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EligibilityGuidelines-SLD-Eligibility-Guidelines-SLD.pdf
Determining Special Education
Eligibility for Specific Learning
Disabilities
Department of Education, Office of Special Education
JANUARY 2021 1
This guidance document is advisory in nature but is binding on an agency until amended by such agency. A guidance
document does not include internal procedural documents that only affect the internal operations of the agency and
does not impose additional requirements or penalties on regulated parties or include confidential information or rules
and regulations made in accordance with the Administrative Procedure Act. If you believe that this guidance document
imposes additional requirements or penalties on regulated parties, you may request a review of the document. For
comments regarding this document contact [email protected]
It is the policy of the Nebraska Department of Education not to discriminate on the basis of gender, disability, race,
color, religion, marital status, age, national origin or genetic information in its education programs, administration,
policies, employment or other agency programs.
Introduction
The 2004 Individuals with Disabilities Education Improvement Act (IDEA) and
subsequent regulations published in 2006 have signiJcantly changed the identiJcation
process for students suspected of having speciJc learning disabilities. Rather than using a
discrepancy model contrasting intellectual and achievement test results, multi-disciplinary
teams are now encouraged to consider a variety of methods to identify speciJc learning
disabilities, including response-to-intervention (RT)I/Multi-tiered System of Supports (MTSS)
that incorporates deeply implemented problem solving, cognitive processing approaches, and
the determination of a pattern of strengths and weaknesses.
Special Education Eligibility for Speci8c Learning Disabilities
This technical assistance document provides general guidance for parents, teachers, special
education personnel, administrators, and other professionals with information on the
identiJcation and determination of eligibility for special education services for children with
speciJc learning disabilities (SLD).
This category of children has been deJned by both federal and state regulations. A three-part
eligibility requirement for a child to be veriJed as a child with a speciJc learning disability is as
follows:
• Meet eligibility guidelines (92 NAC 51);
• Documentation of adverse effect on educational performance; and
• Determination that there is a need for special education.
Since 1975, when the Jrst special education law (PL 94-142) was authorized by Congress
and Nebraska Rule 51 was written and approved, children with SLD in Nebraska have been
identiJed by using a “Severe Discrepancy” between intellectual ability (as measured by an
intelligence test as resulting IQ score) and academic achievement. In recent years, the
validity and reliability of this process have been questioned at the federal, state, and local
educational levels.
JANUARY 2021 2
When the federal law was reauthorized in the Individuals with Disabilities Education
Improvement Act of 2004 (IDEA 2004), the developers allowed states more ^exibility in the
identiJcation of children with SLD. The following language, which provides states with three
different options in the identiJcation of SLD, is included in IDEA:
Additional Procedures for Evaluating Children with Speci8c Learning Disabilities: Sec.
300.307 Speci8c learning disabilities.
(a) General. A State must adopt, consistent with Sec. 300.309, criteria for determining
whether a child has a speci=c learning disability as de=ned in Sec. 300.8. 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 speci=c learning disability as
de=ned in Sec. 300.8(c)(10);
(2) Must permit the use of a process based on the child’s response to scienti.c,
research-based intervention. Section 300.304; and
(3) May permit the use of other alternative research-based procedures for
determining whether a child has a speci=c learning disability as de=ned in Sec.
300.8(c)(10).
The evaluation of a child suspected of having SLD must include a variety of evaluation and
assessment tools to gather relevant functional developmental and academic information
about the child, including information provided by the parent that may assist in determining
eligibility. No single measurement or assessment may be used as the sole criterion for
determining whether the child has a disability and for determining an appropriate educational
program for the child.
JANUARY 2021 3
In 2019 joint principles regarding “Eligibility for Special Education Under a Specific
Learning Disability Classification” were developed through collaboration with multiple
national organizations (e.g., ASHA, CASE, CEC, LDA, NASP, NCLD, CLD, and more).
These principles outline critical elements of an evaluation process when SLD is
suspected, and are embedded within this technical assistance document. The principles
as defined by the partner organizations are as follows and can be found at this link:
https://www.ncld.org/wp-content/uploads/2019/07/Eligibility-for-Special-Education-under-
a-Specific-Learning-Disability-Classification-Final.pdf.
Principles for All Students:
Principle 1: All students should have access to general education that includes rigorous,
differentiated, universally designed core instruction, as well as supplemental, evidence-
based interventions designed to respond to students’ individual needs.
Principle 2: Education professionals—working as a team—should have the preparation,
ongoing training, and resources required to: collect and use universal screening
information; select and administer assessments to measure student learning and monitor
progress; and provide evidence based instruction and interventions to support students in
accessing the core general education curriculum.
Principle 3: Teams of education professionals should establish and maintain clear lines of
communication with families to gain valuable input related to a student’s strengths as well
as academic, social, behavioral, and health needs to ensure that families, students, and
service providers can participate in collaborative decision making about future instruction.
Principle When a Disability is Suspected:
Principle 4: An evaluation must lead to a clear, unbiased, and timely decision regarding
special education eligibility and inform future instruction, whether the student requires
special education or not.
JANUARY 2021 4
Principles When Special Education Eligibility is being Determined and SLD is
Suspected:
Principle 5: Policies for determining student eligibility for special education services under
the SLD classification should require the use of valid and reliable measures and ensure
consistency across school districts.
Principle 6: Comprehensive evaluations for special education eligibility under the SLD
category must include data from targeted, valid, and reliable measures that are tailored to
the unique learning and behavioral profile of each student. The selection of measures
and an eligibility determination must consider both best practice and professional
judgment.
**Add link here to deeper dive
Principle 7: Assessments that measure aspects of cognitive functioning may be used to
rule out intellectual disabilities or to inform educational decisions by documenting areas
in which the student is struggling or excelling.
Principle 8: Teams of education professionals should use the data collected on how a
student responds to evidence-based interventions as an essential part of the evaluation.
School personnel must not use response to intervention (RTI) procedures to delay a
comprehensive evaluation and the determination of eligibility for special education
services.
(need citation for joint principles document)
JANUARY 2021 5
Section 1: Criteria for Determining Eligibility
The MDT may determine that a child has a speciJc learning disability after documentation of
careful consideration of the following six criteria (these criterion may look different within each
local educational agency based on their written policies and procedures as well as the
methodology selected by the evaluation team):
CRITERION 1: Failure to meet age- or grade-level state standards in one of eight areas
when provided appropriate instruction:
• Oral expression
• Listening comprehension
• Written expression
• Basic reading skills
• Reading ^uency skills
• Reading comprehension
• Mathematics calculation
• Mathematics problem solving
The Jrst criterion for identiJcation of SLD requires a determination that the student is failing to
meet age- or grade-level state standards in one of eight areas (see deJnitions). A student
needs to meet this criterion in only one of the eight areas but may potentially meet criteria in
multiple areas. The school team should identify the area(s) of concern during its review of
existing data. The area(s) of low achievement that have not been responsive to instruction/
interventions of varying intensities should be what prompted referral for evaluation for the
possible presence of SLD.
Existing data from a variety of sources, to determine the degree of underachievement or
difference between the student’s current performance and age- or grade-level state
standards, at a minimum could include the following:
JANUARY 2021 6
• Performance on state assessments. These are the state’s general assessments
aligned to state academic content standards for the student’s grade.
• Universal screening. Benchmark testing of all students, typically administered three
times per year, focusing on foundational skills and aligned with state standards.
• Formative and progress-monitoring assessments. Aligned with grade-level state
standards, the assessments are used to monitor what students are expected to learn
when provided with robust instruction within the general education setting.
• Norm-referenced assessments of academic achievement correlated to state
standards.
• One or more classroom-based observations by teachers (other than the student’s
teachers) and related services providers in the instructional environment(s) and during
instruction in the area of concern.
• Information provided by the student’s parents that the student has a history of not
meeting age- or grade-level state standards, as evidenced by data from prior
evaluations, developmental history questionnaires, other information, and/or that there
is a family history of SLD, other family members with SLD, and/or delayed acquisition
of reading and/or math skills.
To determine eligibility for special education under Criterion 1, the team should consider a
variety of data sources related to any of the eight areas of academic functioning. Within a
problem solving process, districts establish decision rules based on their student population,
evidence-based assessment tools, and their chosen curriculum.
JANUARY 2021 7
A variety of data must be considered within the context of these two important
elements:
• Assessments. Norm-referenced assessments (e.g., NWEA MAP) provide an indicator
of the average performance of a student in the same grade in comparison with other
students across the country. Local norms are based on grade-level state standards,
and a state’s norms may vary in relation to the overall progress of students
nationwide. The NSCAS is an example of a criterion-referenced test that measures
student performance on Nebraska state grade-level standards.
• Cultural and linguistic sensitivity. If differences in culture or language are not
considered when interpreting assessment data, the result may be an inappropriate
disability designation.
Determining Extent of Student Underachievement
Additional data may be needed to verify the extent of the student’s underachievement. Such
data will likely need to be obtained through more in-depth assessments as discussed below.
