| (a) Special education services. To be eligible to receive
special education services, a student must be a "child with a disability,"
as defined in 34 Code of Federal Regulations (CFR), §300.8(a),
subject to the provisions of 34 CFR, §300.8(c), the Texas Education
Code, §29.003, and this section. The provisions in this section
specify criteria to be used in determining whether a student's condition
meets one or more of the definitions in federal regulations or in
state law.
(b) Eligibility determination. The determination of
whether a student is eligible for special education and related services
is made by the student's admission, review, and dismissal committee.
Any evaluation or re-evaluation of a student must be conducted in
accordance with 34 CFR, §§300.301-300.306 and 300.122. The
multidisciplinary team that collects or reviews evaluation data in
connection with the determination of a student's eligibility must
include, but is not limited to, the following:
(1) a licensed specialist in school psychology (LSSP),
an educational diagnostician, or other appropriately certified or
licensed practitioner with experience and training in the area of
the disability; or
(2) a licensed or certified professional for a specific
eligibility category defined in subsection (c) of this section.
(c) Eligibility definitions.
(1) Autism. A student with autism is one who has been
determined to meet the criteria for autism as stated in 34 CFR, §300.8(c)(1).
Students with pervasive developmental disorders are included under
this category. The team's written report of evaluation must include
specific recommendations for behavioral interventions and strategies.
(2) Deaf-blindness. A student with deaf-blindness is
one who has been determined to meet the criteria for deaf-blindness
as stated in 34 CFR, §300.8(c)(2). In meeting the criteria stated
in 34 CFR, §300.8(c)(2), a student with deaf-blindness is one
who, based on the evaluations specified in subsection (c)(3) and (12)
of this section:
(A) meets the eligibility criteria for a student who
is deaf or hard of hearing specified in subsection (c)(3) of this
section and visual impairment specified in subsection (c)(12) of this
section;
(B) meets the eligibility criteria for a student with
a visual impairment and has a suspected hearing loss that cannot be
demonstrated conclusively, but a speech/language therapist, a certified
speech and language therapist, or a licensed speech language pathologist
indicates there is no speech at an age when speech would normally
be expected;
(C) has documented hearing and visual losses that,
if considered individually, may not meet the requirements for a student
who is deaf or hard of hearing or for visual impairment, but the combination
of such losses adversely affects the student's educational performance;
or
(D) has a documented medical diagnosis of a progressive
medical condition that will result in concomitant hearing and visual
losses that, without special education intervention, will adversely
affect the student's educational performance.
(3) Deaf or hard of hearing. A student who is deaf
or hard of hearing is one who has been determined to meet the criteria
for deafness as stated in 34 CFR, §300.8(c)(3), or for students
who are deaf or hard of hearing as stated in 34 CFR, §300.8(c)(5).
The evaluation data reviewed by the multidisciplinary team in connection
with the determination of a student's eligibility based on being deaf
or hard of hearing must include an otological examination performed
by an otolaryngologist or by a licensed medical doctor, with documentation
that an otolaryngologist is not reasonably available, and an audiological
evaluation performed by a licensed audiologist. The evaluation data
must include a description of the implications of the hearing loss
for the student's hearing in a variety of circumstances with or without
recommended amplification.
(4) Emotional disturbance. A student with an emotional
disturbance is one who has been determined to meet the criteria for
emotional disturbance as stated in 34 CFR, §300.8(c)(4). The
written report of evaluation must include specific recommendations
for behavioral supports and interventions.
(5) Intellectual disability. A student with an intellectual
disability is one who has been determined to meet the criteria for
an intellectual disability as stated in 34 CFR, §300.8(c)(6).
In meeting the criteria stated in 34 CFR, §300.8(c)(6), a student
with an intellectual disability is one who:
(A) has been determined to have significantly sub-average
intellectual functioning as measured by a standardized, individually
administered test of cognitive ability in which the overall test score
is at least two standard deviations below the mean, when taking into
consideration the standard error of measurement of the test; and
(B) concurrently exhibits deficits in at least two
of the following areas of adaptive behavior: communication, self-care,
home living, social/interpersonal skills, use of community resources,
self-direction, functional academic skills, work, leisure, health,
and safety.
(6) Multiple disabilities.
(A) A student with multiple disabilities is one who
has been determined to meet the criteria for multiple disabilities
as stated in 34 CFR, §300.8(c)(7). In meeting the criteria stated
in 34 CFR, §300.8(c)(7), a student with multiple disabilities
is one who has a combination of disabilities defined in this section
and who meets all of the following conditions:
(i) the student's disability is expected to continue
indefinitely; and
(ii) the disabilities severely impair performance in
two or more of the following areas:
(I) psychomotor skills;
(II) self-care skills;
(III) communication;
(IV) social and emotional development; or
(V) cognition.
(B) Students who have more than one of the disabilities
defined in this section but who do not meet the criteria in subparagraph
(A) of this paragraph must not be classified or reported as having
multiple disabilities.
