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CRITERION 1: Failure to meet age- or grade-level state standards in one of eight areas when provided appropriate instruction:

 

  • Oral expression
  • Listening comprehension
  • Written expression
  • Basic reading skill
  • Reading fluency skills
  • Reading comprehension
  • Mathematics calculation
  • Mathematics problem solving

 

§300.309(a)(1)

 


 

The first criterion for identification of SLD requires a determination that the student is failing to meet age- or grade-level state standards in one of eight areas (see definitions). A student needs to meet this criterion in only one of the eight areas. The school team should identify the area(s) of concern during its review of existing data. The area(s) of low achievement that have not been responsive to instruction/interventions of varying intensities should be what prompted referral for evaluation for the possible presence of SLD. Existing data from a variety of sources, to determine the gap between the student’s current performance and age- or grade-level state standards, at a minimum should include the following:

 

  • Performance on state assessments. These are the state’s general assessments aligned to state academic content standards for the student’s enrolled grade.

     

  • Universal screening. Benchmark testing of all students, typically administered three times per year, focusing on foundational skills and aligned with state standards.

     

  • Formative and progress-monitoring assessments. Aligned with grade-level state standards, the assessments are used to monitor what students are expected to learn when provided with robust instruction within the general education setting. Classroom-based observation(s)

     

  • Norm-referenced assessments of academic achievement, correlated to state standards.One or more classroom-based observations by teachers (other than the student’s teachers) and related services providers in the instructional environment(s) and during instruction in the area of concern.

     

  • Information provided by the student’s parents that the student has a history of not meeting age- or grade-level state standards, as evidenced by data from prior evaluations, developmental history questionnaires, other information, and/or that there is a family history of LD, other family members with LD, and/or delayed acquisition of reading and/or math skills.

 

Data must be considered within the context of these two important elements:

 

  • State norms. Norm-referenced assessments provide an indicator of the average performance of a student in the same grade in comparison with other students across the country. Local norms are based on grade-level state standards, and a state’s norms may vary in relation to the overall progress of students nationwide.

     

  • Cultural and linguistic sensitivity. If differences in culture or language are not considered when interpreting assessment data, the result may be an inappropriate disability designation. For students whose primary language is not English, an evaluation of their current English skills is recommended in order to show relative mastery of English. (See Special Rule for Eligibility Determination in the regulations and Considerations for English Language Learners)

 

Determining Extent of Student Underachievement

 

Additional data may be needed in order to verify the extent of the student’s underachievement against age- or grade-level state standards. Such data will likely need to be obtained through more in-depth assessments as discussed below.

To comply with IDEA’s requirements, assessment tools used for this purpose must be carefully selected and administered so as not to be discriminatory on a linguistic, racial, or cultural basis, and must be administered in a form and language that allows accurate data to be collected. §300.304(c)(1)

A useful tool to provide a closer look at student achievement may include classroom-based formative assessments that are very closely tied to the curriculum (aligned with grade-level and age-level state standards, or skill area where the instruction or intervention is focused. In many cases norm-referenced tests may also be used to gather additional data on the student’s academic achievement (discussed further below). The goal is to determine the magnitude of difference between the student’s current skills and what is expected for his or her age and grade (Deno, 2003).

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  To determine the extent of student underachievement, the use of multiple measures for assessing student achievement relative to national norms is recommended. These measures may include assessments that are used to drill down into a student’s academic skill deficiencies, reading and math diagnostic tests, and/or norm-referenced tests. Formative measures that were used to monitor progress during interventions, which form the basis of determining Criterion 2 (Determining lack of progress to scientific, research-based instruction and intervention), also inform decision making in regard to the extent of student underachievement. Identification is more reliable when multiple sources of information are used.



Regardless of the assessment tools used, confidence intervals should be considered to take into account the measurement error of the tests and to permit the expression of a range of scores, not a set cut-point. Use of confidence intervals is one approach to the problem of rigid cut-points that plagues LD.

The federal regulations do not specifically indicate the extent to which a student must demonstrate inadequate performance/achievement. Teams may be guided by parameters set by their State Education Agency.

Role of Exclusionary Factors in Determining Extent of Student Underachievement


When reviewing the evidence used to document a student’s underachievement, the team must determine whether the student’s lack of achievement is not primarily the result of any of the exclusionary factors (Criterion 3). If a student belongs to an ethnic or cultural group, or is limited-English proficient (LEP), the team should review achievement data for that population to provide a context for the student’s underperformance. If the performance of the student’s subgroup is significantly lower than that of the total group, an exclusionary factor may apply or the student mayhave the impairment of SLD. It is inappropriate to automatically exclude a student from identification for the sole reason that students of a similar demographic group at the school have significantly lower achievement than that of the total group or because the student has LEP.

When reviewing the evidence used to document a student’s underachievement, the team must determine whether the student’s lack of achievement is not primarily the result of any of the exclusionary factors (Criterion 3). If a student belongs to an ethnic or cultural group, or is limited-English proficient (LEP), the team should review achievement data for that population to provide a context for the student’s underperformance. If the performance of the student’s subgroup is significantly lower than that of the total group, an exclusionary factor may apply or the student mayhave the impairment of SLD. It is inappropriate to automatically exclude a student from identification for the sole reason that students of a similar demographic group at the school have significantly lower achievement than that of the total group or because the student has LEP.