To comply with IDEA’s requirements, assessment tools used for this purpose must be
carefully selected and administered so as not to be discriminatory on a linguistic, racial, or
cultural basis, and must be administered in a form and language that allows accurate data to
be collected. §300.304(c)(1)
JANUARY 2021 8
A useful tool to provide a closer look at student achievement may include classroom-based
formative assessments that are very closely tied to the curriculum (aligned with grade-level
and age-level state standards) or skill area where the instruction or intervention is focused. In
many cases norm-referenced tests may also be used to gather additional data on the
student’s academic achievement (discussed further below). The goal is to determine the
magnitude of difference between the student’s current skills and what is expected for his or
her age and grade (Deno, 2003).
Regardless of the assessment tools used, conJdence intervals should be considered to take
into account the measurement error of the tests and to permit the expression of a range of
scores, not a set cut-point. ConJdence intervals provide a range within which the student’s
actual performance or skill level is likely to fall, thus providing a discussion focused on the
student’s range of achievement and opportunity for growth. District’s should determine the
degree of error that will be utilized on standardized, norm-referenced assessments to
adequately determine the student’s achievement level.
Validating Provision of “Appropriate Instruction”
The team must also satisfy the requirement expressed in Criterion 1 regarding a
determination that the student’s lack of academic achievement has occurred within the
delivery of “appropriate instruction.” This is an important element as it serves as a stopgap for
identifying students as having an SLD who might actually be underperforming due to a lack of
or inadequate instruction. In fact, it reiterates a requirement in IDEA’s broader requirements
for eligibility that states the following special rule for eligibility determination:
JANUARY 2021 9
§ 300.306 (b)(1)(i-iii) A child must not be determined to be a child with a disability under this
part—
(1) If the determinant factor for that determination is—
(i) Lack of appropriate instruction in reading, including the essential components of reading
instruction (as deJned in section 1208(3) of the Elementary and Secondary Education Act
[ESEA]);
(ii) Lack of appropriate instruction in math; or
(iii) Limited English proJciency
Evidence of class wide, grade wide, or school wide low achievement in the academic area of
concern could lead the team to a determination that instruction (e.g., quantity, quality,
relevance, alignment with standards) may have a strong relationship to the student’s lack of
achievement. Only when the team can determine that the referred student’s academic
problems persist while most students in the same demographic (e.g., English Language
Learners, race/ethnicity), class, school, or district are performing satisfactorily can lack of
appropriate instruction be ruled out. For example, when approximately 80% of students in the
referred student’s class or grade, or other subgroup, are meeting the age- or grade-level state
standards, then the referred student’s lack of achievement can be recognized as unique and
not a result of the lack of instruction.
JANUARY 2021 10
CRITERION 2: Lack of progress in response to scienti8c, research-based intervention.
The child does not make sufJcient progress to meet age or state-approved grade-level
standards in one or more of the areas identiJed in 34 C.F.R. 300.309(a)(1) and 92 NAC 51
when using a process based on the child’s response to scientiJc, research-based
intervention; or 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 identiJcation of a speciJc
learning disability, using appropriate assessments, consistent with 92 NAC 51 and 34 C.F.R.
300.304 and 300.305.
While federal regulations provide two options for determining that the student is not making
sufJcient progress, this guide focuses exclusively on the use of response to scientiJc,
research-based intervention when making a determination regarding Criterion 2.
Validating Delivery of Scienti8c, Research-Based Interventions
First, documentation is needed regarding the scientiJc, research-based interventions that
were provided to supplement core-curricular instruction during the intervention period.
The school team should document that the interventions are supported by scientiJc research.
A standard intervention protocol should be developed with interventions that:
• are appropriate for the group of students receiving the intervention and aligned to the
student’s area of need,
• have yielded successful responses and outcomes from other students for whom the
interventions are appropriate,
• have been implemented by staff who were adequately trained and have demonstrated
proJciency providing the interventions, and
• were delivered with a high degree of Jdelity (as intended by the program authors) and
for a sufJcient length of time and intensity, as evidenced by progress monitoring data.
JANUARY 2021 11
Issues that arise during the process of validating delivery of scientiJc, research-based
interventions—such as Jdelity—should be addressed before the school team proceeds to
evaluation and eligibility determination.
“The most common reason for a lack of response to an evidence-based intervention well
matched to a student and skill area is the failure to implement the intervention as
designed” (VanDerHeyden & Tilly, 2010).
Evidence-based practices (EBPs) are instructional techniques with meaningful research
support that represent critical tools in bridging the research-to-practice gap and improving
student outcomes (e.g., Cook, Smith, & Tankersley, in press; Slavin, 2002 as cited by Cook &
Cook, 2011). To be considered evidence based, a practice must have multiple
demonstrations of effectiveness for the population intended from high quality experimental
studies. There are many resources available to help guide decisions regarding evidence-
based practices. Please see the Appendix at the end for resources.
JANUARY 2021 12
Elements Needed to Document High Quality Intervention under Criterion 2
Essential
Component
Required Actions
Universal
screening data to
determine need
for intervention
Student was identiJed for intervention from one or more sources of
screening data utilizing a systematic problem solving process and
established decision rules
Established
baseline
Baseline data point(s) established from initial data collection
Established goal • SMART (SpeciJc, Measurable, Attainable, Realistic, Timely)
• Numerical, graphable goal, matched to student need
Evidence based
intervention
Intervention has sufJcient research to suggest it is likely to be
effective for the student’s speciJc area of need. Student participates
in one or more intervention/instruction of increased intensity for the
amount of time necessary for the MDT to make a determination of
eligibility for special education.
Implementation
with Jdelity
Fidelity monitored during intervention with at least 80% of
intervention components implemented consistently. The rigor of the
Jdelity check should match the rigor of the decision being made
based on intervention response. Evidence exists that staff have
been appropriately trained to administer the intervention as
intended.
Individual
progress
monitoring
Progress monitored daily or weekly depending on the nature of the
intervention and signiJcance of the problem. Progress monitoring
tools have adequate reliability and validity for regular ongoing
progress monitoring.
JANUARY 2021 13
Decision Rules Written decision rules are established and implemented to provide
guidance for teams to: (1) determine which students will receive
intervention, (2) how to set goals and monitor student progress, (3)
determine if the intervention is working, (4) how to intensify
intervention/instruction when needed. The intervention should be
carried out with a sufJcient number of data points to make a sound
decision about the student’s responsiveness and whether the
intervention should be maintained, intensiJed, and/or faded. Teams
should not establish a Jxed duration (e.g., 8-10 weeks) that is
applicable to all students. Rather, teams must utilize data-based
decision making to establish duration and, ultimately, determine the
student’s response to intervention.
Multiple levels of
supports
increasing in
intensity and
frequency as
needed
At least 1 phase change (i.e., point in time where intervention was
changed based on review of progress monitoring data) within an
intervention or a change to a different intervention program with
sufJcient time given to be able to demonstrate student response.
Parent
participation and
input
Parents notiJed that student is receiving intervention, about their
progress/screening data, and rights for requesting an evaluation
JANUARY 2021 14
Evaluation Timeline
The school district or approved cooperative 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 timeframes described in 92 NAC 51, unless extended by mutual written
agreement of the child’s parents and a team of qualiJed professionals, as described in 92
NAC 51:
1. If, prior to a referral, a child has not made adequate progress after an appropriate
period of time when provided instruction, as described in 92 NAC 51; and
2. Whenever a child is referred for an evaluation.
3. Teams are encouraged to review the ClariJcation on guidance for 92 NAC 51 – 009.04
and IDEA 60 Day Timeline for School Age Children which is linked here: 45 Day vs 60
Day Timeline
JANUARY 2021 15
CRITERION 3: The MDT determines that its 8ndings under 92 NAC 51 are not primarily
the result of –
(i) A visual, hearing, or motor disability;
(ii) Intellectual Disability*;
(iii) Emotional disturbance;
(iv) Cultural factors;
(v) Environmental or economic disadvantage; or
(vi) Limited English proJciency.
§300.309(a)(3) This step in the SLD identiJcation process is designed to ensure that
students are not identiJed as having SLD when their lack of academic achievement (Criterion
1) and lack of response to scientiJc, research-based intervention (Criterion 2) are primarily
the result of other factors.
The fundamental question is whether the poor performance is primarily the result of any of
these factors. It is possible for one or more of these factors to be contributing to a student’s
lack of achievement and response to intervention and for the student to have SLD. Therefore,
the school team must determine the degree to which each factor affects the student’s
performance. The existence of the factors is not the issue; the issue is the degree to which
each factor adversely affects performance.
A full evaluation may not be necessary for each factor. In many cases the data gathered
during the problem solving process may be sufJcient to determine that environmental,
cultural, or economic factors and LEP are not the primary cause of a lack of academic
achievement and lack of response to scientiJc, research-based intervention. This can be
determined if there is documentation that the majority of students from similar demographics
are meeting expectations.
JANUARY 2021 16
Considerations speci8c to each factor are discussed below.
