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. My daughter has unilateral hearing loss and Crohn’s disease (chronic). She received an IEP in 2008. Since she went on the IEP, she is doing very well in school, but still deals with these chronic heath issues that affect her adversely on a daily basis. Meds and disease cause nausea continuously, growth delays, and social issues.
    After reevaluating her, the school says she is doing great. They plan to take her off the IEP and change to a 504. My daughter still has the same disability and is still at risk if she cannot keep her special ed minutes.

    Can they take services away based on the services working? I know other health impairment is grey area. What can we do?

  2. Child with Passing Grades Eligible for Special Ed Under IDEA? by allison

    How much time passed by since the two evaluations? If you have gone one year you can request another evaluation from the school to compare to the last one. Then you may have a way to prove that your child qualifies for special ed. f it is still within the year, you can put your child on a 504 and then when the year is up, request another multifactored evaluation. You are allowed by law to request one eval a year. After you get the results, again have a professional look at your scores and help you work with the school.
    Many times students actually are borderline for special ed services but parents do not know what the school knows. You need a professional to look at the scores.

  3. i had my son tested on my own and it was shown that he has a disablility. I brought this to the school and asked he be made eligible for special ed. They wanted to do their own testing and put supports in place. When they tested him, they said he did not have a disability, so they want to put a 504 in place. I’m afraid he will fall through the cracks again. What can i do now legally?

  4. Do I ever have a good answer for this one! My child is a Senior and has been on the Honor Roll since the 7th grade.
    The latest report card gave her “straight A’s, one A+ and a GPA of 3.6667. However, up through the 11th grade, even with a GPA of a solid 4.0 in one grade, they have repeatedly stated my child is:

    “Pre-Academic” and did not start teaching her to read until this year 2010-11. But they have given her grades and a GPA that would qualify her for a scholarship.

    The catch…she is not eligible for a high school diploma unless she passes the “High School Exit Exam.” So, basically, my daughter has an “overall average G.P.A. of approximately 3.78 from the 7th grade thru the 12th grade, and straight A’s in all the subjects, but she CANNOT read!

    • Adrianna, it’s crazy. Here we are 8 years later and parents are shocked when something like this is revealed. My husband and I were just as shock when our Son graduated and struggled keeping a job. That’s when, seeing through my son’s eyes, opened my eyes. Parents have the right to know at what grade llevel the child is. I hope she is doing well.

  5. I am a parent and an educator. I do have concerns about grading a child with IEP. Must a child be given a numerical grade and a progress report (descriptive one) or just one of these. It was agreed however, that the child receives a quarterly progress report from the special ed. teacher. There is a confusion because this child attends the general ed. classroom for academics and at the same time gets special ed. support from a resource setting but with more time in the regular classroom. This has raised a lot of concerns because this child is making progress in his IEP goals but is failing in his grade in the regular classroom. Your answers will greatly help. Some general ed. teachers claim they are not supposed to grade a child with IEP, only the SPED teacher is responsible for it. However, SPED teachers give progress reports.

  6. My son (17) has TS, Asperger, SPD, OCD. He has “attended” school for 5 yrs via Home-Bound Program, due to overstimulation of school setting. School provides him with Novel Stars Internet Education Program and sends a tutor to our house 2 hours a week. My son utilizes Skype for Algebra, and loves it. It provides in-class participation, helps him feel more connected to school, and is a step toward integrating him back into school for 1 or 2 classes a day next year. He loves drawing and wants to be a Video Game Designer. He needs an Art class, so we requested he be allowed to Skype Art w/ extra help after school if needed 2x weekly. By contract, teachers stay 30 minutes after school daily. Request was denied because teacher says she doesn’t see how she could make it work due to my son’s disability and refuses to try. Is this legal?

