NAC388.420. Eligibility of pupil with specific learning disabilities.

     1. A pupil with specific learning disabilities is eligible for special services and programs of instruction if the eligibility team, comprised of the persons described in subsection 4, concludes that:

     (a) The pupil has a specific learning disability and, by reason thereof, needs special education and related services;

     (b) The pupil does not achieve adequately for the pupil’s age or to meet the state-approved grade level standards when provided with learning experiences and instruction appropriate for the age of the pupil or the state-approved grade level standards in one or more of the following areas:

          (1) Oral expression;

          (2) Listening comprehension;

          (3) Written expression;

          (4) Basic reading skills;

          (5) Reading fluency skills;

          (6) Reading comprehension;

          (7) Mathematics calculation; or

          (8) Mathematics problem solving;

     (c) The pupil:

          (1) Does not make sufficient progress to meet the age appropriate standards or the state-approved grade level standards in one or more of the areas set forth in paragraph (b) when using a process based on the pupil’s response to scientific, research-based intervention; or

          (2) Exhibits a pattern of strengths and weaknesses in performance or achievement, or both, relative to the pupil’s age, the state-approved grade level standards or intellectual development, that is determined by the eligibility team to be relevant to the identification of a specific learning disability using appropriate assessments;

     (d) The findings in this subsection are not primarily the result of:

          (1) A visual, hearing or motor disability;

          (2) Mental retardation;

          (3) Emotional disturbance;

          (4) Cultural factors;

          (5) Environmental or economic disadvantage; or

          (6) Limited English proficiency;

     (e) Interventions implemented in general education classrooms have not remedied any identified underachievement; and

     (f) Any identified underachievement or severe discrepancy between achievement and intellectual ability is not correctable without special education services.

     2. If the public agency determines that a pupil exhibits a pattern of strengths and weaknesses in performance or achievement, or both, relative to the pupil’s age, the state-approved grade level standards or intellectual development, the public agency shall determine whether the pupil has a severe discrepancy between achievement and intellectual ability in the areas set forth in paragraph (b) of subsection 1. Except as otherwise provided in this subsection, if the public agency considers the existence of a discrepancy between achievement and intellectual ability, the discrepancy must be determined through the use of a statistically valid formula, as prescribed by the Department, which takes into account the age and level of ability of the pupil, the correlation between tests of ability and achievement, and the reliability of each test used. The Department shall prescribe this formula on the basis of consultation with an appropriate representative of each public agency affected. In the case of a pupil under the age of 6 years, a discrepancy may be identified through the use of one or more tests of language concepts or academic readiness skills. If the public agency considers the existence of a severe discrepancy between achievement and intellectual ability, the discrepancy between achievement and intellectual ability must be corroborated by classroom-based assessment. If the public agency considers the continuing existence of a severe discrepancy between achievement and intellectual ability in a reevaluation of the pupil, the determination of a severe discrepancy may be made based upon information other than the statistically valid formula prescribed by the Department pursuant to this subsection.

     3. If the public agency determines that a pupil has not made sufficient progress to meet the age appropriate standards or the state-approved grade level standards in one or more of the areas set forth in paragraph (b) of subsection 1 when using a process based on the pupil’s response to scientific, research-based intervention, the public agency shall document:

     (a) The instructional strategies used and the pupil-centered data collected; and

     (b) The notice provided to the parents of the pupil concerning:

          (1) The policies of the Department regarding the amount and nature of the data relating to the performance of the pupil that will be collected and the general educational services that will be provided;

          (2) Strategies to increase the rate of learning of the pupil; and

          (3) The right of the parents to request an evaluation to determine whether the pupil is eligible for special education and related services.

     4. The eligibility team must consist of:

     (a) The regular classroom teacher of the pupil or, if the pupil does not have a regular teacher, a teacher qualified to teach a pupil of the pupil’s age;

     (b) A special education teacher or specialist with knowledge in the area of the suspected disability;

     (c) A school psychologist;

     (d) A parent of the pupil; and

     (e) One or more persons qualified, because of personal knowledge of the pupil, to interpret information relating to the pupil’s health, family, and social and emotional condition. This person may be, without limitation, an administrator, nurse, school counselor, school psychologist or any other certificated or licensed professional.

