SPECIAL EDUCATION RIGHTS AND RESPONSIBILITIES
 Chapter 3

Information on Eligibility Criteria

From a 12-Chapter Manual - Available by Chapter and in Manual Form

Seventh Edition

Written by:

Community Alliance for Special Education (CASE)

and Protection and Advocacy, Inc. (PAI)

Copyright © 1992 by CASE and PAI - Revised January 1998

Written permission of the Community Alliance for Special Education (CASE) and Protection and Advocacy, Inc. (PAI) must be obtained for duplication of the materials contained in Special Education Rights and Responsibilities.

These materials are based on special education laws and court decisions in effect at the time of publication. Federal and state special education law can change at any time. If there is any question about the continued validity of any information in the handbook, contact CASE, PAI or a legal authority in your community.

Click here to go directly to the Table of Contents.


 Community Alliance for Special Education (CASE), provides legal support, representation, technical assistance consultations, and training to parents throughout the greater San Francisco Bay Area whose children need appropriate special education services. Trained advocates and attorneys assist parents at IEP meetings, Mediation Conferences and Due Process Hearings. CASE also provides free consultations about special education rights and services to parents and professionals by telephone or face-to-face. CASE is a nonprofit organization serving all children with disabilities who need or may need special education services. For more information, contact:

CASE

  • 1031 Franklin Street, Suite B5, San Francisco, CA 94109, Tel. - (415) 928-2273, FAX - (415) 928-2289
  • 680 W. Tennyson Road, Room 1, Hayward, CA 94544, Tel. - (510) 783-5333, FAX - (510) 783-8822
  • CASE-South Bay Legal Aid Society of Santa Clara County, 480 North First Street, San Jose, CA 95103, Tel. - (408) 283-1535

Protection and Advocacy, Inc. (PAI), is a private, nonprofit organization that protects the legal, civil and service rights of Californians who have developmental or mental disabilities. The following table sets out learning processes and a diagnostic framework. The first column shows a learning process, the second column gives a definition of that learning process, and the third column lists tests which give information about that learning process. PAI provides a variety of advocacy services, including information and referral, technical assistance, and direct representation. For information or assistance with an immediate problem, call:

PAI

Toll Free/TTY: (800) 776-5746

8:30 AM to 5:00 PM - Monday through Friday

  • Central Office, 100 Howe Ave., Suite 185-N, Sacramento, CA 95828, Legal Unit - (916) 488-9950 / Administrative - (916) 488-9955
  • Southern California Area Office, 3580 Wilshire Blvd., Suite 902, Los Angeles CA 90010, Tel. - (213) 427-8747
  • San Francisco Bay Area Office, 449 - 15th Street, Suite 401, Oakland, CA 94612, Tel. - (510) 839-0811

PAI receives funding under the Developmentally Disabled Assistance and Bill of Rights Act and the Protection and Advocacy for Mentally Ill Individuals Act. Any opinions, findings, recommendations or conclusions expressed in this publication are those of the authors and do not necessarily reflect the views of the organizations which fund PAI.


 On June 4, 1997, the Individuals with Disabilities Education Act (IDEA) was amended by Congress and signed into law by President Clinton. Most of the new provisions in IDEA became effective on that date. Community Alliance for Special Education (CASE) and Protection & Advocacy, Inc. (PAI) have incorporated these amended IDEA provisions into the Seventh Edition of the Special Education Rights and Responsibilities (SERR) manual.

Because special education services in California are funded in part with federal money, these IDEA amendments take precedence over any prior inconsistent federal law or current state law, except where state law provides more protections or at least the same level of protections. In this edition of SERR, citations of federal law refer to the section numbers where these amendments appear in federal law at Title 20 of the United States Code. Citations of federal regulations refer to current, unrevised federal regulations at Title 34 of the Code of Federal Regulations. State citations refer to current California law and regulations.

New federal regulations must now be developed to implement the new federal statutes. The new federal regulations are supposed to be issued by July 1, 1998. However, this process may take longer. In addition, California special education law and implementing regulations will also be amended once federal regulations are issued. CASE and PAI will monitor the development of these final federal regulations, and state law and regulations, so that final federal and state laws and regulations can be incorporated into later supplements and editions of SERR.

