools and strategies and cannot rely on any single procedure as the sole criterion for determining eligibility for special education and related services. This requirement applies to all children suspected of having a disability, including those suspected of having an SLD.   p. 46646

2006 IDEA Regulations

The judge’s summary of what is required by federal and (in this instance) New Jersey regulations is in this writer’s estimation worth boilerplating for every school psychological report.

In determining eligibility and educational need, the school district’s interpretation of evaluation data “must [1 draw upon information from a variety of sources, including aptitude and achievement tests, parent input, and teacher recommendations, as well as information about the child’s physical condition, social or cultural background, and adaptive behavior,” and must “ensure that information obtained from all of these sources is documented and carefully considered.” 34 C.F.R. § 300.306(c) (emphasis added). Thus, federal regulations require school districts to draw upon a wide range of the data collected in its evaluation, documenting and carefully considering the data in arriving at its eligibility determination

(New Jersey’s regulations also added that “[c]lassification shall be based on all assessments conducted including assessment by child study team members and assessment by other specialists.”  Which underscores the importance of also checking state regulations for additional requirements not imposed by the 2006 FR.)


Exiting SLD Students:  A Cautionary Tale

Breanne C. v. Southern York County School District 55, District Court, August 10, 2010.
Keywords:  Specific learning disabilities; exiting; evaluation prior to exit; consideration of support services provided outside the school system
Published:  Yes
Decided for:  The parents

Perhaps it would be best to start with the end, because the district court affirmed the previous findings of the ALJ and the State Review Officer, finding for the parents that their child was denied FAPE, affirming the award of compensatory services, denying the cost of counseling, but then denying all of the district’s motions in their entirety.

The student had been receiving services as SLD from 2003.   The district decided to exit the student based on testing using outdated test results and based on the fact that the student was liked by her teachers and getting good grades, focusing on her behavior, but not on her academic achievement.  They ignored the parent’s IEE and their report that the child’s progress was due in part to the substantial amount of private tutoring they were providing, which was the equivalent of specially designed instruction.  (See the link to the OSEP Letter to Lillie/Felton in OSEP letters below.)    In May of 2006, the district had asked the parents for their permission to reevaluate the child although no new tests were to be given  (not a requirement under the 2006 FR) and as a result of that reevaluation recommended exit.  Some assessments that had been completed to monitor her progress actually showed declines in her reading fluency and writing.  The court concluded in part that the school did not understand that the child’s facade in school was only being maintained by the extensive support the parents were providing at home.

The parents initiated an IEE process and asked the district to pay for it.  The district claimed that the person they had chosen failed to meet their standards but never explained to the parents just exactly what their standards were.  The parents paid for the IEE out of their own pocket, the district did consider it along with other data provided by the parents (including their assertion that they were working with the child two to three hours every night).  Their response was that either the child was not disabled or if she was disabled, she did not need specially designed instruction.  The district did not offer 504 services, and the court found that they had denied the student FAPE under 504 as well.

The court also found that the parents were entitled to unspecified attorney fees . . . which can be assumed to have been substantial based on the judge’s assertion that “The transaction costs associated with reaching this decision have been enormous, and will no doubt far exceed the cost of the remedy imposed by the court.”

The judge also noted that the case had already dragged on for three years, saying that the parties had made it overly complicated.  His actual ruling was

a) The court finds that Pennsylvania’s Special Education Appeals Panel had jurisdiction to hear Defendant’s appeal from the Hearing Officer’s July 30, 2008 decision.

(b) Breanne was denied a free appropriate public education from October 12, 2005, until September 23, 2008.

(c) The court awards Breanne 484 hours of compensatory education for the District’s denial of a FAPE from October 12, 2005 to September 23, 2008, excluding a reasonable rectification period of thirty days and excluding summers.

(d) Breanne is entitled to reimbursement for the independent educational evaluation obtained by her parents.

(e) The motion is denied in all other respects. Specifically, the court denies Breanne’s request for reimbursement of private reading tutoring and private counseling.

(f) As the prevailing party, Plaintiffs are entitled to reasonable attorneys’ fees, and Plaintiffs shall file a petition for attorneys fees within thirty (30) days from the date of this order.

(2) Defendant’s Cross-motion for Judgment on the Supplemented Administrative Record, (Doc. 68), is DENIED.

There are several lessons that can be taken from this decision, most of them probably obvious.  First, districts need to exercise caution before dismissing any SLD student from special education.  Second, the IEP team needs to carefully consider parents’ claim that the success being seen in school is only the result of the efforts made by the parents outside of the school.  Third before dismissing a child as SLD, they need to consider whether that student will continue to qualify under 504 for classroom accommodations based upon his or her still having a qualifying condition such as dyslexia, dyscalculia, or specific learning disorder (DSM 5).  Given the near universal belief expressed in the various Researcher Consensus, Roundtable findings, President’s Commission, and even the EEOC in their final regulations for the ADAAA that specific learning disabilities are a lifelong condition, all of those steps to be taken before deciding a previously diagnosed child with SLD was no longer learning disabled and no longer in need of services would almost seem self evident.  But not, apparently, to Southern York County.

Non Trivial Benefit
Catch 22

catch 22

The case wherein these factors played a factor were Carter v. Florence Cty and then Florence County v. Carter.  The lower court decisions determined that the trivial benefits that could be expected from Shannon Carter’s IEP did not constitute FAPE.  The Supreme Court decision determined that the school district’s Catch 22 (The school the parents chose was not state approved, because the state wouldn’t approve a school unless the school requested it.)

Shannon Carter v. Florence Cty, January 31, 199
Key Words:   Specific learning disabilities; FAPE
Published: Yes
Decided for:  The parents

Shannon had been tested in 1984 but had not qualified; upon re-testing a year later, her scores were consistent with state discrepancy criteria and she was entitled as a child with a specific learning disability.  According to the court, “The school district was of the opinion that an L.D. resource class would be the appropriate placement for Shannon. The parents disagreed and requested an L.D. itinerant program.  According to the parents’ testimony, their reasoning was that it would be inappropriate for Shannon to be in a resource class with other special education students with emotional illnesses and/or mental retardation.”   In response to the parents’ request, the school did offer itinerate services.   Again, according to the court, “Several long range goals were written into the IEP. The reading goal specified four months of progress during the year, from a 5.4 level to a 5.8 level. The mathematics goal was similarly one for four month’s progress, from a 6.4 level to a 6.8 level.”  The court, considering the testimony of expert witnesses, concluded that the IEP was wholly inadequate and that she needed an intensive program to address her learning disablities.   The district court’s judgment was “The plaintiff shall, therefore, have judgment against the defendant in the amount of $35,716.11 plus prejudgment interest computed in the manner herein specified15 and costs.”

