Failing grades are not a prerequisite for special education evaluation and/or IEPs or 504s.
The Individuals with Disabilities Education Act (IDEA) states that child find must include “Children who are suspected of being a child with a disability under §300.8 and in need of special education, even though they are advancing from grade to grade”. (Emphasis added. See 34 CFR 300.111(c)(1).)
Each state must ensure that ALL children with disabilities, and who are in need of special education and related services, are identified, located, and evaluated.
The U.S. Department of Education’s (USDOE) Office of Special Education Programs (OSEP) issued a 1.13.10 letter to redacted, which addresses students with both a disability and passing grades and includes the following:
“The IDEA is silent regarding “twice exceptional” or “gifted” students. It remains the Department’s position that students who have high cognition, have disabilities and require special education and related services are protected under the IDEA and its implementing regulations. Under 34 CFR 300.8 a child must meet a two-prong test to be considered an eligible child with a disability: (1) have one of the specified impairments (disabilities); and (2) because of the impairment, need special education and related services.”
If you suspect your child has a disability, submit a referral to the principal and special education head at your child’s school. Include the disabilities you suspect, why you suspect them, any existing data supporting the presence of the disabilities you suspect, as well as the date and your signature.
If the school denies an evaluation, it must provide a prior written notice. You have the right to appeal the school’s decision through due process.