     5. The conclusions of the eligibility team concerning the eligibility of the pupil must be based upon an evaluation of the pupil. The evaluation must include:

     (a) An assessment of:

          (1) The cognitive abilities of the pupil, if the public agency determines the existence of a severe discrepancy between achievement and intellectual ability;

          (2) The social and emotional condition of the pupil;

          (3) The academic achievement of the pupil;

          (4) The performance of the pupil in the pupil’s current educational setting;

          (5) Any scientific, research-based intervention provided to the pupil; and

          (6) The health and developmental history of the pupil; and

     (b) An observation of the academic performance of the pupil pursuant to paragraph (b) of subsection 6.

     6. In determining whether a pupil has a specific learning disability, the eligibility team shall:

     (a) Use information from an observation in routine classroom instruction and monitoring of the performance of the pupil that was conducted before the pupil was referred for an evaluation; or

     (b) Have at least one member of the eligibility team conduct an observation of the academic progress of the pupil in the regular classroom after the pupil was referred for an evaluation and parental consent is obtained pursuant to NAC 388.300.

Ê If a child is less than school age or out of school, an eligibility team member shall observe the pupil in an environment appropriate for a pupil of that age.

     7. To ensure that the underachievement of a pupil who is suspected of having a specific learning disability is not due to lack of appropriate instruction in reading or math, the eligibility team shall consider as part of the evaluation:

     (a) Data that demonstrates that before, or as part of, the referral process, the pupil was provided appropriate instruction in regular educational settings, delivered by qualified personnel; and

     (b) Data-based documentation of repeated assessments of achievement at reasonable intervals that reflects formal assessments of the progress of the pupil during instruction. The documentation must be provided to the parents of the pupil.

     8. The eligibility team shall document the determination of eligibility of the pupil which must include:

     (a) A statement as to whether the pupil has a specific learning disability;

     (b) The basis for making that determination, including an assurance that the determination has been made in accordance with NAC 388.340;

     (c) A description of the relevant behavior noted during the observation of the pupil;

     (d) A statement of the relationship of that behavior to the academic functioning of the pupil;

     (e) Any educationally relevant medical findings;

     (f) A statement as to whether the pupil does not achieve adequately for the pupil’s age or to meet the state-approved grade level standards and whether the pupil:

          (1) Has not made sufficient progress to meet the age appropriate standards or the state-approved grade level standards when a process based on the pupil’s response to scientific, research-based intervention is used; or

          (2) Exhibits a pattern of strengths and weaknesses in performance or achievement, or both, relative to the pupil’s age, the state-approved grade level standards or intellectual development;

     (g) A statement that any identified underachievement or severe discrepancy between achievement and intellectual development is not correctable without special education and related services;

     (h) The conclusion of the team concerning the effect upon the achievement of the pupil of any visual disability, hearing disability, motor disability, mental retardation, emotional disturbance, cultural factors, environmental or economic disadvantage, or limited English proficiency;

     (i) If the pupil has participated in a process that assesses the response of the pupil to scientific, research-based intervention:

          (1) The instructional strategies used and the pupil-centered data that was collected; and

          (2) Documentation that the parents of the pupil were notified about:

               (I) The policies of the Department regarding the amount and nature of the data relating to the performance of a pupil that will be collected and the general educational services that will be provided;

               (II) Strategies to increase the rate of learning of the pupil; and

               (III) The right of the parents to request an evaluation to determine whether the pupil is eligible for special education and related services; and

     (j) A certification by each member of the team that the report reflects the member’s conclusions or, if the report does not reflect the conclusions of a member, a minority report of the conclusions of that member.

     9. If the public agency considers the continuing existence of a severe discrepancy between predicted and actual achievement in a reevaluation of the pupil, the determination of a severe discrepancy may be made based upon information other than the statistically valid formula prescribed by the Department pursuant to subsection 2.

     (Added to NAC by Bd. of Education, eff. 7-14-88; A 11-23-93; R039-98, 5-29-98; R085-99, 2-16-2000; R071-05, 2-23-2006; R058-07, 10-31-2007; R064-08, 9-18-2008)