Role of Observation in Determining Extent of Student Underachievement


Observation of routine classroom instruction, required by Criterion 5, provides data about the student’s academic performance and behavior in the classroom in the area(s) of concern identified in the referral. Consideration of information obtained through multiple observations of the student (as defined in Criterion 5) is critical and should address curriculum, instruction, and environmental factors as well as student work (e.g., amount, accuracy) completed during the observation period(s).

Role of Norm-Referenced Academic Tests

 

Norm-referenced tests have played a large role in SLD determination in the past, particularly within the ability–achievement discrepancy approach. Tests such as the Wechsler Individual Achievement Test (WIAT) and the Woodcock-Johnson Test of Achievement (WJ) have been used to assess overall academic achievement as well as performance on subskills.

 

There is nothing to prevent the use of norm-referenced tests within an RTI-based SLD identification process. In fact, such tests are particularly useful to identify skill deficits that will be the focus of remediation during interventions.

 

However, the extent to which norm-referenced tests can measure a student’s lack of achievement relative to state standards is highly questionable because few norm-referenced tests are aligned with state academic standards. Therefore, use of such tests to satisfy Criterion 1 is insufficient and multiple sources of data are needed for both Criteria 1 and 2.

 

It should be noted that if the area of underachievement to be established is oral expression or listening comprehension, use of norm-referenced testing or other acceptable methods may be necessary. However, these assessments are often completed under eligibility requirements for other special education categories, such as speech and language impairment.

Role of Cognitive Processing Assessment

 

In recent years, there has been a substantial increase in the design, development, and implementation of interventions to address processing difficulties. For example, RAVE-O, developed at Tufts University, is a reading intervention designed to support students with rapid naming and phonological processing difficulties. The strategic instruction model (SIM), developed at the University of Kansas, is designed to support students with a variety of processing deficits, such as short-term and working memory and executive functioning. PAL (Process Assessment of the Learner), developed at the University of Washington, integrates instructional activities in reading, writing, and math in a way that supports a variety of processing deficits. Finally, the Landmark School math instructional strategies have been designed to support the needs of students with language-based and memory deficits through a reliance on visual models and kinesthetic activity. As the research in this area continues to develop, stronger links between cognitive processing results and intervention recommendations will continue to enhance intervention options for students with SLD.

 

While progress has been made related to cognitive processing–based assessment and programming, the current IDEA regulations view the use of cognitive-processing assessment as neither sufficient nor necessary for eligibility. In publishing the final federal IDEA 2004 regulations in 2006, the U.S. Department of Education spoke directly and explicitly to the possible role of cognitive processing in SLD eligibility determination, stating that


  "Although processing deficits have been linked to some specific learning disabilities (e.g., phonological processing and reading), direct links with other processes have not been established. Currently, available methods for measuring many processing difficulties are inadequate. Therefore, systematically measuring processing difficulties and their link to treatment is not yet feasible. Processing deficits should be eliminated from the criteria for classification. 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." (Federal Register, August 14, 2006, p. 46651)

 

In the IDEA regulations, SLD is defined as

 

  "a disorder in one or more of the basic psychological processes involved in understanding or in using language, spoken or written, that may manifest itself in the imperfect ability to listen, think, speak, read, write, spell, or to do mathematical calculations, including conditions such as perceptual disabilities, brain injury, minimal brain dysfunction, dyslexia, and developmental aphasia." (§300.8[10])

 

This definition has remained consistent since the passage of P.L. 94-142 in 1975. The question then and now is how to define eligibility for students with SLD based on that definition. The basic principle is that SLD is unexpected underachievement. How has this concept been operationalized into regulation?
 

In 1976, the Bureau of Education for the Handicapped (BEH, the precursor to the Office of Special Education Programs [OSEP]) published draft regulations related to P.L. 94-142. These draft regulations contained the eligibility criteria for SLD and were declared final in 1977. They were not changed until the passage of P.L. 108-446 (IDEA 2004) and its inclusion of the RTI option as part of comprehensive evaluation for SLD eligibility.

How do the current regulations address the basic principle that SLD is unexpected under achievement? They do so by using exclusionary factors to consider reasons other than SLD that may be the primary causes of underachievement. The concept here is this: If the primary reason for the underachievement is not other disabilities, cultural and environmental issues, and/or LEP, then the student is exhibiting unexpected underachievement.

Therefore, cognitive processing assessment is not included in an RTI-based SLD identification process that is in compliance with the specific language of the federal regulations. Evaluation and IEP teams should determine on a case-by-case basis based on the referral and eligibility data the utility of cognitive processing assessments to determine eligibility if required under the state SLD procedures and/or to enrich the programming provided to students with SLD. School teams might assess cognitive processing to gain insight regarding risk characteristics to inform instructional planning for reading and math interventions. For more information, see Comprehensive Evaluation in Cautions When Using an RTI-Based SLD Identification Process. 