This does not mean the MDT team must completely rule out each of these factors. It is
entirely possible for one or more of these factors to be in^uencing a student’s lack of
achievement and response to instruction/intervention and for the student to have a speciJc
learning disability. The MDT team must determine the degree to which each factor affects the
student’s performance. The existence of the factors is not the issue; the issue is the degree to
which each factor adversely affects performance. The fundamental question is whether the
poor performance is primarily the result of any of these factors. With the exception of “loss of
instructional time” all of the above exclusionary factors exist in current regulation. However,
loss of instructional time is an important factor to consider and directly relates to
consideration that the student’s inadequate achievement is not primarily the result of lack of
appropriate instruction and/or the opportunity to learn. Loss of instructional time may be the
result of factors that include, but are not limited to, absences, tardies, high mobility rates,
disciplinary removals and suspensions that could be a result of one or more of the
exclusionary factors..
Visual Disability
Screening for vision problems is routine in most public schools. If a vision screening indicates
normal vision, a visual problem can be ruled out as the primary cause of the student’s
academic underachievement unless an evaluation from an appropriate credentialed provider
(e.g., optometrist/ophthalmologist) provides evidence to the contrary. If screening indicates a
potential vision problem (i.e., poor visual acuity), then additional evaluation must be
conducted to determine the extent of the problem.
Hearing Disability
Similar to the process for vision problems, hearing screenings are generally performed in
schools. If a hearing screening indicates normal hearing, a hearing loss can be ruled out as
the primary cause of the student’s academic underachievement unless an evaluation from an
appropriate credentialed provider (e.g., audiologist) provides evidence to the contrary. If the
screening indicates a potential hearing problem, further evaluation is required.
JANUARY 2021 17
Motor Disability
Unlike vision and hearing screenings, schools don’t generally screen for motor difJculties.
Motor problems—also known as orthopedic impairments—can interfere with typical school
tasks such as handwriting and walking. Assessments to measure motor skills may be
necessary to determine if such difJculties are interfering with academic achievement. As with
vision and hearing issues, if the problem is corrected and achievement improves, motor
difJculties can be considered as the primary cause of underachievement and the school team
could consider eligibility under the orthopedic impairment category of IDEA. If the
achievement problems persist after application of prosthetic devices or intervention, the
school team should consider SLD as the primary cause of underachievement.
A student with a primary disability in the area of vision, hearing, and/or orthopedic impairment
may be considered as also having a SLD if the identiJed learning deJcits are signiJcantly
greater than what can be reasonably expected as a result of the primary disability (e.g.,
hearing loss) alone. Again, all the identiJed needs of the child must be addressed, whether or
not typically linked to the child’s primary disability.
Intellectual Disability
This is the one factor that cannot co!exist with SLD. Students with intellectual disabilities (ID)
exhibit signiJcant deJcits in measured intelligence and adaptive behavior. Teams are
encouraged to review Nebraska Department of Education Rule 51 Section 006.04G for
guidance on qualifying for special education in the category of Intellectual Disability.
JANUARY 2021 18
Emotional Disturbance
Students with SLD often display inappropriate and disruptive classroom behavior. Other
students may have emotional problems that do not manifest themselves in externalizing
behaviors. For students who display behavior problems, the evaluation team must determine
whether the student’s learning problems are causing the behavior problems, or whether
underlying emotional problems are affecting the student’s ability to acquire academic skills.
The task of determining which condition is primary in terms of explaining the academic
deJcit(s) is often difJcult. When social or emotional behavior is a concern, the school team
may consider data regarding:
• student performance in academic area(s) of concern when individual positive behavior
support or instruction in social/emotional behavior is implemented (see the Technical
Assistance Center on Positive Behavioral Interventions and Supports and the National
Center on Intensive Intervention for more information);
• parent and teacher behavior ratings and observations;
• behavior checklists and behavioral rating scales;
• whether teaching is at the student’s instructional level; and
• differences in student performance across school subjects, settings, or teachers.
The above list is not exhaustive - the student’s educational team should determine an
appropriate evaluation plan that may include a variety of these items for review
JANUARY 2021 19
Cultural Factors
Prior to referring a student who is acquiring English language for a special education
evaluation, teams must ensure the student has been provided appropriate opportunities to
learn through the delivery of culturally and linguistically responsive instruction. Educators
knowledgeable about the stages and behaviors of second language acquisition should be
part of the problem solving team determination.
The impact of cultural factors can also be difJcult to ascertain. Cultural factors that may affect
a student’s school performance include:
• communication patterns,
• behavioral expectations,
• gender-based family roles, and
• prescribed cultural practices.
Information from interviews with parents (and other community members who share the
student’s cultural and linguistic background) would be particularly helpful in determining the
impact of cultural factors as well as an in-depth family social history, if warranted.
A separate, but related, consideration is whether data indicate that the student’s general
education instruction and interventions are culturally appropriate and whether the student
functions differently from classroom to classroom, year to year, from intervention setting to
general education classroom, or between home and school.
In determining the impact of cultural factors, data might indicate that most students of a
particular cultural or ethnic group are achieving at acceptable levels in response to general
education and intervention. If a particular student is receiving the same instruction in a similar
learning environment, but not achieving similarly to peers from the same cultural background,
a determination that the learning difJculties are not due to cultural factors might be made.
The in^uence of cultural factors is closely related to linguistic factors, such as LEP, discussed
next.
JANUARY 2021 20
Limited English Pro8ciency (LEP)
To adequately make the determination that LEP is not the primary cause of the student’s
academic difJculties, the school team should include at least one person who is
knowledgeable about the development of English and related achievement skills for the
student’s age and language/cultural background, and is knowledgeable about students with
LEP who are identiJed with a speciJc learning disability. Research has indicated that students
who are English Learners (ELs) take approximately 2–3 years to acquire basic interpersonal
communication skills and between 5 and 7 years to acquire the cognitive academic language
proJciency that is required to function effectively in academic content subjects (Brown &
Ortiz, 2014; Cummins, 1981; Cummins, 1981; Klingner & Eppolito, 2014; Rhodes, Ochoa, &
Ortiz, 2005). However, this should not be cause for delay when a disability is suspected.
Schools are required to identify all students with primary home languages other than English.
This is typically achieved through a parent home language survey. Additional screening and
summative assessment is completed in Nebraska to determine the student’s proJciency with
English language skills. Nebraska’s English Language ProJciency Assessment for the 21st
Century (ELPA21) is the tool utilized by Nebraska specialists for this purpose (additional
information can be found on the Nebraska Department of Education Website: English Learner
Programs https://www.education.ne.gov/natlorigin/). School teams must have access to and
consider such evaluations in order to determine if LEP is the major contributing factor.
Students who are in the process of learning English will often display academic gaps that
may look like deJciencies, especially if their education has been disrupted during an
immigration experience. Similarly, students may be particularly at risk for lack of appropriate
instruction issues if language instruction has not been provided that addresses the student’s
language development needs. Given the paucity of research on appropriate interventions,
assessment, and response rates for students who are learning English, it can be difJcult for
school teams to differentiate SLD from characteristics of second language acquisition
(Zumeta, Zirkel, & Danielson, 2014). For additional information, teams may choose to review
the WIDA: Can Do Descriptors (2014) that provide important suggested indicators of
JANUARY 2021 21
expected behaviors associated with speciJc language proJciency levels as a resource to
differentiate language acquisition from a potential speciJc learning disability.
Below are questions the school team might consider when determining the impact of LEP on
a student’s academic achievement:
• What is the student’s native (home) language and culture?
• Is the student proJcient in his or her native (home) language based on a formal
assessment of language proJciency in the native language?
• Is the student’s academic language level consistent with the language levels
necessary to be successful with core curriculum and interventions?
• Has the student failed to develop age-appropriate native language skills despite
opportunities to learn?
• Was the student provided with sufJcient opportunities to learn by implementing
necessary differentiations to address cultural and linguistic features?
• What is the gap between the student’s proJciency in English and his or her native
language?
• Has the student failed to gain English language skills despite instruction?
• Is there a difference in the student’s performance by subject area, with higher
performance in areas that are less related to language proJciency?
• Are the student’s learning difJculties pervasive in both his or her native language and
English?
• Are the expectations of the student’s home culture consistent with school
expectations?
• What is the performance of other ELLs with similar levels of proJciency in this school/
district and subject area?
• Can any social or psychological factors (e.g., refugee or immigrant status; mental
health concerns; racial or ethnic bias) be identiJed?
JANUARY 2021 22
• Did someone with expertise in the student’s dominant culture and language AND
someone who is knowledgeable about students with LEP who are identiJed with an
SLD participate in the school team?
• Was someone with expertise in the student’s dominant culture and language AND
someone who is knowledgeable about students with LEP who are identiJed with an
SLD involved in conducting and interpreting the evaluation data?
JANUARY 2021 23
Environmental or Economic Disadvantage
The last factor to examine is that of environmental or economic disadvantage. Situations
such as homelessness, child abuse, poor nutrition, socioeconomic status (SES), and other
factors may adversely impact a student's ability to learn.
SES is deJned as an economic and sociological combined total measure of a person's work
experience and of an individual's or family’s economic and social position in relation to others,
based on income, education, and occupation. As detailed in the Education and
Socioeconomic Status Fact Sheet from the American Psychological Association, research
continues to link lower SES to lower academic achievement and slower rates of academic
progress as compared with higher SES communities. Therefore, careful consideration of a
student’s SES is critical to this factor.
If needed supports are provided and the student’s academic achievement improves, then
environmental and economic disadvantages cannot be ruled out as primary contributors.
