My child has struggled in school for years. He hasn’t failed because we provide private tutoring and work with him at home. We asked the school for special ed services. They say he is not eligible because he does not have failing grades. Is this correct?
Nope. The law says just the opposite . . .
. . . that a child does not have to fail to be eligible for special education services.
Failing or Passing Grades
According to IDEA regulation 300.101(c), the school must provide special education to a child with a disability “even though the child has not failed or been retained in a course or grade, and is advancing from grade to grade. (page 204 in Wrightslaw: Special Education Law, 2nd edition).
Eligibility: The Basics
A parent or school staff member may refer a child for an evaluation. IDEA Regulation 300.301(a)(1) - Initial evaluations (pages 92-93 and 240 in Wrightslaw: Special Education Law, 2nd edition).
To determine if a child is eligible for special education and related services, the school is required to do a comprehensive psycho educational evaluation. See IDEA, 1414(b) Evaluation Procedures (page 95-96 in Wrightslaw: Special Education Law, 2nd edition).
Did the school complete a comprehensive evaluation on the child? What were the findings?
Eligibility: Questions to Answer
In determining if a child is eligible for special education and related services, the team that includes the child’s parent needs to answer these questions:
Does the child have a disability? Yes ___No ____
Does the disability affect the child’s educational performance? Yes ___No ____
Does the child need special education and related services. Yes ___No ____
Find Answers to Your Questions
As the parent, YOU represent your child’s interests. YOU need to know what the law says. Do not rely on what others tell you.
If you need answers to questions about referring a child for an evaluation, what an evaluation must include, and parental consent for an evaluation, read pages 92-98 and pages 238-245 in Wrightslaw: Special Education Law, 2nd edition. If you have questions about IEPs, read pages 99-107 and pages 245-251 in Wrightslaw: Special Education Law, 2nd edition.
Tags: Advocacy · Eligibility · Evaluations · Grades · IDEA 2004 · IEPs · Special Education Law · unique needs19 Comments
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19 responses so far ↓
The school is required to determine the need for a “comprehensive psycho educational evaluation” and if so determined address every area of need.
After Public Law #94-142, IDEA was passed to meet the unique needs of a child with a disability at no cost to the parents. Before I took this special education law class, I also believed that a special need student had to fail to receive services. I suggest that you ask for an immediate evaluation. You will not have to wait for the RTI process to begin the evaluation process. Remember your child’s evaluation tasks top priority. Good luck!
My child has also severely struggled, but has an IEP because of both visual and hearing impairments, and receives some services such as large print books and speech class. There is also an established connection with her visual impairment and auditory processing.
For the last two years, the school says the IEP does not need to have academic goals for her primary disability (vision) since she is passing.
The school says any resource services to coordinate in learning because of her multiple disabilities are not required since she is passing.
The school says any self-advocacy goals are not required since she is passing.
The school says the IEP meets the needs since she is passing.
Help! Any thoughts?
Be careful about not waiting for the RTI process. Often RTI services are better than special education services. Be careful not to make your focus getting a special ed label. It is like standing on a warship with a banner behind you that says mission accomplished.
Paul, what do you want for your child? What do you want the academic goals to be?, What do you want “services to coordinate learning” to look like?
My child (age 10) has been diagnosed with ADHD only by pediatrician and psychologist outside of the school district. ADHD is considered a “disorder” of a neurobiological nature and not a “disability”. Does he qualify for an IEP evaluation based on ADHD alone? His “disorder” is completely disabling in terms of executive functioning. The school is balking at an evaluation because he is functioning at grade level, although his grades are slipping rapidly. To complicate matters, he is in a GT program. He is experiencing social and emotional distress and has developed a negative self-image. So far he is receiving 504 test accommodations, but he needs more under 504 and I feel that a health para is not inappropriate for his needs, but the school psychologist disagrees about appropriateness of an IEP evaluation, since he is not “disabled”.
Just because a student has ADHD does not mean they need SDI (Specially Designed Instruction), and does not mean that they meet criteria under the eligibility of Other Health Impairment (OHI) under IDEA. In a nutshell, consideration for eligibility consists of two things: academic and/or behavioral impact at school. Section 504 is a little different, but again, just because a child has a diagnosis of ADHD, does not mean they meet eligibility criteria under Section 504. I would ask why/how your child met eligibility crtieria for a 504 Plan. I would also ask why your child does not meet eligibility criteria for special education services, this explanation would need to follow after an evaluation by a school psychologist. It sounds like the Section 504 Plan was poorly developed/written.
to Nancy;
I am in the same boat. My son has ADHDd, dysraphia and exec fxn difficulities.Here is what I was told to say -grapho-motor, attentional and organizational needs exceed what the 504 provides.
functional performance in class is descrepant from his cognitive ability and therefore he qualifies for an IEP as other health impaired. Inconsistency in performance is not due to work ethic but to gaps in his educational and instructional experience.
I have been told to ask for access to a learning center for organiztional help ,and a copy of class notes.
Also check to see if he has a difference between his full IQ and performance IQ. If more than on standard devialtion I am told he qualifies on that count.
Also I took my son to a pediatric physiatrist who diagnosed fine motor skill pblms. also get a Connor’s done at school.
