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Tool 16: Discrepancy, RTI, or Pattern of Strengths and Weaknesses: How Districts Decide, and How to Push Back

THE RULE

Specific learning disability is one of the 13 disability categories under the Individuals with Disabilities Education Act (IDEA). It is defined at 34 C.F.R. § 300.8(c)(10). It covers a disorder in one or more of the basic psychological processes involved in understanding or using language, spoken or written. Dyslexia is named in that definition.

Every other category is decided under the general evaluation rules. Specific learning disability has a rulebook of its own, at 34 C.F.R. §§ 300.307-300.311. Five things in it matter to you.

First, your state picks the method - not your district. Each state must adopt criteria for deciding whether a child has a specific learning disability (34 C.F.R. § 300.307(a)). Federal law puts three limits on what a state may adopt. A state must not require a severe discrepancy between intellectual ability and achievement (§ 300.307(a)(1)). A state must permit a process based on the child’s response to scientific, research-based intervention (§ 300.307(a)(2)). A state may permit other alternative research-based procedures (§ 300.307(a)(3)). Your district must use the criteria your state adopted (§ 300.307(b)). It does not get to invent its own.

Second, there is a three-part test, and all three parts must be met (34 C.F.R. § 300.309(a)):

• The child does not achieve adequately for the child’s age, or does not meet state-approved grade-level standards, in one or more of 8 areas: oral expression, listening comprehension, written expression, basic reading skill, reading fluency skills, reading comprehension, mathematics calculation, or mathematics problem solving. This is measured when the child has been given learning experiences and instruction appropriate for that age or grade (§ 300.309(a)(1)); and

• Either the child does not make sufficient progress to meet age or state-approved grade-level standards in one or more of those same areas, when a response-to-intervention process is used (§ 300.309(a)(2)(i)), or the child shows a pattern of strengths and weaknesses in performance, achievement, or both, relative to age, state-approved grade-level standards, or intellectual development. That pattern must be one the group finds relevant to identifying a specific learning disability, using appropriate assessments (§ 300.309(a)(2)(ii)); and

• The findings are not primarily the result of a visual, hearing, or motor disability; an intellectual disability; emotional disturbance; cultural factors; environmental or economic disadvantage; or limited English proficiency (§ 300.309(a)(3)).

Notice what part 2 says. The regulation offers a choice between two paths. It does not require both. A district that says “we use response to intervention here, so we did not look at his profile” has picked a lawful path. It still has to show its work on that path.

Third, the district must rule out bad teaching before it looks for a disability. The group must consider data showing the child was given appropriate instruction in regular education by qualified staff. It must also consider data-based documentation of repeated assessments of achievement at reasonable intervals - assessments that were provided to you, the parent (34 C.F.R. § 300.309(b)).

Fourth, someone must watch your child in class. The district must ensure the child is observed in the learning environment, including the regular classroom, to document academic performance and behavior in the areas of difficulty (34 C.F.R. § 300.310(a)). The group either uses an observation done before the referral, or has a group member observe after referral and after your consent (§ 300.310(b)). For a child below school age or out of school, a group member must observe in an environment appropriate for that age (§ 300.310(c)).

Fifth, the decision must be written down, item by item. For a child suspected of having a specific learning disability, the eligibility documentation must contain 7 things (34 C.F.R. § 300.311(a)):

• Whether the child has a specific learning disability.

• The basis for the decision, including an assurance that it was made in the way § 300.306(c)(1) requires - drawing on a variety of sources, including parent input.

• The relevant behavior noted during the classroom observation, and how it relates to your child’s academic functioning.

• The educationally relevant medical findings, if there are any.

• Whether your child meets the achievement test in § 300.309(a)(1), and either the sufficient-progress test or the pattern test.

• The group’s determination on the exclusion factors listed above.

• If a response-to-intervention process was used: the instructional strategies used, the student-centered data collected, and documentation that you were told about the state’s data policies, about strategies for increasing your child’s rate of learning, and about your right to request an evaluation.

Each group member must certify in writing whether the report reflects that member’s conclusion. A member who disagrees must submit a separate statement (§ 300.311(b)).

One more rule sits behind all of this. A response-to-intervention process may not be used to delay or deny an evaluation. When a child has not made adequate progress, and whenever a child is referred, the district must promptly ask for your written consent to evaluate (34 C.F.R. § 300.309(c)). Once the district receives your signed consent, the federal clock gives it 60 days to complete the evaluation - unless your state sets its own timeline, and many do (34 C.F.R. § 300.301(c)). The U.S. Department of Education said this plainly in OSEP Memorandum 11-07 (Jan. 21, 2011). Tool 2 covers the stall in full.

WHY IT MATTERS

Three different districts can look at the same child and reach three different answers. Not because the child changes, but because the method changes. Each method measures something different, and each has a blind spot.

The severe-discrepancy model measures the gap between an IQ score and an achievement score. If the gap is not wide enough, the child is not found eligible. It has two well-known blind spots. It is a wait-to-fail model: a young child has to fall far enough behind for the gap to open, which can take years. And it can miss a child whose IQ score is itself pulled down by the disability. A child who cannot read scores lower on reasoning tasks that lean on reading and vocabulary. The gap closes, and the child disappears from the chart. Federal law forbids states from requiring this model (34 C.F.R. § 300.307(a)(1)). It does not forbid using it.

The response-to-intervention model measures whether the child improves when given targeted instruction. Its blind spots are practical. The intervention has to actually happen, delivered by trained staff, at the intended dose, and it has to be measured. If the reading group met twice a week instead of five times, the data does not mean what the district thinks it means. And “some progress” is not the standard. The regulation asks whether the child made sufficient progress to meet age or grade-level standards (§ 300.309(a)(2)(i)). A child who gains half a year in a year is falling further behind while the chart goes up. This model is also the one most often used to run out the clock: months in tier 2, then tier 3, then next year.

The pattern-of-strengths-and-weaknesses model looks at the shape of the child’s profile - stronger here, weaker there - and asks whether that shape points to a learning disability. Its blind spot is the mirror image of discrepancy. A child whose scores are low across the board, with no sharp peaks, may show no “pattern,” and the team may say there is nothing to see. Some districts also add a requirement the regulation does not contain, such as a specific named processing deficit. The regulation says “performance, achievement, or both” (§ 300.309(a)(2)(ii)). It does not name a test.

Here is the practical risk. A district with more than one lawful method available can, without any bad faith, reach for the one that produces a “no.” Your job at the eligibility meeting is not to argue about theory. It is to make the district say which method it used, show the numbers under it, and put the answer in writing.

And remember what is at stake in the label, and what is not. The category decides which door your child walks through. It does not limit what is behind the door. The evaluation must be comprehensive enough to identify all of your child’s special education and related services needs, whether or not those needs are commonly linked to the category (34 C.F.R. § 300.304(c)(6)). Services follow need.