The school system appealed to  the Fourth Circuit.  Now comes the fun part.   Having lost on the issue of FAPE, the school system now claimed that the parents were not entitled to reimbursement for their expenses because the private school in which they enrolled the child had not been approved by the state.  However, in SC, the state only approved private schools on a case by case basis after a school system had determined that it could not provide the child with FAPE.  Hence the Catch 22.

Florence Cty v. Shannon Carter, Fourth Circuit, November 26, 1991.
Key Words:  Specific learning disability, FAPE, standards for tuition reimbursement
Published:  Yes
Decided for:  The parents

The decision of the Fourth Circuit was concise:  “The question in this case is whether reimbursement under the Act is barred when parents have enrolled their disabled child in a private school that has not been approved by the state for the child’s placement under the Act. We hold that placement in a private school not approved by the state is not a bar to reimbursement under the Act and therefore affirm the judgment of the district court ordering reimbursement.”

The school also challenged the district court judge’s finding that the IEP did not provide FAPE.

The Fourth Circuit found that applying the Rowley standard as applied to Amy Rowley was not in clear error and  upheld the district court judge’s ruling.  “The school district drafted the IEP to apply to a learning disabled tenth-grade student whose reading and mathematics skills were at a fifth and sixth grade level, respectively. Although the amount of appropriate advancement will necessarily vary depending on the abilities of individual students, see In re Conklin, No. 89-2220(L), slip op. at 18-19 (4th Cir. Oct. 4, 1991), the district court did not err in finding that a goal of four months’ progress over a period of more than one year was rather modest for a student such as Shannon and was unlikely to permit her to advance from grade to grade with passing marks.”

The Fourth Circuit judges went on to say that with respect to the school’s claim that private schools must be approved by the state in order to trigger reimbursement rights, they were mis-reading the statute, which as they interpreted it only applied if the public school itself was making the private school placement.   District court decision:  Affirmed.

The school system disagreed that the regulations they were cited only applied if a private school placement was made by the school.  They therefore appealed to the United States Supreme Court.

(From our Landmark Cases page)

Florence Cty v. Carter, Supreme Court, 1993

By the time this case had reached the Supreme Court, it seemed the more substantive issues had been resolved.  No one at this point in time was seriously challenging the parents’ contention that their child had been denied a meaningful special education (FAPE).  What was being disputed here was whether the school was obliged to pay her private school tuition.  They claimed that the school she was attending was not an approved state school provider of sped.     In short, the Supreme Court had previously established a two part test for tuition reimbursement in Burlington.  (1) That the school’s program failed to provide FAPE.  (2) That the parents’ program did provide the student with benefit.  In this case, they added that prior state approval was not required.   With respect to this specific case, the Supreme Court noted “Furthermore, although the absence of an approved list of private schools is not essential to our holding, we note that parents in the position of Shannon’s have no way of knowing at the time they select a private school whether the school meets state standards. South Carolina keeps no publicly available list of approved private schools, but instead approves private school placements on a case by case basis. In fact, although public school officials had previously placed three children with disabilities at Trident, see App. to Pet. for Cert. 28a, Trident had not received blanket approval from the State.”

This case (from the date of inception) is now 25 years, but the writer has always been intrigued by one fact:  that it was the parents who initiated the request for the itinerate services based on their belief that it would be inappropriate for their daughter to be in a class with (using the terminology of the time) mentally retarded children.  This writer has always wondered if the school had stuck to its guns,  had offered resource room services, and had written goals of more than four months per year in its IEP whether the outcomes from the due process hearing and district court hearing would have been different.   Particularly in this new era of problem solving and identification based on instructional needs (RTI) that has the potential for obfuscating the differences between mild ID and SLD when eligibility is being based primarily on educational/instructional needs.

Other suggested links on Florence County v. Carter:

Extensive resource on the case on Wrightslaw

Brief Case Analysis



Samuel Kirk is reportedly the first to use the term “learning disabilities” in a speech to parents of children who had been diagnosed with perceptual problems in 1963.  It was not, however, until 1969 that Congress first took official notice of the new label (which Kirk had proposed, ironically, in lieu of labeling) in the Childen with Specific Learning Disablities Act.

It was not until 1975, however, that Congress passed PL 94-142, which mandated services to children with handicapping conditions, including children with specific learning disablities.  However, the Act imposed a limit on the number of children with SLD who could be funded until OSERS established criteria for the identification of those children.   In subsequent regulations, OSERS decreed that children with SLD were those students  with a substantial discrepancy between ability and achievement, and whose learning problems were not primarily the result of other disabilities, particularly mental retardation, or economic or  environmental factors.   This “operational” definition actually establish no national criteria, leaving it to the states to decide just exactly how to measure a “substantial discrepancy.”

Early on, it had been proposed by OSERS (as an example) that a Bond Tinker formula to “predict” expected grade achievement (or grade equivalent) could be used to establish a baseline.   The formula was based on  mental age and current grade level, and the amount of discrepancy required varied by grade (in North Carolina, for example, depending on whether a child was in kindergarten, elementary, or high school, the amount of discrepancy would be one, two or three years.)    From the start, the inherent statistical weaknesses of grade equivalent scores undermined the use of those scores as a reliable predictor.

Eventually, the states began to shift from statistically indefensible formulas based on grade equivalents to formulas based on standard scores.  When those changes occurred varies from state to state.  North Carolina, for example, switched to a standard score formula in 1985.  Wisconsin not until 1991.    Formulas based on standard scores, however, had some of the same problems as Bond Tinker formulas, that is, they tended to over identify gifted children as disabled while under-identifying children with IQ scores in the low average range.

Most states addressed that problem by introducing a regression calculation into their formulas; some states (GA, NE, and  NC) never did.  By 2004, there were three major methods for determining discrepancy; formulas based on standard scores, formulas based on standard deviations, and formulas based on regression.  It had become clear to just about everyone by 1999 that the discrepancy methodology was hopelessly flawed, and in the 1999 FR OSERS promised to review their definition and recommend changes to Congress before the next reauthorization.

As indicated in the preamble to the NPRM, the Department is planning to conduct a careful, comprehensive review of research, expert opinion and practical knowledge of evaluating and identifying children with a specific learning disability over the next several years to determine whether changes to the standards and process for identifying children with a specific learning disability should be proposed. Because that review has not been done, no further changes are made to the regulations.   p.12638, 1999 FR

That review and the reasons for that review are documented in the papers below. For a more detailed historical review, see Historical Perspectives by Hallahan and Mercer (summary under Executive Summaries below.



