(a)Special education and related services.
To be eligible to receive special education and related 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 (TEC), Subchapter
A, [§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)
/school psychologist, 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 communication, social
interaction, and 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 the provision of special education services
[intervention], will adversely affect the student's
educational performance.
(3)Deaf or hard of hearing.
(A)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 have
a hearing impairment [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 and a communication assessment
completed by the multidisciplinary team. 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.
(B)A child under three years of age
meets the criteria for deaf or hard of hearing if the student's individualized
family service plan (IFSP) indicates that the child meets the criteria
of subparagraph (A) of this paragraph, has a hearing impairment or
a developmental delay as defined in 26 TAC §350.809 of this title
(relating to Initial Eligibility Criteria) in the area of physical
development because of hearing loss or impairment, or the plan documents
a medical condition that has a high probability of developmental delay
in the area of physical development because of hearing loss or impairment.
(4)Emotional /behavioral disability [disturbance
]. A student with an emotional /behavioral disability [
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 positive behavioral supports and interventions. The
term emotional/behavioral disability is synonymous with the term emotional
disturbance and serious emotional disturbance, as these terms are
used in federal or state law pertaining to students eligible for special
education and related services.
(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), that a combination of impairments
causes such severe educational needs that they cannot be accommodated
in special education programs solely for one of the impairments,
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 disabilities are [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.
(C)Multiple disabilities does not
include deaf-blindness.
(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 information provided
by 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 information provided
by 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 /behavioral
disability [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), repeated
performance on progress monitoring measures, 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, which may include dysgraphia
;
(IV)basic reading skill, which may include dyslexia;
(V)reading fluency skills, which may include
dyslexia;
(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 /behavioral disability [disturbance
];
(IV)cultural factors;
(V)environmental or economic disadvantage; or
(VI)being emergent bilingual.
[(VI)limited English proficiency.]
(C)As part of the evaluation described in subparagraph
(B) of this paragraph and 34 CFR, §§300.304-300.311 [
§§300.307-300.311], the presence of a significant
variance among specific areas of cognitive function or between specific
areas of cognitive function and academic achievement is not required
when determining whether a student has a significant learning disability.
[and in]
[(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)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, intervention progress monitoring
results and reports, 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.
(E)[(D)] The school district
must ensure that the student is observed in the student's learning
environment, including the general education [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 multidisciplinary
team [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) or
(c)(9)(F) of this section conduct an observation of the student's
academic performance in the general education [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) or
(c)(9)(F) of this section must observe the student in an environment
appropriate for a student of that age.
(F)[(E)] The determination of
whether a student suspected of having a specific learning disability
is a child [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 /school
psychologist, 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
(iii)for a student of less than school age, an individual
qualified by the Texas Education Agency to teach a student of his
or her age.
(G)Suspicion, and the identification,
of dyslexia or dysgraphia, in addition to the requirements of subparagraphs
(A)-(F) of this paragraph, must include consideration of the following:
(i)when dyslexia is a suspected specific learning
disability or characteristics of dyslexia have been observed from
a reading instrument administered under TEC, §28.006, or a dyslexia
screener under TEC, §38.003, the team established under subsections
(b) and (c)(9)(F) of this section must include a professional who
meets the requirements under TEC, §29.0031(b), and §74.28
of this title (relating to Students with Dyslexia and Related Disorders),
including any handbook adopted in the rule ;
Cont'd...
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