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Chapter 3: Information on Eligibility Criteria
(3.1) Who is eligible for special education under federal and state law?
You will find the California special education eligibility criteria in regulations adopted by the State Board of Education. See Title 5 California Code of Regulations (C.C.R.) Sec. 3030. These regulations went into effect March 2, 1983. This was the first time California has had a uniform statewide policy for determining eligibility for special education. The criteria generally parallel the federal guidelines in defining “children with disabilities.” [34 Code of Federal Regulations (C.F.R.) Sec. 300.8.] Eligibility criteria under state law cannot be narrower than eligibility criteria under federal guidelines.
Together, the federal and state regulations establish eligibility criteria for all students age 3 – 22 seeking special education services. In order to qualify as an individual with exceptional needs under the eligibility criteria, the assessment must demonstrate that the student’s impairment adversely impacts her educational performance and requires special education. The qualifying areas of impairment set out in state eligibility regulations are:
- Hearing impairment;
- Both hearing and visually impaired;
- Speech or language impairment;
- Visually impaired;
- Severe orthopedic impairment;
- Limited in strength, vitality, or alertness due to chronic or acute health problems (other health impairment);
- Intellectual disability;
- Serious emotional disturbance;
- Learning disability;
- Multiple disabilities; and
- Traumatic brain injury.
[34 C.F.R. Sec. 300.8; 5 C.C.R. Sec. 3030.]
The IEP team (made up of the parents and qualified professionals) makes the actual determination of eligibility for special education and related services, based upon the assessment reports. A copy of the report must be given to the parent. [20 U.S.C. Sec. 1414(b)(4) & (5); 34 C.F.R. Secs. 300.306(a)(1) & 300.322(f).] The District must ensure that the parents are participants of the IEP team who are allowed to fully participate in making decisions about placement. [34 C.F.R. Sec 300.327; Cal. Edu. Code Sec. 56342.5.]
In terms of minimum age, a child may be eligible for special education services, in the form of early intervention services, from birth. See Chapter 13, Information on Early Intervention Services. After age three and until school age, a child may be eligible for preschool special education. See Chapter 12, Information on Preschool Education Services.
In terms of maximum age (and assuming the student has not yet graduated from high school with a regular diploma), a student may continue to be eligible for special education past her 18th year [Cal. Ed. Code Sec. 56026(c)(4)]. A student between the ages of 19 and 21 may continue in special education when the following conditions exist:
- She must have been in special education at the time she turned 19;
- She has not met her “proficiency standards”
- She has not completed her “prescribed course of study” or
- She has not graduated from high school with a regular high school diploma.
[34 C.F.R. Sec. 300.102; Cal. Ed. Code Sec. 56026(c)(4) & 56026.1.]
The “prescribed course of study” is set of standards adopted by the local board of education for granting a diploma or certificate. [Cal. Ed. Code. Sec. 56026.1.] The course of study could include the school district’s required subjects and credits in English, math, reading, etc. “Proficiency standards” are a measure of student competence in basic skills, such as reading, writing, and mathematics.
How long a student may continue in special education after her 22nd birthday depends, for the most part, on the month in which she turns 22. If the student was born between January 1 and June 30, she may only remain in the program for the rest of the fiscal year ending June 30, plus any extended school year program. If she was born in July, August or September and is on a traditional school-year calendar, she is treated similarly and may continue in the program through the end of the previous fiscal year that ended June 30. However, if the student was born in July, August or September and is on a year-round school calendar, she can finish the current term, even if the term extends into the next fiscal year. A student who was born in October, November or December may continue in special education only until December 31 of the year she turns 22, unless she would otherwise complete her IEP at the end of that current fiscal year. [Cal. Ed. Code Sec. 56026(c)(4)]
(3.2) Does my child have to be deaf in order to be eligible for special education as student with a hearing impairment?
No. Your child is eligible if she meets the criteria for either deafness or hearing impairment. Deafness is a hearing impairment that is so severe that the child is impaired in processing linguistic information through hearing, with or without amplification, that adversely affects a child's educational performance. [34 C.F.R. Sec. 300.8(c)(3), 5 C.C.R. Sec. 3030(b)(3)]. Hearing impairment is an impairment in hearing, whether permanent or fluctuating, that adversely affects a child's educational performance but that is not included under the definition of deafness. [34 C.F.R. Sec. 300.8(c) (5); 5 C.C.R. Sec. 3030(b)(5).]
(3.3) The county (or district) has a program for deaf/blind children. Does my child really have to be both deaf and blind to be eligible for the program?