In the 1980’s, several researchers in Iowa became increasingly concerned that the traditional ability/achievement discrepancy model was failing to identify children with bona fide learning problems as having a specific learning disability.  In 1989, in Heartland AEA 11, they began a bold new project, implementing a problem solving, non categorical model. In that model based on research based scientific interventions, children who failed to respond could be identified as students in need of special education.

While there were others in the country who followed (notably Minneapolis and Illinois’ FLEX model), Heartland is the only school system specifically mentioned by OSERS in the 2006 FR.   Since the 2006 FR was issued, Iowa has taken over the responsiblity for issuing guidance for the state on implementation of a problem solving model (a.k.a. RTI) as part of the identification process for SLD.  However, Heartland AEA 11 was way ahead of its time (at least 17 years in advance of school systems trying to made the transition from a discrepancy model based on IQ/Ach to a discrepancy model based on comparing an individual child’s performance to that of his or her peers.

The main purpose of the problem solving model (PSM) was to directly address children’s learning problems with instructional interventions based on their individual needs through general education services  before seeking entitlement as in need of special education.   The implementation of a non categorical model was based on both the federal regulations themselves and OSERS’ oft stated position that a child with a disability was entitled to FAPE, not to a particular label.  A major benefit was that if a child had been taught based on his or her needs but still did not respond, that student could access additional help through special education without have to pass an additional gateway based on a state’s arbitrary adoption of a discrepancy formula.

Many of the resources developed by Heartland in-house or in collaboration with Iowa may be relevant to local educational agencies seeking to supplement their state guidance.

For example, Heartland Exceptions Appendix F (1)  is a 46 page documenting how schools might use the data they’ve gathered in three tiers of interventions in making an eligibility decision.

Heartland’s 2003 Special Education Program Manual ran 370 pages and is a substantial download for someone with a slow Internet connection.   Nevertheless, Chapters 4 and 5 are recommended for their graphics, their forms, their description of levels (“tiers” in many states guidances), as well as their description of RIOT and ICEL techniques and how the information gathered might be applied in making an eligibility decision.

Although Iowa’s current guidance can be accessed on our State Regulations/Iowa page, they do not appear to be as detailed or as helpful (or as easily accessible) as the original Heartland documents, which are of course no longer accessible on-line at all.  Heartland AEA 11 now uses the same July 1, 2017 AEA Special Education Manual  (598 pages) used by all the AEAs, its guidance on RTI in this writer’s opinion falls short of the standards Heartland reached in its own in-house publications.  However, Appendix A: Documentation Guide (in the TOC) could be helpful to another state or district working on improving its forms.

Rethinking Learning Disabilities for a New Century:  Fordham Paper. October, 2001 *

A paper challenging traditional concepts of special learning disabilities.  The authors contended that it was irresponsible to continue current policies that dictated inadequate identification procedures and proposed an identification system based on prevention and early intervention rather than continuing with what had been described as the “wait to fail” methodology for identifying children.

The paper was one of a serious of papers published simultaneously under the title, Rethinking Special Education for a New Century.

Early Indictment of the Discrepancy Methodology:  Robert Pasternack *

In 2002, at a NASP national conference, Robert Pasternack, Assistant Secretary, OSERS, provided an earlyPasternack indictment of the discrepancy methodology in a PowerPoint Presentation, The Demise of IQ Testing.  As this early presentation suggested, the discrepancy methodology while then (and in many states now) was legally defensible, morally, ethically, and (most importantly) scientifically there was no evidence to show that denying a child held he needed and could use just because the same processing problems underlying his academic deficits also underlie  his intellectual test results was justifiable.  Dr. Pasternack also provided an early (albeit not the earliest) recommendation that RTI would be a viable alternative to discrepancy.

Response to quality intervention is the most promising method of alternate identification and can
both promote effective practices in schools and help to close the gap between identification and

And also

Problem solving models have been shown to be effective in public school settings and in research.

Dr. Pasternack was a prime mover in OSERS with respect to the changes in the IDEA when it was reauthorized in 2004.  In addition to having an impressive vita, Dr. Pasternack is a nationally certified school psychologist, a certified educational diagnostician, a certified school administrator, and a certified teacher (K-12).

summary 3


With sample excerpts . . .

An analysis of differences between low performing readers with and without the SLD label  Fuchs, et. al.

Is LD just a fancy name for low achievement? . . .   Whether LD qualifies as a distinct diagnostic entity or occurs in varying degrees of severity, as hypertension and obesity do, findings indicate that researchers and practitioners tend to identify children with more severe reading problems as LD. Given this, it seems reasonable that special education, with its capacity to provide intensive reading instruction, be directed at this group of children.

Traditionally defined as “unexpected,” learning disabilities must become “expected” in order to develop appropriate interventions  Fletcher, et. al.

LD is traditionally identified as “unexpected” underachievement and is distinguished from expected underachievement (Kavale & Forness, 2000). The nature and causes of LD must become “expected” in order for assessments and interventions to be developed.

A Defense of Discrepancy Methodologies  Kavale

The key point is that discrepancy should not be the sole criterion in LD identification. As the operational indicator of underachievement, discrepancy documents the presence of underachievement, not LD. Because LD and underachievement are not equivalent, the task becomes one of deciding what other factors need to be considered in the identification process to support confidence about the presence or absence of LD. When placed in a larger, appropriate context, arguments against the use of discrepancy in LD identification diminish. It would, therefore, be an error to eliminate discrepancy as a factor in LD determination. The task is to use 8 discrepancy in a manner in which it is not LD itself but rather only part of a more comprehensive identification process.

Early Identification of children with reading disabilities  Jenkins and O’Connor

Successful prevention and treatment of reading/learning disabilities is the goal. Achieving that goal will take all our best ideas. Remaining open to different theoretical perspectives is both sensible and necessary.

Historical Perspectives  Hallahan and Mercer

Tension and discord in the field have arisen from a concern that identification procedures not only are flawed, but also are resulting in the misidentification of too many minority students as LD. Many researchers have begun to question the dependence on the discrepancy concept, suggesting the following: the studies leading to the discrepancy approach were flawed; the IQ scores of LD students with reading disabilities may be underestimated because of their reading 7 disabilities; the discrepancy approach makes it very difficult to identify children early enough for preventive interventions; and researchers have been unable to discriminate between students with a discrepancy and students with low reading achievement who have no discrepancy. New alternatives to the discrepancy approach are being explored.

Responsiveness to Intervention   Gresham

The concept of responsiveness to intervention appears to be a viable alternative approach to defining LD, particularly in light of the myriad difficulties with discrepancy-based models. In addition, assessment procedures should contribute to the planning and implementation of more effective treatments to remediate academic deficits. However, before the field can adopt responsiveness to intervention in eligibility determination, a host of unresolved issues await further investigation and deliberation:

• selecting the “best” intervention available,
• determining the optimal length and intensity of the intervention,
• ensuring the integrity of interventions,
• employing appropriate decision rules in defining “adequate” responsiveness, and 9 Responsiveness to Intervention
• conducting cost-benefit analyses.

