9. Revise provisions regarding determinant factors.

A child must not be determined to be a child with a disability under Part B:
  • If the determinant factor for that determination is:
    • Lack of appropriate instruction in reading, including the essential components of reading instruction (as defined in section 1208(3) of the ESEA2);
    • Lack of appropriate instruction in math; or
    • Limited English proficiency; and
  • If the child does not otherwise meet the eligibility criteria under 34 CFR 300.8(a).
[34 CFR 300.306(b)] [20 U.S.C. 1414(b)(5)]

2 For purposes of this document, NCLB also is referred to as the Elementary and Secondary Education Act of 1965, as amended (ESEA).
U.S. Department of Education --- Office of Special Education Programs --- Changes in Initial Evaluation and Reevaluation --- 10.04.06

Dialogue Starter - Cross-stakeholder

Reaction Questions

  1. What is the importance of the term “determinant factor”? How is this defined in your district?

  2. Why is the reference to “appropriate instruction” important? What are the implications of this for the child and the school?

  3. What information do families need concerning the determination of “appropriate” instruction?

  4. How might this provision be impacted by early intervening services?

Application Questions

  1. What are the guidelines in your district/state for determining Limited English proficiency?

  2. What process and data does your district use to determine that a reading or math deficit is due to lack of appropriate instruction?

  3. What procedures are implemented in your district to determine the appropriateness of previous instruction for students with a high level of absences, the transfer student, and the ELL student?

  4. How does your district provide appropriate instruction when it is determined a student is not a student with a disability but rather a student who is lacking appropriate instruction?

  5. What strategies does your district have in place to ensure that reading/math instruction for all students is “appropriate”?

    These questions were developed by the following stakeholders working together:

    Role: Teacher
    Location: West Virginia

    Role: Service Provider
    Location: Maryland

    Role: Administrator
    Location: Georgia

    Role: Family
    Location: Georgia

    Role: Teacher
    Location: Colorado

    Role: Higher Education
    Location: Indiana

    Role: Administrator
    Location: California

    Role: Teacher
    Location: Florida

    Role: Service Provider
    Location: Kentucky