No. If your child has both hearing and visual impairments which, in combination, cause such severe communication, developmental, and educational problems that cannot be accommodated in a program for children with only hearing impairments or only visual impairments, she is eligible for the program. [34 C.F.R. Sec. 300.8(c)(2); 5 C.C.R. Sec. 3030(b)(2).] On the other hand, if a child with both visual and hearing impairments is able to be appropriately served in a program for children with either of those conditions, the child need not be placed in a program for children who have both conditions.
(3.4) What are the eligibility criteria for students with speech and language disorders?
A student with speech and language difficulties is eligible for special education services if she meets one or more of the following criteria:
- Articulation Disorder, which reduces intelligibility and significantly interferes with communication and attracts adverse attention. The student’s articulation competency must be below what is expected for her chronological age or developmental level and not just an abnormal swallowing pattern;
- Abnormal Voice, which is characterized by persistent, defective voice quality, pitch, or loudness;
- Fluency Disorder, in which the flow of verbal expression, including rate and rhythm, adversely affects communication between the student and listener;
- Language Disorder, in which the student has an expressive or receptive language disorder when she meets one of the following criteria:
- Scores at least 1.5 standard deviations below the mean, or below the seventh (7th) percentile, for her chronological or developmental level, on two or more standardized tests in one or more of the following areas of language development: morphology, syntax, semantics, or pragmatics; or
- Scores at least 1.5 standard deviations below the mean, or below the seventh (7th) percentile, for her chronological or developmental level, on one or more standardized tests in one of the areas listed in subsection (A) and displays inappropriate or inadequate usage of expressive or receptive as measured on a representative spontaneous or elicited language sample of a minimum of fifty (50) utterances. The language sample must be recorded or transcribed and analyzed, and the results included in the assessment report. If the student is unable to produce this sample, the language, speech or hearing specialist must document why a 50 utterance sample was not obtainable and the contexts in which attempts were made to elicit the sample.
(5) Hearing Loss which results in a language or speech disorder. [34 C.F.R. Sec. 300.8(c)(11); 5 C.C.R. Sec. 3030(b)(11).]
When standardized tests are considered to be invalid for the student, the expected level of performance shall be determined by alternative means. [5 C.C.R. Sec. 3030(b)(10)(B)(2).]
(3.5) The district provides services for students with visual impairment. Is that limited to students who are actually blind?
No.“Visual impairment including blindness” means an impairment in vision that, even with correction, adversely affects a child’s educational performance. The term includes both partial sight and blindness. [34 C.F.R. Sec. 300.8(c)(13); 5 C.C.R. Sec. 3030(b)(13).]
(3.6) What are the criteria for eligibility for special education on the basis of physical disabilities?
Under California law, a child with a “severe orthopedic impairment” is eligible for special education. A severe orthopedic impairment is one which adversely affects the pupil’s educational performance and includes those caused by congenital anomaly, impairments caused by disease (e.g., poliomyelitis, bone tuberculosis), and impairments from other causes (e.g., cerebral palsy, amputations, and fractures or burns that cause contractures). [34 C.F.R. Sec. 300.8(c)(8).] [5 C.C.R. Sec. 3030(b)(8).]
(3.7) What are the criteria for eligibility for special education on the basis of health conditions?
A child may be eligible for special education under the category of “Other Health Impairment”. This means that a student must have limited strength, vitality, or alertness, including a heightened alertness to environmental stimuli, that results in limited alertness with respect to the educational environment that is due to chronic or acute health problems such as asthma, attention deficit disorder or attention deficit hyperactivity disorder, diabetes, epilepsy, a heart condition, hemophilia, lead poisoning, leukemia, nephritis, rheumatic fever, sickle cell anemia, and Tourette Syndrome; and adversely affects a child's educational performance. [34 C.F.R. Sec. 300.8(c)(9) 5 C.C.R. Sec. 3030(b)(9)]
(3.8) How do school districts determine that a child has autism or a disorder like autism?
An IEP team may determine that a student meets the federal and state eligibility criteria under the category of autism if a child has a developmental disability significantly affecting verbal and nonverbal communication and social interaction, generally evident before age three, that adversely affects a child's educational performance. Other characteristics often associated with autism are engagement in repetitive activities and stereotyped movements, resistance to environmental change or change in daily routines, and unusual responses to sensory experiences. A child who manifests the characteristics of autism after age three could be identified as having autism if these criteria are satisfied. Autism does not apply if a child's educational performance is adversely affected primarily because the child has an emotional disturbance. [34 C.F.R. Sec. 300.8(c)(1); 5 C.C.R. Sec. 3030(b)(1).]
