2.Eligibility Criteria for Children Three to Twenty-TwoThe references to data from general education interventions apply only to children age five to twenty-two. Parents may always make a referral without waiting for the completion of the general education interventions.
A child with a disability is an individual who:
Has reached the age of 3 years;
Has neither graduated from a secondary school program with a regular high school diploma and is under 22 years of age at the start of the school year;
Has been observed in the learning environment/classroom setting; and
Has been evaluated according to these rules and has been determined to have a disability which requires the provision of special education and supportive services.
A child with a disability shall have one or more of the disabilities listed in this section.
A child must need special education. Although federal regulations do not define "needs," the word commonly signifies something necessary, something exigent or the "lack of something essential." A child "needs" special education and related services when, because of the disability, the child can neither progress effectively in a regular education program nor receive reasonable benefit from such a program in spite of other services available to the child.
The need is best established through evidence of a distinctly measurable and persistent gap in the child's educational or functional performance that cannot be addressed through services or accommodations available through the general education program.
A. Autism (1)Definition. Autism means a developmental disability significantly affecting verbal and non-verbal communication and social interaction, generally evident before age three that adversely affects 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. The term does not apply if a child's educational performance is adversely affected primarily because the student has an emotional disability, as defined in Section VII of this rule.
A child who manifests the characteristics of autism after age three could be identified as having autism if the criteria in paragraph one of this section is satisfied. [34 CFR 300.8(c)(1) (i-iii)]
Autism is defined as one of the "pervasive developmental disorders" which includes: PDD, PDDNOS, Asperger's Syndrome, Autistic Disorder, Rett's Syndrome, and Childhood Disintegrative Disorder.
(2)Procedure for Determination. All steps below are required.(a)Data from general education interventions, if appropriate, utilizing research based intervention techniques indicate that the response to general education intervention is not adequate.(b)Diagnostic impressions will be based upon an evaluation undertaken by a qualified professional who is qualified to make a diagnostic impression under the DSM codes for pervasive developmental disorders.B. Deaf-Blindness (1) Definition. Deaf-blindness means concomitant visual and deafness, including hearing loss, the combination of which causes such 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. [34 CFR 300.8(c)(2)] (2)Procedure for Determination. All steps below are required.(a)Deaf-blindness is a separate eligibility category. These children should not be categorized or counted as multiply disabled, unless there is another distinct disability and the team is unable to determine the primary disability.(b)Audiological and medical evaluations are utilized as part of the multidisciplinary evaluation in determination of eligibility.C. Deafness, including hearing loss (1) Definition. Deafness, including hearing loss means a hearing impairment that is so severe that the child is impaired in processing linguistic information through hearing, with or without amplification, that adversely affects the child's educational performance. [34 CFR 300.8(c)(3)] (2)Procedure for Determination. All steps below are required.(a)Audiological and medical evaluations will determine the diagnosis under this criterion.(b)Once deafness is diagnosed, further assessments by specialists in the field of deaf education are needed for the IEP Team's determination of adverse effect on educational performance and language acquisition. These additional assessments may be conducted by a Teacher of the Deaf/Hearing Impaired, a speech-language pathologist, or other qualified personnel, as deemed appropriate by the IEP Team.D. Developmental Delay (1) Definition. A child with a disability aged 3-5, may, at the discretion of the local educational agency, include a child experiencing developmental delays, as defined below and as measured by appropriate diagnostic instruments and procedures, in one or more of the following areas: physical development; cognitive development; communication development; social or emotional development; or adaptive development; and who, by reason thereof, needs special education and related services. [20 USC 1401(a)(3)(B) (i-ii)] The measured delays must be so significant as to adversely affect the child's educational performance or achievement in age-relevant, developmentally, and individually appropriate activities such that the child does not achieve or perform at a level commensurate with that of typically developing children of the same age.
