Ch. 6: Determining Your Child's Need for Special Education

Children With Needs - Special Education Law

Who is this for?

This chapter is for parents whose child has already been formally evaluated for special education services.

Why is this important?

For students suspected of having a Specific Learning Disability (SLD), IDEA requires that schools use several procedures that are in addition to the eligibility determination procedures used for all students suspected of a disability.

What can parents do?

Parents need to understand how their child's school will go about deciding whether their child has a specific learning disability that requires special education services. Parents should be prepared to discuss their child's evaluation results and provide information that will assist with the eligibility decision.

IDEA Words and Terms to Know

Child with a disability
A child who has a disability as defined by one of the 13 disability categories in IDEA and who needs special education and related services because of the disability; or a child aged three through nine who is experiencing developmental delay.
Eligibility
The determination that a student is a child with a disability as defined by IDEA.

referral_chart

In the last chapter you learned about IDEA's requirements for a formal evaluation. The evaluation process gathered information needed to determine if your child has a disability and needs special education services. In this chapter you'll learn about the eligibility determination process — both the general eligibility determination provisions of IDEA as well as additional procedures that are required when making a decision about whether your child qualifies for services under the Specific Learning Disability category of IDEA.

Your child may be determined to be a child with a disability based on any of the 13 disability categories in IDEA, including the Specific Learning Disability category.

To be found eligible for special education on the basis of a Specific Learning Disability, your child will need to meet the requirements established by IDEA as well as any state requirements.

[New] While the definition of Specific Learning Disability was not changed in IDEA 2004 from previous versions of the law, IDEA 2004 introduced substantial changes to the ways in which school districts can go about the SLD eligibility procedure. (Note: Many states have their own definition of a Specific Learning Disability, so be sure to check with your school district to get additional information on your state's SLD definition.)

IDEA 2004 defines Specific Learning Disability as:

"A disorder in one or more of the basic psychological processes involved in understanding or in using language, spoken or written. The disorder may manifest itself in the imperfect ability to listen, think, speak, read, write, spell, or do mathematical calculations.

The term Specific Learning Disability includes such conditions as perceptual disabilities, brain injury, minimal brain dysfunction, dyslexia, and developmental aphasia. This term does not include a learning problem that is primarily the result of visual, hearing, or motor disabilities, of mental retardation, of emotional disturbance, or of environmental, cultural, or economic disadvantage."

Eligibility Determination Meeting

Once the school district has completed the evaluation of your child, it must schedule a meeting to determine eligibility. This meeting, known as an initial IEP (Individualized Education Program) meeting, an eligibility meeting or some other term used by your state, must be scheduled for a time that is convenient for both you and school staff. (If the proposed time isn't convenient for you, feel free to ask for a more convenient time.) The eligibility decision must be made by a team of qualified professionals and by the parent of the student.

[New] Meetings do not have to be face-to-face. IDEA 2004 allows for alternative ways of meeting, such as through telephone conference calls or video conferences. If you are unable to attend a meeting at the proposed time, ask about these alternatives.

Who attends the meeting?

You will receive a written notice about this meeting which will include the school staff members who will be attending. As the child's parent, you have the right to bring other individuals to the meeting. However, IDEA states that these other individuals must have knowledge or special expertise regarding your child. Individuals appropriate to bring with you to an eligibility meeting might include educational advocates, private evaluators, private tutors and/or other professionals who have experience with your child. Bringing individuals with knowledge of your child and the special education process can provide you with additional support during the eligibility meeting.

IDEA requires that the eligibility determination be made by a group of qualified professionals and the student's parents. Who attends on behalf of the school will vary depending on your state or school district. Individuals likely to attend would include a school principal, school psychologist, special education teacher, general education teacher and others involved in the evaluations and assessments conducted as part of the evaluation process. A translator should also be present if you need one.

What happens at the meeting?

The initial IEP meeting to determine eligibility will generally include:

Introductions of those attending
A review of the results of your child's evaluation (Remember, you should have already received a copy of the evaluation report prior to this meeting. If you have not received the evaluation report prior to the meeting, you must be given a copy at the meeting.)
A review of any material that you, as the parent, want to have included as part of the determination. This may include results of private screening or testing, reports from a family doctor, or information from private tutors. It is best to provide these materials to school personnel before the meeting so they have an opportunity to review them.
Discussion of the evaluation results
Determination of eligibility and the educational needs of the student.