In order to qualify for special education under this category, your child does not need to meet the medical definition of autism, just the educational definition. Likewise, meeting the medical definition of autism and obtaining a medical diagnosis does not ensure that your child will be eligible for special education services if she does not meet the federal or state eligibility criteria for autism.
(3.9) Are IQ scores the only basis for eligibility for special education based on intellectual disability?
No. In order for a student to be eligible under this category, she must show
- deficits in adaptive behavior,(which is a child’s ability to function effectively in age-appropriate activities with others), and
- significantly below average general intellectual functioning.
Both must have manifested during the developmental period and adversely affect her current educational performance. [34 C.F.R. Sec. 300.8(c)(6); 5 C.C.R. Sec. 3030(b)(6).] Adaptive behavior means age-appropriate behavior that enables a student to live independently, function successfully in every day life activities, and interact appropriately with others.
Because of the Larry P. v. Riles case, the California State Department of Education (CDE) has prohibited school districts from using standardized IQ tests to determine special education eligibility for all African-American students. Therefore, school districts should utilize alternative methods of assessment to avoid the use of IQ scores for special education eligibility determination of African/American students. See Chapter 2, Information on Evaluations/Assessments.
(3.10) What are the eligibility criteria for emotional disturbance?
A student is eligible under emotional disturbance if she exhibits one or more of the following characteristics, over a long period of time and to a marked degree, which adversely affects educational performance:
- An inability to learn which cannot be explained by intellectual, sensory, or health factors;
- An inability to build or maintain satisfactory interpersonal relationships with peers and teachers;
- Inappropriate types of behavior or feelings under normal circumstances exhibited in several situations;
- A general pervasive mood of unhappiness or depression; and
- A tendency to develop physical symptoms or fears associated with personal or school problems.
[34 C.F.R. Sec. 300.8(c)(4); 5 C.C.R. Sec. 3030(b)(4).]
Your child does not have to be diagnosed with or meet a clinical mental health definition of emotional disturbance to be eligible for special education under the category of Emotional Disturbance. The federal and state special education eligibility criteria for emotional disturbance are the only criteria that a student must meet to be eligible for special education services.
The term “emotional disturbance” specifically includes schizophrenia, but excludes students who are “socially maladjusted”. [5 C.C.R. Sec. 3030(b)(4).] The law does not explain what it means by the term “socially maladjusted”, which has caused confusion. Moreover, “emotional disturbance” is not a recognized psychiatric diagnostic condition and a student need not have a psychiatric label or diagnosis in order to be eligible under Emotional Disturbance.
(3.11) My child has been diagnosed with a conduct/behavior disorder, such as oppositional defiant disorder. Can she qualify for special education?
A conduct or behavior disorder or an Oppositional Defiant Disorder is not one of the categories for special education eligibility. However, a student may still qualify for special education under eligibility categories such as a specific learning disability (SLD), emotional disturbance (ED), or under the category of Other health impairment (OHI) such as Attention Deficit Disorder (ADD) or Attention Deficit Hyperactivity Disorder (ADHD). Therefore, if a student has been having serious or long-term behavior issues, an assessment should be done in all areas related to a student’s suspected disability to determine whether the student qualifies for special education. If the student does not qualify for special education, a Section 504 plan should be explored. The U.S. Office for Civil Rights (OCR) in California has specifically ruled that schools must convene a team of assessors to make a determination regarding eligibility under Section 504 for children with disorders such as ADD/ADHD and obsessive compulsive disorder even if the children do not qualify for special education. [Manteca Unified School District, 30 IDELR 544, 1998.]
(3.12) Can a child with Attention Deficit Disorder (ADD) or Attention Deficit Hyperactivity Disorder (ADHD) be eligible for special education services?
Yes. The law has specifically recognized ADD and ADHD as examples of conditions that may qualify under the category of “other health impairment” (OHI) if the other criteria for that eligibility category are met. The definition for OHI has expanded the phrase “limited strength, vitality or alertness” to include a “heightened alertness to environmental stimuli,” and then lists ADD/ADHD as an example of a chronic illness which could qualify. However, a diagnosis of Attention Deficit Disorder or Attention Deficit Hyperactivity Disorder alone is not sufficient to make a student eligible for special education services. An IEP team, after the required comprehensive evaluation, must determine that the student meets an eligibility category – which means that the student has a condition (such as ADD/ADHD) that and that condition must also adversely affect your child’s educational performance. Students with ADD/ADHD may also be eligible under the “specific learning disability” category, or the “emotional disturbance” category. [34 C.F.R. Sec. 300.8(c)(9); Cal. Ed. Code Sec. 56339(a); 5 C.C.R. Sec. 3030(b)(9).] See Q & A 28 for information on “adverse affect”.
