Special Education Law 101 - Part V #eligibility #identification

Our series providing an introduction to special education law continues.  Previous posts have introduced the two basic concepts underlying IDEA, free and appropriate education and least restrictive environment.  Today's post concerns eligibility and identification.

Identification & Eligibility

Issues pertaining to identification and eligibility are governed by IDEA § 612(a)(3) and 614 (b)(4)-(6).  See, 34 C.F.R, § 300.121- 300.125, 300.300, 300.306, 300.307 – 300.311.  

In summary, to be eligible, a child must have one of the enumerated conditions(mental impairment, a hearing impairment (including deafness), a speech or language impairment, a visual impairment (including blindness), a serious emotional disturbance (referred to in this part as “emotional disturbance”), an orthopedic impairment, autism, traumatic brain injury, an other health impairment, a specific learning disability, deaf-blindness, or multiple disabilities)(which adversely affects his education) and by reason thereof, he must need special education and related services.  In addition as a third requirement for eligibility, most of the disabling conditions require that the condition adversely affects the child's educational performance.

Some important circuit court decisions:

Marshall Joint Sch Dist No 2 v. CD by Brian & Traci D    616 F.3d 632, 54 IDELR 307 (7^th Cir 8/2/10) Seventh Circuit reversed HO who found student eligible solely upon physician’s opinion that the student could benefit from adaptive PE.  The Seventh Circuit noted that a physician may not simply prescribe special education; IEPT must consider relevant factors.

Alvin Indep Sch Dist v. AD by Patricia F 503 F.3d 378, 48 IDELR 240 (5th Cir. 10/4/7)  The fifth Circuit affirmed a holding that despite a fifth grader’s ADHD, he was not eligible for  special education.  The student consistently received passing grades, he succeeded on statewide tests and he was achieving in social situations.  Accordingly, he did not by reason thereof “need special education and related services,” and, therefore, he was not a child with a disability as defined by the IDEA

Hood v. Encinitas Union Sch Dist 47 IDELR 213 (9th Cir. 4/9/7)  The Ninth Circuit applied the Rowley standard to an eligibility issue.  Where the student consistently received above average grades despite her disability, she received educational benefit, and therefore, was not eligible for SpEd.  NOTE:  One legal scholar has questioned whether theRowley test is too restrictive for eligibility purposes, Weber, Mark "The IDEA Eligibility Mess," http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1206202

CJ by Hudson v Pittsburg Unified Sch Dist 835 F.3d 1168, 68 IDELR 121 (9^th Cir 9/5/16) Ninth Circuit held that SD erred by ruling that student was no longer eligible for special ed services where his educational progress was a result of the specialized services that he received including mental health services, a 1:1 behavioral aide and other accommodations. Fact that he received services in general ed setting did not change result; 

IDEA also places a child find duty upon school districts.  A district has an affirmative duty to identify and evaluate children with disabilities.  District of Columbia Public Schs (JG) 111 LRP 25934 (SEA DC 3/18/11) The standard for child find is suspicion of a disability rather than actual knowledge. District of Columbia Public Schs (JG) 111 LRP 25934 (SEA DC 3/18/11).

Compton Unified Sch Dist v. Addison 598 F.3d 1181, 54 IDELR 71 (9th Cir. 3/22/10) By a 2-1 vote, Ninth Circuit rejected school district argument  that there is no child find duty because of language pertaining to prior written notice. The district argued that only an action or refusal is a violation. The Ninth Circuit held that a parent could file a dpc on any matter related to identification, evaluation, FAPE or placement, so, therefore, child find violations are actionable.  

Ridley Sch Dist v. MR & JR ex rel ER 680 F.3d 260, 58 IDELR 271 (3d Cir 3/19/12) Third circuit conducted a detailed review of the law concerning Child Find, and concluded that the HO erred by failing to allow the school district a reasonable time to identify the student as disabled.