However, if supports implemented with Jdelity fail to produce improvements in learning,
particularly if other students with similar environmental or economic situations are performing
adequately to general education and interventions, then the student should be considered for
SLD eligibility.
Ultimately, Criterion 3 of SLD identiJcation may well be the most difJcult and complicated of
all. There are no straightforward guidelines, a wide variety of relevant factors, signiJcant
interaction among a host of variables, and a relative lack of research upon which to base
decisions, making assessing the contribution of these factors extremely error-prone.
It is important to not exclude a student from SLD eligibility simply because of the existence of
one or more of these factors. On the other hand, it is equally critical not to identify a student
as having SLD and being in need of special education when, in fact, one or more of these
factors is the primary cause of poor academic performance.
JANUARY 2021 24
Efforts to determine the relative contribution of visual, hearing, motor, and intellectual
disabilities as well as cultural factors, environmental or economic disadvantage, and LEP as
factors in poor school performance and lack of response to interventions should include
systematic strategies that have been shown to be effective for students with similar needs
and characteristics. For example, if many students presenting with similar factors (e.g., LEP)
are able to make adequate progress with core instruction and systematically applied support,
this gives the school team more conJdence that a particular child’s struggles are not due to a
lack of appropriate instruction.
Should the school team Jnd that one (or more) of these factors is the primary cause of a
student’s lack of achievement, efforts to address the student’s needs through interventions in
general education must continue.
JANUARY 2021 25
Summary Table: Exclusionary Factors
Exclusionary Source of Evidence
Factor
Visual, Motor,
o r Hea r i n g
Disability
Sensory screening, medical records, observation
In te l l ec t ua l
Disability
Classroom performance, academic skills, language development,
adaptive functioning (if necessary), IQ (if necessary)
E m o t i o n a l
Disturbance
Classroom observation, student records, family history, medical
information, emotional/behavioral screenings (if necessary)
C u l t u r a l
Factors
Level of performance and rate of progress compared to students from
same ethnicity with similar backgrounds
Environmental
or Economic
Factors
Level of performance and rate of progress compared to students from
similar economic backgrounds, situational factors that are student
speciJc
Due to excessive absenteeism - Chronic absenteeism is deJned in the
Nebraska ESSA Plan as 10% or more of membership days
Due to lack of implementation of evidence-based practices with Jdelity.
Were interventions used matched to student need? Were interventions
implemented with Jdelity?
L i m i t e d
English
ProJciency
Measures of language acquisition and proJciency (i.e., BICs and CALPs),
level of performance and rate of progress compared to other EL students
with similar exposure to language and instruction
JANUARY 2021 26
JANUARY 2021 27
CRITERION 4: Ensure that underachievement is not due to lack of appropriate
instruction in reading, writing, or math.
To ensure that underachievement in a child suspected of having a speciJc 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 §300.304 through 300.306—
(1) 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 qualiJed
personnel; and
(2) Data-based documentation of repeated assessments of achievement at reasonable
intervals, re^ecting formal assessment of student progress during instruction, which was
provided to the child’s parents. §300.309 (b).
This step in the SLD identiJcation process is designed to ensure that students are not
identiJed as having an SLD and needing special education when lack of appropriate
instruction is the cause of the student’s underachievement. This is required for all eligibility
methods.
Making a determination of eligibility for special education is a high-stakes decision for
students. As such, it is imperative that this criterion be given considerable attention. It would
be inappropriate for the school team to simply check a box indicating that the student’s
underachievement is not due to lack of appropriate instruction in reading or math.
A second component of Criterion 4 is to document the school’s use of repeated assessments
with the referred student and the communication to parents about these assessments. These
repeated assessments should include universal screenings, diagnostic assessment (when
appropriate), and progress monitoring data that is being used for eligibility determination.
Documentation should include what data were reported to parents and at what frequency.
JANUARY 2021 28
School teams should note that the requirement to determine the existence of appropriate
instruction also appears in Criterion 1: “Failure to meet age- or grade-level State standards in
one of eight areas when provided appropriate instruction…” The requirement in Criterion 4
also aligns with a provision in IDEA’s broader requirements regarding determination of
eligibility. Known as a “special rule for eligibility determination,” §300.306 (b) states that:
A child must not be determined to be a child with a disability under this part—
(1) If the determinant factor for that determination is—
(i) Lack of appropriate instruction in reading, including the essential components of reading
instruction (as deJned in section 1208(3) of the ESEA);
(ii) Lack of appropriate instruction in math; or
(iii) Limited English proJciency (300.306 (b))
Please refer to other sections of this document for information about determining sufJciency
of core instruction.
JANUARY 2021 29
CRITERION 5: Observation
Observing student behavior in the classroom offers opportunities for teams to better
understand the educational ecology within which student learning is occurring. This ecology
might include the student’s rate of active engagement, rate of correct responses to
instruction, and the student’s opportunity to respond and practice skills within the suspected
area(s) of difJculty. Observations also provide opportunity to determine the quality of
instruction and implementation of curriculum and instructional strategies.
The district must ensure that the child is observed in the child’s learning environment
(including the regular classroom setting) to document the child’s academic performance and
behavior in the areas of difJculty.
Per 92 NAC 51, the MDT, in determining whether a child has a speciJc learning disability,
must decide to:
1. Use information from an observation in routine classroom instruction and monitoring of
the child’s performance that was done before the child was referred for an evaluation,
or
2. Have at least one member of the MDT conduct an observation of the child’s academic
performance in the regular classroom after the child has been referred for an
evaluation and parental consent, consistent with 92 NAC 51, is obtained.
3. In the case of a child less than school age or out of school, an MDT member must
observe the child in an environment appropriate for a child of that age.
This requirement makes clear that information from an observation from either prior to or after
a student’s referral for suspected SLD must be gathered as part of the data used for eligibility
decision making. Such observations could have been done during general education
instruction/interventions conducted through the or MTSS process. However, if the observation
conducted prior to referral did not provide information speciJc to the area(s) of academic
difJculty (i.e., those areas listed in Criterion 1) for which the student has been referred, the
school team should require an additional observation. There are many types of classroom
JANUARY 2021 30
observations. While the regulations do not prescribe the type of observation to be conducted,
the following methods may be appropriate:
• behavioral observation procedures (e.g., event recording, time sampling, interval
recording) that result in quantiJable results;
• methods that relate the student’s classroom behavior to instructional conditions, and
teaching practices and opportunities for engagement;
• methods that address referral questions, instructional practices, and instructional
Jdelity (see sample questions below).
Criterion 5 (Observation) speciJcally requires that the student be “observed in the child’s
learning environment (including the regular classroom setting) to document the child’s
academic performance and behavior in the area(s) of difJcult academic performance and
behavior” (§300.310 (a)). Thus, the school team should necessarily consider the observation
data as part of a determination regarding this factor.
Information gathered during direct observation(s) should assist in the documentation
(Criterion 6) to determine the involvement of other factors relative to the student’s
underachievement and lack of response to intervention (Criterion 3) and whether appropriate
instruction was provided (Criterion 4).
Most important, the observation should provide information that is data driven, empirical, and
objective. The observation should, with clarity, produce a detailed description of relevant
behaviors that inform the educational team of the student’s academic engagement and
responsiveness to instruction. Simple narratives do not provide adequate or objective
information. Observations across instructional settings (e.g., different classes) are especially
valuable, as are observations by different team members. The observations must be
conducted by a qualiJed observer. In all cases the observation must not be conducted by the
person delivering instruction.
JANUARY 2021 31
"QualiJed" refers to an individual who has received direct instruction in a particular skill, has
received feedback on the performance of that skill by an individual who has mastered the
skill, and has had the opportunity to practice that skill in order to perform it accurately in a
consistent manner.
A primary purpose of the observation is to determine the relationship between behavior and
student academic performance (SLD is an academic performance–based disability).
Therefore, all data collected should be in the context of academic performance. SpeciJcally,
when student behavior is observed during academic tasks, data on the accuracy, amount,
and completion rates of the academic performance should be collected concurrently. Clearly,
some students may present with high rates of off-task behavior, yet answer questions
accurately, complete written work accurately, and do so with sufJcient levels of productivity.
The collection of student behavior data without the collection of student academic
performance data will likely result in false-positive errors (e.g., assuming the behavior
interfered with academic performance/accuracy when it did not).
Given recent Jndings by researchers indicating that poor intervention integrity is the rule
rather than the exception, an observation to determine that the intervention was implemented
with Jdelity and that the student was well engaged during the intervention would provide
critical additional information (Kovaleski et al., 2013).
JANUARY 2021 32
JANUARY 2021 33
CRITERION 6: Documentation
(a) For a child suspected of having a speciJc learning disability, the documentation of the
determination of eligibility must contain a statement of:
1. Whether the child has a speciJc learning disability;
2. The basis for making the determination, including an assurance that the determination
has been made in accordance with 92 NAC 51; and Nebraska eligibility determination
guidelines.