Validating Provision of “Appropriate Instruction”

 

The team must also satisfy the requirement expressed in Criterion 1 regarding a determination that the student’s lack of academic achievement has occurred within the delivery of “appropriate instruction.” This is an important element as it serves as a stopgap for identifying students as having an SLD who might actually be underperforming due to a lack of or inadequate instruction. In fact, it reiterates a requirement in IDEA’s broader requirements for eligibility that states the following special rule for eligibility determination:

§ 300.306 (b)(1)(i-iii) A child must not be determined to be a child with a disability under this part—

(1) If the determinant factor for that determination is— 

 

(i) Lack of appropriate instruction in reading, including the essential components of reading instruction (as defined in section 1208(3) of the Elementary and Secondary Education Act [ESEA]);

(ii) Lack of appropriate instruction in math; or

(iii) Limited English proficiency

Evidence of classwide, gradewide, or schoolwide low achievement in the academic area of concern could lead the team to a determination that instruction (e.g., quantity, quality, relevance, alignment with standards) may have a strong relationship to the student’s lack of achievement. Only when the team can determine that the referred student’s academic problems persist while most students in the same demographic (e.g., English language learners, race/ethnicity), class, school, or district are performing satisfactorily can lack of appropriate instruction be ruled out. For example, when approximately 80% of students in the referred student’s class or grade, or other subgroup, are meeting the age- or grade-level state standards, then the referred student’s lack of achievement can be recognized as unique and not a result of the lack of instruction.

If the RTI-based process being implemented by a school adheres to all essential components of RTI, this issue is ruled out early on since successful implementation of an RTI framework requires a research-based core curriculum that is shown to be effective for the majority of students and is implemented with fidelity (as intended by the program authors).

Professional Judgment

 

Ultimately, it is the team’s professional judgment that will determine if there is sufficient reliable and valid data to establish a lack of academic achievement in relation to age- and grade-level state standards. Determining that a sufficient body of evidence exists to make an eligibility determination based on multiple sources of data rests with the school team (subject to any specific requirements provided in a state’s SLD identification criteria).

 

 

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  Local performance standards and/or norms are not the standard against which the student should be judged for this criterion. Remember, the regulations specifically state that the benchmark for consideration in determining the extent of adequacy of instruction is age- or grade-level state standards.

Be sure to have data for all areas of suspected disability, as required by IDEA: “The child is assessed in all areas related to the suspected disability, including, if appropriate, health, vision, hearing, social and emotional status, general intelligence, academic performance, communicative status, and motor abilities” (§300.304(c)(4)). (See "All Areas of Suspected Disability,”  Mark Weber, Loyola Law Review, 2013, and Comprehensive Evaluation in Cautions When Using an RTI-Based SLD Identification Process.)

See Cautions When Using an RTI-Based SLD Identification Process for a synthesis of policy letters/OSEP guidance.

 

The eight areas listed in Criterion 1 are not specifically defined in federal IDEA regulations. The following provide generally accepted definitions of the eight areas of achievement:

 

Oral expression is the ability to convey wants, needs, thoughts, and ideas in a meaningful way using appropriate syntactic, pragmatic, semantic, and phonological language structures. It relates to a student’s ability to express ideas, explain thinking, retell stories, categorize, and compare and contrast concepts or ideas, make references, and problem solve verbally.

Listening comprehension refers to the understanding of the implications and explicit meanings of words and sentences of spoken language. This includes following directions, comprehending questions, and listening and comprehending in order to learn (e.g., auditory attention, auditory memory, and auditory perception). Listening comprehension also includes the ability to make connections to previous learning.

Written expression involves processes related to the transcription of ideas and thoughts into a written product, such as handwriting and spelling. It also involves generative processes such as the communication of ideas, thoughts, and feelings. Required skills include using oral language, thought, grammar, text fluency, sentence construction, and planning to produce a written product.

Basic reading skill includes sight word recognition, phonics, and word analysis. Essential skills include identification of individual sounds and the ability to manipulate them, identification of printed letters and sounds associated with letters, and decoding of written language.

Reading fluency skills refer to the ability to read words and text accurately, using age-appropriate chunking strategies and a repertoire of sight words, and with appropriate rate, phrasing, and expression (prosody). Reading fluency facilitates reading comprehension.

Reading comprehension refers to the ability to understand and make meaning of written text and includes a multifaceted set of skills. Reading comprehension is influenced by oral language development including new vocabulary acquisition, listening comprehension, working memory, application of comprehension-monitoring strategies, and understanding of text structure including titles, paragraphing, illustrations, and other details. Reading comprehension is significantly affected by basic reading skills.

Mathematics calculation is the knowledge and retrieval of mathematical facts and the application of procedural knowledge in computation.

Mathematics problem solving is the ability to apply mathematical concepts and understandings to real-world situations, often through word problems. It is the functional combination of computation knowledge and application knowledge, and involves the use of mathematical computation skills and fluency, language, reasoning, reading, and visual-spatial skills in solving problems. Essentially, it is applying mathematical knowledge at the conceptual level.

 

Source: Adapted from Wisconsin’s Specific Learning Disabilities (SLD) Rule

 

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  For additional information, see the following resources:

 

 

 

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