3.04 Specific Disabilities

3.04.01 Autism

Legal Citations

A. Definition of Autism

(1) (i) Autism means a developmental disability significantly affecting verbal and nonverbal communication and social interaction, generally evident before age three, 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.

(II) Autism does not apply if a child's educational performance is adversely affected primarily because the child has an emotional disturbance, as defined in paragraph (c)(4) of this section.

(iii) A child who manifests the characteristics of autism after age three could be diagnosed as having autism if the criteria in paragraph (c)(1)(i) of this section are satisfied. 34 C.F.R. 300.8(c)(1)

"Autism spectrum disorders (ASD)" means a range of pervasive developmental disorders, with onset in childhood, that adversely affect a pupil's functioning and result in the need for special education instruction and related services. ASD is a disability category characterized by an uneven developmental profile and a pattern of qualitative impairments in several areas of development, including social interaction, communication, or the presence of restricted, repetitive, and stereotyped patterns of behavior, interests, and activities. These core features may present themselves in a wide variety of combinations that range from mild to severe, and the number of behavioral indicators present may vary. ASD may include Autistic Disorder, Childhood Autism, Atypical Autism, Pervasive Developmental Disorder Not Otherwise Specified, Asperger's Disorder, or other related pervasive developmental disorders. Minn. R. 3525.1325, subp. 1

B. Criteria for Autism Spectrum Disorder

A multidisciplinary team shall determine that pupil is eligible and in need of special education instruction and related services if the pupil meets the criteria in items A and B.

A. An educational evaluation must address all three core features in subitems (1) to (3). The team must document that the pupil demonstrates patterns of behavior described in at least two of these subitems, one of which must be subitem (1).

The behavioral indicators demonstrated must be atypical for the pupil's developmental level. The team shall document behavioral indicators through at least two of these methods: structured interviews with parents, autism checklists, communication and developmental rating scales, functional behavior assessments, application of diagnostic criteria from the current Diagnostic and Statistical Manual (DSM), informal and standardized evaluation instruments, or intellectual testing.

(1) Qualitative impairment in social interaction, as documented by two or more behavioral indicators, for example: limited joint attention and limited use of facial expressions directed toward others; does not show or bring things to others to indicate an interest in the activity; demonstrates difficulties in relating to people, objects, and events; a gross impairment in ability to make and keep friends; significant vulnerability and safety issues due to social naivete; may appear to prefer isolated or solitary activities; misinterprets others' behaviors and social cues.

(2) Qualitative impairment in communication, as documented by one or more behavioral indicators, for example: not using finger to point or request; using others' hand or body as a tool; showing lack of spontaneous imitations or lack of varied imaginative play; absence or delay of spoken language; limited understanding and use of nonverbal communication skills such as gestures, facial expressions, or voice tone; odd production of speech including intonation, volume, rhythm, or rate; repetitive or idiosyncratic language or inability to initiate or maintain a conversation when speech is present.

(3) Restricted, repetitive, or stereotyped patterns of behavior, interest, and activities, as documented by one or more behavioral indicators, for example: insistence on following routines or rituals; demonstrating distress or resistance to changes in activity; repetitive hand or finger mannerism; lack of true imaginative play versus reenactment; overreaction or under-reaction to sensory stimuli; rigid or rule-bound thinking; an intense, focused preoccupation with a limited range of play, interests, or conversation topics.

B. The team shall document and summarize in an evaluation report that ASD adversely affects a pupil's performance and that the pupil is in need of special education instruction and related services. Documentation must include:

(1) an evaluation of the pupil's present levels of performance and educational needs in each of the core features identified by the team in item A. In addition, the team must consider all other areas of educational concern related to the suspected disability;

(2) observations of the pupil in two different settings, on two different days; and

(3) a summary of the pupil's developmental history and behavior patterns.

Minn. R. 3525.1325, subp. 3

C. Team membership

The team determining eligibility and educational programming must include at least one professional with experience and expertise in the area of ASD due to the complexity of this disability and the specialized intervention methods. The team must include a school professional knowledgeable of the range of possible special education eligibility criteria. Minn. R. 3525.1325, subp. 4

D. Implementation

Pupils with various educational profiles and related clinical diagnoses may meet the criteria of ASD under subpart 3. However, a clinical or medical diagnosis is not required for a pupil to be eligible for special education services, and even with a clinical or medical diagnosis, a pupil must meet the criteria in subpart 3 to be eligible. Minn. R. 3525.1325, subp. 5

3.04.02 Criteria for Blind Student

Legal Citations

A. Definition of Deaf-Blind

Deaf-blindness means concomitant hearing and visual impairments, the combination of which causes such severe communication and other developmental and educational needs that they cannot be accommodated in special education programs solely for chilrden with deafness or children with blindness. 34 C.F.R 300.8(c)(2)

B. Criteria for Deaf-Blind

"Deaf-blind" means medically verified visual loss coupled with medically verified hearing loss that, together, interfere with acquiring information or interacting in the environment. Both conditions need to be present simultaneously, and the pupil must meet the criteria for both visually impaired and deaf and hard of hearing to be eligible for special education and services under this category. Minn. R. 3526.1327, subp. 1