(3.13) What are the eligibility criteria and evaluation process for a specific learning disability?
A specific learning disability is a disorder in one or more of the basic psychological processes involved in understanding or using language, spoken or written, that may manifest itself in an imperfect ability to listen, think, speak, read, write, spell, or do math. The basic psychological processes include: attention, visual processing, auditory processing, sensory-motor skills, cognitive abilities such as association, conceptualization, and expression. The disability may include conditions such as perceptual disabilities, brain injury, minimal brain dysfunction, dyslexia, dyscalculia, dysgraphia, and developmental aphasia. The disability does not include learning problems that are primarily the result of visual, hearing, or motor disabilities, or intellectual disability, or emotional disturbance, or of environmental, cultural, or economic disadvantage. [5 C.C.R. Sec. 3030(b)(10)(A).] However, a specific learning disability does include a disability within the function of vision which results in visual perceptual or visual motor dysfunction. [Cal. Ed. Code Sec. 56338.]
The specific learning disability category of special education eligibility is the largest category of special education students and the most complicated in terms of the factors which must be considered and the evaluation processes school districts may use in making this determination.
In California, school districts often use what is known as the “discrepancy model” to determine whether a student has a specific learning disability. Under this approach, a student must be found to have a severe discrepancy between her intellectual ability and her achievement in oral expression, listening comprehension, written expression, basic reading skills, reading comprehension, mathematical calculation, or mathematical reasoning. [5 C.C.R. Sec. 3030(b)(10)(B).] Federal special education law allows school districts to use another assessment method known as “response to scientific, research-based intervention model” or “Response to Intervention (RTI) model” to determine if a student qualifies for special education with a learning disability. [34 C.F.R. Sec. 300.309(b).] Federal law prohibits states from requiring school districts to use only the discrepancy model and requires states to also allow their school districts to use the RTI model. [34 C.F.R. Sec. 300.307(a).] Because of the federal law, California law permits schools to use either the discrepancy model or RTI model in determining whether a student has a specific learning disability. [Cal. Ed. Code Sec. 56337(b)-(c).] Before you consent to a special education evaluation for your child under this category, be sure you know and understand which method of making this determination your school district will use.
(3.14) How does the “discrepancy model” of determining whether a student has a specific learning disability work?
In deciding whether a student has a severe discrepancy between her intellectual ability and her achievement in oral expression, listening comprehension, written expression, basic reading skills, reading comprehension, mathematical calculation, or mathematical reasoning, a school district must review all relevant material available on the student. No single score or product of scores or test or procedure shall be used as the only factor in making this decision.
Standardized tests of ability and achievement are often used. If a student’s achievement scores are sufficiently below his ability scores, it indicates that the student has the severe discrepancy required for special education eligibility under this model.
As part of their assessment, the assessor will convert the raw scores from both the academic and cognitive testing to a scale of 100 and then compare them. If there is between a 20-22 point difference (1.5 standard deviation), this is a strong indication that the student has a learning disability. The discrepancy must be corroborated by other evaluation information, such as from other tests, scales, instruments, observations, and work samples. [5 C.C.R. Sec. 3030(b)(10)(B).]
Sometimes standardized tests cannot be used for particular students (such as IQ tests for African-American students). In that case, the discrepancy between ability and achievement must be measured by some other method. The alternative method of assessment must be specified in the assessment plan, which a parent must sign before any testing may be conducted. [5 C.C.R. Sec. 3030(b)(10)(B)(2).]
If standardized tests do not show a severe discrepancy between ability and achievement, an IEP team can still find that a severe discrepancy exists. The IEP team must prepare a report on the student describing the basic psychological process in which the discrepancy exists, the degree of discrepancy, and the basis and method used to determine the discrepancy. The report must include information from tests, from the parent, from the pupil’s teacher, from observations of the student, and from his classroom performance and work samples. However, limited school experience or poor school attendance cannot be the primary cause of the severe discrepancy. [5 C.C.R. Sec. 3030(b)(10)(B)(3) & (4).]
(3.15) What is the “Response to Intervention (RTI) model” and what part does it play in determining if my child has a specific learning disability?
