Is Child with Passing Grades Eligible for Special Ed Under IDEA?

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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.

  1. Sir/Madam

    I have my son who suffers from autism spectrum disorder.

    His school detained him twice in last 4 years.
    Last time when he was class 7 he was detained. At that time even we were unaware of his autism disorder.
    He has been diagnosed with Asperger syndrome from premier govt hospital and his school principal was informed immediately

    He is now 16 years and unfortunately this year also he has been detained in class 9.
    It has caused tremendous psychological distress in him.
    His board exam (after class 10) actually does not include class 9.
    We repeatedly requested them to promote him.
    We tried to convince them that keeping him in same class will hardly help him to be equal with other or in getting high score.
    But they refused ro listen.
    Is there any help that we can from you, any suggestions or anything?
    Thanking you

  2. To add to my previous post. The school district that my daughter goes to doesn’t give parents access to view their child’s on line tests. In 4th grade I realized I could view this information through my daughters access when she had to make up work at home. I discovered that the scores she receives are often changed in the gradebook, which is the only access we have. Parents will never know their child has to receive RTI and the retake the tests because they don’t see the online info. ours is school net. Some tests are secure and can’t be fully viewed but you can see the analysis, I had to figure this out, it wasn’t offered and I asked how to see data. I feel they are hiding evidence since they know the burden of proof falls on parents. Am I correct and what can I do?

  3. My daughter is in 8th grade and has math LD. She goes up and down in her math grade but usually gets an A or B at the end of each quarter. These grades are mostly due to classwork and teacher created quizzes and they admit to the need for interventions before having classwork graded and interventions then retaking tests. My daughter scores on monthly assessments are generally poor and the teacher then adds extra credit to bring up the grade. She does poorly on district benchmarks and usually needs lots of review to pass state sols. Their grade level equivalent tests scored at 6th grade level. They ignore these results and focus on the classroom, her triennial is due and they hinted at removing her IEP. I need advice on how to fight this, we know she still needs help.

  4. I was the advocate for a student with a high IQ who was previously turned down for a Section 504 plan (his grades are A/B). Grades are high due to the parental support (excessive, student has multiple tutors, medical specialists helping him). When I attended the 2nd school meeting to support the parents’ request for accommodations, we were crammed into a small room with 12+ staff, were told by the principal we had 15 minutes to talk with teachers; parents were interrupted and challenged the entire hour and half meeting, and when the parent finally told the district staff person he found her averse to helping his son, the staff person said that the parent apparently had a problem with strong women (!). The S504 plan was finally agreed upon but should there be consequences to what occurred?

  5. Ok so on the flip side, my Son in 4th grade makes good grades, does not have any disabilities and has no social or behavioral issues. However he struggles slightly with reading comprehension in the classroom because he says he gets distracted by his friends. We have started working on his comprehension at home and discussing the importance of doing your best. His grades have risen (though they were never failing) however his teacher just called and said, and I quote, “There is something wrong in his brain where he can’t understand what he reads.” Again his grades do not reflect this and he reads books at home with no problem. Can the school force an IEP?

    • Parents must give consent in most cases for a special ed evaluation, and parents must consent to initial placement in special ed.

  6. What is reviewed when answering “Does the disability affect the child’s educational performance?” If you are not allowed to look at grades, then what is being reviewed in order to answer yes or no to this question? If a child has ADHD and is making A’s, B’s, and a few C’s…..and yes, he or she is distracted at times but is able to make satisfactory progress, then why would the child need an IEP? Why wouldn’t a 504 Plan be enough?

    • Sally,
      Each child is different. All children who have a suspected disability must undergo and extensive evaluation. I think they are using the results of the evaluation and possible observations done. Some kids may only need a 504 plan if they just need accommodations. Other kids might be more severe and may need certain goals, accommodations and modifications. Thats why some kids have an IEP.

