Current through Reg. 49, No. 52; December 27, 2024
(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, 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). A determination
of whether a student meets the criteria for autism as stated in
34 CFR, §
300.8(c)(1), cannot require
that the student meets the requirements for a medical/psychological diagnosis
of autism. The absence of other characteristics often associated with autism
listed in 34 CFR,
300.8(c)(1), does not
exclude a student from meeting eligibility as a student with autism. The team's
written report of evaluation must include specific recommendations for
communication, social interaction, and positive 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, 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 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 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 hearing assistive technology.
(B) A child under three years of age meets
the criteria for deaf or hard of hearing if the student's record indicates that
the child is experiencing a developmental delay because of hearing loss or
impairment, or the child has a physical or mental condition that has a high
probability of resulting in a developmental delay and a sensory impairment, in
accordance with 34 CFR,
§
303.21.
(4) Emotional disability. A student with an
emotional disability 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 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
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). A student's
eligibility based on an orthopedic impairment must include a medical diagnosis
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). A student's
eligibility based on other health impairment must include identification or
confirmation of the student's chronic or acute health problem 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 disability; 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
disability;
(IV) cultural
factors;
(V) environmental or
economic disadvantage; or
(VI)
being emergent bilingual.
(C) As part of the evaluation described in
subparagraph (B) of this paragraph and
34 CFR, §§
300.304-300.311, 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.
(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) The school
district must ensure that the student is observed in the student's learning
environment, including the general education 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 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 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) The determination of whether a student
suspected of having a specific learning disability is a child 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 general education teacher;
(ii) if the student does not have a general
education teacher, a general education 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 the specific learning disability of
dyslexia is suspected 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;
(ii) an evaluation for
dyslexia or dysgraphia must include all of the domains or other requirements
listed in TEC, §38.003, and §
74.28 of this title, including any
handbook adopted in the rule;
(iii)
when identifying dyslexia and determining eligibility or continued eligibility
for special education and related services, the admission, review, and
dismissal (ARD) committee must include a professional who meets the
requirements of TEC, §29.0031(b), and §
74.28 of this title, including any
handbook adopted in the rule; and
(iv) when a student is identified with
dyslexia and/or dysgraphia, the terms dyslexia and/or dysgraphia, as
appropriate, must be used in a student's evaluation report. For formal
eligibility purposes under special education, the category of specific learning
disability will be reported by a school district.
(10) Speech impairment. A student
with a speech impairment is one who has been determined to meet the criteria
for speech or language impairment as stated in
34 CFR, §
300.8(c) (11). The
multidisciplinary team that collects or reviews evaluation data in connection
with the determination of a student's eligibility based on a speech impairment
must include a certified speech and hearing therapist, a certified speech and
language therapist, or a licensed speech/language pathologist.
(11) Traumatic brain injury. A student with a
traumatic brain injury is one who has been determined to meet the criteria for
traumatic brain injury as stated in
34 CFR, §
300.8(c)(12). A student's
eligibility based on a traumatic brain injury must include a medical diagnosis
provided by a licensed physician.
(12) Visual impairment.
(A) A student with a visual impairment is one
who has been determined to meet the criteria for visual impairment as stated in
34 CFR, §
300.8(c)(13). Information
from a variety of sources must be considered by the multidisciplinary team that
collects or reviews evaluation data in connection with the determination of a
student's eligibility based on visual impairment in order to determine the need
for specially designed instruction as stated in
34 CFR, §
300.39(b)(3), and must
include:
(i) a medical report by a licensed
ophthalmologist or optometrist that indicates the visual loss stated in exact
measures of visual field and corrected visual acuity, at a distance and at near
range, in each eye. If exact measures cannot be obtained, the eye specialist
must so state and provide best estimates. The report should also include a
diagnosis and prognosis whenever possible and whether the student has:
(I) no vision or visual loss after
correction; or
(II) a progressive
medical condition that will result in no vision or a visual loss after
correction;
(ii) a
functional vision evaluation by a certified teacher of students with visual
impairments or a certified orientation and mobility specialist. The evaluation
must include the performance of tasks in a variety of environments requiring
the use of both near and distance vision and recommendations concerning the
need for a clinical low vision evaluation;
(iii) a learning media assessment by a
certified teacher of students with visual impairments. The learning media
assessment must include recommendations concerning which specific visual,
tactual, and/or auditory learning media are appropriate for the student and
whether or not there is a need for ongoing evaluation in this area;
and
(iv) as part of the full
individual and initial evaluation, an orientation and mobility evaluation
conducted by a person who is appropriately certified as an orientation and
mobility specialist. The orientation and mobility evaluation must be conducted
in a variety of lighting conditions and in a variety of settings, including in
the student's home, school, and community, and in settings unfamiliar to the
student.