Every effort will be made to identify a child's primary disability under one of the other Part B eligibility criteria, reserving developmental delay for those situations in which a clear determination cannot be made under any other category.
For a five-year-old who has transitioned from early childhood special education to a public school, and who has been determined eligible under developmental delay by CDS, and for whom the IEP Team cannot achieve consensus on Part B criteria for the kindergarten year, the SAU may continue the eligible child under the developmental delay criteria for that year consistent with 34 CFR 300.111. During the kindergarten year, the IEP Team will determine by means of further evaluation, assessments and classroom observations., whether the child is eligible as a child with a disability under Part B criteria.
(2)Procedure for Determination. All steps below are required.(a)A developmental delay will be determined through the use of standardized measures intended to examine all five areas of development, and administered by a qualified individual with formal training in professional standards of the assessment of young children.(b)Criteria for identifying significant delays are scores of at least 1.5 standard deviations below the mean in at least two of the five listed domains or 2 standard deviations below the mean in one of the five listed domains.(c)The composite standard score of the overall domain will be used to determine a standard deviation below the mean in a developmental area.(d)The identification of a young child with a developmental delay will include consideration of an observation of the child in the learning environment or an environment appropriate for a child of that age, to document educational performance and behavior in the areas of difficulty. The observation will be done by a certified special education personnel, other than the child's current provider(e)The IEP Team will determine if the child's delay adversely affects the child's educational performance.E.Emotional Disability(1) Definition. Emotional Disability means a condition which exhibits one or more of the following characteristics over a long period of time and to a marked degree that adversely affects the child's educational performance: (a) An inability to learn that cannot be explained by intellectual, sensory, or health factors;(b) An inability to build or maintain satisfactory interpersonal relationships with peers and teachers;(c) Inappropriate types of behaviors or feelings under normal circumstances;(d) A general pervasive mood of unhappiness or depression;(e) A tendency to develop physical symptoms or fears associated with personal or school problems. The term includes schizophrenia. The term does not apply to students who are "socially maladjusted," unless it is determined that they have an emotional disability. [34 CFR 300.8(c)(4)]
(2)Procedure for Determination. All steps below are required.(a)Data from general education interventions, if appropriate, utilizing research based intervention techniques indicate that the response to general education intervention is not adequate.(b)Evaluation will be done by qualified personnel who is qualified to make a diagnostic impression under the DSM codes.F. Hearing Loss (1) Definition. Hearing Loss means an impairment in hearing whether permanent or fluctuating, that adversely affects the child's educational-performance but who is not included under the definition of deafness in Section VII.(2)(C) of this rule..[34 CFR 300.8(c)(5)] (2)Procedure for Determination. All steps below are required.(a)An audiological and a medical evaluation are to be utilized as part of the multidisciplinary determination of eligibility under this criterion.(b)The IEP Team will determine if the impairment adversely affects the child's educational performance.G. Intellectual Disability (1) Definition. Intellectual disability means significantly subaverage general intellectual functioning existing concurrently with deficits in adaptive behaviors and manifested during the developmental period that adversely affect the child's educational performance. [34 CFR 300.8(c)(6)] (2)Procedure for Determination. All steps below are required.(a)Diagnostic impression will be based upon an evaluation completed by a professional who is qualified to make a diagnostic impression under current DSM codes, as part of the multidisciplinary evaluation.(b)The IEP Team will determine if the impairment adversely affects the child's educational performance.H. Multiple Disabilities (1) Definition. Multiple disabilities means concomitant impairments the combination of which causes such severe educational needs that the child cannot be accommodated in special educational programs solely for one of the impairments. The term does not include children who have deaf-blindness. [34 CFR 300.8(c)(7)] (2)Procedure for Determination. All steps below are required.