  7. Last year, my son entered 6th grade and this is when he really began to spiral downward. At that time he had an ADHD diagnosis and a 504 plan, however I requested an evaluation to see if he qualified for an IEP. I was told, based on the schools testing that he was “too intelligent” and passing his subjects therefore did not qualify. Fast forward to this year, his psychologist suspects he has high functioning autism so he recently underwent comprehensive academic and neuropsych testing with a doctor I found. My question is: Am I able to bring my own private testing results to the Special Ed Dept. for review this year or do I have to request the school to do their own testing again to determine eligibility and then introduce our private report?

    • You can do it either way. Generally districts prefer to do their own testing. They only have to “consider” testing that parents bring, but some districts will accept outside testing & not do their own.

  8. My son got an independent diagnosis of dyslexia, dyscalcula, and ADHD this summer, after having failed a subject in the 9th grade and having to go to summer school.

    At the start of his sophomore year, I gave the school the diagnosis, and requested an IEP. Today, I met with a the school specialist, and two teachers that she brought in that my son had in the 9th grade.

    Both teachers said that my son just needed to put in more effort.

    The specialist told me that they would conduct their own tests to determine if my son is eligible for an IEP.

    I thought, under the law, with this independent diagnosis of all three, dyslexia, dyscalcula, and ADHD, that surely there would be no question that he was eligible.

    • As you begin this journey, keep and maintain any emails, report cards, evaluations that documents that outline his struggles and deficits. Keep detailed files as you may need them, especially if he is looking at college and ACT/SAT accommodations. Some may not view a late diagnoses as valid. Yet, they don’t understand how each kid compensates and struggles. Show the specialist at his school any documentation you may have that would point to early signs before 6th grade of any concerns. I presented data and research to support my concerns. “Putting forth more effort” is a degrading statement to make towards students with such struggles. They need accommodations and resources. Use hard facts and data to advocate and teach him advocacy skills. Research Wrightslaw.

  9. I know that the law states that my son must have IEP and/or 504 services if he qualifies, but what if it’s a challenge to get him qualified? He’s twice exceptional, meaning, in many cases, he can skate through class without services, but that doesn’t mean he doesn’t need them. He has dysgraphia, and while he’s intelligent enough to pass, even do exceptionally well on exams, he can’t take notes in class without a laptop or iPad. While he is in gifted classes, with services for his handwriting here in NY, and while FL is required to provide them at first, what do I do if they decide he doesn’t need them after they evaluate him? We may be moving, and I hear it’s a challenge in FL to get services, nevermind to get them for a gifted student. Will it be a fight if we move?

  10. My son is 8 years old. We have been struggling with him being expelled from daycares as well as schools. They say they don’t have a person at the facilities to interact with him one on one. I have lost jobs due to this. He at one point refused to go to school. I tried to homeschool him and just about lost my mind. I have an envelope full of write ups and suspensions. I am Grateful for this site because it defines my son. We have had evaluations, testings and other meetings. From these they say he is just defiant. How could they label him this way? He does his work but doesn’t finish at times because his attention span is very short. At any giving moment he will get up and run. I am worn out.

    • Angela,

      I know this is from last year but let me add my two cents in. Has your son been evaluated? If he has not you need to get that done right away. You can go to the school and fill out the form to have him evaluated. From there the school has sixty days to complete the testing. If the school decides not to test then they must give a written notice as to why they do not want to test. Sometimes you can even get your own evaluation done at the schools expense meaning they have to pay for it. It sounds like your son may benefit from having an IEP that will protect him and help him. It sounds like there is more to the story. Good luck with everything and I hope this helps.

  11. My daughter is in the fourth grade. She has ADHD, anxiety disorder, and classic insomnia (all medically diagnosed and is taking meds for all, as well as receiving weekly therapy). She’s been on a 504 since 2nd grade, with preferential seating, small group testing, and extended time. Her handwriting is illegible. She also can’t tie shoes, has a hard time with buttons and can’t ride a bike. We’re waiting for an OT assessment privately, but every time I’ve brought this up with the school, they say she doesn’t have dyslexia because she’s a good reader. They won’t even screen for dysgraphia or dyspraxia. She also “doesn’t qualify” for an IEP because of her standardized test scores. She has gone from an AB student to Cs and Ds which is wreaking havoc on her anxiety levels.