The Response to Intervention (RTI) model is a multi-tier approach to the early identification and support of students with learning and behavior needs. The RTI process begins with high-quality instruction and universal screening of all children in the general education classroom. Ideally, RTI is a school-wide instruction and assessment process used to assist all students.
RTI is also one method of assessing a student to determine if the student qualifies for special education under the specific learning disability category. Federal and state laws allow school districts to use the RTI model to provide instruction and remediation to students struggling in the classroom and to help identify their eligibility for special education under specific learning disability. [34 C.F.R. Sec. 300.309(b); 34 C.F.R. Sec. 300.307; 5 C.C.R Sec. 3030(b)(10)(C)(2)(i).] RTI is not defined in special education law. But, generally, RTI services can include additional attention and monitoring, small group instruction and individual instruction. The period of RTI assessment/instruction can last for several months. Even if the school district uses the RTI method of assessment, it still must follow all federal and state assessment requirements and timelines.
(3.16) What additional eligibility criteria are used by the IEP team to determine if a child has a specific learning disability?
A school district using the RTI assessment model and/or the severe discrepancy assessment process may find that a student has a specific learning disability if it finds that a student does not achieve adequately for his age or in meeting State-approved grade-level standards in one or more of the following areas, even though the student received learning experiences and instruction appropriate for his age or State-approved grade level: oral expression, listening comprehension, written expression, basic reading skill, reading fluency skills, reading comprehension, mathematics calculation, and mathematics problem solving.
The IEP team must find that:
- The student is not making sufficient progress to meet age or State-approved grade-level standards in one or more of the learning areas listed above based on how the student responds to scientific, research-based interventions (RTI); or
- The student exhibits a pattern of strengths and weaknesses in performance, achievement, or both, relative to his age, State-approved grade-level standards, or intellectual development, that is determined, by the persons who are making the specific learning disability eligibility decision, to be relevant to deciding whether he has a specific learning disability through the use of assessments that comply with federal special education law requirements for evaluating students; AND
- The findings of inadequate achievement despite appropriate learning experiences and instruction and of insufficient progress in response to scientific, research-based interventions described above are not primarily the result of a visual, hearing, or motor disability; an intellectual disability, emotional disturbance, cultural factors, environmental or economic disadvantage or limited English proficiency.
To make sure the underachievement described above is not due to lack of appropriate instruction in reading or math, the persons making the specific learning disability eligibility decision must determine that before the child was referred for special education assessment he received appropriate instruction in regular education by qualified personnel. There must be documentation of repeated assessments of achievement at reasonable intervals which reflects formal assessment of student progress during instruction and which was provided to the student’s parents.
Finally, in determining whether a student has a specific learning disability, the school district must observe the student in his learning environment, including in the regular classroom setting. If the child is too young to have begun school yet or has been out of school, the child must be observed by a qualified person in an age-appropriate environment.
Even if the school district uses the RTI method of assessment, it must still follow all federal and state assessment requirements.
[34 C.F.R. Sec. 300.309(a)(2)(i); 5 C.C.R. Sec. 3030(b)(10)(C).]
(3.17) Are some children penalized by the learning disability eligibility criteria?
Yes. When districts choose to use the discrepancy model, young children, between kindergarten and second grade, have a difficult time qualifying because the achievement tests for those grade levels often do not reveal the child’s difficulties. Also, children who test low average in intelligence are also penalized, as it is difficult to find a “severe discrepancy” between ability and achievement. On the other hand, under these criteria, very bright children are more likely to show a discrepancy between their academic performance and their potential.
(3.18) Does a student have to be two years behind academically to be eligible for special education as a learning disability?
No. There is no reference in either the federal or state eligibility criteria for learning disabilities or any other disability requiring that a student be two years behind academically. If the school district uses the discrepancy model, the student’s academic achievement must be compared to her own ability levels, not to the ability levels of other students. [34 C.F.R. Secs. 300.8(c)(10), 300.309(a)(1) & (2); 5 C.C.R. Sec. 3030(b)(10)(B).]
(3.19) Can gifted students be denied special education eligibility for specific learning disabilities based solely on intelligence?
No. A federal Office of Special Education Programs Clarification Letter written January 14, 1992, states:
- Neither Part B nor Part B regulations provide for any exclusions based on intelligence level in determining eligibility for Part B services...All children, except those specifically excluded in the regulations, regardless of IQ, are eligible to be considered as having a specific learning disability, if they meet the eligibility requirements... [18 IDELR 683.]
