D.C. Mun. Regs. tit. 5, r. 5-A3011

Current through Register Vol. 71, No. 49, December 6, 2024

Rule 5-A3011 - DISABILITY CATEGORIES

3011.1

In determining eligibility on the basis of autism, the following shall apply:

(a) Autism shall mean a developmental disability significantly affecting verbal and nonverbal communication and social interaction, generally evident before age three (3) that adversely affects a child's educational performance. Other characteristics often associated with autism are engagement in repetitive activities and stereotyped movements, resistance to environmental change or change in daily routines, and unusual responses to sensory experiences. Autism does not apply if a child's educational performance is adversely affected primarily because the child has an emotional disability, as defined in Section 3011.5;

(b) The IEP Team shall consider assessments and child data related to:

(1) Whether the child displays difficulties or differences or both in interacting with people and events, including an inability to establish and maintain reciprocal relationships with people or demonstration of rigidity of routines;

(2) Whether the child displays problems which extend beyond speech or language to other aspects of social communication, both receptively and expressively. The child's verbal language may be absent or lacking the usual communicative form which may involve deviance or delay, or both;

(3) Whether the child exhibits delays, arrests, abnormalities, or regressions in motor, sensory, social, or learning skills or the development of such skills;

(4) Whether the child exhibits abnormalities in thought or processing skills;

(5) Whether the child exhibits unusual, inconsistent, repetitive, or unconventional responses to sounds, sights, smells, tastes, touch, or movement; and

(6) Whether the child displays marked distress over changes, insistence on following routines, and a persistent preoccupation with or attachment to objects;

(c) The IEP Team may consider and use as the basis for its determination any other sources of existing data indicating eligibility for autism, including medical documentation or a medical diagnosis, if available; and

(d) The IEP Team shall confirm that the child-level data demonstrates that the child's educational performance is adversely affected by the suspected disability and not any of the inappropriate determinant factors listed in Section 3010.2.

3011.2

In determining eligibility on the basis of deaf-blindness, the following shall apply:

(a) Deaf-blindness shall mean concomitant hearing and visual impairments, the combination of which causes severe communication and other developmental and educational needs that cannot be accommodated in special education programs solely for children with deafness or children with blindness;

(b) The IEP Team shall consider assessments and child data related to:

(1) Whether the child displays a hearing impairment consistent with Section 3011.6 or deafness consistent with Section 3011.3;

(2) Whether the child displays a visual impairment consistent with Section 3011.14; and

(3) Whether the child displays severe communication and other developmental and educational needs that cannot be accommodated in programming solely addressing deafness or blindness;

(c) The IEP Team may consider and use as the basis for its determination any other sources of existing data indicating eligibility for deaf-blindness, including medical documentation or a medical diagnosis of hearing impairment, deafness, visual impairment, or blindness, if available; and

(d) The IEP Team shall confirm that the child-level data demonstrates that the child's educational performance has been adversely affected by deaf-blindness and not any of the inappropriate determinant factors listed in Section 3010.2.

3011.3

In determining eligibility on the basis of deafness, the following shall apply:

(a) Deafness shall mean a hearing impairment that is so severe that the child is impaired in processing linguistic information through hearing, with or without amplification and that adversely affects a child's educational performance;

(b) The IEP Team shall consider assessments and child data related to whether the child displays an impairment in processing linguistic information through hearing, with or without amplification;

(c) The IEP Team may consider and use as the basis for its determination any other sources of existing data indicating eligibility for deafness, including medical documentation or a medical diagnosis, if available; and

(d) The IEP Team shall confirm that the child-level data demonstrates that the child's educational performance has been adversely affected by deafness and not any of the inappropriate determinant factors listed in Section 3010.2.

3011.4

In determining eligibility on the basis of developmental delay, the following shall apply:

(a) Developmental delay shall mean a condition in which a child, age three (3) through seven (7), experiences severe developmental delays in one (1) or more of the following areas:

(1) Physical development;

(2) Language and communication development;

(3) Social or emotional development;

(4) Cognitive development; or

(5) Functional or adaptive development;

(b) The IEP Team shall consider assessments and child data related to whether the child experiences severe developmental delays of at least two (2) years below his or her chronological age or at least two (2) standard deviations below the mean, as measured by appropriate standardized diagnostic instruments and procedures in the following areas:

(1) Physical development;

(2) Language and communication development;

(3) Cognitive development;