C. Pupils at Risk

Pupils at risk of being deaf-blind include pupils who:

A. are already identified as deaf or hard of hearing or visually impaired but have not yet had a medical or functional evaluation of the other sense (vision or hearing);

B. have an identified condition, such as Usher Syndrome or Optic Atrophy, that includes a potential deterioration of vision or hearing in the future;

C. have a medically or functionally identified hearing loss and a verified deficit in vision determined by a functional evaluation in the learning environment;

D. have a medically or functionally identified vision impairment and verified hearing loss determined by a functional evaluation in the learning environment; or

E. have an identified syndrome or condition that includes hearing and vision loss in combination with multiple disabilities, for example, CHARGE Syndrome.

3.04.03 Emotional or Behavioral Disorders

Legal Citations

A. Definition of Emotional or Behavioral Disorders

(4)(i) Emotional disturbance means a condition exhibiting one or more of the following characteristics over a long period of time and to a marked degree that adversely affects a 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 behavior 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.

(ii) Emotional disturbance includes schizophrenia. The term does not apply to children who are socially maladjusted, unless it is determined that they have an emotional disturbance under paragraph (c)(4)(i) of this section. 34 C.F.R. 300.8(c)(4)

"Emotional or behavioral disorders" means an established pattern of one or more of the following emotional or behavioral responses:

A. withdrawal or anxiety, depression, problems with mood, or feelings of self-worth;

B. disordered thought processes with unusual behavior patterns and atypical communication styles; or

C. aggression, hyperactivity, or impulsivity.

The established pattern of emotional or behavioral responses must adversely affect educational or developmental performance, including intrapersonal, academic, vocational, or social skills; be significantly different from appropriate age, cultural, or ethnic norms; and be more than temporary, expected responses to stressful events in the environment. The emotional or behavioral responses must be consistently exhibited in at least three different settings, two of which must be educational settings, and one other setting in either the home, child care, or community. The responses must not be primarily the result of intellectual, sensory, or acute or chronic physical health conditions. Minn. R. 3525.1329, subp.1

B. Criteria for emotional or Behavioral Disorders

A pupil is eligible and in need of special education and related services for an emotional or behavioral disorder when the pupil meets the criteria in items A to C.

A. A pupil must demonstrate an established pattern of emotional or behavioral responses that is described in at least one of the following subitems and which represents a significant difference from peers:

(1) withdrawn or anxious behaviors, pervasive unhappiness, depression, or severe problems with mood or feelings of self-worth defined by behaviors, for example: isolating self from peers; displaying intense fears or school refusal; overly perfectionistic; failing to express emotion; displaying a pervasive sad disposition; developing physical symptoms related to worry or stress; or changes in eating or sleeping patterns;

(2) disordered thought processes manifested by unusual behavior patterns, atypical communication styles, or distorted interpersonal relationships, for example: reality distortion beyond normal developmental fantasy and play or talk; inappropriate laughter, crying, sounds, or language; self-mutilation, developmentally inappropriate sexual acting out, or developmentally inappropriate self-stimulation; rigid, ritualistic patterning; perseveration or obsession with specific objects; overly affectionate behavior towards unfamiliar persons; or hallucinating or delusions of grandeur; or

(3) aggressive, hyperactive, or impulsive behaviors that are developmentally inappropriate, for example: physically or verbally abusive behaviors; impulsive or violent, destructive, or intimidating behaviors; or behaviors that are threatening to others or excessively antagonistic.

The pattern must not be the result of cultural factors, and must be based on evaluation data which may include a diagnosis of mental disorder by a licensed mental health professional.

B. The pupil's pattern of emotional or behavioral responses adversely affects educational performance and results in:

(4) an inability to demonstrate satisfactory social competence that is significantly different from appropriate age, cultural, or ethnic norms; or

(5) a pattern of unsatisfactory educational progress that is not primarily a result of intellectual, sensory, physical health, cultural, or linguistic factors; illegal chemical use; autism spectrum disorders under part 3525.1325; or inconsistent educational programming.

C. The combined results of prior documented interventions and the evaluation data for the pupil must establish significant impairments in one or more of the following areas: intrapersonal, academic, vocational, or social skills. The data must document that the impairment:

(1) severely interferes with the pupil's or other students' educational performance;

(2) is consistently exhibited by occurrences in at least three different settings: two educational settings, one of which is the classroom, and one other setting in either the home, child care, or community; or for children not yet enrolled in kindergarten, the emotional or behavioral responses must be consistently exhibited in at least one setting in the home, child care, or community; and

(6) has been occurring throughout a minimum of six months, or results from the well-documented, sudden onset of a serious mental health disorder diagnosed by a licensed mental health professional.