In addition, school districts cannot deny assessment for special education eligibility solely on adequate grades. Grades are only one indicator of the educational impact that a student’s disability is having on the student’s school functioning.
(3.20) What are the eligibility criteria for children from age three through five years of age?
Eligibility criteria for preschool children are the same as the criteria for school-age children. To be eligible for special education, a child must have one of the following disabling conditions:
- Emotional disturbance;
- Hearing impairment;
- Intellectual disability;
- Multiple disabilities;
- Orthopedic impairment;
- Other health impairment (such as attention deficit disorder, attention deficit hyperactivity disorder, Tourette Syndrome, dysphagia, fetal alcohol syndrome, bipolar disorders, or other organic neurological disorders, see Fed. Reg. Vol. 71, No. 156, p. 46550);
- Specific learning disability;
- Speech or language impairment in one or more of voice, fluency, language, and articulation;
- Traumatic brain injury;
- Visual impairment; or
- Established medical disability (a disabling medical condition or congenital syndrome that the IEP team determines has a high predictability of requiring special education and services).
[34 C.F.R. Sec. 300.8; 5 C.C.R. Sec. 3030; Cal. Ed. Code Sec. 56441.11.]
In addition to having one or more of the qualifying conditions, a child must need specially designed instruction or services to qualify for special education, and must also have needs that cannot be met with modification of a regular environment in the home or school, or both, without ongoing monitoring or support as determined by an IEP team. [Cal. Ed. Code Secs. 56441.11(b)(2) & (3).]
A child is not eligible for special education and services if she does not otherwise meet the eligibility criteria and her educational needs are due primarily to:
- Unfamiliarity with the English language;
- Temporary physical disabilities;
- Social maladjustment; or
- Environmental, cultural, or economic factors.
[Cal. Ed. Code Sec. 56441.11(c); see Chapter 13, Information on Preschool Education Services.]
(3.21) Can my child be eligible for special education if she only needs some related services, like speech therapy, for example, but does not need special education instruction?
No, Federal law specifically states that in addition to meeting one of the disability categories, a student must need some degree of special education instruction. [34 C.F.R. Sec. 300.8(a)(2)(i).] In addition, California regulations state that a child can qualify for special education if the results of the assessment “demonstrate the child’s impairment ... requires special education in one of the program options.” [5 C.C.R. Sec. 3030(a).] Based on these provisions, a child would not be eligible for special education if she only needs some related service. However, in determining a child’s eligibility, District must conduct comprehensive assessments into all areas of suspected disability. A child’s need for a related service such as speech therapy or occupational/physical therapy should trigger the suspicion of an underlying disability which District must evaluate to determine if the child meets one of the qualifying categories. Similarly, before recommending to exit an already eligible child from special education, District must carry out assessments to see the child remains eligible under one of the other categories.
(3.22) If my family moves to a new school district, does my child need to be found eligible again for special education by the new school district?
No. Whenever a student transfers into a school district from another California school district not operating under the same local plan within the same academic year, the new school district must ensure that she is immediately provided with services comparable to those provided in the previously approved IEP from the former school district, in consultation with the parents, for a period not to exceed 30 days.
Within 30 days, the new school district must either adopt the previously approved IEP, or develop, adopt, and implement a new IEP. The new school must take reasonable steps to promptly obtain the pupil’s records from her former school to facilitate the student’s transition. [Cal. Ed. Code Secs. 56325(a)(1) & (b)(1).]
Whenever a student transfers into a school district from another California school district operating under the same local plan within the same academic year, the new school district shall continue, without delay, to provide the student with services comparable to those provided in the existing approved IEP from the former school district unless the parent and the school district agree to develop, adopt, and implement a new IEP that is consistent with federal and state law. [Cal. Ed. Code Sec. 56325 (a)(2).]
Whenever a student transfers into a school district from another school district located outside California in the same academic year, the new school district shall provide the student with a free, appropriate public education, including services comparable to those described in the previously approved IEP, in consultation with the parents, until the school district conducts an assessment, if determined necessary by the district, develops a new IEP, if appropriate, that is consistent with federal and state law. [Cal. Ed. Code Sec. 56325 (a)(3).]
(3.23) If my child does not meet special education eligibility, can my child get Section 504 services to address educational problems?
A child who may have learning problems still may not be found eligible for special education services because she does not fit into one of the special education eligibility categories and/or because her learning needs are not intensive enough to qualify her for special education. (This may often be the case for children identified as having hyperactivity, dyslexia, Pervasive Developmental Disorder, Tourette Syndrome, Obsessive Compulsive Disorder, Conduct Disorder, Oppositional Defiant Disorder, or ADD/ADHD. Of these conditions, only ADD/ADHD and Tourette Syndrome are mentioned specifically in the special education eligibility criteria.