(4) Adaptive development; or

(5) Social or emotional development;

(c) Developmental delay does not include:

(1) Autism;

(2) Traumatic brain injury;

(3) Intellectual disability;

(4) Emotional disability;

(5) Other health impairment;

(6) Visual impairment;

(7) Hearing impairment; or

(8) Speech/ language impairment;

(d) The IEP Team may consider and use as the basis for its determination any other sources of existing data indicating eligibility for developmental delay, including medical documentation or a medical diagnosis if available;

(e) The IEP Team shall confirm that the child-level data demonstrates that the child's educational performance has been adversely affected by the suspected disability and not any of the inappropriate determinant factors as listed in Section 3010.2; and

(f) To remain eligible for special education and related services, a child identified as having a developmental delay shall qualify as having another category of disability prior to the child's eighth birthday.

3011.5

In determining eligibility on the basis of emotional disability, the following shall apply:

(a) Emotional disability shall mean a condition exhibiting one (1) or more of the following characteristics over a minimum duration of three (3) months and to a marked degree that adversely affects a child's educational performance:

(1) An inability to learn that cannot be explained by intellectual, sensory, or health factors;

(2) An inability to build or maintain satisfactory interpersonal relationships with peers and teachers;

(3) Inappropriate types of behavior or feelings under normal circumstances;

(4) A general pervasive mood of unhappiness or depression; or

(5) A tendency to develop physical symptoms or fears associated with personal or school problems.

(b) Emotional disability includes schizophrenia;

(c) The IEP Team shall consider assessments and child data related to:

(1) Whether the child exhibits one (1) or more of the following characteristics:

(i) An inability to learn that cannot be explained by intellectual, sensory, or health factors;

(ii) An inability to build or maintain satisfactory interpersonal relationships with peers and teachers;

(iii) Inappropriate types of behavior or feelings under normal circumstances;

(iv) A general pervasive mood of unhappiness or depression; or

(v) A tendency to develop physical symptoms or fears associated with personal or school problems; and

(2) Whether the child exhibits characteristics of emotional disturbance to a marked degree over a minimum duration of three (3) months;

(d) A child shall not be identified as having an emotional disability solely because:

(1) The child is socially maladjusted;

(2) The child's behavior repeatedly violates the LEA's code of child conduct; or

(3) The child is involved with a court or social service agency;

(e) The IEP Team may consider and use as the basis for its determination any other sources of existing data indicating eligibility for emotional disability, including medical documentation or a medical diagnosis, if available; and

(f) The IEP Team shall confirm that the child-level data demonstrates that the child's educational performance has been adversely affected by an emotional disability and not any of the inappropriate determinant factors listed in Section 3010.2.

3011.6

In determining eligibility on the basis of hearing impairment, the following shall apply:

(a) Hearing impairment shall mean a permanent or fluctuating deficit in hearing that adversely affects a child's educational performance;

(b) The IEP Team shall consider assessments and child data related to whether the child displays a permanent or fluctuating deficit in hearing;

(c) The IEP Team may consider and use as the basis for its determination any other sources of existing data indicating eligibility for hearing impairment, including medical documentation or a medical diagnosis, if available; and

(d) The IEP Team shall confirm that the child-level data demonstrates that the child's educational performance has been adversely affected by hearing impairment and not any of the inappropriate determinant factors listed in Section 3010.2.

3011.7

In determining eligibility on the basis of intellectual disability, the following shall apply:

(a) Intellectual disability shall mean significantly below average general intellectual functioning, existing concurrently with deficits in adaptive behavior and manifested during the developmental period, that adversely affects a child's educational performance. Intellectual disability does not include conditions primarily due to a sensory or physical impairment, traumatic brain injury, autism spectrum disorders, severe multiple impairments, cultural influences or a history of inconsistent or inadequate educational programming;

(b) The IEP Team shall consider assessments and child data related to:

(1) Whether the child displays intellectual functioning well below the mean on an individually administered standardized intelligence assessment. The IEP Team shall account for the standard error of measurement of the assessment in interpreting the results; and

(2) Whether the child displays deficits in adaptive behavior that significantly limit a child's effectiveness in meeting the standards of maturation, learning, personal independence or social responsibility, and school performance that is expected of the individual's age level and cultural group, as determined by clinical judgment;

(c) The IEP Team may consider and use as the basis for its determination any other sources of existing data indicating eligibility for intellectual disability, including medical documentation or a medical diagnosis, if available; and

(d) The IEP Team shall confirm that the child-level data demonstrates that the child's educational performance has been adversely affected by intellectual disability and not any of the inappropriate determinant factors listed in Section 3010.2.

