HAR §8-60-41. Determining the existence of a specific learning disability

(a) The group described in section 8-60-38 may determine that a student has a specific learning disability, as defined in section 8-60-39(k), if: (1) (A) The student does not achieve adequately for the student'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 student's age or State-approved grade-level standards: (i) Oral expression; (ii) Listening comprehension; (iii) Written expression; (iv) Basic reading skill (including phonemic awareness, phonics, and/or vocabulary); (v) Reading fluency skills; (vi) Reading comprehension; (vii) Mathematics calculation; (viii) Mathematics problem solving; or (B) The student demonstrates a severe discrepancy between actual achievement and intellectual ability by a difference of at least one and one-half standard deviations in one or more of the areas in subparagraph(A); and (2) (A) The student does not make sufficient progress to meet age or State-approved grade-level standards in one or more of the areas identified in paragraph(1)(A) when using a process based on the student's response to scientific, research-based intervention; or (B) The student 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 sections 8-60-36 and 8-60-37; and (3) The group determines that its findings under paragraphs (1)(A) and (2)(A) are not primarily the result of: (A) A visual, hearing, or motor disability; (B) Intellectual disability; (C) Emotional disability; (D) Cultural factors; (E) Environmental or economic disadvantage; or (F) Limited English proficiency. (b) To ensure that underachievement in a student suspected of having a specific learning disability is not due to lack of appropriate instruction in reading or math, the group shall consider, as part of the evaluation described in sections 8-60-36 through 8-60-38: (1) Data that demonstrate that prior to, or as a part of, the referral process, the student 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 student's parents. (c) The department shall promptly request parental consent to evaluate the student to determine if the student needs special education and related services, and shall adhere to the timeframes described in sections 8-60-33 and 8-60-35, unless extended by mutual written agreement of the student's parents and a group of qualified professionals, as described in section 8-60-38(a)(1): (1) If, prior to a referral, a student has not made adequate progress after an appropriate period of time when provided instruction, as described in subsections (b)(1) and (b)(2); and