3. The relevant behavior, if any, noted during the observation of the child and the
relationship of that behavior to the child’s academic functioning;
4. The educationally relevant medical Jndings, if any;
5. Whether –
(i) The child does not achieve progress commensurate with the child’s age;
(ii) The child does not achieve progress to meet age or State-approved grade-level
standards consistent with 92 NAC 51;
6. The determination of the MDT concerning the effects of visual, hearing, or motor
disability; intellectual disability; behavior disorder; cultural factors, environmental or
economic disadvantage; or limited English proJciency on the child’s achievement level;
and;
7. If the child has participated in a process that assesses the child’s response to
scientiJc, research-based intervention:
(i) the instructional strategies used and the child-centered data collected; and
(ii) the documentation that the child’s parents were notiJed about:
(A) The school district’s policies regarding the amount and nature of
student performance data that would be collected and the general
education services that would be provided;
(B) Strategies for increasing the child’s rate of learning; and
(C) The parent’s right to request an evaluation.
JANUARY 2021 34
(b) Each MDT member must certify in writing whether the report re^ects the member’s
conclusion. If it does not re^ect the member’s conclusion, the team member must submit a
separate statement presenting his/her conclusions.
Addressing the requirements of the speciJc documentation for eligibility determination
involves a compilation of the information gathered to address Criteria 1–5.
Ultimately, the school team must make a determination of the existence of SLD and the need
for special education through a careful evaluation of multiple sources of data. Special
education eligibility is a high-stakes decision for students. As such, it must be made in a
comprehensive manner. A student’s complete data proJle (i.e., progress monitoring data,
benchmarking tests, state test data, information from observations, interviews, and diagnostic
testing) must all be used for decision making about eligibility.
Documentation of scientiJcally, research-based interventions, intensity, Jdelity, and lack of
sufJcient achievement and progress, in best practice, would be included within the MDT
report. A Prior Written Notice (PWN) indicating the student’s eligibility determination must
also be completed.
A student whose characteristics meet the deJnition of a student having a speciJc learning
disability may be identiJed as a student eligible for special education services if:
1. All of the aforementioned eligibility criteria are met; and
2. There is evidence, including observation and/or assessment, indicating how the
speciJc learning disabilities adversely impact the student’s performance in or access to
the general education curriculum.
3. The student demonstrates a need for specialized instruction and supports.
JANUARY 2021 35
Documentation
Requirements
Sources of Information
§300.311 SpeciJc
documentation for the
eligibility
determination.
(a) For a child
suspected of having
an SLD, the
documentation of the
determination of
eligibility, as required
in §300.306(a)(2),
must contain a
statement of—
(1) Whether the child
has a speciJc
learning disability;
While stated as the Jrst requirement, a statement of whether the
child has a speciJc learning disability is actually one of the Jnal
steps in the eligibility determination process.
(2) The basis for
making the
determination,
including an
assurance that the
determination has
been made in
accordance with
§300.306(c)(1)
§300.306 (c)(1) states that:
In interpreting evaluation data for the purpose of determining if a
child is a child with a disability under §300.8, and the educational
needs of the child, each public agency must—
(i) Draw upon information from a variety of sources, including
aptitude and achievement tests, parent input, and teacher
recommendations, as well as information about the child’s
physical condition, social or cultural background, and adaptive
behavior;
(ii) Ensure that information obtained from all of these sources is
documented and carefully considered.
JANUARY 2021 36
(3) The relevant
behavior, if any, noted
during the
observation of the
child and the
relationship of that
behavior to the child’s
academic functioning;
This information is drawn from Criterion 5: Observation.
(4) The educationally
relevant medical
Jndings, if any;
Information on relevant medical Jndings will most likely be drawn
from documented medical data obtained from the student’s
parent(s). Documentation should indicate that existing medical
Jndings were considered, even if the team determined the
information is not relevant to the Jnal determination.
(5) Whether—
(i) The child does not
achieve adequately
for the child’s age or
to meet state-
approved grade-level
standards consistent
with §300.309(a)(1);
and,
Information is drawn from Criterion 1: Failure to meet age- or
grade-level state standards in one of eight areas when provided
appropriate instruction and includes speciJc information on the
area(s) in which the student is failing to meet age- or grade-level
state standards.
(ii)
(A) The child does not
make sufJcient
progress to meet age
or state-approved
grade-level standards
consistent with
§300.309(a)(2)(i); or
Information is drawn from Criterion 2: Lack of progress in
response to scientiJc, research-based intervention.
JANUARY 2021 37
(B) 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
consistent with
§300.309(a)(2)(ii);
This optional criterion (available in lieu of (ii)(A)) does not apply to
an MTSS-based SLD evaluation process.
(6) The determination
of the group
concerning the effects
of a visual, hearing,
or motor disability;
intellectual disability;
emotional
disturbance; cultural
factors;
environmental or
economic
disadvantage; or
limited English
proJciency on the
child’s achievement
level
Information is drawn from Criterion 3: The group determines that
its Jndings under paragraphs (a)(1) and (2) of this section are not
primarily the result of—
(i) A visual, hearing, or motor disability;
(ii) Intellectual disability;
(iii) Emotional disturbance;
(iv) Cultural factors;
(v) Environmental or economic disadvantage; or
(vi) Limited English proJciency.
JANUARY 2021 38
In such cases speciJc documentation should be provided for any
relevant factors and include information on whether these factors
were excluded from consideration as a result of screening or
whether more extensive evaluations were conducted. To the
extent that information regarding these factors may inform the
development of an individualized education program for the
student, this process should not be a “check yes or no”
procedure. Instead, the process must include a determination of
whether any of these factors are the primary cause of the lack of
achievement and lack of adequate progress, not whether the
factors exist at all.
(7) If the child has
participated in a
process that
assesses the child’s
response to scientiJc,
research-based
intervention—
(i) The instructional
strategies used and
the student-centered
data collected; and
This information is drawn from Criterion 2: Lack of progress in
response to scientiJc, research-based intervention.
JANUARY 2021 39
(ii) The
documentation that
the child’s parents
were notiJed about—
(A) The state’s
policies regarding the
amount and nature of
student performance
data that would be
collected and the
general education
services that would
be provided;
(B) Strategies for
increasing the child’s
rate of learning; and
(C) The parents’ right
to request an
evaluation.
This information should include the speciJc data shared with the
student’s parents, how frequently the data were provided, how
the data were shared (such as graphical formats), how the
parents (and student, as appropriate) were involved and engaged
in the RTI/MTSS process, and what information the parents have
provided to the school team.
(b) Each group
member must certify
in writing whether the
report re^ects the
member’s conclusion.
If it does not re^ect
the member’s
conclusion, the group
member must submit
a separate statement
presenting the
member’s
conclusions.
Group members include the child’s parents and a team of qualiJed
professionals, which must include—
(a)
(1) The child’s regular teacher; or
(2) If the child does not have a regular teacher, a regular classroom
teacher qualiJed to teach a child of his or her age; or
(3) For a child of less than school age, an individual qualiJed by the
SEA to teach a child of his or her age; and
(b) At least one person qualiJed to conduct individual diagnostic
assessments of children, such as a school psychologist, speech-
language pathologist, or remedial reading teacher.
Ideally, the group members should be those who have been involved in
the problem solving process and are familiar with the student’s data.
JANUARY 2021 40
Section 2: Eligibility Determination Guidelines
According to (92) Nebraska allows for options in determining eligibility for special
education. One of which is to use data to determine performance that falls below grade
level, another might be to determine the lack of response to well-designed interventions
or utilizing the severe discrepancy model.
Some may refer to this as lack of response to intervention or identification through a
Multi-tiered System of Support (MTSS) framework. Districts do not have to apply for or
be approved to use eligibility criteria under a MTSS system; however, they are
encouraged to have a documented problem solving process prior to utilizing this
approach. Many schools maintain use of discrepancy criteria for instances where data
and application of a MTSS system are not in place and implemented with fidelity.
Districts are not required to report which criteria they are using for eligibility in the written
MDT report; however, it is encouraged that districts maintain documentation that
assurances affiliated with deeply implemented problem solving are met.
Districts may also elect to document the lack of adequate achievement for the child’s age
through use of a severe discrepancy model. It is up to the MDT to determine whether
any identified discrepancy between cognitive ability and academic achievement is
significantly different from what is expected and therefore representative of a lack of
adequate achievement. This TA document intentionally does not include a recommended
cut score (e.g., 20 points or more difference between cognitive ability and academic
achievement) because districts must ensure no single measure is used as the sole
criterion for determining whether a child is a child with a disability and for determining an
appropriate educational program for the child (92 NAC 51-006.02C9). Even with use of
the discrepancy model to determine eligibility, teams must utilize a problem solving
approach within the multidisciplinary team framework to determine whether or not the
student meets criteria for, as well as whether or not they need, special education.
JANUARY 2021 41
While technically allowed according to 92 NAC 51, use of a pattern of strengths and
weaknesses in performance, achievement, or both that is relevant to the identification of
a specific learning disability is not widely utilized in Nebraska.
Districts should clearly articulate their process for special education decision making
within these methodologies in their written policies and procedures.
State Definition: 92 NAC 51-006.04K1
Specific Learning Disability – To qualify for special education services in the category of
specific learning disability, the child must have a disorder in one or more of the basic
psychological processes involved in understanding or in 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. The category includes conditions such as
perceptual disabilities, brain injury, minimal brain dysfunction, dyslexia, and
developmental aphasia.