It is important for you to know that the Individual Education Program (IEP) provisions of the IDEA amendments do not become effective until July 1, 1998. Since IEPs written for the 1998099 school year must meet the new IDEA IEP requirements, CASE and PAI have chosen to include these new IEP provisions in this edition of the SERR manual (Chapter 4). We hope that this information will help as you develop IEPs for the 1998-99 school year and beyond.

For further information on the development of federal and state law and regulation, or clarification about IDEA implementation, please contact CASE or PAI.


SPECIAL EDUCATION

RIGHTS AND RESPONSIBILITIES

TABLE OF CONTENTS

Chapter 1 Information on Basic Rights and Responsibilities

Chapter 2 Information on Evaluations/Assessments

Chapter 3 Information on Eligibility Criteria

Chapter 4 Information on IEP Process

Chapter 5 Information on Related Services

Chapter 6 Information on Due Process Hearings/Compliance Complaints

Chapter 7 Information on Least Restrictive Environment

Chapter 8 Information on Discipline of Students with Disabilities

Chapter 9 Information on Inter-Agency Responsibility for Related Services (AB 3632/882)

Chapter 10 Information on Vocational Education

Chapter 11 Information on Preschool Education Services

Chapter 12 Information on Early Intervention Services

NOTE: The text in each chapter refers to specific questions in other chapters by using the titles shown above.


SPECIAL EDUCATION

RIGHTS AND RESPONSIBILITIES

Chapter 3

Information on Eligibility Criteria

TABLE OF CONTENTS

Question

1. Who is eligible for special education under federal and state law?

2. Does my child have to be deaf in order to be eligible for special education as a hearing impaired student?

3. The county or district has a program for deaf/blind children. Does my child really have to be both deaf and blind to be eligible for the program?

4. How are students with speech and language disorders served? What are the eligibility criteria for service?

5. The district provides services for "visually handicapped" students. Is that limited to students who are actually blind?

6. What kind of physical disabilities would make my child eligible for special education?

7. How do school districts determine that a child has autism or a disorder like autism?

8. Are IQ scores the only basis for eligibility for special education based on mental retardation?

9. What are the eligibility criteria for seriously emotionally disturbed students?

10. Can a child with attention deficit disorder (ADD) or attention deficit hyperactive disorder (ADHD) be eligible for special education services?

11. How do the eligibility criteria apply to students with a suspected learning disability?

12. Are some children penalized by the learning disability eligibility criteria?

13. Does a student have to be two years behind academically to be eligible for special education as a learning disabled student?

14. Can gifted students be denied special education eligibility for specific learning disabilities based solely on intelligence?

15. What are the eligibility criteria for children from age three through five years of age?

16. Can my child be eligible for designated instruction and services (DIS) if he is in a regular education class and DIS is all he needs?

17. If my family moves to a new school district, does my child need to be found eligible again for special education by the new school district?

18. If my child does not establish special education eligibility, is there any other way to obtain some special services to address educational problems?

19. My child has attention deficit disorder, but he is not eligible for special education. Is there any way he can get help from the school district?

20. If a student is eligible for services under section 504, can she receive special education services?

21. Are there any factors that would make a student ineligible for special education services?


 SPECIAL EDUCATION

RIGHTS AND RESPONSIBILITIES

Chapter 3

Information on Eligibility Criteria

1. Who is eligible for special education under federal and state law?

You will find the California special education eligibility criteria in regulations adopted by the State Board of Education. These regulations went into effect March 2, 1983. This is the first time California has had a uniform statewide policy for determining eligibility for special education. The criteria generally parallel the federal guidelines in defining "children with disabilities." [34 Code of Federal Regulations (C.F.R.) Sec. 300.7.] Eligibility criteria under state law cannot be narrower than eligibility criteria under federal guidelines.

The regulations establish eligibility criteria for all students seeking special education services. In order to qualify as an individual with exceptional needs under the eligibility criteria, the assessment must demonstrate that the student's impairment (1) adversely affects his educational performance and (2) requires special education. The qualifying areas of impairment set out in state eligibility regulations are: hearing impaired; both hearing and visually impaired; speech or language impaired; visually impaired; severely orthopedically impaired; impaired in strength, vitality, or alertness due to chronic or acute health problems (other health impaired); exhibiting autistic-like behaviors; mentally retarded; seriously emotionally disturbed; or learning disabled. In addition, children with autism and traumatic brain injury are eligible for special education under federal law. [20 United States Code (U.S.C.) Section (Sec.) 1402(3)(A)(i), 34 C.F.R. 300.7; 5 California Code of Regulations (Cal. Code Regs.) 3030.]