  7. Leigh, if your son is now in college, and was diagnosed by a pediatrician, how long ago was that? The requirements followed by colleges/post high school institutions are different than those required to be followed by public schools through 12th grade. Until graduating from high school, children are entitled to services, and the school is responsibile for diagnosing and addressing the learning needs of that child. In college, students are not entitled, but have a right to services. The difference is the student must provide proof of the disability (by a professiona within the last three years) and request the services, advocating for themselves. You may need to get more current testing for your son.

  8. My son is 13 in 7th grade. Our small town refuses to acknowledge that children who are “smart” and have ADHD, bi-polar and ODD like him need any help. He has a 504 but they do not abide by it at his school. He has been in ISS, OSS and even denied lunch because his teachers and the principal do this since because these children are not in their realm of “norm.” Well, what is the “norm?” Now, they placed him in an alternative school. As parents of these beautiful children, we all need to join NAMI organization so we can make a difference for our children and educate our state representatives and school leaders. We are their voice. They did not ask to be born, nor did to have these genetic disorders.

  9. I am seeking a 504 medical plan for my 11th grade son. He has struggled for years with ADHD and his meds. I am getting great resistance from his counselor, although they are proceeding with the process. Initially, she warned me he would be taken out of his internship program if he gets a 504 plan. Last week she told me he would be taken out of his advanced math & honors lit classes if we proceed. He wants out of math but not lit. She said, “maybe we can slide lit through.” I keep hearing from others this is not legal and they can’t take him out of these classes unwillingly. Is that true? How can they keep making these false threats to me? She has called a meeting w/me & math teacher to discuss his “struggles & try to find the best approach to help him be successful”. Sounds like another ploy to avoid 504 to me.

  10. I have a son who is now 7 years old and in 2nd grade. He had so many issues with kindergarten and was diagnosed outside of school with autism. I took the testing back to the school and we had gathered a meeting to establish an IEP, but the meeting soon came to a direct halt once we found out that the school would not except our outside testing. But wanted to do the testing themselves. The problem became that according to the law, 7 qualified people must perform these test. The school was only willing to provide 2. One lady that was going to “observe” my son for this testing, isn’t even licensed but joined some autism groups. Totally not what I would call meeting the law.
    Since this meeting came to an end. I have had my hands tied because with out the school performing there own “generic” testing ,my son has received no help at all.

  11. Does a disability include a behavior problem? they gave him an iep and said he passed but supposedly gave him a 504 which they said he needed it. But so far no luck. He has spent more days suspended then in school. i need help. He is 8 years old in 2 grade.

    • Yes, because I went through this with my son and in order to keep him in our school district, I had to request a due process hearing because they violated his iep and his rights. My son was illegally suspended for 21 days in 2010, I got into a screaming match over the phone with the assistant superintendant who asked me if I had a lawyer. No, I did not need one. My son fell on another boy in the schoolyard afterschool. They tried to state that he had behavior issues and “was a danger to himself and others”. No! You have rights to a free public education and in order to preserve them, you need to advocate for your child. Do not let the school district railroad you out or put your kid into a “specialized” school. My son was diagnosed with ADHD. We fought and won! You can do the same.

  12. After completing an evaluation, a WI school determined a student was ineligible for SPED, as her grades of C or better proved that her disability in reading fluency did not affect her ed. performance. I showed them the WI regulations that did NOT say a word about using grades to measure ed. performance. Instead, WI regs said direct measures should be used (e.g., curriculum based measurement). As a result of this advocacy, her mom and I got her the reading help she needed. Check with your state’s regs to see how they define “educational performance.” (written by a school psychologist in practice as an advocate).

  13. @ Tammy- The child in question with ADHD may fall under a 504 plan and not an IEP. There is no valid State Law that denies services based on grades alone- but if the child does not need services, he may simply not qualify. Just having ADHD alone does not qualify anyone for services, they must also have a need for educational, behavioral, or therapeutic supports. Most children with ADHD are smart little tatertots. As our ABA therapist always sighs about my very smart ADHD child… “Oh, if only the issue were brains!”. We too struggle because of very good grades and performance, but it’s how we GET those good grades that’s the issue at hand.