How schools have actually defined Specific Learning Disabilities  MacMillan and Siperstein

An unhealthy schism between research and practice is fueled, in part, by the discrepancy between SI and RI students with learning disabilities. Public school personnel perceive the research community as being out of touch, and the research community often views those in the public schools as uninformed. In truth, the research does not inform practice because the database derives from a population of “LD” students who only vaguely resemble schoolidentified “LD” students. We contend that the researchers studying subjects with LD and the practitioners serving students with LD do not agree on who is LD. As a result, research does not inform practice.

The use of clinical judgement in identifying reading disabilities   Wise and Snyder

The clear educational goal for teachers of children with learning disabilities is to design instruction for small groups of children who are working at instructional levels, with lots of appropriate practice and with directed questioning that helps children discover and use appropriate learning strategies. The best instruction supplements the prescriptions derived from formal assessments with clinical judgement of student’s responsiveness to teaching and ongoing assessments of student progress and classroom performance. We need strong personnel preparation programs that focus on professional knowledge about, and appropriate strategies for,  fine-grained recognition of the variety of learning disabilities, and we need the implementation of specialized interventions that are targeted appropriately to specific learning problems. Such programs will give educators the skills and knowledge they need to address the learning problems of their students with learning disabilities.

Problems in using intrinsic processing disorder deficits in diagnosing SLD   Torgeson

Response to quality intervention is the most
promising method of alternate identification and can
both promote effective practices in schools and help
to close the gap between identification and
treatment. . .   Problem solving models have been shown to be
effective in public school settings and in research

yes virginia

Yes, Virginia *

Yes Virginia, There is a Discrepancy Clause, but is it Much Ado About Nothing? is an article by Ron Dumont, John Willis, and Guy McBride on the application of state SLD criteria within the context of federal law.  Although the law changed in 2004, this article is still relevant for eligibility groups still using historical state IQ-achievement discrepancy methodologies.

President's Commission

Early 2004 Article by Guy McBride, Ron Dumont, and John Willis *

Response to Response to Intervention Legislation: Have We Found a Better Way
or Will We be Just as Confused as We have Been for the Last Ten Years? 

“This article attempts to analyze some of the anticipated changes and possible implications for school

AND COGNITIVE ASSESSMENT BE RECONCILED?” by John Willis and Ron Dumont (2006) “Arguments between response to intervention (RTI) with curriculum-based measurement (CBM) and traditional, individual psychoeducational assessments encourage a false dichotomy between alternatives that are not mutually exclusive, but complementary

President’s Commission on Excellence in Special Education, July 1, 2002 *

“The Commission worked from the simple principle that accountability for results matters, that parents desire maximum input, and educators want to see efficiency melded with compassion and improved outcomes. The ultimate test of the value of special education is that, once identified, children close the achievement gap with their peers. That’s what accountability for results is about. Yet, after hundreds of comments and letters on the real complexities in the system, we found common threads among those whose needs were not being met.  In short, our reforms must remove the bureaucracy and regulations that prevent a focus on closing the gap. We must begin with the simple question of whether children with disabilities are learning and functioning well and then reform and tailor the system from there.”   The President’s Commission reported in 2001 that half of all children labeled as disabled were classified as SLD, an increase of 300 percent since 1975.  80 percent were labeled, they said,  because of deficiencies in reading, and over representation of minority groups was cited as an additional  concern.  The title of the document was

A New Era:  Revitalizing Special Education for Children and Their Families (96 pages)

Their  Summary of their findings:

Finding 1: IDEA is generally providing basic legal safeguards and access for children with disabilities. However, the current system often places process above results, and bureaucratic compliance above student achievement, excellence and outcomes. The system is driven by complex regulations, excessive paperwork and ever-increasing administrative demands at all levels—for the child, the parent, the local education agency and the state education agency. Too often, simply qualifying for special education becomes an end-point—not a gateway to more effective instruction and strong intervention.

Finding 2: The current system uses an antiquated model that waits for a child to fail, instead of a model based on prevention and intervention. Too little emphasis is put on prevention, early and accurate identification of learning and behavior problems and aggressive intervention using research-based approaches. This means students with disabilities do not get help early when that help can be most effective. Special education should be for those who do not respond to strong and appropriate instruction and methods provided in general education.

Finding 3: Children placed in special education are general education children first. Despite this basic fact, educators and policy-makers think about the two systems as separate and tally the cost of special education as a separate program, not as additional services with resultant add-on expense. In such a system, children with disabilities are often treated not as children who are general education students and whose special instructional needs can be met with scientifically based approaches; they are considered separately with unique costs—creating incentives for misidentification and academic isolation—preventing the pooling of all available resources to aid learning. General education and special education share responsibilities for children with disabilities. They are not separable at any level—cost, instruction or even identification.

Finding 4: When a child fails to make progress in special education, parents do not have adequate options and recourse. Parents have their child’s best interests in mind, but they often do not feel they are empowered when the system fails them.

Finding 5: The culture of compliance has often developed from the pressures of litigation, diverting much energy from the public schools’ first mission: educating every child.

Finding 6: Many of the current methods of identifying children with disabilities lack validity. As a result, thousands of children are misidentified every year, while many others are not identified early enough or at all.

Finding 7: Children with disabilities require highly qualified teachers. Teachers, parents and education officials desire better preparation, support and professional development related to the needs of serving these children. Many educators wish they had better preparation before entering the classroom as well as better tools for identifying needs early and accurately.

Finding 8: Research on special education needs enhanced rigor and the long-term coordination necessary to support the needs of children, educators and parents. In addition, the current system does not always embrace or implement evidence-based practices once established.

Finding 9: The focus on compliance and bureaucratic imperatives in the current system, instead of academic achievement and social outcomes, fails too many children with disabilities. Too few successfully graduate from high school or transition to full employment and postsecondary opportunities, despite provisions in IDEA providing for transition services. Parents want an education system that is results-oriented and focused on the child’s needs—in school and beyond.

The report included three major recommendations:

Major Recommendation 1: Focus on results—not on process. IDEA must return to its educational mission: serving the needs of every child. While the law must retain the legal and procedural safeguards necessary to guarantee a “free appropriate public education” for children with disabilities, IDEA will only fulfill its intended purpose if it raises its expectations for students and becomes results-oriented—not driven by process, litigation, regulation and confrontation. In short, the system must be judged by the opportunities it provides and the outcomes achieved by each child.