C. Evaluation

A. The evaluation findings in subpart 2a must be supported by current or existing data from:

(1) clinically significant scores on standardized, nationally normed behavior rating scales;

(2) individually administered, standardized, nationally normed tests of intellectual ability and academic achievement;

(3) three systematic observations in the classroom or other learning environment;

(4) record review;

(5) interviews with parent, pupil, and teacher;

(6) health history review procedures;

(7) a mental health screening; and

(8) functional behavioral assessment.

The evaluation may include data from vocational skills measures; personality measures; self-report scales; adaptive behavior rating scales; communication measures; diagnostic assessment and mental health evaluation reviews; environmental, socio-cultural, and ethnic information reviews; gross and fine motor and sensory motor measures; or chemical health assessments.

B. Children not yet enrolled in kindergarten are eligible for special education and related services if they meet the criteria listed in subpart 2a, items A, B, and C, subitems (2) and (3). The evaluation process must show developmentally significant impairments in self-care, social relations, or social or emotional growth, and must include data from each of the following areas: two or more systematic observations, including one in the home; a case history, including medical, cultural, and developmental information; information on the pupil's cognitive ability, social skills, and communication abilities; standardized and informal interviews, including teacher, parent, caregiver, and child care provider; and standardized adaptive behavior scales. Minn. R. 3525.1329, subp. 3

"Functional behavioral assessment" or "FBA" means a process for gathering information to maximize the efficiency of behavioral supports. An FBA includes a description of problem behaviors and the identification of events, times, and situations that predict the occurrence and nonoccurrence of the behavior. An FBA also identifies the antecedents, consequences and reinforcers that maintain the behavior, the possible functions of the behavior, and possible positive alternative behaviors. An FBA includes a variety of data collection methods and sources that facilitate the development of hypothesis and summary statements regarding behavioral patterns. Minn. R. 3525.0210, subp 22

3.04.05 Deaf and hard of Hearing

Legal Citations

A. Definition of Deaf and Hard of Hearing

Deafness 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 a child's educational performance. 34 C.F.R. 300.8(c)(3)

Hearing Impairments means an impairment in hearing, whether permanent or fluctuating, that adversely affects a child's educational performance but that is not included under the definition of deafness in this section. 34 C.F.R. 300.8(c)(5)

"Deaf and hard of hearing" means a diminished sensitivity to sound, or hearing loss, that is expressed in terms of standard audiological measures.

Hearing loss has the potential to affect educational, communicative, or social functioning that may result in the need for special education instruction and related services. Minn. R. 3525.1331, subp. 1

B. Criteria for Deaf and Hard of Hearing

A pupil who is deaf or hard of hearing is eligible for special education instruction and related services if the pupil meets one of the criteria in item A and one of the criteria in item B, C, or D.

A. There is audiological documentation provided by a certified audiologist that a pupil has one of the following:

(1) a sensorineural hearing loss with an unaided pure tone average, speech threshold, or auditory brain stem response threshold of 20 decibels hearing level (HL) or greater in the better ear;

(2) a conductive hearing loss with an unaided pure tone average or speech threshold of 20 decibels hearing level (HL) or greater in the better ear persisting over three months or occurring at least three times during the previous 12 months as verified by audiograms with at least one measure provided by a certified audiologist;

(3) a unilateral sensorineural or persistent conductive loss with an unaided pure tone average or speech threshold of 45 decibels hearing level (HL) or greater in the affected ear; or

(4) a sensorineural hearing loss with unaided pure tone thresholds at 35 decibels hearing level (HL) or greater at two or more adjacent frequencies (500 hertz, 1000 hertz, 2000 hertz, or 4000 hertz) in the better ear.

B. The pupil's hearing loss affects educational performance as demonstrated by:

(1) a need to consistently use amplification appropriately in educational settings as determined by audiological measures and systematic observation; or

(2) an achievement deficit in basic reading skills, reading comprehension, written language, or general knowledge that is at the 15th percentile or 1.0 standard deviation or more below the mean on a technically adequate norm-referenced achievement test that is individually administered by a licensed professional.

C. The pupil's hearing loss affects the use or understanding of spoken English as documented by one or both of the following:

(1) under the pupil's typical classroom condition, the pupil's classroom interaction is limited as measured by systematic observation of communication behaviors; or

(2) the pupil uses American Sign Language or one or more alternative or augmentative systems of communication alone or in combination with oral language as documented by parent or teacher reports and language sampling conducted by a professional with knowledge in the area of communication with persons who are deaf or hard of hearing.

D. The pupil's hearing loss affects the adaptive behavior required for age-appropriate social functioning as supported by:

(1) documented systematic observation within the pupil's primary learning environments by a licensed professional and the pupil, when appropriate; and

(3) scores on a standardized scale of social skill development are below the average scores expected of same-age peers.