(a)A child under this category will have a diagnostic report which specifically articulates the distinct documented disabilities-the combination of which causes such severe educational needs that the child cannot be accommodated in special education programs solely for one impairment. The disabilities are concomitant.(b)If the IEP Team is unable to determine a primary disability and the conditions under (a) are met, the child should be categorized as a child with multiple disabilities.I. Orthopedic impairment(1) Definition. Orthopedic impairment means 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). [34 CFR 300.8(c)(8)] (2)Procedure for Determination. All steps below are required.(a)A referral shall include a diagnosis from a licensed physician as to the existence of an orthopedic impairment, resulting from a congenital anomaly, disease, or other condition.(b) The IEP Team will determine if the impairment adversely affects the child's educational performance.J. Other Health Impairment (1) Definition. Other health impairment means 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, such as asthma, attention deficit disorder, attention deficit hyperactivity disorder, diabetes, epilepsy, a heart condition, hemophilia, lead poisoning, leukemia, nephritis, rheumatic fever, or sickle cell anemia, Tourette Syndrome and adversely affects the child's educational performance. [34 CFR 300.8(c)(9)] (2) Procedure for Determination. All steps below are required.(a)Data from general education interventions, if appropriate, using research based intervention techniques indicate that the response to general education intervention is not adequate.(b)The I.E.P. Team shall consider any available written diagnoses and/or educational, psychological or medical evaluation results relevant to the identification process.(c)Current diagnostic criteria must have been considered in making the diagnosis or diagnostic impression.(d)The I.E.P. Team shall review written reports of observations conducted across settings including observations within the educational environment, if the child is participating in an educational environment. These observations must include a comparison of the referred/identified student's behaviors to same-aged peers' behaviors from the same environment.(e)When considering eligibility due to an attention deficit hyperactivity disorder, diagnostic impressions of ADHD must be based on a multi-method and multi-informant assessment process conducted across multiple environments including the educational setting for children participating in an educational setting. Methods for ADHD assessment must include at least the following: Psychosocial History; Clinical interviews; Structured observations of the child's behavior in the educational setting; Behavior rating scales measuring features of attention, hyperactivity and impulsivity across multiple settings including the educational setting; and Measures that rule out other disorders that may manifest with similar symptoms. (f)A child with a medical condition listed under Other Health Impairment may also be eligible under another category if he or she meets the criteria for that other category and needs special education and related services. All children who have one or more of the conditions listed under Other Health Impairment are not necessarily eligible to receive special education services under IDEA.K. Speech or Language Impairment (1) Definition. Speech or language impairment means a communication disorder such as stuttering, impaired articulation, a language impairment, or a voice impairment, that adversely affects the child's educational performance. [34 CFR 300.8(c)(11)] (2)Procedure for Determination. All steps below are required.(a)Data from general education interventions, if appropriate, utilizing research based intervention techniques indicate that the response to intervention is not adequate.(b)For assessments that provide standard scores, the criteria for determining disability will be in the moderate to severe range for the child's age as determined by the rating scales.(c)For assessments that do not provide standard scores, criteria for a moderate to severe disability must be met by the quantifiable measure as determined by the rating scales.(d)For clinical observations documenting the effect of communication on educational performance in evaluation reports, the criteria for meeting a moderate to severe disability must be detailed by the examiner as determined by the rating scales.(e)Evaluation data shall be entered into a rating scale by the IEP Team which measures a moderate to severe level of speech or language impairment in all levels of assessment(f)Diagnosis will be by a licensed or certified professional who is qualified to make a diagnosis under this criteria, as reflected below: Certified speech/language clinician Licensed speech/language pathologist L. Specific Learning Disability (1) Definition. 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 an imperfect 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 disabilities does not include learning problems that are primarily the result of visual, hearing, or motor disabilities, of intellectual disability, of emotional disability, or environmental, cultural or economic disadvantage. [34 CFR 300.8(c)(10)] (2) Determination of the existence of a Specific Learning Disability.