HAR §8-60-39. Eligibility criteria

(a)(1) Autism spectrum disorder. A student shall be eligible under the category of autism spectrum disorder if the student has a developmental disability significantly affecting verbal and nonverbal communication and social interaction, generally evident before age three, that adversely affects the student's educational performance. The student may have one or more of the following other characteristics often associated with autism spectrum disorder: (A) Engagement in repetitive activities and stereotyped movements; (B) Resistance to environmental change or change in daily routines; (C) Unusual responses to sensory experiences. (2) A student who manifests the characteristics of autism spectrum disorder after age three may be diagnosed as having autism spectrum disorder if the criteria in paragraph (1) are satisfied. (3) A team of qualified professionals and the parent may not identify a student as having autism spectrum disorder if the student's educational performance is adversely affected primarily because the student has an emotional disability pursuant to subsection (e). (b) Deaf. A student shall be eligible under the disability category of deaf if the student has a hearing loss averaging greater than 70 decibels in the speech frequencies (500Hz to 4,000Hz) and: (1) The hearing loss impairs the student's auditory processing of linguistic information through hearing, with or without amplification; or§8-60-39 (2) The hearing loss adversely affects the student's educational performance. (c) Deaf-blindness. A student shall be eligible under the category of deaf-blindness: (1) If the student meets the criteria under the category of deaf, or the category of hard of hearing, and the category of visual disability; and (2) The concomitant hearing and visual disabilities cause severe communication and other developmental and educational needs. (d) Developmental delay. (1) A student, aged three through five, shall be eligible for any eligibility category in this subchapter if the applicable criteria are met, or for the category of developmental delay if, as measured by appropriate diagnostic instruments and procedures, one or more of the following is met: (A) Cognitive development and adaptive behavior are delayed equivalent to one and one-half standard deviations below the mean when compared with the standard score expected for the chronological age. (B) One of the following areas is delayed one and one-half standard deviations below a standard score for: (i) Motor development, including fine motor, gross motor, sensory motor, and perceptual-motor development; (ii) Communication, including speech and language development; (iii) Academic development; (iv) Adaptive behavior; (2) A student, aged six through eight, shall be eligible for any eligibility category in this subchapter if the applicable criteria are met, or for the category of developmental delay if as measured by appropriate diagnostic instruments and procedures, three of the five areas are delayed one and one-half standard deviations below a standard score for: (A) Motor development, including fine motor, gross motor, sensory motor, and perceptual-motor development; (B) Communication, including speech and language development; (C) Academic development; (D) Adaptive behavior; (E) Cognition. (3) If assessment materials would not conclusively demonstrate eligibility as required under paragraphs (1) or (2), the team of qualified professionals and the parent may find the student eligible under the category of developmental delay if the team determines the student's patterns of learning deviate from age expectations across settings. The documentation of eligibility required by section 8-60-38 shall include a statement of the patterns of learning that deviate from age expectations across settings and the basis and method used in determining eligibility. (e) Emotional disability. (1) A student shall be eligible under the disability category of emotional disability if the student exhibits one or more of the following characteristics over a long period of time and to a marked degree that adversely affect the student'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;§8-60-39 (D) A general pervasive mood of unhappiness or depression; (E) A tendency to develop physical symptoms or fears associated with personal or school problems. (2) A student shall not be determined to be a student with a disability under this category, if paragraph (1) is primarily the result of cultural, or language differences, or both. (3) Emotional disability includes schizophrenia. Emotional disability does not apply to a student who is socially maladjusted, unless it is determined that the student has an emotional disability. (f) Hard of hearing. A student shall be eligible under the disability category of hard of hearing if the student has a hearing loss, whether permanent or fluctuating, averaging 26 to 70 decibels in the speech frequencies (500 Hz to 4,000 Hz), and: (1) The hearing loss impairs the student's auditory processing of linguistic information, with or without amplification; or (2) The hearing impairment adversely affects the student's educational performance. (g) Intellectual disability. A student shall be eligible under the disability category of intellectual disability when all of the following are met: (1) The student has subaverage general intellectual functioning, as demonstrated by evidence of intellectual functioning two or more standard deviations below the mean; (2) The subaverage intellectual functioning exists concurrently with deficits in at least two adaptive skill areas; and (3) The subaverage intellectual functioning and deficits in adaptive skill areas were manifested during the developmental