Section 281.41.309. Determining the existence of a specific learning disability.

       41.309(1) Required determinations. The group described in rule 281—41.306(256B,34CFR300) may determine that a child has a specific learning disability, as defined in subrule 41.50(10), after considering the following three factors:

        a.           Lack of adequate achievement. The child does not achieve adequately for the child’s age, grade-level expectations or such grade-level standards the SEA may choose to adopt in one or more of the following areas, when provided with learning experiences and instruction appropriate for the child’s age or grade-level expectations or such grade-level standards the SEA may choose to adopt:

       (1)             Oral expression.

       (2)             Listening comprehension.

       (3)             Written expression.

       (4)             Basic reading skill.

       (5)             Reading fluency skills.

       (6)             Reading comprehension.

       (7)             Mathematics calculation.

       (8)             Mathematics problem solving.

        b.           Lack of adequate progress.

       (1)             The child does not make sufficient progress to meet age expectations, grade-level expectations, or such state-approved grade-level standards as the state may choose to adopt in one or more of the areas identified in 41.309(1)“a” when using a process based on the child’s response to scientific, research-based intervention; or

       (2)             The child exhibits a pattern of strengths and weaknesses in performance, achievement, or both, relative to age, grade-level expectations, such state-approved grade-level standards as the state may choose to adopt, or intellectual development, that is determined by the group to be relevant to the identification of a specific learning disability, using appropriate assessments, consistent with rules 281—41.304(256B,34CFR300) and 281—41.305(256B,34CFR300).

        c.           Exclusionary factors. The group determines that its findings under 41.309(1)“a” and 41.309(1)“b” are not primarily the result of:

       (1)             A visual, hearing, or motor disability;

       (2)             Intellectual disability;

       (3)             Emotional disturbance;

       (4)             Cultural factors;

       (5)             Environmental or economic disadvantage; or

       (6)             Limited English proficiency.

       41.309(2) Review of data. To ensure that underachievement in a child suspected of having a specific learning disability is not due to lack of appropriate instruction in reading or math, the group must consider, as part of the evaluation described in rules 281—41.304(256B,34CFR300) to 281—41.306(256B,34CFR300):

        a.           Data that demonstrate that prior to, or as a part of, the referral process, the child was provided appropriate instruction in regular education settings, delivered by qualified personnel; and

        b.           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.

       41.309(3) When consent required. 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 time frames described in rules 281—41.301(256B,34CFR300) and 281—41.303(256B,34CFR300):

        a.           If, prior to a referral, a child has not made adequate progress after an appropriate period of time when provided instruction, as described in 41.309(2)“a” and “b”; and

        b.           Whenever a child is referred for an evaluation.

       41.309(4) Rule of construction. Subparagraph 41.309(1)“b”(2) shall not be construed to require a child with a pattern of strengths and weaknesses in performance, achievement, or both, to be identified as an eligible individual, absent a determination that the child has a disability and needs special education and related services.

       41.309(5) Rule of construction. A process by which a child’s response to intervention is measured is a component of a full and individual evaluation and is not, considered alone, a full and individual evaluation, unless the response to intervention process contains all required elements of a full and individual evaluation under this chapter.

[ARC 9376B, IAB 2/23/11, effective 3/30/11]