The category does not include children who have learning problems that are primarily the
result of visual, hearing, or motor disabilities; of intellectual disabilities; of behavioral
disorders; or of environmental, cultural, or economic disadvantage.
JANUARY 2021 42
Section 3: Referral Procedures
For a school age student, a general education problem-solving team shall be used
prior to referral for multidisciplinary team evaluation. A problem-solving team shall
utilize and document problem solving and strategies for intensifying instruction to assist
the teacher in the provision of general education. If the student problem-solving team
has determined and documented that all reasonable alternatives have been explored,
a referral for multidisciplinary evaluation shall be completed (adapted from 92 NAC
51-006.01B3). The school or grade level team may fulJll the requirements of the
Student Assistance Team, or comparable problem-solving team. A student may be
referred for multidisciplinary team evaluation at any time within a problem solving
process (e.g., MTSS), in no way should the MTSS process delay the initial
evaluation of a student that is suspected of having a disability.
A referral for a special education evaluation will include (at a minimum):
• Parent input to include any pertinent familial information, family/student medical
history, etc.;
• Teacher input to include an indirect observation, work samples, documentation of
differentiated instruction, etc.;
• Documentation of the problem to include classroom-based performance
assessments, standardized testing results, and other relevant assessment data;
• A detailed description of the intervention (intensifying instruction) process to
include evidence-based practices used, attendance, frequency of
implementation, duration of implementation, and Jdelity monitoring;
• Progress monitoring data indicating the student has responded inadequately to
instruction of increasing intensity (intervention)
• Evidence of Jdelity within implementation of core instruction and intervention
JANUARY 2021 43
Section 4: Multidisciplinary Team (MDT) Composition
The Multidisciplinary Team (MDT) should include at least:
• The child’s parent(s);
• For a school age child, the child’s regular teacher(s) or a regular classroom
teacher qualiJed to teach a child of that age;
! For a child below age Jve, a teacher qualiJed to teach a child below age
Jve;
• Special educator with knowledge in the area of speciJc learning disabilities;
• A school district administrator or a designated representative; and
• At least one person qualiJed to conduct individual diagnostic examinations of
children in their speciJc area of training (i.e., school psychologist, speech
language pathologist, or other instructional specialist).
JANUARY 2021 44
Section 5: Procedures to Determine Adverse Effect on Development/
Educational Performance
FACTORS TO CONSIDER
Many factors should be considered in determining if a speciJc learning disability is causing,
or can be expected to produce signiJcant delays in the child’s development or educational
performance. The factors include, but are not limited to:
! Child Characteristics
! Medical history, current health status, medications
! Social skills and behavior
! Communication skills
! Physical health
! Motor skills
! Mental health
! Cognitive skills
! Motivation
! Current age
! History of developmental milestones
! Educational Variables
! Current educational placement
! Classroom environment
! Instruction
! Curriculum
! History of modiJcations and/or accommodations used
! Intervention and response
! Results of previous assessments/evaluations
! Relevant family history
! Culture
! Language
Examination of each of these factors may lead to additional factors to consider. School
Psychologists, teachers of children with learning difJculties, and speech language
pathologists are the primary professionals who can determine how these learning difJculties
JANUARY 2021 45
may impact the child. Parents, medical professionals, teachers, and the child him/herself can
also provide information important in determining the impact of the learning difJculties.
The team needs to consider data that are accurate, consistent, comprehensive, and
objective. Possible assessment approaches for obtaining information about the child are:
! Review of existing records and work samples
! Teacher-anecdotal notes
! Grades
! Cumulative Jle review
! Class assignments and homework
! Interviews
! Parent interviews/rating scales
! Teacher interviews/rating scales
! Child interviews/rating scales
! Observations (in setting(s) where concern is occurring)
! Tests
! Criterion-referenced tests
! Norm-referenced tests
! District-wide assessments
! Curriculum-based assessments
! State and district-wide assessments
Professional judgment is used to carefully analyze data to determine if the child meets the
eligibility criteria for speciJc learning disability and whether or not the identiJed disability
adversely impacts the child’s developmental or educational performance.
JANUARY 2021 46
Section 6: Other Considerations for Eligibility Determination
Evaluating Instructional Need
To qualify for special education, students should not only meet eligibility criteria, but should
also need special education services. Evaluating needs is probably the most difJcult to
determine but most critical to the decision. The team needs to determine what interventions
are going to be necessary for the student to learn:
Consider Curriculum
• What speciJc skills or strategies will be needed in order for the student to access core
curriculum?
Consider Instruction
• What speciJc strategies assist the student in linking new learning to old learning?
• How many repetitions of new concepts are required when introducing new concepts?
• Are there speciJc instructional techniques that have been proved to be effective for this
student?
• Is the method for delivering instruction (content and intensity) for this student very
different from typical general education peers?
Consider Environment and Accommodations
• What environmental conditions are related to improved student success (e.g., time of
day, instructional set-up, room arrangement)?
• Which incentives promote optimal performance for the student?
• What antecedents and consequences have been identiJed that sustain the student’s
behavior?
• What is the function of the behavior?
• Are there accommodations needed to participate in general education?
• Have accommodations been validated or is there evidence to suggest an
accommodation is needed?
JANUARY 2021 47
Using MTSS Data to Develop an Individualized Education Plan (IEP)
If the MTSS process is conducted well, data from the process can link directly to the
development of the IEP. Existing information from MTSS should include instructional
strategies and assessment data that can inform various sections of the IEP. Present levels of
academic and functional performance can be identiJed through the comprehensive
evaluation; the team should be able to identify what skills students are expected to do and
what the student’s current levels are from data gathered through MTSS. IEP goals can be
designed from intervention targets during the MTSS process. Goals can target skill
acquisition, ^uency building, or generalization so that effective instructional strategies can be
identiJed (Kavaleski et al. 2013). Finally, progress monitoring techniques used as part of the
MTSS process can be continued in special education to encourage regular data collection
and decision making within special education.
Special Education Re-evaluation
Beginning with the 1997 reauthorization of IDEA, districts have not been required to
conduct the same comprehensive evaluation for re-evaluation as required for initial
veriJcation.
Re-evaluation data must answer the following questions:
• Does the student continue to be a student with a disability? What are their educational
needs?
• What are the present levels of academic achievement and functional performance of
the student?
• Does the student continue to need special education and related services?
• What additional or modiJcations (if any) are necessary to the student’s special
education and related services in order to enable the student to meet IEP goals and
objectives and to participate, as appropriate, in the general education curriculum?
Members of the student’s IEP team (including parents) review existing evaluation data to
include the following: current data gathered through ongoing progress monitoring, classroom
observations, information provided by the parent, student performance on local, district, state
JANUARY 2021 48
assessments, and determine whether additional information is necessary in order to
determine responses to the questions stated previously.
Students continue to beneJt from the MTSS Framework until effective evidence-based
interventions have been identiJed and growth can be maintained.
Data gathered through the MTSS Framework/progress monitoring may inform the re-
evaluation process and assist the IEP team with determining continued eligibility as well as
the educational and behavioral needs of the student. This data can also support the IEP
team with documentation that the student’s lack of academic or social-emotional progress is
not the result of ineffective instruction.
Dismissal from Special Education
Students may move from special education interventions to general education interventions if
there is sufJcient evidence to suggest that the student no longer needs special education
services (i.e., students progress within individualized interventions, accommodations, and
modiJcations). Movement from special education to general education will be supported by
multiple sources of data including ROI, gap analysis, evidence of meeting IEP goals, and
student need. The goal is for all students to be served at their level of need within the least
restrictive environment. MTSS provides students moving from special education to general
education with continued supports with decreasing intensity on a continuum. Best practice
would suggest that an intervention plan for the student should be in place before the IEP is
discontinued. The plan should include criteria for changing intervention or tiers of service.
Additionally, all students who exit special education should be considered for a 504 plan if
continued accommodations are needed and the student is determined to have a physical or
mental impairment that substantially limits the student in one or more major life activities.
Technical Adequacy of Measurement Tools Used for Decision Making
All decisions made in an MTSS process must be made with data from measurement tools
with adequate reliability and validity. A reliable tool provides consistent results, and a valid
tool measures what it is intended to measure. Teams should carefully examine the technical
JANUARY 2021 49
adequacy of all tools, including tests, observations, and interviews, to ensure they are
providing reliable information and that the tools used for decision making are valid for the
purpose (i.e., screening, progress monitoring, disability diagnosis, measure of non-verbal
intelligence) intended.
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Section 7: Methodology Options for Eligibility Determination
Nebraska has two options for determining eligibility for special education services in addition
to the severe discrepancy model. The Nebraska Department of Education has determined
that the severe discrepancy model, when properly administered and utilized as part of a
comprehensive evaluation, fulJlls the requirements of IDEA and 92 NAC 51 - 006.04K3.