Major Recommendation 2: Embrace a model of prevention not a model of failure. The current model guiding special education focuses on waiting for a child to fail, not on early intervention to prevent failure. Reforms must move the system toward early identification and swift intervention, using scientifically based instruction and teaching methods. This will require changes in the nation’s elementary and secondary schools as well as reforms in teacher preparation, recruitment and support.

Major Recommendation 3: Consider children with disabilities as general education children first. Special education and general education are treated as separate systems but, in fact, share responsibility for the child with disabilities. In instruction, the systems must work together to provide effective teaching and ensure that those with additional needs benefit from strong teaching and instructional methods that should be offered to a child through general education. Special education should not be treated as a separate cost system, and evaluations of spending must be based on all of the expenditures for the child, including the funds from general education. Funding arrangements should not create an incentive for special education identification or become an option for isolating children with learning and behavior problems. Each special education need must be met using a school’s comprehensive resources, not by relegating students to a separately funded program. Flexibility in the use of all educational funds, including those provided through IDEA, is essential

There has of course been some discussion regarding the implications of this report, and some criticisms that it did not go far enough as well.   For one example, see LD Online’s article by William Berdine, The President’s Commission on Excellence in Special Education:  Implications for the Special Education Practitioner


The Researchers Consensus *

OSEP convened a group of researchers in 2002 to discuss LD identification.  They mostly agreed on most issues . . . but not all.  Their agreements (and disagreement) are summarized in the  Researcher’s Consensus Statement.  The area of disagreement was over the use of discrepancy; the majority believed that there was no role in discepancy in SLD identification. The minority believed “Aptitude/achievement discrepancy is an appropriate marker of specific learning disabilities but is not sufficient to document the presence or absence of underachievement, which is a critical aspect of the concept of specific learning disabilities.”

A summary of their conclusions

  1.  The concept of specific learning disabilities is valid.
  2.   Students with specific learning disabilities need specially designed instruction.
  3.   Learning disabilities are a lifelong condition.
  4.   Prevalence rates
  5.   Majority:  IQ/Discrepancy inappropriate as marker.   Minority:  Appropriate as one marker
  6. Response to quality interventions is most promising method of alternate identification
  7.  There are effective interventions but despite lack of research ineffective interventions are still being used.

round table

Roundtable of Stakeholders *

Following the Washington conference, OSEP also convened a roundtable of stakeholders  in the area of Specific Learning Disabilities (2001), including NASP and ASHA.  This was their consensus statement which, among other things, defined specific learning disabilities as a life long condition and advocated for the adoption of a problem solving model in the identification process.  

Specific Learning Disabilities:  Finding Common Ground

The following is a highly edited summary of their conclusions; for the rationales behind those recommendations, see the entire report above.

  1.  The concept of Specific Learning Disabilities (SLD) is valid, supported by strong converging evidence.
  2.  Specific learning disabilities are neurologically-based and intrinsic to the individual
  3.  Individuals with specific learning disabilities show intra-individual differences in skills and abilities.
  4.  Specific learning disabilities persist across the life span, though manifestations and intensity may vary as a function of developmental stage and environmental demands
  5. Specific learning disabilities may occur in combination with other disabling conditions, but they are not due to other conditions
  6. Specific learning disabilities are evident across ethnic, cultural, language, and economic groups.
  7. Identification should include a student-centered, comprehensive evaluation and problemsolving approach that ensures students who have a specific learning disability are efficiently identified.
  8. Regular education must assume active responsibility for delivery of high quality instruction, research-based interventions, and prompt identification of individuals at risk while collaborating with special education and related services personnel
  9. The ability-achievement discrepancy formula should not be used for determining eligibility.
  10. Decisions regarding eligibility for special education services must draw from information collected from a comprehensive individual evaluation using multiple methods and sources of relevant information.
  11. Decisions on eligibility must be made through an interdisciplinary team, using informed clinical judgments, directed by relevant data, and based on student needs and strengths
  12. Decisions on eligibility must be made in a timely manner.
  13. Based on an individualized evaluation and continuous progress monitoring, a student who has been identified as having a specific learning disability may need different levels of special education and related services under IDEA at various times during the school experience.
  14. The field should continue to advocate for the use of scientifically-based practices. However in areas where an adequate research base does not exist, data should be gathered on the success of promising practices
  15. Schools and educators must have access to information about scientifically-based practices and promising practices that have been validated in the settings where they are to be implemented.
  16. Students with specific learning disabilities require intensive, iterative (recursive), explicit scientifically-based instruction that is monitored on an on-going basis to achieve academic success.
  17. Students with specific learning disabilities require a continuum of intervention options through regular and special education across all grades and ages.
  18. Interventions must be timely and matched to the specific learning and behavioral needs of the student.
  19. An intervention is most effective when it is implemented consistently, with fidelity to its design, and at a sufficient level of intensity and duration.
  20. Regular and special education must be coordinated as part of a coherent system which is held accountable for the educational outcomes of students with specific learning disabilities
  21. The content of professional development must address the knowledge, skills, and attitudes needed to increase staff and school capacity to implement effective interventions for diverse learners.
  22. Professional development must address the organizational and cultural context needed to ensure on-going professional learning and development for all service providers.
  23. Professional development must be structured to fit the way adults acquire knowledge, skills, and attitudes.
  24. An on-going, coherent, integrated system of pre-service and in-service education must be provided.
  25. Alignment is needed across the agencies and structures that shape professional development and communicate what is valued and expected in schools.

Ron and John

Articles by John Willis and Ron Dumont *

Clicking on Learning Disabilities will lead  to  a number of on-line articles provided by Ron Dumont and John Willis  (Note: not all of the articles have been updated to reflect changes in the 2006 Final Federal Regulations for the IDEA 2004.  Some links may need to be updated) 

elastic clause


Although there was consensus between the major stake holders and near consensus among major researchers in the area of SLD that a problem solving model was more defensible scientifically than the historical discrepancy methodology, many states and many local educational agencies continue to apply IQ-achievement discrepancy formulas in identifying learning disabled students.   Although the IDEA 2006 Final Regulations requires school systems to apply their state criteria in determining eligibility, that did not necessarily diminish the team’s authority to apply its clinical judgment after applying those criteria within the context of a comprehensive evaluation in making its decision regarding eligibility.

OSERS also wrote in the Preface to the 2006 FR

Consistent with § 300.304(b) and section 614(b)(2) of the Act, the evaluation of a child suspected  of having a disability, including an SLD must include a variety of assessment tools and strategies and cannot rely on any single procedure as the sole criterion for determining eligibility for special education and related servicesThis requirement applies to all children  suspected of having a disability, including those suspected of having an SLD.

