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FAQs | Articles | Legal Resources | Caselaw

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Note: We have a YouTube video about the use of RTI to delay an evaluation to determine eligibility. For that and other Wrightslaw YouTube videos, go to the "Wrightslaw YouTube Channel" at:

When Congress reauthorized IDEA, they strengthened the role of parents:

"Decisions about special education eligibility must be made by a team that includes the child's parent. Parents are entitled to all evaluation reports and documentation about how eligibility decisions are made"

These changes were maintained when the IDEA was reauthorized in 2004.

Who is Eligible for Special Education Services?

To be eligible for special education, a child must have a disability and must need special education services and related services. If a child has a disability but does not need special education services, the child is not eligible for special education under IDEA but may be eligible for protections under Section 504 of the Rehabilitation Act.

These issues are confusing. We suggest that you read the definitions of "Child with a Disability" and "Special education" in Wrightslaw: IDEA 2004.


FAQs: Your Child's Eligibility. Frequently asked questions about evaluations, eligibility decisions, disability categories under IDEA, and how to resolve disagreements with the school.

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Eligibility Issues & Learning Disabilities. In Letter to Felton/Lillie, the U.S. Dept of Education provides guidance on issues about evaluations & eligibility of children with learning disabilities. Issues include how to ascertain current level of educational achievement; passing grades and parental or tutoring assistance received outside of school; impact of high IQ on achievement levels; and requirements for evaluations of a child who may have a specific learning disability (SLD).

Are Children with ADD/ADHD Eligible for Special Education Services Under IDEA? Many people write to ask whether children with ADD/ADHD are eligible for special education under the IDEA. This article discusses eligibility issues, and gives readers a Game Plan that will help them learn more about these thorny issues.

School Says Child is Not Eligible for Special Ed - What Can I Do? "Although my son has been diagnosed with disability, the school says he is not eligible for special education because he is making good grades. Is this true? What are the guidelines about grades and eligibility for special education?" This article includes the Wrightslaw Game Plan to Resolve Eligibility Disputes.

. Eligibility decisions are based on evaluations of the child. As attorney Bob Crabtree explains, "As a parent, you must make sure that all areas of possible need are assessed as quickly as possible. While some parents would rather not allow their school system to evaluate their child, a refusal to cooperate at this stage of the process can backfire . . . "

Can the School Delay the Evaluation over the Summer Break? The U.S. ED Office of Special Education Programs (OSEP) responded to a letter requesting clarification of the requirement for a timely initial evaluation under 34 CFR 300.301 (c)(1).

Termination Just Before Transition: Is This Best? Don’t allow the school to terminate your child’s eligibility unless and until you are convinced that he is functioning well and can get a good job and pursue further education if he wants to.

Teachers Trump Psychologist? Who Determines Eligibility? When you have a disagreement between the teachers and the school psychologist about whether a child qualifies for services, you must consider the real question that needs to be answered. “Does the child have a disability that adversely affects educational performance?” If the answer to the question is “yes,” then the child is eligible under IDEA.

Determining Eligibility: How Many Days is 60 Days? Since IDEA states “60 days” and not “60 business days” or “60 school days,” by operation of law and pursuant to 34 CFR 300.11(a), the word “day” always means calendar day unless otherwise indicated as business day or school day."

Is a Child with Passing Grades Eligible for Special Ed under IDEA? The law says that a child does not have to fail to be eligible for special education services. 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.

Using an "Educational Model" - a Way to Deny Services? When school personnel say they cannot provide services because they follow an educational model, what does that mean? What is the difference between a medical model and an educational model? - a little research.

Can the School Terminate My Child's Eligibility for Special Ed? If the school's criteria for determining a child's eligibility for special education are IQ scores and grades, this is incorrect and inappropriate. Sue explains how eligibility decisions must be made and other legal requirements for determining if a child is or is not eligible for special education.

Good Grades: Does My Child Still Need Specialized Instruction? Teachers give out grades based on many different factors, this does not mean your child is learning. If your child is struggling, consider an evaluation to determine if she needs special instruction and related services.

Eligibility for Special Education: Grades, IQ Scores, Evaluations. I read a document on your website that said a student does not have to be functioning below grade level to qualify for special education services. Where can I find this information?

My Child with a 504 Plan is Failing, School Won't Help. Learn the law and regulations about eligibility for special education services. I can tell you what these laws say (and doesn't say) but you need to read it for yourself.

Is RTI Equivalent to Special Education? No. RTI is a regular education concept, not special education. The federal law permits schools to use RTI to determine eligibility for a child with a specific learning disability.

Game Plan: How to Resolve an Eligibility Dispute. How are eligibility decisions made? Your position is that your child has a disability and NEEDS special education. The school’s position is that your child has a disability but does not NEED special education. Here is a game plan to help you resolve the dispute.

Child Diagnosed with Autism, School Won't Help. IDEA does not require the school to “label” a child before finding him eligible for special education and related services. To be eligible, the child has to have a disability and “by reason thereof needs special education and related services.”

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Legal Resources

Joint Policy Memorandum ADD/ADHD
. This 1991 Memorandum from the U. S. Department of Education advises that children with ADD/ADHD may be eligible for special education services under several existing categories including LD, OHI, ED; describes circumstances under which schools must provide services and supports under Section 504 of the Rehabilitation Act.
The Memorandum begins with this statement:

"There is a growing awareness in the education community that attention deficit disorder (ADD) and attention deficit hyperactive disorder (ADHD) can result in significant learning problems for children with those conditions . . . "

Letter to Felton: Passing Grades, IQ Scores, and Evaluations of Children with Learning Disabilities. Policy letter from the Office of Special Education Programs clarifies that passing grades and high IQ scores do not disqualify children from special ed eligibility; defines seven areas that must be assessed in an appropriate evaluation.

Letter to Reyes: Sixty Days and Summer Vacations? On April 11, 2012, Emily Musgrove, Director of the Office of Special Education and Rehabilitative Services, (OSEP) of the U. S. Department of Education wrote a letter to Ruben A. Reyes, Executive Director of the Exceptional Children's Programs of Cumberland County (NC) Schools about the sixty day (60 day) timeline to complete evaluations to determine special education eligibility in light of summer vacations. She advised that the initial evaluation should not be "unreasonably delayed so that eligible children with disabilities are not denied a FAPE."

Section 504 Requires School to Evaluate Children with ADD. Memorandum from OCR clarifies school's responsibility to evaluate children with ADD/ADHD; includes Questions and Answers about ADD, Section 504 and IDEA, evaluations, more. The answers to these questions may surprise you!

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Peck v. Lansing, U. S. Court of Appeals for the Sixth Circuit. Can a child receive special education or related services at her parochial school? Does this violate the Establishment Clause? (1998)

Polera v. Bd Ed. Newburgh City Sch. Dist, U. S. Court of Appeals for the Second Circuit. In damages case under Section 504 and ADA, court rules that disabled child must first exhaust administrative remedies under IDEA. Decision includes extensive discussion of relief under statutes, compensatory and punitive damages, exhaustion requirement, and futility exception (2002).

W.B. v. Matula, U. S. Court of Appeals for the Third Circuit. Availability of damages under Section 504, IDEA, and Section 1983 when district refused to evaluate, classify and provide appropriate services to disabled child; exhaustion, qualified immunity, due process (1995).

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Last updated: 03/28/2018

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