3011.8

In determining eligibility on the basis of multiple disabilities, the following shall apply:

(a) Multiple disabilities shall mean concurrent impairments, such as intellectual disability-blindness or intellectual disability-orthopedic impairment, the combination of which causes severe educational needs that cannot be accommodated in special education programs solely for one (1) of the impairments. Multiple disabilities shall not include deaf-blindness;

(b) The IEP Team shall consider assessments and child data related to:

(1) Whether the child meets all eligibility criteria required for two (2) or more of the following disability categories as defined in this section:

(A) Autism;

(B) Emotional disability;

(C) Hearing impairment, if not concurrent with visual impairment;

(D) Intellectual disability;

(E) Orthopedic impairment;

(F) Other health impairment;

(G) Specific learning disability;

(H) Speech or language impairment;

(I) Traumatic brain injury; or

(J) Visual impairment, if not concurrent with hearing impairment;

(2) Whether the combination of coexisting impairment is so severe, complex, and interwoven that identification in a single category of disability cannot be determined; and

(3) Whether the impairment results in multisensory or motor deficiencies and delays in the cognitive, affective, or psychomotor areas designed solely to address single impairments;

(c) The IEP Team may consider and use as the basis for its determination any other sources of existing data indicating eligibility for multiple disabilities, including medical documentation or a medical diagnosis, if available;

(d) The IEP Team shall confirm that the child-level data demonstrates that the child's educational performance has been adversely affected by multiple disabilities and not any of the inappropriate determinant factors as listed in section 3010.2; and

(e) Multiple disabilities shall be treated as a separate and distinct classification from all other disability categories, and shall not be utilized due merely to the child not meeting the criteria of other categories.

3011.9

In determining eligibility on the basis of orthopedic impairment, the following shall apply:

(a) Orthopedic impairment shall mean a severe orthopedic impairment that adversely affects a child's educational performance. The term includes impairments caused by a congenital anomaly, impairments caused by disease (e.g. poliomyelitis, bone tuberculosis), and impairments from other causes (e.g. cerebral palsy, amputations, and fractures or burns that cause contractures);

(b) The IEP Team shall consider assessments and child data related to whether the child displays a severe orthopedic impairment caused by:

(1) A congenital anomaly;

(2) Disease; or

(3) Other causes, as appropriate;

(c) The IEP Team shall review and consider medical documentation of an orthopedic impairment, if available;

(d) The IEP Team may consider and use as the basis for its determination any other sources of existing data indicating eligibility for orthopedic impairment; and

(e) The IEP Team shall confirm that the child-level data demonstrates that the child's educational performance has been adversely affected by orthopedic impairment and not any of the inappropriate determinant factors listed in Section 3010.2.

3011.10

In determining eligibility on the basis of other health impairment, the following shall apply:

(a) Other health impairment shall mean having limited strength, vitality, or alertness, including a heightened alertness to environmental stimuli, that results in limited alertness with respect to the educational environment, that is due to chronic or acute health problems and adversely affects a child's educational performance;

(b) The IEP Team shall consider assessments and child data related to:

(1) Whether the child displays limited strength, vitality, or alertness, including a heightened alertness to environmental stimuli, that results in limited alertness with respect to the educational environment; and

(2) Whether the child exhibits a chronic or acute health problem, including but not limited to asthma, attention deficit disorder or attention deficit hyperactivity disorder, diabetes, epilepsy, a heart condition, hemophilia, lead poisoning, leukemia, nephritis, rheumatic fever, sickle cell anemia, or Tourette syndrome;

(c) The IEP Team may consider and use as the basis for its determination any other sources of existing data indicating eligibility for other health impairment, including medical documentation or a medical diagnosis, if available;

(d) The IEP Team shall confirm that the child-level data demonstrates that the child's educational performance has been adversely affected by an other health impairment and not any of the inappropriate determinant factors listed in Section 3010.2; and

(e) The other health impairment category shall be treated as a separate and distinct classification from all other disability categories, and shall not be utilized due merely to the child not meeting the criteria of other categories.