(B) A person
who is appropriately certified as an orientation and mobility specialist must
participate in an initial eligibility determination and any reevaluation as
part of the multidisciplinary team, in accordance with
34 CFR, §§
300.122 and
300.303-300.311, in
evaluating data used to make the determination of the student's need for
specially designed instruction.
(C)
A child under three years of age meets the criteria for visual impairment if
the child's record indicates that the child is experiencing a developmental
delay because of vision loss or impairment, or the child has a physical or
mental condition that has a high probability of resulting in a developmental
delay and a sensory impairment, in accordance with
34 CFR, §
303.21.
(13) Developmental delay. A student with
developmental delay is one who is between the ages of 3-9 who is evaluated by a
multidisciplinary team for at least one disability category listed in
paragraphs (1)-(12) of this subsection and whose evaluation data indicates a
need for special education and related services and shows evidence of, but does
not clearly confirm, the presence of the suspected disability or disabilities
due to the child's young age. In these cases, an ARD committee may determine
that data supports identification of developmental delay in one or more of the
following areas: physical development, cognitive development, communication
development, social or emotional development, or adaptive development. To use
this eligibility category, multiple sources of data must converge to indicate
the student has a developmental delay as described by one of the following:
(A) performance on appropriate
norm-referenced measures, including developmental measures, indicate that the
student is at least 2 standard deviations below the mean or at the 2nd
percentile of performance, when taking into account the standard error of
measurement (SEM), in one area of development as listed in this paragraph,
along with additional convergent evidence such as interviews and observation
data that supports the delay in that area;
(B) performance on appropriate
norm-referenced measures, including developmental measures, indicate that the
student is at least 1.5 standard deviations below the mean or at the 7th
percentile of performance, when taking into account the SEM, in at least two
areas of development as listed in this paragraph, along with additional
convergent evidence such as interviews and observation data that supports the
delays in those areas; or
(C) a
body of evidence from multiple direct and indirect sources, such as play-based
assessments, information from the student's parent, interviews, observations,
work samples, checklists, and other informal and formal measures of
development, that clearly document a history and pattern of atypical
development that is significantly impeding the student's performance and
progress across settings when compared to age-appropriate expectations and
developmental milestones in one or more areas of development as listed in this
paragraph.
(14)
Noncategorical. A student between the ages of 3-5 who is evaluated as having an
intellectual disability, an emotional disability, a specific learning
disability, or autism may be described as noncategorical early
childhood.
(d)
Developmental delay eligibility guidelines. Developmental delay, as described
in subsection (c)(13) of this section, and noncategorical, as described in
subsection (c)(14) of this section, may be used within the following
guidelines.
(1) No school district will be
required to use the eligibility category of developmental delay; however, if a
district chooses to use this eligibility category, it must use the definition
and criteria described in subsection (c)(13) of this section.
(2) If a school district chooses to use the
eligibility category described in subsection (c)(13) of this section, it may do
so beginning with the 2024-2025 school year.
(3) The eligibility category of
noncategorical, as described in subsection (c)(14) of this section, must no
longer be used by any school district beginning with the 2025-2026 school year.
Any eligible student who begins the 2025-2026 school year already identified
under subsection (c)(14) of this section may maintain this eligibility
category, if determined appropriate by the student's ARD committee, until the
required re-evaluation before the age of six.