If there's any doubt about whether the response to intervention process by itself constitutes evaluation for a disability, §300.302 of the regulations clears things up...
This article is continued from Response to Intervention and IQ
If there is any doubt about whether the Response to Intervention framework by itself constitutes evaluation for a disability, §300.302, entitled "Screening for instructional purposes is not evaluation" makes at least that issue pretty clear: "The screening of a student by a teacher or specialist to determine appropriate instructional strategies for curriculum implementation shall not be considered to be an evaluation for eligibility for special education and related services." Or is it clear? School districts are, at the very least, allowed to decide that a child has a learning disability based in part (perhaps in large part) on the child's response to those same instructional interventions.
The process seems ironic: evidently what happens when a reading specialist meets with a child that is having problems in class does not constitute an evaluation; but when an eligibility committee looks at that reading specialist's notes later, looking at those notes is part of an evaluation -- a required part of the evaluation for learning disabilities under the new regs.
While states can't require the use of the old "severe discrepancy" model and must allow RtI to be used as part of the evaluation procedure, they are also permitted to come up with their own alternative system for identifying learning disabilities (as long as it's based on scientific research).
So what is a learning disability under the new regulations? The regs say that an eligibility committee may determine that a child has a specific learning disability if "the child does not achieve adequately for the child's age or to meet State-approved grade-level standards" in a list of eight skill areas having to do with language arts and math; and "the child does not make sufficient progress ...when using a process based on the child's response to scientific, research-based intervention;" and the child "exhibits a pattern of strengths and weaknesses in performance, achievement, or both, relative to age, State-approved grade-level standards, or intellectual development, that is determined by the group to be relevant to the identification of a specific learning disability, using appropriate assessments."
It is that last bold section that leads to the most confusion - and the reg's use of the word "or" there. A student can apparently now be identified as having a learning disability because his performance and/or achievement don't match up to his age. The student could also evidently be identified now as having a learning disability because they can't perform and/or achieve at the level that a state's standards say they should (and that sounds like a curriculum based measure).
If the child has been referred for special education evaluation and they don't qualify under either of those measures, does "or intellectual development" in that phrase in the regulations require or just permit some sort of an assessment of cognitive function (an IQ test)? Ask me again in a year and I will tell you what most states have decided. Ask me again in two years and I will tell you whether the courts thought the states were right about it...
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