Within 92 NAC 51, there is also the option of use of data determining below grade level
performance, lack of response to well-designed interventions and a weakness in a basic
psychological process that is consistent with low achievement. Some may refer to this as
lack of response to intervention (RtI) or identiJcation through a Multi-tiered System of
Support (MTSS) framework. Districts do not have to apply for or be approved to use eligibility
criteria under a MTSS system; however, they are encouraged to have a documented
problem solving process prior to utilizing this approach. Districts are not required to report
which criteria they are using for eligibility; however, it is encouraged that districts maintain
documentation that assurances afJliated with deeply implemented problem solving are met
should they choose to utilize MTSS for eligibility decisions. The second option is use of other
alternative research-based procedures otherwise known as A Pattern of Strengths and
Weaknesses. Regardless of the method used to determine eligibility, district’s should outline
their methodology within their policies and procedures as well as be able to describe their
methods within the MDT report as outlined in 92 NAC 51 - 006.03F.
Response to Scienti8c, Research-Based Intervention and Other Alternative Research-
Based Procedures
Nebraska has identiJed a process based on the child’s response to scientiJc, research-based
intervention (intensiJed instruction) as special education eligibility through the use of Multi-
Tiered System of Support (MTSS). In order to use deeply implemented problem solving
within a MTSS framework for the identi8cation of a speci8c learning disability, the
school or district must meet NeMTSS assurances for full implementation of a MTSS
Framework (scienti8c, research based intervention 42 NAC 51, 006.04K3b and
006.04K3b). Districts do not need to submit written assurances to the Nebraska Department
JANUARY 2021 51
of Education, but should maintain ongoing evidence and documentation that NeMTSS
assurances are met.
Multi-Tiered System of Support (MTSS)
MTSS is an educational service delivery system designed to provide effective instruction for
all students using a comprehensive and preventive problem-solving approach. It employs a
continuum of instructional delivery, in which the core curriculum addresses and meets the
needs of most students, additional instruction is provided for those needing supplementary
intervention support (intensifying instruction), and intensive and individualized services are
provided for the students who continue to demonstrate more intensive needs. At its
foundation, MTSS includes measuring performance of all students, and basing educational
decisions regarding curriculum, instruction, and intervention intensity on student and
implementation data.
Stakeholders in Nebraska have identiJed six essential elements which are critical within the
NeMTSS framework: Shared Leadership; Communication, Collaboration, and Partnerships;
Evidence-Based Practices: Curriculum, Instruction, Intervention and Assessment; Building
Capacity/Infrastructure for Implementation; Layered Continuum of Supports; and Data-Based
Problem Solving and Decision Making. Additional information regarding the Essential
Elements can be found at http://nemtss.unl.edu/essential-elements/.
The focus of MTSS is on improved student outcomes for all students through the provision of
high-quality scientiJcally/research-based instruction and intensifying instruction
(interventions) that are matched to student academic or behavioral needs. Through this
framework, the MTSS process enables districts to provide early support and assistance to
students who are struggling to attain or maintain grade level performance. MTSS provides a
consistent model and procedures to make collaborative data-based educational decisions for
all students. MTSS is designed to meet students’ needs and proactively address learning
problems before special education is necessary, as well as demonstrate the need for
specially designed instruction through special education.
JANUARY 2021 52
Drawing data from the MTSS process is one component of the information reviewed as a part
of the comprehensive evaluation for the identiJcation of SLD. Conclusions regarding
special education eligibility are drawn from multiple sources (Refer to Section 4:
Eligibility Determination Guidelines using MTSS). A student may be referred for
multidisciplinary team evaluation at any time within the MTSS Framework; in no way should
the MTSS process delay the initial evaluation of a student that is suspected of having a
disability.
A Pattern of Strengths and Weaknesses
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 team to be relevant to the identiJcation of a speciJc learning disability,
using appropriate assessments consistent with 92 NAC 51-006.02.
The process based on a child’s pattern of strengths and weaknesses tends to rely more
heavily on the results of norm-referenced tests and other assessments. Evaluation teams
must decide which tests are appropriate to use given the referral question and what type of
assessment is needed to answer questions about an individual student’s need for
intervention and support. As described before, evaluations must be individually planned
based on the presenting concern and review of existing data. The automatic administration
of any assessments, including intelligence or achievement tests, for an evaluation is not an
appropriate practice. If the evaluation team determines that intelligence or achievement
tests are needed, then these measures are analyzed to identify patterns within academic
skills or cognitive functions. The administration of intelligence and achievement tests solely
to examine the discrepancy is not necessary since discrepancy is not an eligibility
requirement. If achievement or intelligence tests are administered, they should be
interpreted in combination with other relevant data to identify the child’s strengths and
weaknesses, including the child’s approach to tasks, characteristic patterns of learning, and
difJculties in processing information.
JANUARY 2021 53
The richest source of this information comes from the data collection conducted during the
problem solving process, as well as data regarding interventions conducted during the
evaluation process. Teams analyze and interpret this information to determine whether the
pattern of strengths and weaknesses is characteristic of a child with a disability and to
determine and describe the child’s educational needs.
Severe Discrepancy Model
As part of the comprehensive eligibility evaluation and in accordance with federal and state
statute, the Multidisciplinary Evaluation Team (MDT) may employ the severe discrepancy
model to determine special education eligibility. The severe discrepancy model may be used
until such time that the school district has made the transition to full implementation of a
MTSS process for the identiJcation of a speciJc learning disability.
In order for a determination of eligibility using the severe discrepancy model to be made, the
child must demonstrate a severe discrepancy between academic achievement and
intellectual ability in one or more of the following areas: oral expression, listening
comprehension, written expression, basic reading skill, reading ^uency skills, reading
comprehension, mathematics calculation, mathematics problem solving, when provided with
learning experiences and instruction appropriate for the child’s age or state-approved grade-
level standards. All test scores used in determining eligibility shall assume a mean of 100
and a standard deviation of 15 points and adequate reliability for the overall or composite test
score (e.g., reliability at or above .90 in accordance with Salvia & Ysseldyke, 2007).
Professionals qualiJed to administer and interpret the standardized assessment tool (as
determined by the assessment publisher) may utilize guidance included in the corresponding
examiner’s manual to determine whether composite or other scores can be used in
educational decision making.
Assessed achievement level(s) that result in a standard score in one or more area(s) as
deJned by 92 NAC 51-006.04K3 that is signiJcantly different or discrepant from the child’s
assessed intellectual ability may be considered by the MDT when determining eligibility. The
JANUARY 2021 54
academic achievement test must have adequate reliability for the total test score (e.g.,
reliability at or above .90 in accordance with Salvia & Ysseldyke, 2007), and if composite
scores are used, they must also have adequate reliability and be valid for the decision being
made.
JANUARY 2021 55
Section 8: Frequently Asked Questions
1. What methods can be used in Nebraska to determine eligibility for a Speci8c
Learning Disability?
92 NAC 51 permits schools to use two options for determining eligibility for SpeciJc Learning
Disability in addition to a severe discrepancy model.
The MDT may determine that a child has a speciJc learning disability if:
a. The child does not achieve adequately for the child’s age or to meet State-
approved grade-level standards in one or more of the following areas, when
provided with learning experiences and instruction appropriate for the child’s
age or State-approved grade level standards; oral expression, listening
comprehension, written expression, basic reading skill, reading ^uency skills,
reading comprehension, mathematics calculation, mathematics problem
solving.
b. The child does not make sufJcient progress to meet age or State approved
grade-level standards in one or more of the areas identiJed in 92 NAC 51 when
using a process based on the child’s response to scientiJc, research-based
intervention; or
i. 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 team to be relevant to the identiJcation of a speciJc learning
disability, using appropriate assessments consistent with 92 NAC 51.
The Nebraska Department of Education has determined that the severe discrepancy model,
when properly administered and utilized as part of a comprehensive evaluation, fulJlls the
requirements of IDEA and Rule 51.
JANUARY 2021 56
2. What is the role of assessing cognitive processing in SLD identi8cation?
The role of cognitive assessment in the evaluation for a speciJc learning disability depends,
largely, on the methodology used by the school district’s policy and practices. The evaluation
team should consider appropriate assessments and measures - which may include
intelligence assessment - to provide a thorough evaluation designed to address the unique
needs of the student. As mentioned in other sections of this document, all data collected as
part of the evaluation should help inform the student’s educational team and help provide
information to create an instructional plan designed to meet the student’s identiJed needs -
regardless of evaluation outcome.
3. Can an eligibility determination of SLD be made using only information that was
collected through an MTSS process?
The NeMTSS process includes the need for comprehensive evaluation. Teams must have
evidence and multiple sources of data to sufJciently address the SLD requirements as
outlined in 92 NAC 51. Teams will need to review documentation gathered through MTSS
and determine what, if any, additional information is needed to satisfy comprehensive
evaluation requirements.
4. If a child has learning problems primarily due to the result of a visual impairment,
hearing impairment, orthopedic impairment, intellectual disabilities, behavior disorder;
or of environmental, cultural, or economic disadvantage, can the child be veri8ed as a
child with a speci8c learning disability?
No. SpeciJc learning disability does not include learning problems that are primarily the result
of a visual impairment, hearing impairment, orthopedic impairment, intellectual disability,
behavior disorder, or of economic disadvantage.