Eligibility Determination: A Two-Pronged Test

It is important to understand that establishing eligibility for services under IDEA is a two-pronged process. The team of qualified professionals and the parent must determine that the student meets both of these criteria in order to be eligible for special education services:

Prong One: The student must be determined to have one (or more) of the 13 disabilities listed in the IDEA; and
Prong Two: The student must, as a result of that disability, need special education in order to make progress in school and in order to receive benefit from the general educational program.

Given this two-pronged test, it is possible that a student could be determined to have a disability (Prong One), such as a Specific Learning Disability or Attention Deficit/Hyperactivity Disorder (AD/HD), yet not be in need of special education (Prong Two).

In such cases, the student may be eligible under other disability categories of IDEA, or an optional designation known as developmental delay which is designed to enable states to provide special education services to young children (ages three through nine) who are experiencing developmental delays but do not satisfy the criteria for a disability category. Lastly, educational assistance may be available to the student under another federal law, Section 504 of the Rehabilitation Act.

In making the eligibility decision, IDEA requires that the team of qualified professionals and the parent draw upon a variety of information about the student, including relevant functional, developmental and academic information provided by the evaluation process. Any additional information provided by the parent must also be considered. The team is not allowed to rely on any single measure or assessment as the sole basis for determining eligibility.

[New] Special Rule for Eligibility Determination

In addition to the consideration of all information obtained through the initial formal evaluation, as well as information provided by the parents, IDEA 2004 requires some additional considerations in making eligibility decisions. To prevent students from being inappropriately identified as a "child with a disability" under any category, the team must also determine that none of the following factors are the primary reason for the student's academic difficulties:

Lack of appropriate instruction in reading, which must include the essential components of reading instruction as defined in No Child Left Behind (see the Reading Instruction Checklist)
Lack of instruction in math
Limited English proficiency.

Additional Procedures for SLD Determination

As discussed in Chapter 2, IDEA 2004 made significant changes to the procedure to determine if a student has a Specific Learning Disability.

Specifically, IDEA 2004 eliminates the requirement for schools to determine that a student shows a "severe discrepancy" between intellectual ability and academic achievement in order to be identified as having an SLD — a requirement that had been part of IDEA federal regulations for almost 30 years. But since the law does not entirely prohibit its use, some states may continue to use a "discrepancy" model as part of its eligibility process.

Caution: Learn Your State and School District Policy. IDEA 2004 federal regulations require that every state have criteria for determining eligibility for SLD. Be sure to learn your state's criteria and how it is implemented in your local school district. Your Parent Training and Information Center can provide you with this information.

The group that determines eligibility for SLD must include the student's parents, the student's regular education teacher (or a teacher qualified to teach a student of his or her age) and at least one person qualified to conduct diagnostic examinations, such as a school psychologist, speech-language pathologist, or remedial reading teacher. Others may also be included when appropriate, such as an occupational therapist or physical therapist.

The updated procedure, contained in the IDEA 2004 federal regulations, requires the team to determine that:

The student does not achieve adequately for his age or meet the state's grade-level standards in one or more of the following areas:
- Oral Expression
- Listening comprehension
- Written expression
- Basic reading skill
- Reading fluency skills
- Reading comprehension
- Mathematics calculation
- Mathematics problem solving (previously called "mathematics reasoning")
The student does not make sufficient progress to meet age or state-approved grade-level standards in one or more of the areas above when provided with a response to scientific, research-based intervention (such as the Response to Intervention process described in Chapter 2), or
The student exhibits a pattern of strengths and weaknesses in performance, achievement, or both relative to age, state-approved grade level standards or intellectual development (for example, an achievement test shows a discrepancy between reading and math, indicating strengths and weaknesses among your child's academic skill levels)
The student has been provided appropriate instruction in reading or math. Information that demonstrates that the student received appropriate instruction from a qualified teacher in a regular education classroom must be considered by the team. In addition, there must be documentation of regular assessments of achievement. This documentation should have been provided to the student's parents.
The student's lack of achievement is not primarily the result of any of the following:
- A visual, hearing, or motor disability
- Mental retardation
- Emotional disturbance
- ultural factors
- Limited English proficiency
- Environmental or economic disadvantage.