    Document, document, document.

  14. At our iep the teacher said that my child is doing better in all her work that she is almost up to par and next year she wants to place her in a special ed class for english. The work in there will not be up to her standards but she does not know what else to do. I asked her ” wont that set her back again?” Teacher said yes it may, but she is in between grade’s what else can we do… I want her to be in a summer program and after school program as well as my husband and i help her at home.Teacher – “well we dont want to over do it…..”
    What do I do to get her extra help and her up to grade ? please help

  15. I am a child advocate that is having a hard time with a school giving special services to a child with ADHD who is at grade level and according to state law has test scores to high for special education. Can’t he be serviced under special health needs?

  16. Our 3rd grade son has IEP for communication disorder. IEP doesn’t address academics at all. Due to a recent head injury and previous/continuing learning issues, he was evaluated to determine eligibility for TBI or SLD. Test scores were largely below avg to low avg, with a few areas as avg (25%). We also have outside evals from neuropysch showing significant concerns with ability/needs. Teacher reports grades of B’s and admits not scoring full DRA rdg assessments due to his known speech/lang issues. There is also a tremendous discrepancy between teacher’s reported performance and what we see at home when working with him (A LOT!) on learning.
    The only eligibility criteria discussed in meeting was the need for a discrepancy between performance and ability. No discussion of below grade/age norms. Is a ‘gap’ the sole criteria?

  17. Stacy, I am not psychologist but based on what you are saying I agree that your child needs some services especially if you have a professional that also says so with evidence. I have requested a meeting and have brought my professional person in or have had them on speaker phone with everyone present with a copy of the report in their hands. Remember if the school refuses anything they have to put it in writing as to why. I believe you have a strong case to get services for your child and every professional should know that as children progress if they have a discrepency it usually gets wider not less. Your son may be barely passing now but that will probably get worse without intervention. They should know this.

  18. My child went through the special education process last year, but did not qualify. He has ADHD and takes medication. I have had outside testing performed and it does show a discepancy in the area of written expression. However, when I met to request services, they said that because he is “passing” with D’s, is does not affect his classroom performance. I have requested to reconvene to submit my testing results along with consideration to previous school testing as well. I am concerned that they will not acknowledge or use my private testing. I am not sure how a 5% on a spelling test, a 40% on history test, and a 32% on a language test does not show an deficit. Teachers are being required to perform standard based assessment that they pound into kids right before the tests and the majority of that grade is based on that score.

  19. Leigh,
    Research Section 504. You could also go to the college’s website and read what they have to say 504 on their “Special Services” page.

  20. Leigh It sounds like you son was not on an IEP. If that is correct can you discuss the possibility of him taking his tests earlier in the day in the learning center? My son was on an IEP and gets this accommodation at college but students that are not on an IEP also can get some help from the learning center. It is worth a try. If your son was on an IEP than you just need to show the college the IEP and other required items and they will give your son accommodations.

  21. My son was diagnosed by his pediatrician as being ADD. He went to a child psychologist and her findings were inconclusive. She did not administer the test, only reported the tester’s findings. Based on her report, my pediatrician decided to try him on Adderall stating that if he was ADD we would see a marked improvement in his performance. His grades soared and his teachers commented on how well he was focusing and said he was an entirely different student. He is now a college student and is being denied accommodations because his diagnosis came from a pediatrician. He is not completing some of his exams in the allotted time because he can not work any faster. On untimed tests, he is receiving A’s. Many of his exams are in the evening, and by then his medication has worn off. Is it legal to deny him services?

  22. 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!

  23. 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.

  24. 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?

  25. 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.

  26. 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?

  27. 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?

  28. 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.

  29. 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:

  30. 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.

  31. 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.

  32. 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.


  33. 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.

  34. 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.

  35. 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.

  36. 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”.

  37. 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?

  38. 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?

  39. 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!

  40. The school is required to determine the need for a “comprehensive psycho educational evaluation” and if so determined address every area of need.

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