3.04.06 Developmental Cognitive Disability

Legal Citations

A. Definition of Developmental Cognitive Disability

Mental retardation means significantly subaverage general intellectual functioning, existing concurrently with deficits in adaptive behavior and manifested during the developmental period, that adversely affects a child's educational performance. 34 C.F.R 300.8(c)(6)

"Developmental cognitive disability (DCD)" means a condition resulting in significantly below average intellectual functioning and concurrent deficits in adaptive behavior that adversely affects educational performance and requires special education and related services. DCD does not include conditions primarily due to a sensory or physical impairment, traumatic brain injury, autism spectrum disorders, severe multiple impairments, cultural influences, or inconsistent educational programming. Minn. R. 3525.1333, subp.1

B. Criteria for Developmental Cognitive Disability

The team shall determine that a pupil is eligible as having a DCD and is in need of special education instruction and related services if the pupil meets the criteria in items A and B.

A. The pupil demonstrates below average adaptive behavior in school and home, and, if appropriate, community environments. For the purposes of this item, "below average" means:

(1) a composite score at or below the 15th percentile on a nationally normed, technically adequate measure of adaptive behavior; and

(2) documentation of needs and the level of support required in at least four of the seven adaptive behavior domains across multiple environments. Systematic observation and parent input must be included as sources to document need and level of support. All of the following adaptive behavior domains must be considered:

(a) daily living and independent living skills;

(b) social and interpersonal skills;

(c) communication skills;

(d) academic skills;

(e) recreation and leisure skills;

(f) community participation skills; and

(g) work and work-related skills.

Other sources of documentation may include checklists; classroom or work samples; interviews; criterion-referenced measures; educational history; medical history; or pupil self-report.

B. The pupil demonstrates significantly below average general intellectual functioning that is measured by an individually administered, nationally normed test of intellectual ability. For the purposes of this subitem, "significantly below average general intellectual functioning" means:

(1) mild-moderate range: two standard deviations below the mean, plus or minus one standard error of measurement; and

(2) severe-profound range: three standard deviations below the mean, plus or minus one standard error of measurement.

Significantly below average general intellectual functioning must be verified through a written summary of results from at least two systematic observations with consideration for culturally relevant information, medical and educational histories, and one or more of the following: supplemental tests of specific abilities, criterion-referenced tests, alternative methods of intellectual assessment, clinical interviews with parents, including family members, if appropriate, or observation and analysis of behavior across multiple environments. Minn. R. 3525.1333, subp. 2

3.04.07 Other Health Disability

Legal Citations

A. Definition of Other Health Disability

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-

(i) Is 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 syndrome; and

(ii) Adversely affects a child's educational performance. 34 C.F.R. 300.8(c)(9)

"Other health disability" means having limited strength, endurance, vitality, or alertness, including a heightened or diminished alertness to environmental stimuli, with respect to the educational environment that is due to a broad range of medically diagnosed chronic or acute health conditions that adversely affect a pupil's educational performance. Minn. R. 3525.1335, subp. 1

B. Criteria of Other Health Disability

The team shall determine that a pupil is eligible and in need of special education instruction and services if the pupil meets the criteria in items A and B.

A. There is:

(1) written and signed documentation by a licensed physician of a medically diagnosed chronic or acute health condition; or

(2) in the case of a diagnosis of Attention Deficit Disorder or Attention Deficit Hyperactivity Disorder (ADD or ADHD), there is written and signed documentation of a medical diagnosis by a licensed physician. The diagnosis of ADD or ADHD must include documentation that DSM-IV criteria in items A to E have been met. DSM-IV criteria documentation must be provided by either a licensed physician or a mental health or medical professional licensed to diagnose the condition.

For initial evaluation, all documentation must be dated within the previous 12 months.

B. In comparison with peers, the health condition adversely affects the pupil's ability to complete educational tasks within routine timelines as documented by three or more of the following:

(1) excessive absenteeism linked to the health condition, for example, hospitalizations, medical treatments, surgeries, or illnesses;

(2) specialized health care procedures that are necessary during the school day;

(3) medications that adversely affect learning and functioning in terms of comprehension, memory, attention, or fatigue;

(4) limited physical strength resulting in decreased capacity to perform school activities;

(5) limited endurance resulting in decreased stamina and decreased ability to maintain performance;

(6) heightened or diminished alertness resulting in impaired abilities, for example, prioritizing environmental stimuli; maintaining focus; or sustaining effort or accuracy;

(7) impaired ability to manage and organize materials and complete classroom assignments within routine timelines; or

(8) impaired ability to follow directions or initiate and complete a task. Minn. R. 3525.1335, subp. 2

C. Evaluation

The health condition results in a pattern of unsatisfactory educational progress as determined by a comprehensive evaluation documenting the required components of subpart 2, items A and B. The eligibility findings must be supported by current or existing data from items A to E:

A. an individually administered, nationally normed standardized evaluation of the pupil's academic performance;

B. documented, systematic interviews conducted by a licensed special education teacher with classroom teachers and the pupil's parent or guardian;

C. one or more documented, systematic observations in the classroom or other learning environment by a licensed special education teacher;

D. a review of the pupil's health history, including the verification of a medical diagnosis of a health condition; and

E. records review.

The evaluation findings may include data from: an individually administered, nationally normed test of intellectual ability; an interview with the pupil; information from the school nurse or other individuals knowledgeable about the health condition of the pupil; standardized, nationally normed behavior rating scales; gross and fine motor and sensory motor measures; communication measures; functional skills checklists; and environmental, socio-cultural, and ethnic information reviews. Minn. 3525.1335, subp.3

