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(14.8) What if the district acknowledges my child’s health condition, but says that he does not really need specialized instruction or that he has above-average academic abilities and, therefore, is not eligible for special education?

(14.8) What if the district acknowledges my child’s health condition, but says that he does not really need specialized instruction or that he has above-average academic abilities and, therefore, is not eligible for special education?

In addition to having a qualifying disability under federal law, your child must also “need special education and related services.”  [34 C.F.R. Sec. 300.8(a).]  For example, if your child may regress educationally — and perhaps even fail —because he needs extended and/or intermittent home or hospital-based instructional services, then he likely “needs” special education for eligibility purposes. In addition to academics and health conditions, schools must consider how your child’s emotional health or other conditions adversely affect his non-academic performance.

Under state law, your child qualifies if he has an impairment which “requires [specialized] instruction and services which cannot be provided with modification of the regular school program” in order to ensure FAPE is provided to the student.  [Cal. Ed. Code Sec. 56026(b).]

Above-average intelligence or academic ability by itself does not disqualify a student for special education.  [Corchado v. Board of Education 86 F. Supp. 2d 168 (W.D.N.Y. 2000); Letter to Ulissi 18 Individuals with Disabilities Education Law Reporter (IDELR) 683 (U.S. Department of Education, Office of Special Education Programs (OSEP) 1992).]  So, even though a student may have above-average intelligence or academic ability, you could still show that the student’s condition has an “adverse effect on educational performance” as required by the OHI category.  Regardless of intelligence or ability, a student’s condition must have an adverse impact on a student’s educational functioning in order for him to qualify for special education services. See Chapter 3, Information on Eligibility Criteria and Q. 14.7 above for more information about OHI and “adverse affect”.