period and adversely affect the student's educational performance. (h) Multiple disabilities. (1) A student shall be eligible under the category of multiple disabilities if the student has concomitant impairments, the combination of which causes severe educational needs and all of the following criteria are met: (A) The student has subaverage general intellectual functioning, as demonstrated by evidence of intellectual functioning three or more standard deviations below the mean; (B) The subaverage intellectual functioning exists concurrently with deficits in at least two adaptive skill areas; (C) The subaverage intellectual functioning and deficits in adaptive skill areas were manifested during the developmental period and adversely affect the student's educational performance; and (D) The student is not eligible under the category of deaf-blindness, as set forth in subsection (c), and the student is eligible under one or more of the following disability categories: (i) Autism spectrum disorder, as set forth in subsection (a); (ii) Deaf, as set forth in subsection (b); (iii) Hard of hearing, as set forth in subsection (f); (iv) Orthopedic disability, as set forth in subsection (i); (v) Other health disability, as set forth in subsection (j); or (vi) Visual disability including blindness, as set forth in subsection (n); (2) If assessment materials would not conclusively demonstrate eligibility as required under paragraph(1), the team of qualified professionals and the parent may find the student eligible under the category of multiple disabilities if the criteria in paragraph (1)(A) to (C) are met and the team documents the existence of a concomitant disability in the determination of eligibility. The documentation of eligibility shall include a statement of the concomitant disability and the basis and method used in determining eligibility. (i) Orthopedic disability. A student shall be eligible under the disability category of orthopedic disability if there is medical evidence that a severe orthopedic disability exists that adversely affects the student's educational performance. The term includes disabilities caused by congenital anomaly, disabilities caused by disease (e.g., poliomyelitis, bone tuberculosis), and disabilities from other causes (e.g., cerebral palsy, amputations, and fractures or burns that cause contractures). (j) Other health disability. A student shall be eligible under the category of other health disability if both of the following are met: (1) The student has 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 or a medically fragile condition 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 (2) The health disability adversely affects the student's educational performance. (k) Specific learning disability. (1) General. 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; (2) Disorders not included. Specific learning disability does not include learning problems that are primarily the result of visual, hearing, or motor disabilities; intellectual disability; emotional disability; or environmental, cultural, or economic disadvantage. (l) Speech or language disability. A student shall be eligible under the category of speech or language disability when a significant problem in the comprehension or production, or both, of an oral communication system, which is not consistent with the student's other developmental or cognitive abilities, or both, adversely affects the student's educational performance and is evident in one or more of the following: (1) Articulation or phonological condition, or both; (2) Voice condition; (3) Fluency condition; (4) Language conditions, as documented by: (A) Multiple sources of data; and (B) A discrepancy of one and one-half standard deviations between the student's estimated cognitive level and performance on at least two standardized measures in the areas of semantics or grammar, or both. (m) Traumatic brain injury. (1) A student shall be eligible under the category of traumatic brain injury if both of the following are met: (A) There is medical evidence that the student has 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 the student's educational performance; and (B) The traumatic brain injury is either an open or closed head injury, resulting in impairments in one or more areas such as: (i) Cognition; (ii) Language; (iii) Memory; (iv) Attention; (v) Reasoning; (vi) Abstract thinking; (vii) Judgment; (viii) Problem-solving; (ix) Sensory, perceptual and motor abilities; (x) Psychosocial behavior; (xi) Physical functions; (xii) Information processing; (xiii) Speech. (2) The team of qualified professionals and the parent may not identify a student as having a traumatic brain injury if the brain injury is congenital or degenerative, or induced by birth trauma. (n) Visual disability including blindness. A student shall be eligible for the disability category of visual disability, including both partial sight and blindness, if the impairment in vision, even with the best correction, adversely affects the student's educational performance and one or more of the following are met: (1) Partially-sighted. The student's visual acuity is 20/70 to 20/200 in the better eye and with the best correction; (2) Blind. The student's visual acuity is 20/200 in the better eye and with the best correction, or less, or the student has a subtended visual field of less than 20 degrees, regardless of central visual acuity; (3) The student has a progressive visual impairment, such as retinitis pigmentosa, that will lead to eventual visual disability as set forth in paragraphs (1) and (2). [Eff 11/23/09] (Auth: 20 U.S.C. 1414(b)(4) and (5), HRS §302A-1112) (Imp: HRS §§302A-101; 302A-439; 34 C.F.R. §§300.8, 300.306, and 300.534)