Severe discrepancy: references

By Rick Colosimo | October 10, 2009

Here are some quotes from relevant laws and regulations regarding the usage of the severe discrepancy model for determining whether a child has a specific learning disability:

  1. IDEA sections:

a. 20 USC 1414(b)(2) says:

(2)  Conduct of evaluation

In conducting the evaluation, the local educational agency shall—

(A) use a variety of assessment tools and strategies to gather relevant functional, developmental, and academic information, including information provided by the parent, that may assist in determining—

(i) whether the child is a child with a disability; and

(ii) the content of the child’s individualized education program, including information related to enabling the child to be involved in and progress in the general education curriculum, or, for preschool children, to participate in appropriate activities;

(B) not use any single measure or assessment as the sole criterion for determining whether a child is a child with a disability or determining an appropriate educational program for the child; and

b. 20 USC 1414(b)(6) says:

(6)  Specific learning disabilities

(A) In general

Notwithstanding section 1406 (b) of this title, when determining whether a child has a specific learning disability as defined in section 1401 of this title, a local educational agency shall not be required to take into consideration whether a child has a severe discrepancy between achievement and intellectual ability in oral expression, listening comprehension, written expression, basic reading skill, reading comprehension, mathematical calculation, or mathematical reasoning.

(B) Additional authority

In determining whether a child has a specific learning disability, a local educational agency may use a process that determines if the child responds to scientific, research-based intervention as a part of the evaluation procedures described in paragraphs (2) and (3).

“Shall not be required” usually means “does not have to, but can.”

  1. The regulations concerning IDEA:

a. 34 CFR 300.307 says:

§ 300.307   Specific learning disabilities.

(a) General. A State must adopt, consistent with §300.309, criteria for determining whether a child has a specific learning disability as defined in §300.8(c)(10). In addition, the criteria adopted by the State—

(1) Must not require the use of a severe discrepancy between intellectual ability and achievement for determining whether a child has a specific learning disability, as defined in §300.8(c)(10);

(2) Must permit the use of a process based on the child’s response to scientific, research-based intervention; and

(3) May permit the use of other alternative research-based procedures for determining whether a child has a specific learning disability, as defined in §300.8(c)(10).

(b) Consistency with State criteria. A public agency must use the State criteria adopted pursuant to paragraph (a) of this section in determining whether a child has a specific learning disability.

(Authority: 20 U.S.C. 1221e–3; 1401(30); 1414(b)(6))

“Must not require” usually means that the state law “can’t require but can allow.”

  1. NJ Law: Nothing specific here; the law basically says implement IDEA through the NJ Administrative Code, rather than parroting IDEA in the actual NJ statute itself.

  2. NJ Administrative Code

a. Title 6A, Section 14-2.5 says:

§ 6A:14-2.5 Protection in evaluation procedures

(a) In conducting an evaluation, each district board of education shall:

  1. Use a variety of assessment tools and strategies to gather relevant functional and developmental information, including information:

i. Provided by the parent that may assist in determining whether a child is a student with a disability and in determining the content of the student’s IEP; and

ii. Related to enabling the student to be involved in and progress in the general education curriculum or, for preschool children with disabilities to participate in appropriate activities;

  1. Not use any single procedure as the sole criterion for determining whether a student is a student with a disability or determining an appropriate educational program for the student; and

  2. Use technically sound instruments that may assess the relative contribution of cognitive and behavioral factors, in addition to physical or developmental factors.

Includes the no “single procedure” prohibition.

b. § 6A:14-3.4(h) Evaluation has this language:

(h) A written report of the results of each assessment shall be prepared. At the discretion of the district, the written report may be prepared collaboratively by the evaluators or each evaluator may prepare an individually written report of the results of his or her assessments. Each written report shall be dated and signed by the individual(s) who conducted the assessment and shall include:

  1. An appraisal of the student’s current functioning and an analysis of instructional implication(s) appropriate to the professional discipline of the evaluator;

  2. A statement regarding relevant behavior of the student, either reported or observed and the relationship of that behavior to the student’s academic functioning;

  3. If an assessment is not conducted under standard conditions, the extent to which it varied from standard conditions;

  4. When a student is suspected of having a specific learning disability, the documentation of the determination of eligibility shall include a statement of:

i. Whether the student has a specific learning disability;

ii. The basis for making the determination;

iii. The relevant behavior noted during the observation;

iv. The relationship of that behavior to the student’s academic performance;

v. Educationally relevant medical findings, if any;

vi. If a severe discrepancy methodology is utilized, whether there is a severe discrepancy between achievement and ability that is not correctable without special education and related services;

vii. The determination concerning the effects of environmental, cultural or economic disadvantage;

viii. Whether the student achieves commensurate with his or her age;

ix. If a response to scientifically based interventions methodology is utilized, the instructional strategies utilized and the student-centered data collected with respect to the student; and

Item vi specifically contemplates that a “severe discrepancy methodology” might be used.

c. § 6A:14-3.5 Determination of eligibility for special education and related services says:

  1. “Specific learning disability” corresponds to “perceptually impaired” and means a disorder in one or more of the basic psychological processes involved in understanding or using language, spoken or written, that may manifest itself in an 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.

i. A specific learning disability can be determined when a severe discrepancy is found between the student’s current achievement and intellectual ability in one or more of the following areas:

(1) Basic reading skills;

(2) Reading comprehension;

(3) Oral expression;

(4) Listening comprehension;

(5) Mathematical calculation;

(6) Mathematical problem solving;

(7) Written expression; and

(8) Reading fluency.

ii. A specific learning disability may also be determined by utilizing a response to scientifically based interventions methodology as described in 6A:14-3.4(h)6.

iii. The term severe discrepancy does not apply to students who have learning problems that are primarily the result of visual, hearing, or motor disabilities, general cognitive deficits, emotional disturbance or environmental, cultural or economic disadvantage.

iv. The district shall, if it utilizes the severe discrepancy methodology, adopt procedures that utilize a statistical formula and criteria for determining severe discrepancy. Evaluation shall include assessment of current academic achievement and intellectual ability.

Item iv clearly contemplates the use of the severe discrepancy methodology. Note that item i says that an SLD “can be determined when a severe discrepancy is found” rather than “may only be determined” or something like that.

  1. Other references:

a. https://www.wrightslaw.com/idea/art/ld.rti.discrep.htm

Here, there are references to positions taken by the US Dept. of Education that describe why “severe discrepancy” is bad and propose allowable alternatives.

b. Here is a reference that I found to a case I have not yet read and so can’t properly give you my thoughts until reading it:

“Almost 20 years ago, in Riley vs. Ambach (United States Court of Appeals, Second Circuit 668 F.2d 635; 1981 U.S. App. December 16, 1980, Argued May 19, 1981, Decided), the court ruled that New York could not use the absence of the “50% discrepancy” to exclude children. The Court concluded that the use of the 50% standard interferes with the proper identification of learning disabled children since it operates to eliminate consideration of factors and the use of techniques that do not, “given the present state of the art,” lend themselves to quantification.”

NJ, in contrast, requires the use of a statistical formula and criteria for determining whether a sever discrepancy exists. The use and weight of the formula could be argued to be a “single measure” if the eligibility always falls in line with the formula. It might be worth understanding in your case.

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