3.04.08 Physically Impaired

Legal Citations

A. Definition of Physically Impaired

Orthopedic impairment means a severe orthopedic impairment that adversely affects a child's educational performance. the term includes impairments cause by a congenital anomaly, impairments caused by disease (e.g., poliomyelitis, bone tuberculosis), and impairments form other causes (e.g., cerebral palsy, amputations, and fractures or burns that cause contractures). 34 C.F.R 300.8(c)(8)

"Physically impaired" means a medically diagnosed chronic, physical impairment, either congenital or acquired, that may adversely affect physical or academic functioning and result in the need for special education and related services. Minn. R. 3525.1337, subp. 1

B. Criteria for Physically Impaired

A pupil is eligible and in need of special education instruction and services if the pupil meets the criterion in item A and one of the criteria in item B.

A. There must be documentation of a medically diagnosed physical impairment.

B. The pupil's:

(1) need for special education instruction and service is supported by a lack of functional level in organizational or independent work skills as verified by a minimum of two or more documented, systematic observations in daily routine settings, one of which is completed by a physical and health disabilities teacher;

(2) need for special education instruction and service is supported by an inability to manage or complete motoric portions of classroom tasks within time constraints as verified by a minimum of two or more documented systematic observations in daily routine settings, one of which is completed by a physical and health disabilities teacher; or

(3) physical impairment interferes with educational performance as shown by an achievement deficit of 1.0 standard deviation or more below the mean on an individually administered, nationally normed standardized evaluation of the pupil's academic achievement.

3.04.09 Severely Multiply Impaired

Legal Citations

A. Definition of Severely Multiply Impaired

Multiple disability means concomitant impairments (such as mental retardation-blindness or mental retardation-orthopedic), the combination of which causes such severe educational needs that they cannot be accommodated in special education programs solely for one of the impairments. Multiple disabilities does not include deaf-blind. 34 C.F.R 300.8(c)(7)

"Severely multiply impaired" means a pupil who has severe learning and developmental problems resulting from two or more disability conditions determined by an evaluation as defined by part 3525.2710. Minn. R. 3525.1339, subp. 1

B. Criteria for Severely Multiply Impaired

The team shall determine that a pupil is eligible as being severely multiply impaired if the pupil meets the criteria for two or more of the following disabilities:

A. deaf or hard of hearing, part 3525.1331;

B. physically impaired, part 3525.1337;

C. developmental cognitive disability: severe-profound range, part 3525.1333;

D. visually impaired, part 3525.1345;

E. emotional or behavioral disorders, part 3525.1329; or

F. autism spectrum disorders, part 3525.1325.

3.04.10 Specific Learning Disability

Legal Citations

A. Definition of Specific Learning Disability

(10) (i) 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 condition such as perceptual disabilities, brain injury, minimal brain dysfunction, dyslexia, and developmental aphasia.

(ii) Specific learning disability does not include learning problems that are primarily the result of visual, hearing, or motor disabilities, or mental retardation, of emotional disturbance, or of environmental, cultural, or economic disadvantage. 34 C.F.R. 300.8(c)(10)

"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 to do mathematical calculations, including conditions such as perceptual disabilities, brain injury, minimal brain dysfunction, dyslexia, and developmental aphasia.

The disorder is:

A. manifested by interference with the acquisition, organization, storage, retrieval, manipulation, or expression of information so that the child does not learn at an adequate rate for the child's age or to meet state-approved grade-level standards when provided with the usual developmental opportunities and instruction from a regular school environment; and

B. demonstrated primarily in academic functioning, but may also affect other developmental, functional, and life adjustment skill areas; and may occur with, but cannot be primarily the result of: visual, hearing, or motor impairment; cognitive impairment; emotional disorders; or environmental, cultural, economic influences, limited English proficiency or a lack of appropriate instruction in reading or math.

C. demonstrated primarily in academic functioning, but may also affect self-esteem, career development, and life adjustment skills. A specific learning disability may occur with, but cannot be primarily the result of visual, hearing, or motor impairment; cognitive impairment; emotional disorders; or environmental, cultural, economic influences, or a history of an inconsistent education program.

B. Criteria for Specific Learning Disability

The group described in 300.306 may determine that a child has a specific learning disability, as defined in 300.8(c)(1) if-

(1) 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:

(i) Oral expression.

(ii) Listening comprehension.

(iii) Written expression.

(iv) Basic reading skill.

(v) Reading fluency skill.

(vi) Reading comprehension.

(vii) Mathematics calculation.

(viii) Mathematics problem solving.

