Eligibility for SpecialEducation - Part III

In a previous series, I discussed the recent explosion of cases on eligibility. I relied heavily upon an analysis by Professor Mark Weber. I liked his point about the misapplication of the Rowley standard (which was designed for measuring the adequacy of services) to the eligibility issue. But in reviewing the previous posts, I realized that I never finished this discussion. So here goes.

According to Section 602(8) of the IDEA, to be eligible for special education, a child must both have an enumerated disability and "...by reason thereof, need... special education..." In Hood v. Encinitas Union School District 486 F.3d 1099, 47 IDELR 213 (9th Cir. 4/9/7), the Ninth Circuit Court of Appeals held that the Rowley "some benefit" standard should be used in determining the second prong of the eligibility standard. Professor Weber points out that the Rowley standard applies only to whether services are appropriate. The analysis of whether a disability causes a child to need special education should be a much lower bar. Using the elevated standard, the Court held that a child with specific learning disabilities who made good grades but who had difficulty completing assignments, staying organized and submitting assignments to be not eligible.

Two other sections of the federal regulations provide further support for this argument. 34 CFR Section 300.306(c) outlines the procedure for determining eligibility and requires the eligibility team to consider a variety of sources before deciding whether a child is eligible.

Also the child find requirement is spelled out at 34 CFR section 300.111(c). This regulation provides that the child find requirement includes..."children who are suspected of being a child with a disability ... and in need of special education, even though they are advancing from grade to grade ..."

These two regulatory provisions would seem to suggest hat the standard for eligibility should be lower than the Hood court set it. It will be interesting to see how the future eligibility caselaw develops.

You can find Professor Weber's entire law review article "The IDEA Eligibility Mess," at this link:

http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1206202

You can view Part II of the series on eligibility here.