What this means is that clinical judgment collectively applied by the IEP team or Eligibility Group is not prohibited.   It also means that an article written by Ron, John, and Guy in a 2001 journal, The School Psychologist, continues to be relevant for schools still using the historical discrepancy methodology.   To visit or revisit “Yes, Virginia, There is a Discrepancy Clause,” click on the link above..

Another question that continues to arise from time to time on the NASP School Psychology Listserv centers on the following scenario:   Johnny is identified by an eligibility group as having a specific learning disability in the area of reading.   Two years later, in the team’s collective judgment, his needs in math problem solving cannot be met appropriately using general education resources alone.  Does the team need to establish there is a severe discrepancy between IQ and math problem solving before writing a new subject area into his IEP?

The short answer is “No.”  A slightly longer answer  would be “No, once a child is identified by an eligibility group as having a disability under the IDEA, it is that child’s needs, not his label, that dictates what must be included in his or her IEP.”  For a much longer but more authoritative answer, click on the link to an OSEP letter to anonymous (actually, Dr. McBride) below:

OSEP Letter on changing IEPs for SLD Children

With respect to SLD, OSEP also issued a number of letters, many still relevant, from 1989 on.   The following link opens a searchable summary of OSEP letters on Specific Learning Disabilities from 1989 to 2000.   (Most of what was deleted were references to statutes and regulations no longer in effect. Note that al of these letters were written prior to the passage of the IDEA 2004 or publication of the 2006 Final Regulations. While they may be of historical interest, they should NOT be relied upon for current guidance.

Summary of OSEP letters on SLD released under the Freedom of Information Act

osep letters

OSEP Letters *

The 2004 IDEIA passed by Congress, as everyone knows, changed our perception of a Specific Learning Disability in what could only be described as a paradigm shift.  Letters pre-2004 are therefore of limited relevance.  There have howver been 17 letters from OSEP referencing SLD in some context since 2004.

Letter to Prifitera, March 1, 2007.   An reiteration of each child’s right to a comprehensive evaluation. “an RTI process does not replace the need for a comprehensive evaluation. A public agency must use a variety of data gathering tools and strategies even if an RTI process is used. The results of an RTI process may be one component of the information reviewed as part of the evaluation procedures required under 34 CFR §§300.304 and 300.305. As required in 34 CFR §300.304(b), consistent with section 614(b)(2) of the Act, an evaluation must include a variety of assessment tools and strategies and cannot rely on any single procedure as the sole criterion for determining eligibility for special education and related services.”  Also, ” Under the final implementing regulations for Part B of IDEA, the group described in 34 CFR §300.306 may determine that a child has a specific learning disability, as defined in 34 CFR §300.8(c)(10), if §300.309(a)(1) and §300.309(a)(2)(i) or §300.309(a)(2)(ii) and §300.309(a)(3) are met. Therefore, it is incorrect to say that one of the criteria contained in 34 CFR §300.309 could be used to determine that a child has a specific learning disability.”  Also “” While it is true that existing evaluation data are part of the comprehensive evaluation of the child, it is important to note that, as required under 34 CFR §300.306, it is a group of qualified professionals and the parent of the child who determine whether the child is a child with a disability, as defined in 34 CFR §300.8, rather than an LEA.”

Letter to Zirkel, March 6, 2007.  SLD, RTI, eligibility, evaluation.  Dr. Zirkel asked whether a state could prohibit the use of discrepancy, the use of other identification methods; or allow a combination of discrepancy and RTI.  The response was “The regulations at 34 CFR §300.307(a) provide that a State must adopt criteria for determining whether a child has a specific learning disability, and LEAs must use the criteria adopted by the State educational agency (SEA). The criteria adopted by the States cannot require LEAs to use a severe discrepancy between intellectual ability and achievement to determine whether a child has a specific learning disability. 34 CFR §300.307(a)(1). Moreover, the Analysis of Comments and Changes section of the final Part B Regulations to the Individuals with Disabilities Education Act of 2004 (IDEA 2004) indicates that States may prohibit the use of a discrepancy model. 71 Fed. Reg. 46646 (August 14, 2006). Accordingly, while a State cannot require the use of a severe discrepancy model, a State may prohibit, or make optional, the use of a severe discrepancy model. ”   OSEP went on to say “State criteria 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 (emphasis added). An RTI process does not replace the need for a comprehensive evaluation, and the results of an RTI process may be one component of the information reviewed as part of the evaluation procedures required under 34 CFR §§300.304 and 330.305. Finally, the manner in which the State chooses to use RTI as one component of a comprehensive evaluation is left up to the States.”

Letter to Gwyn, March 6, 2007.   Forms drive the process, and Mr. Gwyn was asking whether Wyoming’s eligibility form for SLD was inconsistent with the 2006 FR.  It is unclear from the letter, however, what specifically prompted the inquiry, but OSEP said that the state criteria must be consistent with 300.309 of the CFR and that Wyoming had removed the form from its website.  Additionally, OSEP said that “the State must include a variety of assessment tools and strategies and may not use any single measure or assessment as the sole criterion for determining whether a child is a child with a disability. 34 CFR §300.304(b).”

Letter to Anonymous, July 19, 2007.  Short term objectives, extended school year, eligibility, specific learning disability.  Short term objectives were removed as an IEP requirement except for children taking alternative assessments but could be re-imposed if a state decided to do so.  It may prohibit LEAs from using discrepancy.  Extended School Year (ESY) must be available to any child that the IEP team determines needs it.  And lastly, “Generally, a State can exceed Federal requirements as long as what the State requires (1) is not inconsistent with other requirements in the IDEA, and (2) consistent with §300.199(a)(2) and sections 608(a)(2) and 614(d)(1)(A)(ii)(I) of the Act, the State identifies in writing to the LEAs located in the State and to the Secretary that such rule, regulation, or policy is a State-imposed requirement that is not required by Part B of the Act or regulations. All States receiving funds under Part B of the IDEA must meet the requirements of Part B of the IDEA and its regulations. “

Letter to Anonymous, July 27, 2007.  Specific learning disability, response to intervention, RTI, eligibility.  The question was whether EVERY school in an LEA must adopt RTI before ANY child in any school could be identified using an RTI methodology.   OSEP’s lengthy response could have been boiled down to one sentence.  If a school system required schools to use RTI, then all schools would have to use RTI; but if a school system allowed schools to use RTI, then the process could be implemented incrementally.  OSEP recommended the latter.