The IEP team (made up of qualified professionals and the parent) makes the actual determination of eligibility for special education and related services, based upon the assessment reports. A copy of the report must be given to the parent. The determination is not made solely by assessment personnel. Even if the student does not meet the eligibility criteria based on standardized testing, the IEP team may still find him eligible for special education services. Other measures of school performance may enable the student to qualify for services. Examples of other measures include class grades, classroom performance, school behavior, etc. [20 U.S.C Sec. 1414(b)(4), California Education Code (Cal. Ed. Code) Secs. 56321, 56323, 56327.]

In terms of minimum age, a child may be eligible for special education services, in the form of early intervention services, from birth. Early intervention services are discussed in separate materials. After age three and until school age, a child may be eligible for preschool special education. See Chapter 11, Information on Preschool Education Services.

In terms of maximum age (and assuming the student has not yet graduated from high school), a student continues to be eligible for special education through his 18th year. Between the ages of 19 and 21, if the student has been in special education at the time he turned 19, and if he has not met his "differential proficiency standards" (as agreed to by the IEP team, including his parents, and specifically described in the IEP), or if he has not completed his "prescribed course of study", then he may continue in special education until he meets the differential standards, completes a course of study or turns 22. [Cal. Ed. Code Sec. 56026(c)(4).]

"Prescribed course of study" means the school district's required subjects, credits and normal proficiency standards in English, math, reading, etc., as set by the local board of education for granting a diploma or certificate and pursuant to Cal. Ed. Code Sec. 51000 and following. [See 5 Cal. Code Regs. Sec. 3001(q).] "Differential proficiency standards" are alternative proficiency standards individually developed for, and specifically described in, the IEP of a special education student in grade 7 through 12 who is unlikely to be able to meet the regular district proficiency standards. [Cal. Ed. Code Sec. 56345(b)(3) and 51215.] The IEP team, including the parents, develops the differential proficiency standards, and the student must meet the standards before he may receive a diploma or certificate of completion. If a student cannot pass the regular proficiency standards, and his IEP team did not develop differential proficiency standards and describe them in his IEP, a school district may not exit him between the ages of 19 and 21.

How long a student may continue in special education after his 22nd birthday depends, for the most part, on the month in which he turns 22.

  • If he was born between January 1 and June 30, the student may only remain in the program for the rest of the fiscal year ending June 30, plus any extended school year program.
  • If he was born in July, August or September, a student on a traditional school-year calendar is treated similarly and may continue in the program through the end of the previous fiscal year that ended June 30. However, if the student was born in July, August or September and is on a year-round school calendar, he can finish the current term, even if the term extends into the next fiscal year.
  • A student who was born in October, November or December may continue in special education only until December 31 of the year he turns 22, unless (1) he would otherwise complete his IEP at the end of that current fiscal year, or (2) he has not had an individual transition plan incorporated into his IEP and implemented from the age of 20 years forward. In either of these two cases, he would be able to complete the fiscal year. [Cal. Ed. Code Sec. 56026(c)(4)(A)-(C).]

2. Does my child have to be deaf in order to be eligible for special education as a hearing impaired student?

No. Your child is eligible if she has either a permanent or fluctuating hearing loss that impairs her ability to process information presented through amplified hearing channels and which also adversely affects educational performance. [34 C.F.R. Sec. 300.7(b)(3); 5 Cal. Code Regs. Sec. 3030(a).]

3. The county or district has a program for deaf/blind children. Does my child really have to be both deaf and blind to be eligible for the program?

No. If your child has both hearing and visual impairments (see Questions 2 and 5) which, in combination, cause severe communication, developmental, and educational problems, he is eligible for the program. [34 C.F.R. Sec. 300.7(b)(2); 5 Cal. Code Regs. Sec. 3030(b).]

