You Asked! – Question 23

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Q23:  Must my student have a “severe discrepancy” in order to be found eligible for special education under the category of specific learning disability?

A:  Under CA law, the use of a “severe discrepancy” model may be considered but must not be required [34 CFR 300.307(a)(1) and 5 CCR 3030(b)(10)(B)].*

California has regulations that guide the process for determining whether a student has a specific learning disability. Dyslexia is specifically listed as an example of a qualifying condition under Specific Learning Disability [5 CCR 3030(b)(10)].  In general, three alternatives are permitted:

  1. The student has a severe discrepancy between intellectual ability and achievement in oral expression, listening comprehension, written expression, basic reading skill, reading comprehension, mathematical calculation, or mathematical reasoning. The decision as to whether or not a severe discrepancy exists shall take into account all relevant material which is available on the pupil [5 CCR 3030(b)(10)(B)].


  1. The student does not achieve adequately for his age or to meet state-approved grade-level standards in one or more specified areas when provided with learning experiences and instruction appropriate for the student’s age or state-approved grade-level standards, even when educators use processes based on the student’s response to scientific, research-based intervention [5 CCR 3030(b)(10)(C)(1) and 5 CCR 3030(b)(10)(C)(2)(i)], such as RtI2 or MTSS.


  1. The student exhibits a pattern of strengths or 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…” [5 CCR 3030(b)(10)(C)(2)(ii)].

Ask the IEP team which of the above alternatives were considered in determining a student’s eligibility for special education.

Use of severe discrepancy models has been highly criticized by the US Department of Education (USDOE).  The USDOE states that there are many reasons why the use of the “severe discrepancy” model “should be abandoned” stating that using it is “potentially harmful to students as it results in delaying intervention until the student’s achievement is sufficiently low so that the discrepancy is achieved.”  USDOE referred to the use of the severe discrepancy model as a flawed “wait to fail” model [USDOE Commentary and Explanation About Proposed Regulations for IDEA 2004].

As a side note, according to dyslexia expert, Dr. Louisa Moats, “since the 1980s scientists have debunked the practice of using IQ tests in reading disability diagnoses and relying on discrepancy formulas to identify students who are eligible for special instruction in reading (Siegel, 1989; Stanovich, 1991; Fletcher et al., 2007). Compulsory IQ testing in child evaluations leads to under-identification of reading disabled students in the lower half of the IQ continuum. These students in the lower half of the IQ distribution are often those from less advantaged life circumstances, but their reading difficulties are not distinguishable in cause or remedy from students with higher IQs. The use of IQ-achievement discrepancy as a classification tool or gateway to remedial instruction is prejudicial, unnecessary, and invalid and should have been abandoned decades ago.” [Source: “Can Prevailing Approaches to Reading Instruction Accomplish the Goals of RTI?” IDA Perspectives on Language and Literacy, Summer Edition, Volume 43, pgs. 15-22].

* –  Please be advised that in California, IQ testing of African-American students is prohibited [refer to Larry P. v. Riles, 495 F. Supp. 926 (N.D. Cal 1979), 793 F. 2d 969 (9th Cir. 1984), 37 F. 3d 485 (9th Cir. 1994).  Also, see article from CA Association of School Psychologists (CASP Today Spring 2013 – Larry P. Edition, pgs. 7, 17)].

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You Asked! Question 12

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Q12:  Student exhibits signs of dyslexia, but school wants to delay assessing in order to see how student first responds to RTI (or is recommending Student Study Team (SST) meetings). Does assessing need to be delayed for special education eligibility?

A:  The school cannot delay or deny assessing your child for a suspected disability because of implementation of a Response to Intervention (RTI) strategy.  Please refer to our You Asked Q11on “Child Find” obligations. In a Dear Colleague letter, Office of Special Education and Rehabilitative Services (OSERS) reminds schools that a parent may request an initial evaluation at any time to determine if a child has a disability under IDEA, and the use of Multi-Tiered System of Supports (MTSS), such as RTI, may not be used to delay or deny a full and individual evaluation of a child suspected of having a disability.  (Sources: OSEP Memorandum 11-07 dated January 21st, 2011; OSERS Dear Colleague Letter dated October 23rd, 2015)

Convening an SST meeting does not waive a school district’s obligation to refer a child for assessment if there is knowledge of and reason to suspect a disability. It is important for parents to know that they can agree to participate in an SST while special education evaluation is underway, but that unless they agree in writing to delay the evaluation, the legal timelines apply—and, in California, the school district has fifteen days to respond to a request for evaluation, and sixty days from date assessment plan is signed by parents to hold an eligibility determination meeting and create an IEP for eligible students. SST’s can provide important information and accommodations that may actually help the team determine eligibility later—but the parent is not required to participate in these processes, and they cannot delay the special education timelines.

(Source:  Student v. Berkeley Unified School District OAH Case No. 2013120159, Page 30)

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