      • We’ve actually ended up moving her to another school where they were more willing to work with us. Her grades have improved and she has made friends. She’s homebound temporarily because of other health issues and has been doing excellent with schoolwork sent home, so online homeschooling is something up for discussion at the moment also.

    • my son is 10 and just leaned how to ride bike and tie shoes. gross and fine motor skills aren’t there. took him bowling and he could figure it out, no cordniation. he has epilpsy, adhd, on autism spectrem, on lithium, Zoloft, seizure men. No social skills at all, never a friend his whole life, no emotions, ignores people if they say hi,, cant communicate , tells teach he’s depressed and does strange things at school, the loud noises get him mad and I had to scream at them to get a psych test. but they said his testing is fine so no services. I’m gonna homeschool and go to therapy.

  12. Our 4th grade son has ADHD, Anxiety Disorder and Tourettes diagnoses. We just had our first IEP meeting with the school to go over their assessments. We’re requesting an IEP for him because, even though he’s doing academically well at this time with his medication and 504 accommodations, we know that we’re going to need to have as much leverage with the school system as possible going into middle school. The school is denying him and IEP. They’re saying 1)everything he needs can be done in his 504 plan 2) an IEP would necessarily mean that he can’t stay in his general education class and 3) that he doesn’t qualify for an IEP because he’s not currently struggling to keep up with grade level. Are they right? It sounds like we have to let him fail before we are given the leverage to help him.

    • Would love to hear the response for this. My 7th grade has general anxiety and ADHD. We have a 504 and child psychologist wrote a lett to the school stating we need an IEP. We have tried this a couple times before. He gets “ok” grades but this is the part everytime where they keep saying he doesn’t need one. One they say he can’t stay in regular classes which is completely false! However what do you says when they ask “Does the child need special education and related services.” well yes they do and this can be accomplished in a regular classroom setting. For instance with every writing assignment and large project my son need scaffolding instructions- multiple steps for accomplish to end goal.

      • Have you asked for accommodations and been denied? I thought you could get accommodations under a 504.
        My daughter is dyslexic and ADHD and had an IEP and is in a regular classroom.
        The approach that has worked for me when denied accommodations is I complain my child’s invisible disability with a visible disability. For my daughter her reading class is like a wheelchair ramp. Accommodations allow your child to access general education just like a wheelchair ramp allows a child in a wheelchair to access the school building. You wouldn’t ask a child in a wheelchair to try walking up the stairs and insist on seeing them fail before building the ramp…

        • I know this may be asking a lot, but would you mind posting your letter that stated all this in that way? Take off all personal info first? I am struggling to get my Girl with Asperger’s /ADHD/Anxiety an IEP from her current school before she starts middle school in the fall. I know in my GUT (Mom’s gut never lies) that she is going to derail in Middle School because it will be overwhelming. She has gotten good grades this year because she has an awesome teacher who goes way out of her way to help her. Thanks!

    • My daughter is on an IEP and in a regular classroom and has been… she has aides and does leave the class for testing (read aloud and extra time) so an IEP does not mean they have to be pulled from general education. No your child does not have to fail to receive special education as is quoted in the above article, they must have a documented learning disability has he been evaluated by the school? The way I understand it is a 504 you can get accommodations… but to get special instruction (my daughter is dyslexic and gets a special reading class) you have to have an IEP. I do not know as much about 504 because my daughter has an IEP but I thought you had the same protections under 504.