(a)The IEP Team may determine that a child has a specific learning disability if:(i)Evidence from multiple valid and reliable sources demonstrates that the child does not achieve adequately for the child's age or to meet State-approved grade- level standards in one or more of the following areas, when provided with learning experiences and instruction appropriate for the child's age or State- approved grade-level standards: (bb) Listening comprehension.(dd) Basic reading skill.(ee) Reading fluency skills.(ff) Reading comprehension.(gg) Mathematics calculation.(hh) Mathematics problem solving; and(ii) 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 §§300.304 and 300.305[Section V] . To determine a pattern of strength and weaknesses, the IEP Team must consider the following:(aa)data collected when using a process based on the child's response to scientific, research-based intervention; including general education interventions under Section III of this rule;(bb)Classroom performance data;(cc)Achievement data based on summative assessments, State assessments or scientifically-based assessments;(dd)Psychological processing data from standardized measures to identify contributing factors: and(iii) The group determines that its findings under paragraphs (2)(a)(i) and (ii) of this section are not primarily the result of- (aa) A visual, hearing, or motor disability;(bb) Intellectual disability;(cc) Emotional disability;(ee) Environmental or economic disadvantage; or(ff) Limited English proficiency.(b) To ensure that underachievement in a child suspected of having a specific learning disability is not due to lack of appropriate instruction in reading or math, the group must consider, as part of the evaluation described in §§ 300.304 through 300.306[Section V] - (i) Data that demonstrate that prior to, or as a part of, the referral process, the child was provided appropriate instruction in regular education settings, delivered by qualified personnel; and(ii) Data-based documentation of repeated assessments of achievement at reasonable intervals, reflecting formal assessment of student progress during instruction, which was provided to the child's parents.(c)If measures with norms for the child's cultural and linguistic background, physical disability or other contributing factors are unavailable, then the IEP Team's assessment shall utilize multi-tiered problem-solving approaches such as analysis of work samples and other performance data to demonstrate the likelihood of a learning disability.(d) Additional group members. The determination of whether a child suspected of having a specific learning disability is a child with a disability as defined in §300.8 and V II.2(L) of this rule must be made by the child's parents and a team of qualified professionals, which must include: (i) The child's regular teacher; or(ii) If the child does not have a regular teacher, a regular classroom teacher qualified to teach a child of his or her age; or(iii) For a child of less than school age, an individual qualified by the SEA to teach a child of his or her age; and(iv) At least one person qualified to conduct individual diagnostic examinations of children, such as a school psychologist, speech-language pathologist, or remedial reading teacher. [20 U.S.C. 1221e-3; 1401(30); 1414(b)(6)) and 34 CFR 300.308] (e) The public agency must promptly request parental consent to evaluate the child to determine if the child needs special education and related services, and must adhere to the timeframes described in Sections VI.1.A and B of this rule [§§ 300.301 and 300.303], unless extended by mutual written agreement of the child's parents and a group of qualified professionals, as described in paragraph d of this section [§300.306(a)(1)]- (ii) If, prior to a referral, a child has not made adequate progress after an appropriate period of time when provided instruction, as described in paragraphs (b) (i) and (ii) of this section; and(ii) Whenever a child is referred for an evaluation. (Authority: 20 U.S.C. 1221e-3; 1401(30); 1414(b) (6)) [34 CFR 300.309] (f) Observation (i) The public agency must ensure that the child is observed in the child's learning environment (including the regular classroom setting) to document the child's academic performance and behavior in the areas of difficulty.(ii) The group described in paragraph d of this section [§300.306(a)(1), in determining whether a child has a specific learning disability, must decide to-(aa) Use information from an observation in routine classroom instruction and monitoring of the child's performance that was done before the child was referred for an evaluation; or(bb) Have at least one member of the group described in paragraph d of this section [§300.306(a)(1)] conduct an observation of the child's academic performance in the regular classroom after the child has been referred for an evaluation and parental consent, consistent with section V.1.A(4)(a) of this rule [ §300.300(a)], is obtained.