3011.11

In determining eligibility on the basis of specific learning disability, the following shall apply:

(a) Specific learning disability shall mean a disorder in one (1) or more of the basic psychological processes involved in understanding or in using language, spoken or written, that may affect the ability to listen, think, speak, read, write, spell, or to do mathematical calculations, including conditions such as perceptual disabilities, brain injury, minimal brain dysfunction, dyslexia, and developmental aphasia. Specific learning disability shall not include learning problems that are primarily the result of visual, hearing, or motor disabilities, of intellectual disability, of emotional disability, of environmental, cultural, economic disadvantage, or limited English proficiency;

(b) The IEP Team shall consider assessments and child data related to whether the child achieves adequately for the child's age or meets State-approved grade-level standards, when provided with learning experiences and instruction appropriate for the child's age or State-approved grade-level standards, in one (1) or more of the following areas:

(1) Oral expression;

(2) Listening comprehension;

(3) Written expression;

(4) Basic reading skills;

(5) Reading fluency skills;

(6) Reading comprehension;

(7) Mathematics calculation; or

(8) Mathematics problem solving;

(c) The IEP Team shall determine that its findings in accordance with this section are not primarily the result of:

(1) A visual, hearing, or motor disability;

(2) Intellectual disability;

(3) Emotional disability;

(4) Cultural factors;

(5) Environmental or economic disadvantage; or

(6) Limited English proficiency;

(d) To ensure underachievement in a child suspected of having a specific learning disability is not due to lack of appropriate instruction in reading or math, the IEP Team shall consider:

(1) Data that demonstrate that prior to, or as a part of, the referral process, the child was provided appropriate instruction in general education settings, delivered by qualified personnel; and

(2) Data-based documentation of repeated assessments of achievement at reasonable intervals, reflecting formal assessment of child progress during instruction, which was provided to the child's parents;

(e) The IEP Team shall determine eligibility for specific learning disability using one (1) of the following methods:

(1) Eligibility using scientific, research-based interventions. In determining eligibility on the basis of specific learning disability using scientific, research-based interventions, the IEP Team shall consider assessments and child data related to:

(A) The criteria set forth in paragraph (a) of this subsection;

(B) Whether the child makes sufficient progress to meet age or grade-level standards in one (1) or more of the areas identified in Section 3011.11(b) when using a process based on the child's response to scientific, research-based intervention, or a Response-to-Intervention model; or

(C) Whether the child 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 this chapter; or

(2) Eligibility using the discrepancy model. In determining eligibility on the basis of specific learning disability using the discrepancy model, the IEP Team shall consider assessments and child data related to:

(A) The criteria set forth in paragraph (a) of this subsection; and

(B) If a discrepancy is demonstrated between achievement and intellectual functioning as measured by the educational evaluation and the intellectual evaluation of at least one and one half (1.5) standard deviations, as measured by appropriate standardized diagnostic instruments and procedures;

(f) The IEP Team may consider and use as the basis for its determination any other sources of existing data indicating eligibility for specific learning disability, including medical documentation or a medical diagnosis, if available; and

(g) The IEP Team shall confirm that the child-level data demonstrates that the child's educational performance has been adversely affected by a specific learning disability and not any of the inappropriate determinant factors listed in Section 3010.2.

3011.12

In determining eligibility on the basis of speech or language impairment, the following shall apply:

(a) Speech or language impairment shall mean a communication disorder, such as stuttering, impaired articulation, a language impairment, or a voice impairment, that adversely affects a child's educational performance. A speech or language impairment shall not be attributed to characteristics of second language acquisition or dialectic differences;

(b) The IEP Team shall consider assessments and child data related to:

(1) Whether the child displays an articulation impairment, including atypical production of speech sounds characterized by substitutions, omissions, additions, or distortions that interferes with intelligibility in conversational speech;

(2) Whether the child displays a fluency impairment, including:

(A) Interruption in the flow of speech characterized by an atypical rate or rhythm;

(B) Repetition in sounds, syllables, words, and phrases that significantly reduces the child's ability to participate within the learning environment;

(C) Excessive tension, struggling behaviors, or ritualistic behaviors or movements;

(D) Stuttering; and

(E) Cluttering;

(3) Whether the child displays a language impairment, including:

(A) Impaired comprehension or use of spoken language which may also impair written or other symbol systems;

(B) Impairment in the form of language (phonology, morphology, and syntax);

(C) Impairment in the content of language (semantics); and

(D) Impairment in the use of language in communication (pragmatics);

(4) Whether the child displays a voice impairment, including:

(A) Interruption in one (1) or more processes of pitch, quality, intensity, or resonance resonation that significantly reduces the speaker's ability to communicate effectively;

(B) Aphonia, or the abnormal production of vocal quality, pitch, loudness, resonance, or duration, which is inappropriate for an individual's age or gender, or both;

(c) Fluency impairment does not include dysfluencies evident in only one (1) setting or reported by one (1) observer;

(d) The IEP Team may consider and use as the basis for its determination any other sources of existing data indicating eligibility for speech or language impairment, including medical documentation or a medical diagnosis, if available; and

(e) The IEP Team shall confirm that the child-level data demonstrates that the child's educational performance has been adversely affected by speech or language impairment and not any of the inappropriate determinant factors listed in Section 3010.2.

3011.13

In determining eligibility on the basis of traumatic brain injury, the following shall apply:

(a) Traumatic brain injury shall mean an acquired injury to the brain caused by an external physical force, resulting in total or partial functional disability or psychosocial impairment, or both, that adversely affects a child's educational performance. Traumatic brain injury applies to open or closed head injuries resulting in impairments in one (1) or more areas, such as cognition, language, memory, attention, reasoning, abstract thinking, judgment, problem-solving, sensory, perceptual, and motor abilities, psychosocial behavior, physical functions, information processing, and speech. Traumatic brain injury does not apply to brain injuries that are congenital or degenerative, or to brain injuries induced by birth trauma;

(b) The IEP Team shall consider assessments and child data related to:

(1) Whether the child acquired injury to the brain caused by an external force that resulted in total or partial functional disability or psychosocial impairment;

(2) Whether the child displays a deficit in cognition, including memory, attention, reasoning, abstract thinking, judgment, problem solving, speed of information processing, cognitive endurance, organization, receptive and expressive language, and speed of language recall;

(3) Whether the child displays deficit in psychosocial behavior, including awareness of self and others, interactions with others, responses to social rules, emotional responses to everyday situations, and adaptive behavior; and

(4) Whether the child displays deficit in physical or motor abilities, including hearing and vision acuity, speech production, hand-eye coordination, mobility, and physical endurance;

(c) The IEP Team may consider and use as the basis for its determination any other sources of existing data indicating eligibility for traumatic brain injury, including medical documentation or a medical diagnosis, if available; and

(d) The IEP Team shall confirm that the child-level data demonstrates that the child's educational performance has been adversely affected by traumatic brain injury and not any of the inappropriate determinant factors listed in Section 3010.2.

3011.14

In determining eligibility on the basis of visual impairment, the following shall apply:

(a) Visual impairment, including blindness, shall mean an impairment in vision that, even with correction, adversely affects a child's educational performance. Visual impairment includes partial sight and blindness;

(b) The IEP Team shall consider assessments and child data related to whether the child exhibits an impairment in vision, including:

(1) Partial sight;

(2) Blindness; or

(3) Other visual conditions that, even with correction, adversely affect the child's educational performance;

(c) The IEP Team shall review and consider medical documentation of visual impairment, if available, including:

(1) Exact measures of visual field and corrected visual acuity at a distance and at close range in each eye;

(2) Diagnosis of cortical visual impairment; or

(3) Diagnosis of degenerative condition that is likely to result in significant loss of vision in the future;

(d) The IEP Team may consider and use as the basis for its determination any other sources of existing data indicating eligibility for visual impairment, including medical documentation or a medical diagnosis, if available;

(e) The IEP Team shall confirm that the child-level data demonstrates that the child's educational performance has been adversely affected by a visual impairment and not any of the inappropriate determinant factors listed in Section 3010.2;

(f) For a child identified as having a visual impairment, an LEA shall assess the child's need for special aids, materials, tactual media such as Braille, and equipment for learning, literacy, activities of daily living, social interaction, and self-advocacy; and

(g) For children identified as having a visual impairment who have a visual acuity of 20/200 or less after routine refractive correction, or who have a peripheral field of vision restricted to not more than twenty (20) degrees, the LEA shall obtain an evaluation by an orientation and mobility specialist. The orientation and mobility specialist shall also include in the report a set of recommended procedures to be used by a mobility specialist or a teacher of children with visual impairment in conducting orientation and mobility training activities.

D.C. Mun. Regs. tit. 5, r. 5-A3011

Final Rulemaking published at 69 DCR 5902 7/1/2022