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special education “My child was just diagnosed with _________.  Is my child eligible for special education or services at school?”

This is a question with which parents often struggle once their child has been diagnosed with some type of disorder or condition.  The answer is not a simple “Yes.”

Under the main special education law – the Individuals with Disabilities Education Act (IDEA) – there is a two-step process to declare a child eligible for special education and services.

The first step is for the child to be diagnosed with a disability that falls under one of the categories established by Congress.[1]

The second step is to determine whether such disability interferes with the child’s ability to learn in the school environment.[2]

Once a child is declared eligible, the schools are required to provide a program that meets all of the child’s needs.

The 1st Step: Qualifying Disability

IDEA identifies nine categories of specific disability plus one “catch-all” category that satisfy the first step of eligibility.  The specific categories (in no particular order) are:

(1) autism;

(2) intellectual disability [3];

(3) hearing impairments (including deafness);

(4) speech or language impairments;

(5) visual impairments (including blindness);

(6)  serious emotional disturbance;

(7) orthopedic impairments;

(8) traumatic brain injury; and

(9) specific learning disabilities.

The “catch-all” category is called “other health impairments”.

Other Health Impairments

“Other health impairments” is defined as “having limited strength, vitality, or alertness, including a heightened alertness to environmental stimuli, that results in limited alertness with respect to the educational environment that is due to chronic or acute health problems.”[4]

IDEA expressly includes in this category:

  • asthma,
  • attention deficit disorder (ADD),
  • attention deficit hyperactivity disorder (ADHD),
  • diabetes,
  • epilepsy,
  • a heart condition,
  • hemophilia,
  • lead poisoning,
  • leukemia,
  • nephritis,
  • rheumatic fever,
  • sickle cell anemia, and
  • Tourette syndrome (however, Tourette syndrome is now considered part of Autism).[5]

But this list is not necessarily exhaustive.

On occasion, a child’s challenges are not easily diagnosed into one of these categories.  The parents and, perhaps, the physician recognize the child is struggling, but cannot identify a specific diagnosis or the child is too young to properly diagnose the issue as is often true of ADHD and Autism.  So, regardless of the label or diagnosis, if the child is exhibiting symptoms that fit within the definition of Other Health Impairments, then that is the category that should apply for the first step.

The 2nd Step: Link Between Disability and Challenges in School

Simply having a disability or an ‘Ism’ does not automatically qualify the child for special education and services in the public school.  The second part of the test of eligibility under IDEA is that the child, because of that disability, needs special education and related services.[6]

Stated in more direct terms, if your child’s disability “adversely affects [his/her] educational performance,” then your child is eligible.  The U.S. Department of Education has made it clear that “educational performance” is not strictly academics and grades, but should take into consideration all ways that the disability impacts the child’s performance at school.[7]

Special Education

“Special Education” is defined by IDEA as “specially designed instruction, at no cost to parents, to meet the unique needs of a child with a disability, including:

(A) instruction conducted in the classroom, in the home, in hospitals and institutions, and in other settings;

(B) instruction in physical education.”[8]

The definition includes speech-language pathology services, travel training, and vocational education.[9]

Related Services

“Related services” is defined as “transportation, and such developmental, corrective, and other supportive services . . . as may be required to assist a child with a disability to benefit from special education.”[10]  The law has an extensive list of related services that are available, such as occupational therapy, physical therapy, speech therapy, but that list is not meant to be all-inclusive.

However, if a child needs only a related service and not special education, the child is not eligible under IDEA.[11]  Usually experts, like educational psychologists, are the people who can evaluate whether a child requires special education or only a related service.

504 and the ADA

Even if your child is not eligible under IDEA, he/she may still be eligible for accommodations under §504 of the Rehabilitation Act or the Americans with Disabilities Act (ADA).  These are anti-discrimination laws and have been applied to school children with disabilities so that they are not excluded from education or extracurricular activities with their non-disabled peers.

The main difference between being eligible under IDEA and being provided accommodations under §504 or the ADA is that there are many more legal protections to a child eligible under IDEA.

Perhaps the most important protection is that IDEA requires a written document, an Individualized Education Plan (IEP) that spells out exactly what special education and services the child must receive in school.

A §504 and the ADA do not require a written program or plan, although most schools still do so.

So, as you can see, this is not a cut-and-dried issue.  If your public school is challenging you on whether your child is eligible for special education or services, you will discover answers to your most challenging questions inside the book, SchoolKidsLawyer’s Step-By-Step Guide to Special Education Law.

References

[1]20 U.S. Code § 1401 – Definitions.” LII / Legal Information Institute. Cornell University Law School, n.d. Web. 08 June 2016. and 34 CFR 300.8 – Child with a Disability.LII / Legal Information Institute. Cornell University Law School, n.d. Web. 08 June 2016.

[2]20 U.S. Code § 1401 – Definitions.” LII / Legal Information Institute. Cornell University Law School, n.d. Web. 08 June 2016. and 34 CFR 300.8 – Child with a Disability. (a)(1)LII / Legal Information Institute. Cornell University Law School, n.d. Web. 08 June 2016.

[3] Dodd-Frank Wall Steet Reform 293 in the Last Year.Federal Register. N.p., 01 Aug. 2013. Web. 09 June 2016.

[4] 34 CFR 300.8 – Child with a Disability. (c)(9)LII / Legal Information Institute. Cornell University Law School, n.d. Web. 08 June 2016.

[5] 34 CFR 300.8 – Child with a Disability. (c)(9)LII / Legal Information Institute. Cornell University Law School, n.d. Web. 08 June 2016.

[6]20 U.S. Code § 1401 – Definitions.(3)(A)” LII / Legal Information Institute. Cornell University Law School, n.d. Web. 08 June 2016. and 34 CFR 300.8 – Child with a Disability. (a)(1)LII / Legal Information Institute. Cornell University Law School, n.d. Web. 08 June 2016.

[7] Posney, Alexa, PhD. “United States Department of Education.” Letter to Catherine D. Clarke, Education and Regulatory Advocacy. 08 Mar. 2007. MS. 400 Maryland Avenue, SW, Washington, DC.

[8] 20 U.S. Code § 1401 – Definitions.(29)” LII / Legal Information Institute. Cornell University Law School, n.d. Web. 08 June 2016. and 34 CFR 300.39 – Special Education.LII / Legal Information Institute. Cornell University Law School, n.d. Web. 09 June 2016.

[9] 34 CFR 300.39 – Special Education.(A)(2)LII / Legal Information Institute. Cornell University Law School, n.d. Web. 09 June 2016.

[10]  “20 U.S. Code § 1401 – Definitions.(26)(A)” LII / Legal Information Institute. Cornell University Law School, n.d. Web. 08 June 2016. and 34 CFR 300.34 – Special Education.(a)LII / Legal Information Institute. Cornell University Law School, n.d. Web. 09 June 2016.

[11] 34 CFR 300.8 – Child with a Disability. (a)(2)LII / Legal Information Institute. Cornell University Law School, n.d. Web. 08 June 2016. ( However, if a child has a disability but does not need special education services, the child may still qualify for protections under §504 or the ADA.)