Such a child, however, may be eligible for special services and program modifications under a federal antidiscrimination law designed to reasonably accommodate the student’s condition so that her needs are met as adequately as the needs of non-disabled students. The law is commonly known as Section 504 of the Rehabilitation Act of 1973. [29 U.S.C. Sec. 794; implementing regulations at 34 C.F.R. 104.1 and following.]
Section 504 eligibility is not based on a categorical analysis of disabilities (except that some conditions, such as ADD/ADHD are frequently recognized as Section 504 qualifying conditions). Rather, Section 504 protections are available to students who can be regarded as “disabled” in a functional sense. Such students:
- Have a physical or mental impairment which substantially limits a major life activity (such as learning and attention);
- Have a record of such an impairment; or
- Are regarded as having such an impairment.
[See 34 C.F.R. Sec 104.3(j).]
If your child is not found to have a disability for purposes of Section 504 accommodations and/or services, you can appeal that determination. The local education agency is responsible for arranging the Section 504 hearing process. The hearing officer selected by the local education agency must be independent of the local agency. The hearing officer could be, for example, a special education administrator from another school district, from the county office of education or from a special education local plan area – as long as there is no conflict of interest.
The Office for Civil Rights (OCR) administers and enforces Section 504 protections in education. If you believe your child has not been afforded her rights under Section 504, you may file a complaint with the Office for Civil Rights at:
San Francisco Office
Office for Civil Rights
U.S. Department of Education
50 United Nations Plaza
San Francisco, CA 94102
Fax: 415-486-5570; TDD: 800-877-8339
See Chapter 6, Information on Due Process Hearings/Compliance Complaints.
When you are referring your child for special education eligibility, your referral letter can include a request that your child also be assessed under Section 504 of the Rehabilitation Act of 1973 (“Section 504”) to determine whether your child might be eligible for services under that law. If eligible, the school district may be required to provide reasonable accommodations and/or services, including special education services, to allow your child to benefit from school like children without disabilities. These accommodations and/or services may be important if your child does not qualify for special education/IEP, or if such accommodations and/or services are, for some reason, not provided under special education. [OCR Memorandum, Letter to Veir, 19 IDELR 876 (April 29, 1993).]
(3.24) If a student is eligible for services under Section 504 only, can she receive special education services?
Yes. An OCR Memorandum written April 29, 1993, addresses this question: Is a child...who has a disability within the meaning of Section 504 but not under the IDEA, entitled to receive special education services?Yes. If a child...is found to have a disability within the meaning of Section 504, he or she is entitled to receive any special education services the placement team decides are necessary. [19 IDELR 876.]
Districts generally are not aware of this OCR legal interpretation. If you believe your child needs special education services to receive FAPE, you should inform the 504 planning team of the above memo before meeting.
(3.25) My child is progressing from grade to grade. Can she still be eligible for special education?
Yes. As long as the child meets one of the eligibility categories and needs special education, the fact that she has been advancing from grade to grade without special education does not mean she is not entitled to a free appropriate public special education. [34 C.F.R. Sec. 300.111(c)(1).]
(3.26) Can the school district limit the services that my child receives based on her disability?
Schools cannot make assumptions that certain disabilities affect students in only certain ways. For example, limiting services to students with orthopedic impairment to adapted physical education only. Disabilities vary in degree and in the ways they impact individuals. Special education and related services decisions must be based on each child’s unique needs. [34 C.F.R. Secs. 300.39 & 300.320(a)(2)(i)(A); Cal. Ed. Code Secs. 56031(a) & 56345(a)(2)(A).] The services and placement needed by each child with a disability to receive a free appropriate public education must be based on the child’s unique needs and not on the child’s disability. [34 C.F.R. Secs. 300.39 & 300.324(a).]
(3.27) My child is eligible for special education under one of the eligibility categories, but she has other problems which affect her learning. Must the district address these other learning needs too?
