C.F.R. » Title 34 » CHAPTER III—OFFICE OF SPECIAL EDUCATION AND REHABILITATIVE SERVICES, DEPARTMENT OF EDUCATION › PART 300—ASSISTANCE TO STATES FOR THE EDUCATION OF CHILDREN WITH DISABILITIES › Subpart D—Evaluations, Eligibility Determinations, Individualized Education Programs, and Educational Placements

34 C.F.R. § 300.309

Determining the existence of a specific learning disability

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(a) The group described in § 300.306 may determine that a child has a specific learning disability, as defined in § 300.8(c)(10), if—

(1) 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:

(i) Oral expression.

(ii) Listening comprehension.

(iii) Written expression.

(iv) Basic reading skill.

(v) Reading fluency skills.

(vi) Reading comprehension.

(vii) Mathematics calculation.

(viii) Mathematics problem solving.

(2)(i) The child does not make sufficient progress to meet age or State-approved grade-level standards in one or more of the areas identified in paragraph (a)(1) of this section when using a process based on the child's response to scientific, research-based intervention; or

(ii) The child exhibits a pattern of strengths and weaknesses in performance, achievement, or both, relative to age, State-approved grade-level standards, or intellectual development, that is determined by the group to be relevant to the identification of a specific learning disability, using appropriate assessments, consistent with §§ 300.304 and 300.305; and

(3) The group determines that its findings under paragraphs (a)(1) and (2) of this section are not primarily the result of—

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

(ii) An intellectual disability;

(iii) Emotional disturbance;

(iv) Cultural factors;

(v) Environmental or economic disadvantage; or

(vi) Limited English proficiency.

(b) To ensure that underachievement in a child suspected of having a specific learning disability is not due to lack of appropriate instruction in reading or math, the group must consider, as part of the evaluation described in §§ 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 qualified personnel; and

(2) Data-based documentation of repeated assessments of achievement at reasonable intervals, reflecting formal assessment of student progress during instruction, which was provided to the child's parents.

(c) The public agency must promptly request parental consent to evaluate the child to determine if the child needs special education and related services, and must adhere to the timeframes described in §§ 300.301 and 300.303, unless extended by mutual written agreement of the child's parents and a group of qualified professionals, as described in § 300.306(a)(1)—

(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 paragraphs (b)(1) and (b)(2) of this section; and

(2) Whenever a child is referred for an evaluation.

[71 FR 46753, Aug. 14, 2006, as amended at 82 FR 31912, July 11, 2017]
Notes of Decisions
Cited in 33 cases (4 in the last 5 years), 2002–2024 · leading case: Mr and Mrs Doe v. Cape Elizabeth School
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Mr and Mrs Doe v. Cape Elizabeth School (2016) ca1 · cites it 10× “34 C.F.R. § 300.309 (a)(2)(ii). We also note that there is a third criterion for an SLD, which provides that "findings under [the first two criteria]" must not be "primarily the result of (i) A visual, hearing, or motor disability, (ii) Mental retardation, (iii) Emotional…”
Shaw v. District of Columbia (2002) dcd · cites it 3× “Plaintiffs nonetheless argue that the hearing officer’s determination violated 34 C.F.R. § 300.309 , which provides for ESY services.”
Nb v. Hellgate Elementary School Dist. Ex Rel. Board of Directors (2008) ca9 · cites it 2× “” 34 C.F.R. § 300.309 (a)(1) (1999). The federal regulation does not specify the factors to be considered in determining entitlement to ESY services.”
M.M. v. Lafayette School District (2014) ca9 · cites it 2× “” 34 C.F.R. § 300.309 (b)(2). The District argues that this provision is inapplicable because RTI was not used to determine eligibility, but again the District fails to cite to any authority.”
MM Ex Rel. DM v. School District of Greenville County (2002) ca4 “The regulations promulgated by the Department of Education to implement the IDEA require a school district to provide a disabled child with ESY Services when such services are necessary to provide a FAPE.”
Michael P. v. Department of Education (2011) ca9 · cites it 2× “" [2] See 34 C.F.R. § 300.309 (a); see also Huefner, supra at 10-11.”
J. M. v. Summit City Board of Education (2022) ca3 “They cite 34 C.F.R. § 300.309 (b)(2); id. § 300.311(a)(1), (7); and N.”
D.B. v. Bedford County School Board (2010) vawd · cites it 3× “307(a), provides that “[a] State must adopt,” consistent with 34 C.F.R. § 300.309 , “criteria for determining whether a child has a specific learning disability, as defined in 34 C.”
Jh, a Minor, by and Through His Parents and Next Friends, Jd and Ss Jd Ss v. Henrico County School Board (2003) ca4 “34 C.F.R. § 300.309 . 3 . The Kindergarten IEP expired May 5, 2001.”
Pachl Ex Rel. Pachl v. Seagren (2005) mnd · cites it 2× “See 34 C.F.R. § 300.309 (b). ESY services must be provided when the child’s IEP team determines that they are necessary to provide FAPE.”
Independent School District No. 281 v. Minnesota Department of Education (2008) minnctapp · cites it 8× “18 (2006) and 34 C.F.R. § 300.309 (2006) by its policy of unilaterally limiting the special instruction and services, particularly extended school year (ESY) services, it made available to all disabled, nonpublic-school students in the district.”
Department of Education v. Leo W. ex rel. Veronica W. (2016) hid “14 The record clearly establishes that the IEP team discussed the four-part standard that the DOE uses to determine whether a student is eligible for ESY services. Petitioners have not cited any legal authority—nor is this Court aware of any—which indicates that the DOE’s ESY…”
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