4. How are students with speech and language disorders served? What are the eligibility criteria for service?

A student with speech and language difficulties is eligible for special education services if she meets one or more of the following criteria:

(1) Articulation Disorder, which reduces intelligibility and significantly interferes with communication and attracts adverse attention. The student's articulation competency must be below what is expected for her chronological age or developmental level;

(2) Abnormal Voice, which is characterized by persistent, defective voice quality, pitch, or loudness;

(3) Fluency Disorder, in which the flow of verbal expression, including rate and rhythm, adversely affects communication between the student and listener;

(4) Language Disorder, in which the student has a language disorder when she meets both of the following criteria:

(a) Scores at least 1.5 standard deviations below the mean, or below the seventh percentile, for her chronological age or developmental level, on two or more standardized tests in one or more of the following areas of language development: morphology, syntax, semantics; and

(b) Displays inappropriate or inadequate usage of receptive or expressive language as measured on a representative spontaneous language sample of a minimum of fifty utterances.

Once a student qualifies for special education services, she is eligible for any service required to meet the educational her needs. The related service of speech and language therapy may be the only service some students need. Other students have speech and language disorders that are too severe for remediation through speech and language therapy. These students may require placement in a communicatively handicapped or severe language disorder special day class program. [34 C.F.R. Sec. 300.7(b)(11); Cal. Ed. Code Sec. 56333; 5 Cal. Code Regs. Sec. 3030(c).]

5. The district provides services for "visually handicapped" students. Is that limited to students who are actually blind?

"Visually handicapped" means a visual impairment which, even with correction, adversely affects a child's educational performance. The term includes both partially sighted and blind children. [34 C.F.R. Sec. 300.7(b)(13); 5 Cal. Code Regs. Sec. 3030(d).]

6. What kind of physical disabilities would make my child eligible for special education?

Her condition would have to (1) affect your child's educational performance adversely and (2) not be temporary in nature. She might have severe orthopedic impairments such as polio, cerebral palsy, amputations, etc. Or, she might have limited strength, vitality, or alertness due to chronic or acute health problems such as heart disease, epilepsy, hemophilia, diabetes, childhood cancer, Acquired Immunodeficiency Syndrome (AIDS), etc. [34 C.F.R. Sec. 300.7(b)(7),(8); 5 Cal. Code Regs. Secs. 3021.1, 3030(e), 3030(f) and 3051.17.]

Students with traumatic brain injury are also eligible for special education. These include an injury to the brain caused by an external force, resulting in total or partial functional disability or psychosocial impairment, or both, that adversely affects her 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 to brain injuries induced by birth trauma. [34 C.F.R. Sec. 300.7(b)(12).]

7. How do school districts determine that a child has autism or a disorder like autism?

School districts determine that a student has autism or a disorder like autism if he exhibits any combination of the following autistic-like behaviors:

(1) An inability to use oral language for appropriate communication;

(2) A history of extreme withdrawal or relating to people inappropriately and continued impairment in social interaction from infancy through early childhood;

(3) An obsession to maintain sameness;

(4) Extreme preoccupation with objects or inappropriate use of objects or both;

(5) Self-stimulating, ritualistic behavior.

[5  Cal. Code Regs. Sec. 3030(g); see also 34 C.F.R. Sec. 300.7(b)(1).]

8. Are IQ scores the only basis for eligibility for special education based on mental retardation?

No. In order for a student to be considered mentally retarded, she must show deficits in adaptive behavior, as well as significantly below average general intellectual functioning, which adversely affect her educational performance. [34 C.F.R. Sec. 300.5(b)(4); 5 Cal. Code Regs. Sec. 3030(h).]

Because of the Larry P. v. Riles case, the California State Department of Education has prohibited school districts from using standardized IQ tests to determine special education eligibility for all Black students. Therefore, school districts are developing alternative methods of assessment to avoid the use of IQ scores for special education eligibility determination. See Chapter 2, Information on Evaluations/Assessments.

9. What are the eligibility criteria for seriously emotionally disturbed students?

A student is considered seriously emotionally disturbed if, because of a serious emotional disturbance*, he exhibits one or more of the following characteristics, over a long period of time and to a marked degree, which adversely affects educational performance:

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

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

(3) Inappropriate types of behavior or feelings under normal circumstances exhibited in several situations;

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

(5) A tendency to develop physical symptoms or fears associated with personal or school problems. [34 C.F.R. Sec. 300.7(b)(9); 5 Cal. Code Regs. Sec. 3030(i).]

* This phrase is included in the state definition only.

Note that the disability category "seriously emotionally disturbed" is a creation of Congress, not a recognized psychiatric diagnostic category. Thus, the term does not require a particular psychiatric diagnosis -- such as schizophrenic, depressive, etc. A student does not need to have a psychiatric label to be eligible under federal and state definitions of seriously emotionally disturbed.