(2) (i) The child does not make sufficient progress to meet age or State-grade-level standards in onne or more of the areas identified in paragraph (a)(1) of this section when using a process based on the child's response to scientific, research-based interventions process; or

(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; and

(3) The group determines that its findings under paragraph (a)(1) and (2) of this section are not primarily the result of -

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

(ii) Mental retardation'

(iii) Emotional disturbance;

(iv) Cultural factors;

(v) Environmental or economic disadvantage; or

(vi) Limited English proficiency. 34 C.F.R 300.309(a)

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-

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

(2) 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 parent. 34 C.F.R. 300.309(b)

A child is eligible and in need of special education and related services for a specific learning disability when the child meets the criteria in items A, B, and C or in items A, B, and D. Information about each item must be sought from the parent and must be included as part of the evaluation data. The evaluation data must confirm that the effects of the child's disability occur in a variety of settings. The child must receive two interventions, as defined in Minnesota Statutes, section 125A.56, prior to evaluation, unless the parent requests an evaluation or the IEP team waives this requirement because it determines the child's need for an evaluation is urgent.

A. The child does not achieve adequately in one or more of the following areas: oral expression, listening comprehension, written expression, basic reading skills, reading comprehension, reading fluency, mathematics calculation, or mathematical problem solving, in response to appropriate classroom instruction, and either:

(1) the child does not make adequate progress to meet age or state-approved grade-level standards in one or more of the areas listed above when using a process based on the child's response to scientific, research-based intervention (SRBI); or

(2) 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.

The performance measures used to verify this finding must be representative of the child's curriculum or useful for developing instructional goals and objectives. Documentation is required to verify this finding. Such documentation includes evidence of low achievement from the following sources, when available: cumulative record reviews; classwork samples; anecdotal teacher records; statewide and districtwide assessments; formal, diagnostic, and informal tests; curriculum-based evaluation results; and results from targeted support programs in general education.

B. The child has a disorder in one or more of the basic psychological processes which includes an information processing condition that is manifested in a variety of settings by behaviors such as inadequate: acquisition of information; organization; planning and sequencing; working memory, including verbal, visual, or spatial; visual and auditory processing; speed of processing; verbal and nonverbal expression; transfer of information; and motor control for written tasks.

C. The child demonstrates a severe discrepancy between general intellectual ability and achievement in one or more of the following areas: oral expression, listening comprehension, written expression, basic reading skills, reading comprehension, reading fluency, mathematics calculation, or mathematical problem solving. The demonstration of a severe discrepancy shall not be based solely on the use of standardized tests. The group shall consider these standardized test results as only one component of the eligibility criteria. The instruments used to assess the child's general intellectual ability and achievement must be individually administered and interpreted by an appropriately licensed person using standardized procedures. For initial placement, the severe discrepancy must be equal to or greater than 1.75 standard deviations below the mean of the distribution of difference scores for the general population of individuals at the child's chronological age level.

D. The child demonstrates an inadequate rate of progress. Rate of progress is measured over time through progress monitoring while using intensive SRBI, which may be used prior to a referral, or as part of an evaluation for special education. A minimum of 12 data points are required from a consistent intervention implemented over at least seven school weeks in order to establish the rate of progress. Rate of progress is inadequate when the child's:

(1) rate of improvement is minimal and continued intervention will not likely result in reaching age or state-approved grade-level standards;

(2) progress will likely not be maintained when instructional supports are removed;

(3) level of performance in repeated assessments of achievement falls below the child's age or state-approved grade-level standards; and

(4) level of achievement is at or below the fifth percentile on one or more valid and reliable achievement tests using either state or national comparisons. Local comparison data that is valid and reliable may be used in addition to either state or national data. If local comparison data is used and differs from either state or national data, the group must provide a rationale to explain the difference. Minn. R. 3525.1341, subp. 2

C. Specific Learning Disability Written Report

(a) For a child suspected of having a specific learning disability, the documentation of the determination of eligibility, as required by 300.306(a)(2), must contain a statement of-

(1) Whether the child has a specific learning disability;

(2) The basis for making the determination, including an assurance that the determination has been made in accordance with 300.306(c)(1)

(3) The relevant behavior, if any, noted during the observation of the child and the relationship of that behavior to the child's academic functioning:

(4) The educationally relevant medical findings, if any:

(5) Whether-

(i) 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); and

(ii)(A) the child does not make sufficient progress to meet age or State-approved grade-level standards consistent with 300.309(a)(2)(i); or

(B) 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);

(6) The determination of the group concerning the effects of a visual, hearing, or motor disability; mental retardation; emotional disturbance; economic disadvantage; or limited English proficiency on the child's achievement level; and

(7) 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.

(b) 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 mus submit a separate statement presenting the member's conclusions.

3.04.11 Speech or Language Impairments

Legal Citations

A. Definition of a Speech or Language Impairment

Speech or language impairment means a communication disorder, such as stuttering, impaired articulation, a language impairment, or a voice impairment, that adversely affects a child's educational performance. 34.C.F.R. 300.8(c)(11)

B. Fluency Disorder

Definition of a Fluency Disorder

"Fluency disorder" means the intrusion or repetition of sounds, syllables, and words; prolongations of sounds; avoidance of words; silent blocks; or inappropriate inhalation, exhalation, or phonation patterns. These patterns may also be accompanied by facial and body movements associated with the effort to speak. Fluency patterns that are attributed only to dialectical, cultural, or ethnic differences or to the influence of a foreign language must not be identified as a disorder.