JANUARY 2021 57
5. At what age should a child be assessed for a speci8c learning disability?
If with intense intervention the child does not make appropriate progress in his or her
learning, the problem solving team and/or parents may recommend an evaluation to
determine eligibility for special education. Regardless of age, districts must address the
unique needs of each child using a problem-solving process. All school districts have the
obligation to timely evaluate a student as deemed appropriate based upon that student’s
unique needs and circumstances. In Nebraska, Developmental delay may be considered as
one possible eligibility category for children age three through the school year in which the
child reaches age nine. School age students identiJed with a disability can be eligible under
the category of SpeciJc Learning Disability.
6. How can progress monitoring data be used in the SLD veri8cation process?
Progress monitoring data are critical for determining whether a child has made sufJcient
progress in response to a scientiJc, research-based intervention process; however, they are
not the sole basis for identifying a speciJc learning disability.
7. There are eight achievement areas listed in federal and state laws in which children
may verify as having a speci8c learning disability. Are these the only areas in which
the child may verify?
Yes. Both federal and state laws state that the child must meet the veriJcation guidelines for
one or more of these eight areas of achievement: Oral expression; Listening comprehension;
Written expression; Basic reading skills; Reading ^uency skills; Reading comprehension;
Mathematics calculation; and Mathematics problem solving.
If the child has other difJculties, the child may be evaluated to determine if he/she may meet
criteria for special education in another disability area as outlined in Rule 51.
JANUARY 2021 58
8. Must a child have average or higher intelligence in order to be veri8ed as a child
with a disability in the category of speci8c learning disability?
No, but if there is a reason to suspect that the child may have an intellectual disability, then
that veriJcation category must be ruled out.
9. Can a student with dyslexia be identi8ed as having a speci8c learning disability
through MTSS?
Yes. Per Nebraska Revised Statute, Dyslexia is a SpeciJc Learning Disability. The earlier
children who struggle are identiJed and provided systematic, intense instruction, the less
severe their problems are likely to be (National Institute of Child Health and Human
Development, 2000; Torgesen, 2002). The MTSS process includes the need for
comprehensive evaluation. The MDT must use a variety of data gathering tools and
strategies even if an MTSS process is used. The results of an MTSS process will be one
component of the information reviewed as part of the evaluation procedures required.
10. How should outside evaluation data be incorporated into the MTSS process for
SLD identi8cation?
It is the problem-solving team’s decision to determine if outside evaluation data should be
incorporated into the process for identiJcation. At a minimum, teams are required to consider
all information provided by the parent. The team’s decision should be based on the best
interests of the student and how the outside evaluation data, in conjunction with the district’s
evaluation data, support the creation of an instructional plan designed to meet the student’s
identiJed needs.
JANUARY 2021 59
REFERENCES
Aikens, N. L., & Barbarin, O. (2008). Socioeconomic differences in reading trajectories: The
contribution of family, neighborhood, and school contexts. Journal of Educational Psychology,
100(2), 235.
Brown, J.E., & Ortiz. S. O. (2014). Interventions for English language learners with learning
difJculties. In J. T. Mascolo, D.P. Flanagan, & V.C. Alfonso (Eds.) Essentials of planning,
selecting and tailoring intervention: Addressing the needs of the unique learner. Hoboken,
NJ: Wiley.
Canivez, G. L., Watkins, M. W., & Dombrowski, S. C. (2017). Structural validity of the
Wechsler Intelligence Scale for Children–Fifth Edition: ConJrmatory factor analyses with the
16 primary and secondary subtests. Psychological assessment, 29(4), 458.
Deno, S. L. (2003). Developments in curriculum-based measurement. The Journal of Special
Education, 37(3), 184-192.
Feldman, R. (n.d.). RTI Action Network. Retrieved from http://www.rtinetwork.org/
Kovaleski, J., VanDerHeyden, A., & Shapiro, E. (2013). The RTI approach to evaluating
learning disabilities. New York, NY: Guilford.
Lipsey, M. W., Puzio, K., Yun, C., Hebert, M. A., Steinka-Fry, K., Cole, M. W., ... & Busick, M.
D. (2012). Translating the Statistical Representation of the Effects of Education Interventions
into More Readily Interpretable Forms. National Center for Special Education Research.
McGill, R. J., & Busse, R. T. (2017). When theory trumps science: a critique of the PSW
model for SLD identiJcation. Contemporary School Psychology, 21(1), 10-18.
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Palardy, G. J. (2008). Differential school effects among low, middle, and high social class
composition schools: A multiple group, multilevel latent growth curve analysis. School
Effectiveness and School Improvement, 19(1), 21-49.
Snyder, T. D., Dillow, S. A., & Hoffman, C. M. (2009, March). Digest of Education Statistics
2008. Retrieved from https://nces.ed.gov/pubs2009/2009020.pdf
Torgesen, J. K. (2002). The prevention of reading difJculties. Journal of school psychology,
40(1), 7-26.
VanDerHeyden, A. M., & Tilly, W. D. (2010). Keeping RtI on track: How to identify, repair, and
prevent mistakes that derail implementation. Horsham, PA: LRP Publishing. Retrieved from
http://www.rtinetwork.org/getstarted/sld-identiJcation-toolkit/ld-
identiJcation-toolkit-references
Zumeta, R. O., Zirkel, P. A., & Danielson, L. (2014). Identifying speciJc learning disabilities:
Legislation, regulation, and court decisions. Topics in Language Disorders, 34(1), 8-24.
JANUARY 2021 61
Glossary of Terms
Assessment: Assessments are the multiple measures (formative, interim, and summative)
used to gather evidence of student learning relative to content area standards.
Benchmark: A standard or point of reference against which things may be compared or
assessed.
Classroom Instruction: During classroom instruction, a teacher implements the locally-
determined curriculum, including instructional materials, and uses evidence-based teaching
methods and strategies to engage students to support student learning of content area
standards.
Content Area Standards: Content area standards describe what students are expected to
know and be able to do. Content area standards outline the content and process skills
students will learn in grades K-12. Nebraska content area standards include two components:
standards and indicators.
Continuous Improvement Process (CIP): Typically associated with school improvement
activities.
Curriculum: A curriculum is determined locally and re^ects “how” teachers help students
learn the content within content area standards. A curriculum outlines the intended outcomes,
content, experiences, assessments, and resources for measuring student learning, and it
also includes the scope and sequence of what is taught in grades PreK-12.
Decision Rules: The systematic procedures by which patterns of data are analyzed. This
data analysis assists in making a decision about the effectiveness of an intervention.
Implementation Fidelity: The degree to which an intervention is delivered as intended and is
critical to successful translation of evidence-based interventions into practice.
JANUARY 2021 62
Instructional Materials: Instructional materials are the tools and resources that are used as
part of a locally-determined curriculum.
Intervention Response Rules: The systematic procedures by which patterns of data are
analyzed to assist in making decisions about the effectiveness of an intervention for an
individual.
Leadership Team: A team that utilizes data analysis to provide infrastructure and
professional development plans for the strategic implementation of MTSS at a system-wide
level.
NeMTSS or MTSS: A service delivery system based on a concept that ALL students require
early and powerful general education instruction with the potential for interventions of
increasing intensity.
MTSS Implementation: The process of integrating and supporting a system of evidence-
based curriculum, instruction, intervention, and assessment to meet the needs of all students
through a tiered system of support.
MTSS Team: A group of individuals who analyze individual student data and participate in
progress monitoring to make decisions about the effectiveness of instruction for a student or
group of students.
Professional Development (PD): A broad term that describes processes used to build skills
needed for one’s job expectations within education, and is also called Professional Learning,
Continuous Learning, Continuing Education, and Staff Development.
Progress Monitoring: A process used to assess student’s academic performance, to
quantify a student rate of responsiveness to instruction, and to evaluate the effectiveness of
instruction.
JANUARY 2021 63
Response to Intervention (RtI): Practices consistent with MTSS used to determine eligibility
for special education or a speciJc learning disability.
Tier 1 - CORE (ALL STUDENTS): The key component of tiered instruction; all students
receive instruction within an evidence-based, scientiJcally-researched core program.
Tier 2 - INTERVENTION (SOME STUDENTS): Some children who fall below the expected
levels of accomplishment (benchmarks) and are at some risk for failure, but who are still
above levels considered to indicate a high risk for failure. Instruction is provided in smaller
groups or individually supplementing and supporting the Core Program.
Tier 3- INTENSIFIED INTERVENTION (FEW STUDENTS): Few children who are
considered to be at high risk for failure and were not responsive to previous instruction,
according to expected levels of accomplishment (benchmarks) and require more intensive
individualized instruction to supplement and support Tier 1 and/or Tier 2 programs.
Targeted Improvement Plan (TIP): Should be aligned to a district’s school improvement
plan.
Universal Screening: Screening conducted to identify or predict students who may be at risk
for poor learning outcomes.
JANUARY 2021 64
APPENDIX/RESOURCES
CEC Standards for Evidence-Based Practices
Education and Socioeconomic Status Fact Sheet from the American Psychological
Association
Evidence-Based Practices: Nebraska Reads
National Center on Intensive Intervention
Nebraska Department of Education Website: English Learner Programs https://
www.education.ne.gov/natlorigin/
NeMTSS Self Assessment
NeMTSS Assurances Document
REL Midwest Alignment of Evidence-Based Clearinghouses
Technical Assistance Center on Positive Behavioral Interventions and Supports
JANUARY 2021 65