I wish I had known about this law a few months back. My 12 yr old son has bipolar (rapid cycle), anxiety, & OCD. We have been having alot of issues at home and beginning to have behavior issues at school. I asked the SPED about having him evaluated and because he has passing grades they said he would not qualify him. Since then he has been hospitalized for his aggressive behavior (most stems from issues at school) Now I wonder if they had at least started something we wouldn’t be in so deep as we are right now.
For Sha:
I am interested in your question? Does a parent of a child , for example, that has ADHD have to be able to detail to the school department the specific day process that an educational specialist would use to assist the child?
I do know that my child with extensive tutoring from my wife and my self scrapes by, but with documented visual and hearing and auditory learning problems, I was hoping for a smaller class a couple of hours a week or someone to work with her to get her up to speed.
Is this unrealistic? Or do I continue to flounder away? By the way, private schools do not accept children with low-vision.
Thanks,
As a Child Psychiatrist, I have been struggling for over twenty years in my community to get my patients the services they need. I know to well the adverse consequence our kids suffer from improper school placements and practices.
Currently this issue, excluding kids from evaluation because of “passing grades,” is a big one here. Often, I tell my parents that at least their kids grades will go up when they put in a written request for an IEP evaluation.
Even the few Special Education Lawyers in our community seem to feel this is a stumbling block, citing “case law” in California, although another lawyer from out of town doesn’t let this be an obstacle. Guess which one I refer to!
I am looking forward to Wrghtslaw coming to my town in March 2010.
My child was denied special ed - “the xx School District does not give sped rulings for emotional or behavioral rulings”. How can I get a sped ruling other than the school district? I have had to pull my child out of school to home school because of his behavioral problems.
In response to the comment about waiting for RtI to begin before requesting an evaluation, I would disagree. RtI’s tiered levels of increasing intervention could help your child, but it could just as easily be implemented inefficiently or serve as a roadblock to getting the proper evaluation your child deserves. If your child is not progressing well, immediately sign your written consent to a psycho-educational evaluation. This will at least start the special education process and put a time frame on the RtI process so that it cannot go on for months or even years. For more info on knowing your legal rights to an evaluation under RtI, see my blog: http://makingschoolwork.wordpress.com/
My son is classified. He is a nine year old with Autism. He is mainstreamed with an aid. His third grade math teacher does not want the aid to assist him. She made him take a math test, without any support, and gave him a failing grade. Is she allowed to do that? I have heard that they are not allowed to give them “F”s on tests. My son was devastated.
My son is in the third grade. He has struggled since he started school. In first grade i was told he had to fail two years before he could get help. I requested an sblc meeting and was told he was average, but they would continue reading interventions. He had more problems than just reading. He has a short term memory, horrible hand writing, and just cannot process info. The second half of second grade they did an 1120 screening and he started going to project read and getting 504 accomidations. Pupil appraisal still would not accept him. I had a personal eval. done on him which stated he was borderline mentally deficient. Pupil appraisal still would not accept. They say they may accept him this year but we are in the 2nd half of the year. WHY DOES IT TAKE SO LONG TO RECEIVE PUPIL APPRAISAL SERVICES?
I know that school districts are required to adhere to timelines in the special education process. Does a parent have the right to waive any of these timelines? For example, can a parent waive the right to an annual review in February if they would prefer waiting until April or May? if so, where does it say this in the law/code?
My child was denied special education services because he has passing grades. He was diagnosed by the school psychologist with an emotional disability - reactice attatchment disorder and ADHD, My own psychologist gave him a diagnosis of Aspergers. I feel my child is being penalized for being too smart. He is also gifted with a 128 IQ, but he needs the ruling for his emotional disability.
I need to know if I need to hire an attorney.
My daughter has Asbergers, PTSD, RAD, ADHD she has had an eval and both show she could get speech but her IQ is very high and the school only uses test as a marker of achievement. They do not take into consideration missed assignments. They will give her 504 but can not find a way for her to get I.E.P. They are suggesting letting her fail by giving her less help next year just so her grades will fall and she will fit neatly into the I need help catagory. Any words of wisdom?
Jo Ann - I agree that schools seem to be set up to let the child fail in order to prove need although I do not advocate that. It is my understanding that more than just the achievement tests are to be used to determine eligibility for special ed services. I would send a letter to let the school know you are going to seek outside evaluation at public expense. You will get a list from the school as to places you can get an outside evaluation however you do not have to use any of these places. You can get referrals for evaluations from a psychologist, neurologist, doctor, speech therapist, etc. Once you get the evaluation and recommendations the school must consider the results. This may help you.
My 14 year old has ADHD and has been having behavior issues since Kindergarden. I’ve been bringing him to a psychiatrist and he has been taking medications daily. He have been held back in the 1st grade in New Orleans, then the 5th grade in St. John parish (twice but they pushed him up because it’s not legal to make a child repeat the same grade) and now the 6th grade. I had paid $550 for a summer school and he made a D in English and the principal saidit wasn’t high enough for a promotion. It’s upsetting that the schools out here don’t try to help my child. I called several places and learned that I can request a board level committee meeting to get him into a Section 504 program, but he still will remain in the 6th grade. It isn’t fair! The schools should have told me about these programs early on and I’m just learning about them!