Letter to Zirkel, August 15, 2007.  Specific learning disability, RTI, eligibility, response to intervention.   This letter appears to be a follow up to the March letter above.  The question was  “may the LEA opt a) to use both RTI and severe discrepancy, or b) to continue to use severe discrepancy and not RTI as part of the comprehensive evaluation for SLD eligibility?”  OSEP’s response was that if the state allowed it, ” Under those State-adopted criteria, LEAs in that State would be permitted to use any of the three available options/models, or any combination of those options/models, as part of a comprehensive evaluation under 34 CFR §§300.301 300.311 to determine the presence of a specific learning disability. “

Letter to Anonymous, September 11, 2007.  Hearing Impaired, SLD.  In this letter, OSEP made two points.  ” A State is not required to use the precise terminology of the IDEA in describing children who meet the criteria for a “child with a disability,” provided that all children who are in need of special education and related services who have impairments listed in the Part B definition of “child with a disability” receive appropriate instruction and services. ” And “It is important to note that the IDEA does not require children to be identified with a particular disability category for purposes of the delivery of special education and related services. A child is entitled to FAPE under Part B and not to a particular label. Implicit in the definition of FAPE is the requirement that a child with a disability be provided with special education and related services in conformity with the child’s individualized education program (IEP) in the least restrictive environment.”

Letter to Masanari, September 27, 2007.  Specific learning disability,  RTI.   The question was whether a state could “field test” RTI.   OSEP’s response was the same as to a question asked previously, that if a school required RTI, all schools must use it, but if it allowed RTI, it could implement incrementally.  To the second part of the question asked by Masanari, OSEP replied that the IDEA made no distinction between elementary and secondary schools with respect to SLD identification.

Letter to Zirkel, April 8, 2008.  Specific learning disability, evaluation, reevaluation, RTI, screening, eligibility, research-based.   Perry asked four questions, all of which continue to be relevant today.  The questions and answers are summarized below, but the reader is encouraged to read the entire text.

  1.  Does the language “pattern of strengths and weaknesses” encompass both discrepancy and alternative research based alternatives?  Answer:   “34 CFR §300.309(a)(2)(ii), which references a child exhibiting a pattern of strengths and weaknesses, would apply to all other permissible methods of identifying a child with a specific learning disability.”
  2.  Must the LEA include continuous progress monitoring in the referral or evaluation process and give due weight to the results? Answer:  “The eligibility group referenced above, under 34 CFR §300.309(b)(2), must consider 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, in order to ensure that underachievement in a child suspected of having a SLD is not due to lack of appropriate instruction in reading or math. The regulation does not use the term ‘continuous progress monitoring.’ ”  And  “[a] critical hallmark of appropriate instruction is that data documenting a child’s progress are systematically collected and analyzed and that parents are kept informed of the child’s progress.”
  3. Must state special education law concerning SLD identification include provisions “regarding the amount and nature of student performance data that would be collected and the general education services that would be provided.”  Answer:  “If a child suspected of having a SLD has participated in a process that assesses the child’s response to scientific, research-based intervention, under 34 CFR §300.311(a)(7), the documentation of the determination of eligibility, as required in 34 CFR §300.306(a)(2), must contain a statement of the instructional strategies used and the student-centered data collected; and the documentation that the child’s parents were notified about 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, the strategies for increasing the child’s rate of learning and the parents’ right to request an evaluation.”
  4. Does the absence of the qualifier “scientific” in “other alternative researchbased procedures” mean that this option need not meet all the defined, and relatively rigorous, requirements for “scientifically based research”   Answer:   There is no requirement under this provision for such alternative procedures to be “scientifically based.” They must, however, be research-based.

Letter to Redacted, June 3, 2008.  Specific learning disability, evaluation, reevaluation, RTI, screening, eligibility, research-based.  This  was in response to a query from one of the contributors to this website, Guy M. McBride.  The question was:  When applying a state’s ability achievement discrepancy methodology, can a student who qualifies for specific learning disabilities (LD) placement with a fifteen point discrepancy in either mathematics, reading or language be served for all three areas if the evaluations also document a need for specially designed instruction in those areas?   OSEP’s answer was “No.”  Or, in their words, “Part B of IDEA and the Department’s final regulations do not impose any limitation on the services to be provided to a child identified as having a specific learning disability based on the areas of severe discrepancy between intellectual ability and achievement that the LEA identifies in making that determination.”  They went on to say, “The Department’s longstanding policy is that special education and related services are based on the identified needs of the child and not on the disability category in which the child is classified.” See the section on Adding Math to an IEP above.

Letter to Combs, August 15, 2008.  RTI, specific learning disability, evaluation, timelines.    The question was, ” “If a district is using the response to intervention method for determination of SLD [specific learning disability] eligibility, how does this work in the situation of the expedited evaluation required under 34 CFR 300.534?” OSEP then quoted the writer as saying,  “Attorneys have generally interpreted the expedited evaluation provision in 34 CFR 300.534 to mean the IEP [individualized education program] Team does not have the option to decide not to conduct the evaluation.”  OSEP’s response was “Regardless of whether an RTI model is used, once parental consent is obtained, an evaluation of a child suspected of having an SLD must be conducted within the 60-day timeline or the State-established timeframe, unless the timeline is extended by mutual written agreement of the parent and the group of qualified professionals responsible for making the eligibility determination. 34 CFR §§300.309(c), 300.301(c) and 300.303. However, if a request for an evaluation of a child is made during the time period in which the child is subjected to disciplinary measures under 34 CFR §300.530, 34 CFR §300.534(d)(2)(i) specifies that the evaluation must be conducted in an expedited manner. Therefore, following the request for the evaluation, and once parental consent has been obtained, a local educational agency (LEA) may not refuse to conduct the evaluation of a child during the time period in which disciplinary measures are used because the RTI process is ongoing. Note also that, although the Department has not specified a precise timeline for an expedited evaluation because the need for collecting additional information may vary, the Department’s position is that the expedited evaluation “should be conducted in a shorter period of time than a typical evaluation.”

Letter to Zirkel, December 11, 2008.  Specific learning disability, RTI, response to intervention, independent educational evaluation, IEE.   Perry again asked several questions.

