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Jane T:  I would like to find out what specific SPED regulation states that students need to be qualified and evaluated first before receiving SPED testing accommodations and services. There are some students in my school that are still being referred to be evaluated by the School Psychologist. The administrators wanted these students to be pulled out into a resource setting to receive testing accommodations even though they are not qualified to receive special education services. I know this is not right so I would like to know what I can do and what specific regulation would they be violating by doing this. Thanks!

  1. Can you be on A and B honor roll but still do poorly on some psychometric subtest for special education ruling and be denied services on a re-evaluation? Student has 124 IQ score but scored 91 standard score on word retrial and lower on written expression but denied services based on grades and not meeting standard deviation of 15 points. He sees a private language therapist 2 sessions per week.

    • Determining eligibility for a learning disability (LD) is based on factors that are affected by who is involved in the decision. There has to be a “need of special ed services”. Some educators believe that if you make “good” grades there is no need, but IDEA rules say a student with good grades can still be eligible. The IDEA 2004 rules regarding LD determination were intended to get schools to stop using the standard deviation method. The district special ed director may be able to help, but if not you can use the dispute resolution processes that IDEA give parents. Your state parent training and information center can assist you. http://www.parentcenterhub.org/find-your-center

  2. Jane –

    There is nothing inherently wrong with providing support to students who have not been identified as being disabled under IDEA (or Section 504). Schools do this all the time.

    Differentiated instruction and tiered systems of support (like RTI or PBIS) are two common examples of how schools provide to non-disabled students support that traditionally was reserved for special education students. In my state, schools are even required to have an accommodation plan – a list of accommodations available to any student that needs them.

    Schools are generally free to provide whatever supports to students they feel will help them succeed, though there are a few areas where they might run into trouble.

    Schools generally can’t substantially modify the curriculum for non-eligible students, if it would mean the student was no longer working towards the curriculum standards.

    Schools can’t provide accommodations on statewide tests that are only for students with disabilities whose IEP/504 Team deems necessary. Schools must follow whatever rules the state or test manufacturer put forth.

    Schools also can’t provide supports as a means of deferring evaluation under IDEA or Section 504, as this might violate their “child find” obligations. Eligibility under both of these laws carry an entitlement to support that non-eligible students receiving supports do not have,

    And schools must be weary of using special education funds to support non-eligible students. Even with this, though, they do have some leeway as IDEA allows some monies to be spent on early intervening services. Few districts rely solely on federal IDEA money to pay special education teachers anyway.

    If these students are being given supports in anticipation of them being found eligible for them, I actually think this is very progressive of the district. The only other thing I might be cautious of is if the accommodations skew the appearance of a need for eligibility for the students. I would presume though, since they have already been referred for evaluation, there is already solid evidence of their struggles.

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