June 7, 2021: This article first published and is being republished today for new readers.
Your child is struggling in school. Are your child's struggles and your gut feeling enough for your child to qualify for special education?
No. However, your gut feeling and your child's struggles shouldn't be discounted either (more on this later).
Who Qualifies as a Child with a Disability?
"child with a disability" means a child evaluated as having "an intellectual disability, 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, and who, by reason thereof, needs special education and related services".
The definitions of each of the categories listed in §300.8 includes a caveat: The category must adversely affect the child's educational performance.
Per §300.8(a)(2)(i) and (ii):
(2)(i) Subject to paragraph (a)(2)(ii) of this section, if it is determined, through an appropriate evaluation under §§300.304 through 300.311, that a child has one of the disabilities identified in paragraph (a)(1) of this section, but only needs a related service and not special education, the child is not a child with a disability under this part.
(ii) If, consistent with §300.39(a)(2), the related service required by the child is considered special education rather than a related service under State standards, the child would be determined to be a child with a disability under paragraph (a)(1) of this section.
The Adverse Affect Caveat
Imagine a child has Type I Diabetes and that she falls within the category of "other health impairment". She needs a bus driver, a teacher, a school nurse, and so on who are trained to help her manage her Diabetes while she is in school. In addition, someone trained must be on hand for fieldtrips and other special activities. While she will miss class from time to time, there isn't an adverse affect on her educational performance. Instead, she needs related services, such as trained teachers and other school staff, and accommodations such as a flash pass if she needs to leave the classroom immediately. Hence, she'd qualify for a 504 Plan, but not for an Individualized Education Program (IEP).
Don't Let Your School Wear Adverse Affect Blinders
Imagine a child with Dyslexia, who falls within the category of having a "specific learning disability". The child has good grades and passing state exams, therefore the school doesn't deem the child should qualify for special education because the student is advancing from grade to grade and is taking advanced classes and is passing state exams. The school states there's no adverse affect on the child's educational performance.
In this case, imagine the parent disagrees with the school and takes her son to be evaluated privately. The private evaluator determines that the child is reading on a third grade level, even though he's in sixth grade, has passing state exams, and has good grades.
Imagine the parent shares the evaluation with the school and the school responds by calling it anecdotal and repeats the student's good grades as a reason to continue denial of special education services.
Sec. §300.101(c)(1) states:
(c) Children advancing from grade to grade.
(1) Each State must ensure that FAPE is available to any individual child with a disability who needs special education and related services, even though the child has not failed or been retained in a course or grade, and is advancing from grade to grade.
This acknowledges that children with passing grades, who are advancing from grade to grade, may qualify for special education services, too.
In the case of the student with Dyslexia, the school looked at grades connected to specific courses, but didn't grade the student on his reading, so they didn't know how long it took him to read; the stress involved;, the fact that the parent bought audiobooks for the student to "read"; that as the student increased in age, the struggles became harder because older students have to read to obtain information, whereas younger students (who haven't mastered reading) have information presented to them, and so on. They made the mistake of not considering reading itself as an academic struggle, or that the child might have strong compensatory skills, which is why he got so far with such a low reading level—a level that 100% adversely affects his educational performance.
Know Your Rights; Know Your Child's Rights
Your knowledge plays a major role in whether or not your child will receive special education.
If the school says no, that it doesn't believe your child has special education needs, ask why and on what data its decision is based.
Be ready to provide your own data. How many hours do you spend reading with your child? How much support does he or she receive at home?
Have the federal regulations above at hand and ready to cite. Ask why the school thinks there isn't an adverse impact. If the school states grades, advanced classes, passing state exams, and so on, your alarm system should be going off.
What One State Education Agency Has To Say
In a 8.22.19 Letter of Findings to J.M., the Virginia Department of Education (VDOE) stated:
The Virginia regulations at 8 VAC 20-81-50.A, direct school divisions to maintain an "active and continuing child find program designed to identify , locate and evaluate those children residing in the jurisdiction who are birth to age 21, inclusive, who are in need of special education and related services." These regulations (34 C.F.R. §§ 300.102, 300.111, 300.302, and 300.507; 8VAC 20-81-50) set forth various requirements governing the child find process for special education as well as the referral process and the school-based review team (8 VAC 20-81-50(D).16
Special education regulations (34 C.F.R. §§300.300 and 300.301; 8 VAC 20-81-60 also set forth the procedures and requirements governing the initial evaluation of students with disabilities. More specifically, in the case of requests for referrals for an initial evaluation, the Virginia Regulations ( 8 VAC 20-81-60.A) provide that all children, age two to 21 inclusive, "Whether enrolled in public school or not, who are suspected of having a disability, shall be referred to the special education administrator or designee..."17
The Virginia Regulations (8 VAC 20-81-60.B; 8 VAC 20-81-70.H) provide that evaluations and reevaluations, including eligibility determination, must be completed within 65 business days after the referral for the evaluation is received by the special education administrator or designee [emphasis added]. The regulations also set forth limited exceptions to this timeline. 18
16 The Virginia Regulations (8 VAC 20-81-50.D.3) provide that children may be referred for evaluation "through a screening process, or by school staff, the parents(s), or other individuals." The request for a referral may be oral or written. Similarly, these regulations (8 VAC 20-81-60.A.1 and 2), also specify that this referral may arise from "any source," including parents, school personnel, and other entities. Again, the referral may be in oral or written form.