  1.  If a parent conducts an IEE that determined eligibility based on a discrepancy analysis prior to completion of the district’s assessment, must the district pay for it?  Answer:  No.  The parent could only request reimbursement if s/he disagreed with the district’s completed evaluation.
  2.  Would the answer be the same if the district had found there was no need for an evaluation based on the results of an RTI methodology and the parent produced an evaluation showing the child was eligible based on a discrepancy analysis?  Answer:  Yes, it would be the same, because the district had not completed an evaluation with which the parent disagreed.   The parent would however have the right to request the school evaluate the child and, if the district refused, use any of the dispute mechanisms under the IDEA to resolve the dispute.
  3. If the district was using RTI, and the parent produced an evaluation that found the child eligible based on discrepancy, could the district reject the IEE as not meeting district criteria?  OSEP waffled, in this writer’s opinion, on this one.   They repeated what they said in response to the question above, adding that ” ‘Agency criteria’ refers to ‘criteria under which the evaluation is obtained, including the location of the evaluation and the qualifications of the examiner….’ 34 CFR §300.502(e) It is important to remember that the data from an RTI process can be considered as one component of a full and individual evaluation, consistent with 34 CFR §§300.304-300.311, using a variety of assessment tools and strategies in determining whether the child is a child with a disability under 34 CFR §300.8 and the content of the child’s IEP. 34 CFR §300.304(b)(1). The public agency may not use any single measure or assessment, including RTI, as the sole criterion for determining whether a child is a child with a disability and for determining an appropriate educational program for the child.”   Which wasn’t exactly a “Yes” or a “No.

Letter to Anonymous, January 13, 2010.    Gifted education, ADD–ADHD,  specific learning disability, other health impairment, eligibility, Asperger Syndrome, high cognition, ESEA,  Section 504,  ADA.  The question was how these laws applied to children who were both gifted and disabled.  OSEP referred the writer to a response from OCR with respect to the ADA and 504, and only addressed the IDEA.   OSEP said that while the IDEA was silent with respect to double disablities or chldren who were both disabled and gifted,   and basically repeated the position it had previously taken in 1995 in a Letter to Lillie/Felton wherein they also said that schools should consider the help a student had received outside school in determining his or her current needs.

Letter to Brekken, June 2, 2010.  RTI, early intervening, Head Start, evaluation, identification, specific learning disability, child find, preschool, notice, early intervention, early intervention services, eligibility.  The questions, summarized, and OSEP’s response, summarized, follow:

  1.  Does the IDEA encourage the use of an RTI approach in determining eligibility for three, four or five years olds?  OSEP’s response:  No.
  2.  an LEA can decline a child find referral from a Head Start program until the Head Start program monitors the child’s developmental progress using RTI procedures?  Answer:  No.
  3. Must an LEA inform a child’s parents of their right to request an evaluation from the LEA if the LEA requires a child be assessed through an RTI approach before it will accept a referral from Head Start. You also ask how to proceed if the parents believe a needed evaluation is being delayed until the Head Start program implements RTI with the child.  Answer:  Parents may refer a child, but the IDEA does not require that they be informed of their right to do so. However, once the LEA receives a referral from Head Start the LEA must give the parents their procedural rights under the IDEA.  ” If an LEA declines to evaluate a child, it must provide prior written notice consistent with 34 CFR §300.503, which includes the reasons for refusing to conduct the evaluation. If the parent believes a needed evaluation is being delayed based on an LEA’s refusal to conduct an initial evaluation until the Head Start program implements an RTI approach with the child, the parent may file a due process complaint under 34 CFR §300.507 or a State complaint under 34 CFR §300.153.”

Letter to Zirkel, September 10, 2013.   SLD; evaluation; RTI.  Perry asked a fairly lengthy question that isn’t easy to paraphrase.  He was “asking for OSEP’s determination as to whether a longstanding general education intervention process constitutes a process based on a child’s response to scientific, research-based intervention .  He described a general education intervention process as often taking the “form of a school-based student assistance team that recommends strategies for individual children that are evidencing learning and/or behavioral problems.”

Cutting to the chase, “OSEP does not evaluate local educational processes.”  OSEP referred Dr. Zirkel to OSEP’s Questions and Answers on Response to Intervention, discussed in the introductory paragraphs above.

Letter to Hugo, November 13, 2013,   Mr. Hugo was concerned about Maine’s requirement that a team document a processing deficit linked to the area of academic deficit as a sine qua non of identification.  OSEP’s response was that it was interpreting their regulation as “using a single assessment – here, a test of psychological processing or of cognitive functioning – as the sole criterion for determining whether a child has an SLD. If this is an accurate interpretation of the LDR, it would be inconsistent with §300.304(b) for Maine to use such a form because it could result in children with SLD not being properly identified.”  (As a result of this complaint, Maine did amend its SLD identification procedures, giving more leeway in interpreting their data within the context of their comprehensive evaluation.)

Letter to DeLisle, December 20, 2013.  Twice Exceptional; High Cognition; SLD;  Severe Discrepancy; Eligibility; Gifted; Evaluation; Indentification.  Another letter asking about the application of the IDEA to “twice exceptional” (gifted/SLD) students.  They referred the writer to  Letter to Anonymous, dated January 13, 2010 (see above.)  OSEP said that the 2006 FR neither required nor prohibited a state from using a cut score in a discrepancy methodology.  It went on to say that “the IDEA requires the use of a variety of assessment tools and strategies to gather relevant functional, developmental, and academic information about the child, and prohibits the use of any single measure or assessment as the sole criterion for determining whether a child is a child with a disability and for determining an appropriate educational program for the child.”


Additional Links *

For our more comprehensive list of links to outside resources, on our Sped Resources page,  look at the entries under CBM and MTSS.

While most of our links, as noted above, are located on the Sped Resources, page, the United States government maintains the What Works Clearinghouse, a rich resource for research based, scientific interventions that, with government sponsorship, should also be undeniably defensible in any RTI program . . . assuming the intervention selected has been tailored to the needs of the individual student.  Publications from the WWC that are particularly recommended for MTSS teams in the Primary Grades

Many questions about the 2006 FR were addressed in the Comments/Discussion Section of those regulations.  For selected excerpts, click on LD Commentary in Preface to Final Regulations.

A review of the regulatory changes to SLD identification criteria in 2006.
Identification of SLD 2006

A less authoritative but equally rich link is to  a privately maintained website sponsored by Jim Wright at Intervention Central.  In recent years, the focus of that website has shifted to Response to Intervention, although it addresses other topics extremely relevant to school psychology as well.   Highly recommended.


Intervention Central (Jim Wright) Link

For additional links to RTI resources from most of the states also see:  State Regulations, Agencies, RTI Links

Reading: Assisting Students Struggling with Reading

This guide offers five specific recommendations to help educators identify struggling readers and implement evidence-based strategies to promote their reading achievement. Teachers and reading specialists can utilize these strategies to implement RtI and multi-tier intervention methods and frameworks at the classroom or school level. Recommendations cover how to screen students for reading problems, design a multi-tier intervention program, adjust instruction to help struggling readers, and monitor student progress

Math: Assisting Students Struggling with Math

Taking early action may be key to helping students struggling with mathematics. The eight recommendations in this guide are designed to help teachers, principals, and administrators use Response to Intervention for the early detection, prevention, and support of students struggling with mathematics.

Also see: our Sped Resources page for Reading, Math, and Writing links.