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(3.1) Who is eligible for special education under federal and state law?

(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:

  1. Hearing impairment;
  2. Both hearing and visually impaired;
  3. Speech or language impairment;
  4. Visually impaired;
  5. Severe orthopedic impairment;
  6. Limited in strength, vitality, or alertness due to chronic or acute health problems (other health impairment);
  7. Autism;
  8. Intellectual disability;
  9. Serious emotional disturbance;
  10. Learning disability;
  11. Multiple disabilities; and
  12. 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:

  1. She must have been in special education at the time she turned 19;
  2. She has not met her “proficiency standards”
  3. She has not completed her “prescribed course of study” or
  4. 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)]