A pupil has a fluency disorder and is eligible for speech or language special education when:

A. the pattern interferes with communication as determined by an educational speech language pathologist and either another adult or the pupil; and

B. dysfluent behaviors occur during at least five percent of the words spoken on two or more speech samples. Minn. R. 3525.1343, subp. 1

C. Voice Disorder

Definition and Criteria of a Voice Disorder

"Voice disorder" means the absence of voice or presence of abnormal quality, pitch, resonance, loudness, or duration. Voice patterns that can be attributed only to dialectical, cultural, or ethnic differences or to the influence of a foreign language must not be identified as a disorder.

A pupil has a voice disorder and is eligible for speech or language special education when:

A. the pattern interferes with communication as determined by an educational speech language pathologist and either another adult or the pupil; and

B. achievement of a moderate to severe vocal severity rating is demonstrated on a voice evaluation profile administered on two separate occasions, two weeks apart, at different times of the day. Minn. R. 3525.1343, subp. 2

D. Articulation Disorder

Definition and Criteria of an Articulation Disorder

A. "Articulation disorder" means the absence of or incorrect production of speech sounds or phonological processes that are developmentally appropriate. For the purposes of this subpart, phonological process means a regularly occurring simplification or deviation in an individual's speech as compared to the adult standard, usually one that simplifies the adult phonological pattern. Articulation patterns that are attributed only to dialectical, cultural, or ethnic differences or to the influence of a foreign language must not be identified as a disorder.

B. A pupil has an articulation disorder and is eligible for speech or language special education when the pupil meets the criteria in subitem (1) and either subitem (2) or (3):

(1) the pattern interferes with communication as determined by an educational speech language pathologist and either another adult or the pupil; and

(2) test performance falls 2.0 standard deviations below the mean on a technically adequate, norm-referenced articulation test; or

(3) a pupil is nine years of age or older and a sound is consistently in error as documented by two three-minute conversational speech samples. Minn. R. 3525.1343, subp. 3

E. Language Disorder

Definition and Criteria of an Language Disorder

A. "Language disorder" means a breakdown in communication as characterized by problems in expressing needs, ideas, or information that may be accompanied by problems in understanding. Language patterns that are attributed only to dialectical, cultural, or ethnic differences or to the influence of a foreign language must not be identified as a disorder.

B. A pupil has a language disorder and is eligible for speech or language special education services when:

(1) the pattern interferes with communication as determined by an educational speech language pathologist and either another adult or the child;

(2) an analysis of a language sample or documented observation of communicative interaction indicates the pupil's language behavior falls below or is different from what would be expected given consideration to chronological age, developmental level, or cognitive level; and

(3) the pupil scores 2.0 standard deviations below the mean on at least two technically adequate, norm-referenced language tests if available; or

(4) if technically adequate, norm-referenced language tests are not available to provide evidence of a deficit of 2.0 standard deviations below the mean in the area of language, two documented measurement procedures indicate a substantial difference from what would be expected given consideration to chronological age, developmental level, or cognitive level. The documented procedures may include additional language samples, criterion-referenced instruments, observations in natural environments, and parent reports. Minn. R. 3525.1343, subp. 4

3.04.12 Traumatic Brain Injury

Legal Citations

A. Definition of Traumatic Brain Injury

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. Traumatic brain injury applies to open or closed head injuries resulting in impairments in one or more areas, such as cognition; language; memory; attention, reasoning; abstract thinking; judgement; 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.

B. Criteria for Traumatic Brain Injury

The team shall determine that a pupil is eligible and in need of special education and related services if the pupil meets the criterion in item A and the criteria in items B and C as documented by the information gathered according to item D:

A. There is documentation by a physician of a medically verified traumatic brain injury.

B. There is a functional impairment attributable to the traumatic brain injury that adversely affects educational performance in one or more of the following areas: intellectual-cognitive, academic, communication, motor, sensory, social-emotional-behavioral, and functional skills-adaptive behavior. Examples of functional impairments which may adversely affect educational performance are:

(1) intellectual-cognitive, for example, impaired:

(a) attention or concentration;

(b) ability to initiate, organize, or complete tasks;

(c) ability to sequence, generalize, or plan;

(d) insight/consequential thinking;

(e) flexibility in thinking, reasoning, or problem-solving;

(f) abstract thinking;

(g) judgment or perception;

(h) long-term or short-term memory;

(i) ability to acquire or retain new information;

(j) ability to process information;

(2) academic, for example:

(a) marked decline in achievement from preinjury levels;

(b) impaired ability to acquire basic skills (reading, written language, mathematics);

(c) normal sequence of skill acquisition which has been interrupted by the trauma as related to chronological and developmental age;

(3) communication, for example:

(a) impaired ability to initiate, maintain, restructure, or terminate conversation;

