Does my child qualify for special education?

Several parents have contacted me after their child’s school district refused to qualify their child for special education services, which raises the question – Who qualifies to receive special education services and an IEP (Individual Education Plan)?

This note addresses a particular scenario that our office has encountered.

 

Hypothetical:

A parent who requested an assessment for eligibility of services based on a child’s recent change in behavior (such as, a sudden decline in academics, getting into continuous trouble with the law and/or school, generalized depression, and so on) has been denied special education services.

* In our hypothetical, it is assumed that the district agreed to assess the child for eligibility, but the IEP team concluded that the child did not qualify for services. The district’s failure to respond to, or denial of, your request to assess your child for eligibility is a different legal issue, for which you may need to contact an attorney.

Common triggers for the recent change in a child’s behavior include sudden life changes, such as a divorce or death in the family. Usually, according to the parents, these children have done well, if not excelled, in school prior to the “triggering event”. In fact, parents in this scenario generally do not claim that the child has another disability.

 

The Law:

In California, there are two preliminary requirements that must be met for a child to receive special education services: (1) the child must meet one of the statutorily defined categories of needs; and (2) in most cases, the qualifying need must adversely affect the child’s educational performance, thus requiring special education.

Currently, the special needs that qualify for special education in California include:

(a) hearing impaired;
(b) concomitant hearing and visual impairments;
(c) language or speech impairment
(d) visual impairment;
(e) severe orthopedic impairment;
(f) limited strength, vitality or alertness, due to chronic or acute health problems;
(g) autistic-like behaviors;
(h) significantly below average general intellectual functioning;
(i) serious emotional disturbance (over a long period of time and to a marked degree); and
(j) multiple disabilities. (5 CCR 3030 (2011))

It must first be established that your child has a “qualifying need” for special education services under 5 CCR 3030. Only the qualifying needs (disabilities) listed under 5 CCR 3030 permit a child to receive special education services.

In our hypothetical, the only qualifying need, as defined by law, that may be applicable, is the “serious emotional disturbance” category, since the parent does not contend that the child has another disability (and the child was doing well before the triggering event). Therefore, it must be determined whether the new behavior qualifies the child as having a “serious emotional disturbance”.

To make that determination, the IEP team shall review any and all relevant material on the student (including assessments) which is available to the team. (5 CCR 3030 (2011)). Whether or not a child’s behavior may be considered a “serious emotional disturbance” is done on a case-by-case basis, and there is no black-and-white, clear, test. The IEP team, with a collective knowledge of the child, and trained medical physicians, who have performed the necessary assessments, are in the best position to make such a determination.

The second requirement to receive special education services is that the IEP team must conclude that the qualifying need is at the level of requiring special education services, because the need is adversely affecting the child’s educational performance. (5 CCR 3030 (2011)).

In our hypothetical, this is less of an issue in many cases, because parents generally seek an attorney after a child’s educational performance has diminished.

 

Conclusion:

Special education is meant to provide students with disabilities the appropriate services and support to succeed in public schools. In other words, “special” in “special education” refers to the “needs” (disabilities) of a child, and does not refer to the “specialized” education and/or help a child may possibly receive.

To qualify for special educational services, therefore, a child must have a qualifying disability. The problem with our hypothetical is the child did not have any physical, cognitive, or psychological disability before the triggering event.

Then, the question is: now that the child has behavioral issues and his/her educational performance is suffering, does the child qualify for special education services? It depends – does the new behavior rise to the level of a qualifying disability (which may most likely be the “serious emotional disturbance” category)?

 

DISCLAIMER

The material found herein is only intended for informational purposes. Its accuracy beyond the date of authorship cannot be guaranteed and the material will not be regularly updated or monitored for accuracy. This material should not be construed as legal advice and readers should not act upon the material without consulting with a licensed attorney. MILLER WASHINGTON & KIM, PLC, cannot be held liable for actions taken by readers in reliance of the material. Further, such reliance on the material shall not be construed as legal advice or the formation of an attorney-client relationship. Only by entering into a written attorney-client agreement, signed by the attorney, is such a relationship formed.