The eligibility team must consider information from an observation of the student (including the regular classroom setting) to record academic performance and behavior in the areas of difficulty. This information can be from observations and monitorings of performance done prior to the student's referral for a formal evaluation or from an observation conducted by a member of the eligibility team as part of the formal evaluation process.

Finally, the team must document all of its eligibility findings in writing. Each member of the team must certify in writing whether the written report reflects his or her conclusion and, if it does not, that member must submit a separate statement presenting his or her conclusions. The written eligibility determination report must include detailed information about the findings and conclusions reached by the team.

In making an eligibility decision, the team has flexibility. More and more, the determination of a specific learning disability relies on the professional judgment of the team. By using the combined knowledge and expertise of the team members, sound judgments regarding the disability status and learning needs of your child can be formulated. The team should not rely on any one criterion nor require any specific mathematical discrepancy in making a determination regarding a specific learning disability.

Next Steps

Eligible Students

If your child is found eligible for special education, the next step is to draft a proposed Individualized Education Program (IEP) for your child. An IEP must be developed within 30 calendar days of the determination that your child needs special education. Special education services may not be provided until an IEP has been developed and you have provided informed consent.

[New] Frequently, school districts will propose to combine both the eligibility meeting and the initial IEP meeting. In fact, IDEA 2004 encourages having these meetings at the same time. Combining meetings can save time for parents and school staff and can also allow the student to begin receiving services more quickly. However, if you object to such a process, let the school know that you prefer separate meetings to discuss your child's eligibility and to develop your child's IEP.

Students Not Eligible

If your child is not found eligible for special education services, you have the right to exercise your options for dispute resolution as described in Chapter 11. You might also inquire about other ways that your child might obtain additional educational assistance, such as through targeted instruction (individualized or in small groups) or through a plan allowed under Section 504 of the Rehabilitation Act. Some school districts will routinely consider students for this type of plan, but others will not. Be sure to ask your school for information about Section 504 and whether or not your child can be evaluated for services under Section 504.

Important: You must be given documentation of the eligibility decision, regardless of whether your child is found eligible or not eligible for special education. This is an important piece of information, so be sure to keep a copy and place it in your child's educational records file at home.

Eligibility — A Gateway to Services

In most states, assigning a disability category such as SLD to a student is a required part of the eligibility process. However, once eligibility is determined by the team — using the procedures discussed earlier — services available to the student should not be limited by his or her specific disability label. For example, students found eligible under the Emotional Disturbance category receive specific supports that target behavior issues and work on skills to improve overall performance. However, if these types of services and supports also benefit a student found eligible under the SLD category, the school should provide them. It is common for students with SLD to experience emotional difficulties as a result of their learning disability. Such emotional issues should be addressed in the student's educational program as part of the learning disability.

Eligibility for your child will continue unless:

You or your school district propose a change in the disability category
Your child's performance indicates the possibility that special education services are no longer needed.

In any of these situations, you or the school will propose to reevaluate your child in order to gather new information.

[New] Schools are no longer required to evaluate a student when the student's eligibility ends due to graduation with a standard diploma or when the student reaches the age at which special education is no longer required by state law (usually at age 22). In these cases, the school district is now required to provide your child with a summary of his or her academic achievement and functional performance. This new summary of performance requirement is discussed in Chapter 8: Transition.

Now that your child has been found eligible to receive special education services, an IEP must be developed. In the next chapter you'll learn how the IEP will be developed and the important role you will play.

Table of Contents

Note: The IDEA Parent Guide was created to provide a basic understanding of the key requirements of the federal law under IDEA. The information presented here is not legal advice and should not be used as a legal resource.

Candace Cortiella is Director of The Advocacy Institute, a nonprofit focused on improving the lives of people with disabilities through public policy and other initiatives. The mother of a young adult with learning disabilities, she lives in the Washington, D.C., area.

Chapter 6: Eligibility Determination: Determining Your Child's Need for Special Education