(b) impaired ability to respond to verbal communication in a timely, accurate or efficient manner;

(c) impaired ability to communicate in distracting or stressful environments;

(d) impaired ability to use language appropriately (requesting information, predicting, analyzing, or using humor);

(e) impaired ability to use appropriate syntax;

(f) impaired abstract or figurative language;

(g) perseverative speech (repetition of words, phrases, or topics);

(h) impaired ability to understand verbal information;

(i) impaired ability to discriminate relevant from irrelevant information;

(j) impaired voice production/articulation (intensity, pitch, quality, apraxia, or dysarthia);

(4) motor, for example, impaired:

(a) mobility (balance, strength, muscle tone, or equilibrium);

(b) fine or gross motor skills;

(c) speed of processing or motor response time;

(d) sensory, for example, impaired;

(5) sensory, for example, impaired:

(a) vision (tracking, blind spots, visual field cuts, blurred vision, or double vision);

(b) hearing (tinnitus, noise sensitivity, or hearing loss);

(6) social-emotional-behavioral, for example:

(a) impaired ability to initiate or sustain appropriate peer or adult relationships;

(b) impaired ability to perceive, evaluate, or use social cues or context appropriately;

(c) impaired ability to cope with over-stimulating environments, low frustration tolerance;

(d) mood swings or emotional ability;

(e) impaired ability to establish or maintain self-esteem;

(f) denial of deficits affecting performance;

(g) poor emotional adjustment to injury (depression, anger, withdrawal, or dependence);

(h) impaired ability to demonstrate age-appropriate behavior;

(i) impaired self-control (verbal or physical aggression, impulsivity, or disinhibition);

(j) intensification of preexistent maladaptive behaviors or disabilities;

(7) functional skills-adaptive behavior, for example, impaired:

(a) ability to perform developmentally appropriate daily living skills in school, home, leisure, or community setting (hygiene, toileting, dressing, eating);

(b) ability to transfer skills from one setting to another;

(c) orientation (places, time, situations);

(d) ability to find rooms, buildings, or locations in a familiar environment;

(e) ability to respond to environmental cues (bells, signs);

(f) ability to follow a routine;

(g) ability to accept change in an established routine;

(h) stamina that results in chronic fatigue.

C. The functional impairments are not primarily the result of previously existing:

(1) visual, hearing, or motor impairments;

(2) emotional or behavioral disorders;

(3) developmental disabilities;

(4) language or specific learning disabilities;

(5) environmental or economic disadvantage;

(6) cultural differences.

D. Information/data to document a functional impairment in one or more of the areas in item B must, at a minimum, include one source from Group One and one source from Group Two:

(1) GROUP ONE:

(a) checklists;

(b) classroom or work samples;

(c) educational/medical history;

(d) documented, systematic behavioral observations;

(e) interviews with parents, student, and other knowledgeable individuals;

(2) GROUP TWO:

(a) criterion-referenced measures;

(b) personality or projective measures;

(c) sociometric measures;

(d) standardized assessment measures; (academic, cognitive, communication, neuropsychological, or motor). Minn. R. 3525.1348, subp. 2.

3.04.13 Visually Impaired

Legal Citations

A. Definition of Visually Impaired

Visual impairment including blindness means an impairment in vision that, even with correction, adversely affects a child's educational performance. The term includes both partial sight and blindness. 34 C.F.R. 300.8(c)(13)

"Visually impaired" means a medically verified visual impairment accompanied by limitations in sight that interfere with acquiring information or interaction with the environment to the extent that special education instruction and related services may be needed. Minn. R. 3525.1345, subp. 1

B. Criteria for Visually Impaired

A pupil is eligible as having a visual disability and in need of special education when the pupil meets one of the criteria in item A and one of the criteria in item B:

A. medical documentation of a diagnosed visual impairment by a licensed eye specialist establishing one or more of the following conditions:

(1) visual acuity of 20/60 or less in the better eye with the best conventional correction;

(a) estimation of acuity is acceptable for difficult-to-test pupils; and

(b) for pupils not yet enrolled in kindergarten, measured acuity must be significantly deviant from what is developmentally age-appropriate;

(2) visual field of 20 degrees or less, or bilateral scotomas; or

(3) a congenital or degenerating eye condition including, for example, progressive cataract, glaucoma, or retinitis pigmentosa; and

B. functional evaluation of visual abilities conducted by a licensed teacher of the visually impaired that determines that the pupil:

(1) has limited ability in visually accessing program-appropriate educational media and materials including, for example, textbooks, photocopies, ditto copies, chalkboards, computers, or environmental signs, without modification;

(2) has limited ability to visually access the full range of program-appropriate educational materials and media without accommodating actions including, for example, changes in posture, body movement, focal distance, or squinting;

(3) demonstrates variable visual ability due to environmental factors including, for example, contrast, weather, color, or movement, that cannot be controlled; or

(4) experiences reduced or variable visual ability due to visual fatigue or factors common to the eye condition. Minn. R. 3525.1345, subp. 2