On the other hand, the state definition does require that the characteristics enumerated above be caused by a "serious emotional disturbance." In addition, federal regulations specifically exclude students whose behaviors are caused solely by "social maladjustment", a term which the regulations do not define. As a result of ambiguous federal and California laws, there has been considerable debate as to what conditions qualify as a "serious emotional disturbance" and what conditions are to be considered non-qualifying "social maladjustment."

10. Can a child with attention deficit disorder (ADD) or attention deficit hyperactive disorder (ADHD) be eligible for special education services?

Yes. However, a medical diagnosis of attention deficit disorder (ADD) or attention deficit hyperactive disorder (ADHD) alone is not sufficient to make a student eligible for special education services. An IEP team, after the required comprehensive evaluation, must determine that the student meets a federal and/or state eligibility category. A September 16, 1991, Joint Policy Memorandum from the U.S. Department of Education says that state and local education agencies:

... must ensure that children with ADD who are determined eligible for services ... receive special education and related services designed to meet their unique needs, including special education and related services needs arising from ADD.

Most commonly, students with ADD/ADHD may be eligible under the "specific learning disability" category, the "seriously emotionally disturbed" category, or the "other health impaired" category. [Cal. Ed. Code Sec. 56339(a).] School districts have not widely utilized the "other health impaired" category to qualify a student with ADD/ADHD for special education services. However, the federal Joint Policy Memorandum specifically addresses the "other health impaired" category:

Children with ADD, where the ADD is a chronic or acute health problem resulting in limited alertness, may be considered disabled under Part B solely on the basis of this disorder within the "other health impaired" category in situations where special education and related services are needed because of ADD.

11. How do the eligibility criteria apply to students with a suspected learning disability?

To be considered learning disabled under the eligibility criteria, a student must meet three major requirements. First, he must have a disorder in one or more of the basic psychological processes involved in understanding or using spoken or written language. The basic psychological processes include: attention, visual processing, auditory processing, sensory-motor skills, and cognitive abilities (including association, conceptualization and expression). Second, this disorder may manifest itself in an impaired ability to listen, think, speak, read, write, spell, or do mathematical calculations. Third, the student must have a severe discrepancy between intellectual ability and achievement in one or more of the academic areas referred to in the law. [34 C.F.R. Sec. 300.7(b)(10).]

The regulations define intellectual ability as including both acquired learning and learning potential as determined by a systematic assessment of intellectual functioning. The student's level of achievement includes his level of competence in materials and subject matter explicitly taught in school as measured by standardized achievement tests. The academic areas identified in the law are: oral expression, listening comprehension, written expression, basic reading skills, reading comprehension, mathematics calculation and mathematics reasoning. [Cal. Ed. Code Secs. 56337-8; 5 Cal. Code Regs. Sec. 3030(j).]

In determining whether or not a severe discrepancy exists, the IEP team must take into account all relevant material available on the student. No single score (or product of scores) test or procedure shall be used as the sole criterion for the IEP team's decisions as to the student's eligibility for special education. [5 Cal. Code Regs. Sec. 3030(j)(4) (emphasis added).] The IEP team makes the final determination of eligibility after considering all information presented about the student's educational needs.

When standardized tests have been deemed appropriate, the regulations set out a formula for determining whether or not a severe discrepancy between ability and performance is present. [5 Cal. Code Regs. Sec. 3030(j)(4)(A).] However, many school districts no longer allow IQ testing of any child who has been referred for special education as a result of the court order in the Larry P. v. Riles case, which prohibited intelligence testing of African-American children. See Chapter 2, Information on Evaluations/Assessments.

When standardized tests are determined to be invalid for a specific student, the discrepancy shall be measured by alternative means as specified on the assessment plan. [5 Cal. Code Regs. Sec. 3030(j)(4)(B).]

If the standardized tests do not reveal a severe discrepancy, the IEP team may still find that one does exist, provided that the team documents in a written report that the severe discrepancy between ability and achievement exists as a result of a disorder in one or more of the basic psychological processes. The report shall include a statement of the area, the degree, and the basis and method used in determining the discrepancy. The report shall contain information considered by the team which shall include, but not be limited to:

(1) Data obtained from standardized assessment instruments;

(2) Information provided by the parent;

(3) Information provided by the student's present teacher;

(4) Evidence of the student's performance in the regular and/or special education classroom obtained from observations, work samples and group test scores;

(5) Consideration of the student's age, particularly for young children; and

(6) Any additional relevant information. [5 Cal. Code Regs. Sec. 3030(j)(4)(C).]