      • Hi my son has been on an iep for 3 years.for “Specific Learning Disability” (DYSLEXIA) 5th grade..he’s been doing awesome because of iep. Now they will re evaluate..and on the form they wrote concerns if he still is eligible? Omg are they kidding…I’m gonna blow a gasket if they say he’s not eligible…it’s crazy! What can I do if this happens? It’s like they want to get them just passing then get them off services…ugh

        • Schools are required to ask the eligibility question at least once every three years. The decision about whether your son continues to meet criteria for special ed will take place at the IEP meeting following the re-evaluation. Again, this is something that schools are required to do under federal law. It doesn’t mean that your son WILL be dismissed from having an IEP. It does mean that a team needs to review how he has been doing with the supports and whether he continues to meet your state’s criteria for his impairment areas. Yes, students are sometimes dismissed from special ed. When I’m working with parents whose child might be considered for dismissal there has already been several conversations with them about this before the re-evaluation is due. I

      • I’m glad your child is getting help. 504’s do not provide aids or special instructions. He gets accommodations that are not effective. His problem is behavior and impulse control. He doesn’t understand physical boundaries. He often does not have a clue as to why he gets in trouble at school. The 504 committee suggested I get him a fidget toy to redirect his attention away from disrupting the class. Well the first day he took it the teacher took it away.
        I need help!!
        Any advice please.

      • My daughter failed on 504 plan and the principal say all about the scores not academic.because if she fail.they will still pass her.She not learning this way.we in Louisiana. I still fight for a IEP..

    • My son is in a similar situation. He is in 6 th grade and this is his first year in public school. He went to Catholic school all grades prior.
      He has Aspergers, ADD,ADHA and OCD.
      He gets all A’s and B’s just like the rest of you I have been told the same. ” your son does not qualify for an IEP because he can access what he needs in school and gets good grades”. . But my kido is always in trouble at school. 2 ISS and 2 detentions . I get calls 3-4 times a week about his behavior. Impulsive, calling out, disrupting the class.
      Some behaviors he can control but others are a part of his diagnosis.
      Sadly his behavior is isolating him from his peers. He has no friends.
      I do send him weekly to a skill and social stills class for kids like him.
      He sees a counselor and a psychiatris.

      • I have a friend who is in this exact same situation. A and Breakfast student, social skills are not good to say the least. He has no friends, doesn’t like school, or anyone there. Has 504 that isn’t being implemented, and grandmother feels he needs IEP. School says no. Have you made any progress, and if yes what steps did you take?

        • I want you to know that there are parents out there who are trying different strategies with their kids with Aspergers as the social piece is hard. One parent, son was diagnosed with autism, actually put him in sports–for years. He is now in high school. The doctor told her that his participation in sports did more than any PT, OT, social skills,etc. could have done. The same may be said of theater, etc. This parent could not rely on a school district and she followed her instincts and the validation from the doctor made her glad. I saw that child develop over the years–he is doing well in high school, very well–has confidence and college focused. Work with the school district but create outside opportunities for your child to have friends and teams outside of the school as well.

    • Get your own independent assessment and see if the school will budge on the IEP. If not you can file a complaint with the state education agency.

  13. My son has been clinically diagnosed with Autism, ADHD and anxiety by correct professionals in the field and has undergone complete and thorough testing- ADOS, CIBAR, and several other comprehensive and detailed testing and is qualified thru social security as disabled, does the school still have a legal right to do their own evaluation before agreeing to an IEP? Poor little guy has been thru so much testing I don’t want him to undergo any more I’d not absolutely legally required.

    • It’s not a matter of if the school has the right to evaluate, they have to evaluate before giving a child an IEP. A diagnosis from someone else doesn’t necessarily mean they’ll qualify for school services, and vice versa. The evaluation might not look the same as the others, though. They might have plenty of information from your other testing and feel they don’t need to “re-do” some of it, especially if it was recent. However, that’s up to them to decide…

  14. My 13 year old is currently passing all of his grades after he failed 7th grade last year. Solid B average w/very mild ADHD, takes Intuniv, about to finish 8th grade. We took him out of special education because it did not work for him. The only subject that he truly struggles with is math, Algebra, borderline pass? In retrospect, because they never gave him any homework, he could not practice math or any other subject matter. He’s now about 2-3 grade levels behind in comprehension for math, language arts about 1 grade level behind. We are tutoring him and it’s been working but I am unhappy about the fact that we still need to pay for tutoring when the school can provide that additional support. Good grades DOES NOT equal learning! I feel like he needs more help!

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