(iii) In the case of a child of less than school age or out of school, a group member must observe the child in an environment appropriate for a child of that age. (Authority: 20 U.S.C. 1221e-3; 1401(30); [34 CFR 300.310] (g) Specific documentation for the eligibility determination.(i) For a child suspected of having a specific learning disability, the documentation of the determination of eligibility, as required in §300.306(a)(2), must contain a statement of-(aa) Whether the child has a specific learning disability;(bb) The basis for making the determination, including an assurance that the determination has been made in accordance with §300.306(c)(1);(cc) The relevant behavior, if any, noted during the observation of the child and the relationship of that behavior to the child's academic functioning;(dd) The educationally relevant medical findings, if any;(ee) Whether the child does not achieve adequately for the child's age or to meet State-approved grade-level standards consistent with §300.309(a)(1) [Section VII.2.L(2)(a)(i)]; and 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 consistent with §300.309(a)(2)(ii) [Section VII.2.L(2)(a)(ii)];(ff) The determination of the group concerning the effects of a visual, hearing, or motor disability; intellectual disability; emotional disability; cultural factors; environmental or economic disadvantage; or limited English proficiency on the child's achievement level; and(gg) If the child has participated in a process that assesses the child's response to scientific, research-based intervention-(I) The instructional strategies used and the student-centered data collected; and(II) The documentation that the child's parents were notified about-(A) The State's policies regarding the amount and nature of student performance data that would be collected and the general education services that would be provided;(B) Strategies for increasing the child's rate of learning; and(C) The parents' right to request an evaluation.(ii) Each group member must certify in writing whether the report reflects the member's conclusion. If it does not reflect the member's conclusion, the group member must submit a separate statement presenting the member's conclusions. (Authority: 20 U.S.C. 1221e-3; 1401(30); and 34 CFR 300.311] M. Traumatic Brain Injury (1) Definition. Traumatic brain injury means 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. The term applies to open or closed head injuries resulting in impairments in one 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. The term does not apply to brain injuries that are congenital or degenerative, or brain injuries induced by birth trauma. [34 CFR 300.8(c)(12)] (2)Procedure for Determination. All steps below are required.(a)Evaluation will be done by qualified personnel who are qualified to make the diagnosis.(b)The IEP Team will determine if the impairment adversely affects the child's educational performance.N. Visual Impairment including Blindness (1) Definition. Visual impairment including blindness means an impairment in vision that, even with correction, adversely affects the child's educational performance. The term includes both partial sight and blindness. [34 CFR 300.8(c)(13)] (2)Procedure for Determination. The step below is required.(a)A child displays a visual impairment when a visual impairment or a progressive vision loss has been diagnosed by a licensed, qualified optometrist or ophthalmologist, and the diagnostic report indicates that the child displays a visual impairment.3.Procedure for Determination of Adverse Effect on Educational PerformanceThis procedure applies only to the following disability eligibility categories: Autism, Deafness, including Hearing Loss Developmental Delay, Emotional Disability, Intellectual Disability, Orthopedic Impairment, Other Health Impairment, Speech or Language Impairment, Traumatic Brain Injury, and Visual Impairment including Blindness. This section does not apply to the following disabilities where the demonstration of adverse effect is not required as a condition for special education eligibility: Deaf-Blindness, Multiple Disabilities, and Specific Learning Disability.
The IEP Team's determination of adverse effect shall be based upon the results of assessments or data sources, determined by the team to be necessary to validate the effect In most situations, the IEP Team shall consider multiple assessments/data sources. If the IEP Team determines that a single assessment/data source is adequate for determination of adverse effect, the team will provide the rationale on the required form. The IEP Team shall document the data elements utilized in the determination of adverse effect on the Maine Department of Education's required adverse effect form.
NOTE: This procedure for determination of adverse effect on educational performance does not replace the requirements specified in Section V Evaluation or Reevaluation of this rule.