Finally, the regulations specify that the discrepancy shall not be primarily the result of limited school experience or poor school attendance. [5 Cal. Code Regs. Sec. 3030(j)(5).]

12. Are some children penalized by the learning disability eligibility criteria?

Yes. Young children, between kindergarten and second grade, have a difficult time qualifying because the achievement tests for those grade levels often do not reveal the child's difficulties. Children who test low average in intelligence are also penalized, as it is difficult to find a "severe discrepancy" between ability and achievement. On the other hand, under these criteria, very bright children are more likely to show a discrepancy between their academic performance and their potential.

13. Does a student have to be two years behind academically to be eligible for special education as a learning disabled student?

No. There is no reference in either the federal or state eligibility criteria for learning disabilities requiring that a student be two years behind academically. The criteria do require that the student have a severe discrepancy between ability and achievement. Therefore, the student's academic achievement must be compared to his own ability levels, not to other students' ability or to expected grade level performance. The district has an obligation to follow federal and state eligibility criteria. See Question 10. [34 C.F.R. Sec. 300.7(b)(10); 5 Cal. Code Regs. Sec. 3030(j).]

14. Can gifted students be denied special education eligibility for specific learning disabilities based solely on intelligence?

No. A federal Office of Special Education Programs Clarification Letter written January 14, 1992, states:

Neither Part B nor Part B regulations provide for any exclusions based on intelligence level in determining eligibility for Part B services ... All children, except those specifically excluded in the regulations, regardless of IQ, are eligible to be considered as having a specific learning disability, if they meet the eligibility requirements ... [18 IDELR 683.]

15. What are the eligibility criteria for children from age three through five years of age?

Preschool children are eligible for special education under Cal. Ed. Code Sec. 56441.11 if the child:

(1) Has one of the following disabling conditions:

(A) Autism

(B) Deaf-blindness

(C) Deafness

(D) Hearing impairment

(E) Mental retardation

(F) Multiple disabilities

(G) Orthopedic impairment

(H) Other health impairment

(I) Serious emotional disturbance

(J) Specific learning disability

(K) Speech or language impairment in one or more of voice, fluency, language, and articulation

(L) Traumatic brain injury

(M) Visual impairment

(N) Established medical disability

Conditions A through M are defined in Section 300.7 of the Code of Federal Regulations, and further criteria regarding each condition is contained in Title 5, California Code of Regulations.

Condition N, "established medical disability," is defined as a disabling medical condition or congenital syndrome that the individualized education program team determines has a high predictability of requiring special education and services.

(2) Needs specially designed instruction or services as defined in Sections 56441.2 and 56441.3.

(3) Has needs that cannot be met with modification of a regular environment in the home or school, or both, without ongoing monitoring or support as determined by an individualized education program team pursuant to Section 56431.

(4) When standardized tests are considered invalid for children between the ages of three and five years, alternative means, for example, scales, instruments, observations, and interviews shall be used as specified in the assessment plan.

(5) A child is not eligible for special education and services if the child does not otherwise meet the eligibility criteria and his or her educational needs are due primarily to:

(A) Unfamiliarity with the English language

(B) Temporary physical disabilities

(C) Social maladjustment

(D) Environmental, cultural, or economic factors

See Chapter 11, Information on Preschool Education Services.

16. Can my child be eligible for designated instruction and services (DIS) if he is in a regular education class and dis is all he needs?

Yes. The education program for all students in special education must be based on individual needs. Any child who meets the eligibility requirements for special education is entitled to the related services needed to help him benefit from special education. [Union School District v. Smith, 20 IDELR 987 (9th Cir. 1993).]

Special education law favors placement in regular classrooms whenever possible. Children who can be Mainstreamed full-time are entitled to the supportive services that enable them to attend school or function in a regular classroom environment. State regulations explicitly say that related services may be provided to students "who are served throughout the full continuum of educational settings." [5 Cal. Code Regs. Sec. 3051(a)(1).]

It is worth noting that even children with disabilities who are not eligible for special education, and who would attend regular education classes, would be entitled to receive supportive services (for example, school health services) necessary to enable them to benefit from their school program under other state and federal laws that ensure access of persons with disabilities to state and federally funded programs. [For example, see Section 504 of the Rehabilitation Act of 1973; Cal. Gov. Code Sec. 11135.]