Yes. Federal law requires the district to assess in all areas related to the student’s disability. The evaluation must be “sufficiently comprehensive to identify all of the child’s special education and related services needs, whether or not commonly linked to the disability category in which the child has been classified.” [34 C.F.R. Sec. 300.304 (c)(4), (6); Cal. Ed. Code Section 56320 (f).] For example, a student may be eligible for special education on the basis of a specific learning disability, but may also have an attention deficit disorder. The school must also evaluate the child for the nature and extent of the attention challenge and for necessary interventions. [Corona-Norco Unified School Dist., SN 1137-98, 30 IDELR 179.] As long as the student is qualified for special education under one of the eligibility categories, the IEP team must take the student’s unique needs (such as behavioral, language or communication needs) into account in designing an IEP. [34 C.F.R. Sec. 300.39.]
(3.28) Several special education eligibility categories require that a student’s condition or disability “adversely affect educational performance.” What does that phrase mean?
Neither federal nor state law defines the term “adversely affect educational performance.” Therefore, a review of the court cases interpreting this phrase is necessary to understand how it has been applied. Courts have interpreted the phrase to mean that education is adversely affected if, without certain services, the child’s condition would prevent her from performing academic and nonacademic tasks and/or from being educated with non-disabled peers. [Yankton School District v. Schramm, 93 F.3d 1369 (8th Cir. 1996).] For example, for a child with an orthopedic impairment, the Court in Schramm identified many services (help moving between classes, getting on and off the bus, going up and down stairs, carrying a lunch tray, setting up the child’s saxophone for band, extra sets of books for home and school so that carrying them back and forth was unnecessary, shorter written assignments, instruction in typing with one hand, photocopies of teachers’ notes, and computers in certain classes) that if not provided would have resulted in the orthopedic condition having an adverse effect on educational performance. The court found this to be true because without these services the student would have had difficulty taking notes, completing assignments, getting to class on time, and getting to class with her books. The same court found that because the student was college-bound, the absence of these services, as well as special education transition services (driver’s education, self-advocacy, and independent living skills), would have allowed her orthopedic impairment to adversely affect her educational objective of post-secondary education.
In California, the administrative hearing office has found poor grades to be a primary indicator of an adverse effect on educational performance. [Lodi Unified Sch. Dist., SN 371-00; Capistrano Unified Sch. Dist., SN 686-99, 33 IDELR 51; Ventura Unified Sch. Dist., SN 1943-99A; Murrieta Valley Unified Sch. Dist., SN 180-95, 23 IDELR 997.] The hearing office has also found that a condition adversely affects educational performance if it causes poor school attendance. [Sequoia Union High School District, SN 1092-95.] Poor grades and falling behind academically are also examples of adverse effect on educational performance. [Enterprise Elem. Sch. Dist., SN 1055-89.] In addition, a student’s condition, which caused declining grades and conduct at school, resulted in an adverse effect on educational performance. [Sierra Sands Unified Sch. Dist., SN 1367-97, 30 IDELR 306.]
Many schools evaluate whether a child’s condition has an adverse effect on her educational performance strictly on the basis of grades or the child’s scores on standardized tests. Although grades and, perhaps, standardized test scores may be one measure of educational performance, the law and the courts take a broader view. When determining whether a child’s educational performance was adversely affected by the child’s emotional condition, the federal appellate court governing California requires that consideration also be given to a student’s need for behavioral and emotional growth. [County of San Diego v. California Special Education Hearing Office, et al., 93 F.3d 1458, 1467 (9th Cir. 1996).] Although some students test well when taking standardized tests, the law does not require poor standardized test scores in order to find an adverse effect on educational performance. The courts have established that a child’s educational needs include academic, social, health, emotional, communicative, physical, and vocational needs. [Seattle School Dist. No. 1 v. B.S., 82 F.3d 1493, 1500 (9th Cir. 1996).]
Federal special education law also distinguishes between “educational” performance and “academic” performance and establishes that “educational” performance is a broad concept. For example, children must be assessed by schools in all areas of suspected disability. [20 U.S.C. Sec. 1414(b)(3)(B).] Those areas are defined by federal regulations to include: health, vision, hearing, social and emotional status, general intelligence, academic performance, communicative status, and motor abilities. [34 C.F.R. Sec. 300.304(c)(4).] Academic performance is only one of the areas in which children must be assessed. Congress and the California Legislature could have used the narrower term “academic performance” when writing the definitions of conditions which would qualify a child under eligibility categories such as Emotional Disturbance, Other Health Impaired, Orthopedic Impairment, Intellectual Disability, Speech or Language Impairment, Visual Impairment, Hearing Impairment, Deafness. However, they did not. Congress and the California Legislature used the broader term “educational performance” in these eligibility definitions. In addition to grades and standardized tests scores, schools must consider how a child’s emotional, health or other conditions adversely affect her non-academic performance in social, behavioral and other domains as well.