(7) Orthopedic impairment. A student with an orthopedic
impairment is one who has been determined to meet the criteria for
orthopedic impairment as stated in 34 CFR, §300.8(c)(8). The
multidisciplinary team that collects or reviews evaluation data in
connection with the determination of a student's eligibility based
on an orthopedic impairment must include a licensed physician.
(8) Other health impairment. A student with other health
impairment is one who has been determined to meet the criteria for
other health impairment due to chronic or acute health problems such
as asthma, attention deficit disorder or attention deficit hyperactivity
disorder, diabetes, epilepsy, a heart condition, hemophilia, lead
poisoning, leukemia, nephritis, rheumatic fever, sickle cell anemia,
and Tourette's Disorder as stated in 34 CFR, §300.8(c)(9). The
multidisciplinary team that collects or reviews evaluation data in
connection with the determination of a student's eligibility based
on other health impairment must include a licensed physician, a physician
assistant, or an advanced practice registered nurse with authority
delegated under Texas Occupations Code, Chapter 157.
(9) Specific learning disability.
(A) Specific learning disability means 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 the imperfect ability to listen, think, speak, read, write, spell,
or do mathematical calculations, including conditions such as perceptual
disabilities, brain injury, minimal brain dysfunction, dyslexia, and
developmental aphasia. Specific learning disability does not include
learning problems that are primarily the result of visual, hearing,
or motor disabilities; intellectual disability; emotional disturbance;
or environmental, cultural, or economic disadvantage.
(B) A student with a specific learning disability is
one who:
(i) has been determined through a variety of assessment
tools and strategies to meet the criteria for a specific learning
disability as stated in 34 CFR, §300.8(c)(10), in accordance
with the provisions in 34 CFR, §§300.307-300.311;
(ii) when provided with learning experiences and instruction
appropriate for the student's age or state-approved grade-level standards
as indicated by performance on multiple measures such as in-class
tests, grade average over time (e.g. six weeks or semester), norm-
or criterion-referenced tests, and statewide assessments, 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:
(I) oral expression;
(II) listening comprehension;
(III) written expression;
(IV) basic reading skill;
(V) reading fluency skills;
(VI) reading comprehension;
(VII) mathematics calculation; or
(VIII) mathematics problem solving;
(iii) meets one of the following criteria:
(I) does not make sufficient progress to meet age or
state-approved grade-level standards in one or more of the areas identified
in clause (ii)(I)-(VIII) of this subparagraph when using a process
based on the student's response to scientific, research-based intervention;
or
(II) 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
to be relevant to the identification of a specific learning disability,
using appropriate assessments, consistent with 34 CFR, §300.304
and §300.305; and
(iv) does not meet the findings under clauses (ii)
and (iii) of this subparagraph primarily as 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.
(C) As part of the evaluation described in subparagraph
(B) of this paragraph and 34 CFR, §§300.307-300.311, and
in order to ensure that underachievement by a student suspected of
having a specific learning disability is not due to lack of appropriate
instruction in reading or mathematics, the following must be considered:
(i) data that demonstrates the student was provided
appropriate instruction in reading (as described in 20 United States
Code (USC), §6368(3)), and/or mathematics within general education
settings delivered by qualified personnel; and
(ii) data-based documentation of repeated assessments
of achievement at reasonable intervals, reflecting formal evaluation
of student progress during instruction, which must be provided to
the student's parents. Data-based documentation of repeated assessments
may include, but is not limited to, response to intervention progress
monitoring results, in-class tests on grade-level curriculum, or other
regularly administered assessments. Intervals are considered reasonable
if consistent with the assessment requirements of a student's specific
instructional program.
(D) The school district must ensure that the student
is observed in the student's learning environment, including the regular
classroom setting, to document the student's academic performance
and behavior in the areas of difficulty. In determining whether a
student has a specific learning disability, the admission, review,
and dismissal (ARD) committee must decide to either use information
from an observation in routine classroom instruction and monitoring
of the student's performance that was conducted before the student
was referred for an evaluation or have at least one of the members
described in subsection (b) of this section conduct an observation
of the student's academic performance in the regular classroom after
the student has been referred for an evaluation and the school district
has obtained parental consent consistent with 34 CFR, §300.300(a).
In the case of a student of less than school age or out of school,
a member described in subsection (b) of this section must observe
the student in an environment appropriate for a student of that age.
(E) The determination of whether a student suspected
of having a specific learning disability is a student with a disability
as defined in 34 CFR, §300.8, must be made by the student's parents
and a team of qualified professionals, which must include at least
one person qualified to conduct individual diagnostic examinations
of children such as a licensed specialist in school psychology, an
educational diagnostician, a speech-language pathologist, or a remedial
reading teacher and one of the following:
(i) the student's regular teacher;
(ii) if the student does not have a regular teacher,
a regular classroom teacher qualified to teach a student of his or
her age; or
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