17. If my family moves to a new school district, does my child need to be found eligible again for special education by the new school district?

No. Whenever a student transfers into a school district from a school district not operating under the same local plan, the new school district must ensure that she is immediately provided an interim placement for a period not to exceed 30 days. The interim placement must be in conformity with her IEP, unless you agree otherwise. The IEP implemented during the interim placement may be either your child's existing IEP or a new IEP developed in accordance with state law.

Before the end of the 30-day interim placement, an IEP team shall review the interim placement and make a final recommendation on placement. The team may use information, records and reports from the school district or county program from which the student transferred. [Cal. Ed. Code Sec. 56325.]

18. If my child does not establish special education eligibility, is there any other way to obtain some special services to address educational problems?

A child who may have problems in learning may not be found eligible for special education services because he does not fit into one of the special education eligibility categories and/or because his learning problems are not severe enough to qualify him for special education. (This is often the case for children identified as being hyperactive or having dyslexia or ADD, none of which automatically qualify a student for special education under state or federal law.) Such a child, however, may be eligible for special services and program modifications under a federal antidiscrimination law designed to reasonably accommodate the student's condition so that his needs are met as adequately as the needs of non-disabled students. The law is commonly known as Section 504 of the Rehabilitation Act of 1973. [29 U.S. Code Sec. 794; implementing regulations at 34 C.F.R. 104.1 and following.]

Section 504 eligibility is not based on a categorical analysis of disabilities (except that some conditions, such as ADD, are frequently recognized as Section 504 qualifying conditions). Rather, Section 504 protections are available to students who can be regarded as "disabled" in a functional sense. Such students:

(1) Have a physical or mental impairment which substantially limits a major life activity (such as learning);

(2) Have a record of such an impairment; or

(3) Are regarded as having such an impairment. [See 34 C.F.R. Sec 104.3(j) for further definition.]

If your child is not found to be "disabled" for purposes of Section 504 accommodations and/or services, you can appeal that determination. The local education agency is responsible for arranging the Section 504 hearing process. The hearing officer selected by the local education agency must be independent of the local agency. The hearing officer could be, for example, a special education administrator from another school district, from the county office of education or from a special education local plan area -- as long as there is no conflict of interest.

The Office of Civil Rights administers and enforces Section 504 protections in education. If you believe your child has not been afforded her rights under Section 504, you may file a complaint with the Office of Civil Rights at:

U.S. Department of Education, Office For Civil Rights, Region IX Office, Old Federal Building, 50 United Nations Plaza, Room 239, San Francisco, CA 94102, Telephone: (415) 556-7000, TTY: (415) 556-6806

See Chapter 6, Information on Due Process Hearings/Compliance Complaints.

19. My child has attention deficit disorder, but he is not eligible for special education. Is there any way he can get help from the school district?

If your child is found to be a "qualified disabled person" under Section 504 of the Rehabilitation Act, the district must provide accommodations and/or services in order to meet his individual needs. ADD would seem to meet the definition of "qualified disabled person" found in the Act.

In addition to the protections potentially available under Section 504 for students with ADD, the California Legislature has expressed its intent, without actually requiring, that districts promote coordination between special education and regular education programs. Such coordination is intended to ensure that all students, including those with ADD and ADHD, receive appropriate educational interventions. It is also intended to ensure that regular education teachers and other personnel receive training to develop an awareness about ADD and ADHD, and the manifestations of these disorders, and the adaptations that can be implemented to address them in regular education. [Cal. Ed. Code Sec. 56339.]

20. If a student is eligible for services under section 504, can she receive special education services?

Yes. An OCR Memorandum written April 29, 1993, addresses this question:

Is a child ... who has a disability within the meaning of Section 504 but not under the IDEA, entitled to receive special education services?

Yes. If a child ... is found to have a disability within the meaning of Section 504, he or she is entitled to receive any special education services the placement team decides are necessary. [19 IDELR 876.]

21. Are there any factors that would make a student ineligible for special education services?

Yes. If, when determining eligibility, an IEP team finds that the lack of instruction in reading or math or limited English proficiency is the only reason that special education services are needed; then, the student is ineligible for special education services. [20 U.S.C. Sec. 1414 (b)(5).]


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