Who determines eligibility for special education instruction and services?
No single individual determines eligibility – not a medical doctor, a school psychologist, a teacher, a related service provider, a school administrator, or a parent. As part of an initial evaluation or reevaluation, the student’s IEP team, including the parents and other qualified professionals, reviews existing data on a child and identifies what additional data are necessary to determine whether the child is a child with a disability and the educational needs of the child. [34 C.F.R. § 300.305(a)] Upon completion of the administration of assessments and other evaluation measures, a group of qualified professionals and the child’s parent determine whether the child is a child with a disability and his or her educational needs. [34 C.F.R. § 300.306(a)]
How does a child qualify for special education?
In order to qualify for special education and related services, the IDEA is clear that a child must be evaluated according to the procedures set forth in the regulations as having one of the following 13 categories of disability (autism; deaf-blindness; deafness; emotional disturbance; hearing impairment; cognitive impairment; multiple disabilities; orthopedic impairment; other health impairment; specific learning disability; speech or language impairment; traumatic brain injury; and visual impairment) and must, by reason thereof, need special education and related services. [34 C.F.R. § 300.8]
Can a student be eligible for special education under more than one eligibility category?
Although a student can meet eligibility requirements in more than one area of disability, it is not the label or category that is important. The important thing is that eligible students receive a free appropriate public education “designed to meet their unique needs and prepare them for further education, employment, and independent living.” [34 C.F.R. § 300.1(a)] The regulations that implement the IDEA require schools to evaluate students in all suspected areas of disability [34 C.F.R. § 300.304(c)(4)], and each child’s IEPs must contain measurable annual goals designed to “meet the child’s needs that result from the child’s disability to enable the child to be involved in and make progress in the general education curriculum and meet each of the child’s other educational needs that result from the child’s disability.” [34 C.F.R. § 300.320(a)(2)(i)] As a practical matter, there is nothing in the IDEA that requires students to be classified by their disability so long as each child who has a disability and who needs special education is regarded as a child with a disability under the IDEA. [34 C.F.R. § 300.111(d)]
Does the IDEA impose any limitations on eligibility for special education?
In order to be determined eligible to receive special education and related services, a child must have a qualifying disability that causes an adverse effect on educational performance and who, by reason thereof, needs special education and related services. [34 C.F.R. § 300.8] It is important to note that the IDEA is clear that a child cannot be determined eligible if the determinant factor is that there has been a lack of appropriate instruction in reading or math, or that the student has limited English proficiency. [34 C.F.R. § 300.306]
When a new eligibility category is determined (for a student already receiving special education services), must the school have written consent from the parent before it can begin to provide services in that new area?
There is no such requirement. The regulations that implement the IDEA require that parents provide informed written consent prior to the initial provision of special education. [34 C.F.R. § 300.300(b)] There is no requirement that schools obtain written consent when a new disability category or a new related service is determined to be necessary to provide the child with a FAPE.
If medical verification of a disability is required as part of a full and individual initial evaluation, can the school require the parent to secure and pay for such medical verification?
Schools cannot require parents to secure medical verifications. The IDEA requires schools to conduct a full and individual initial evaluation before the initial provision of special education and related services. [34 C.F.R. § 300.301(a)] The 9th Circuit Court of Appeals (whose decisions are binding on Arizona) has ruled that a school cannot abdicate or delegate to parents its affirmative duties under the IDEA to ensure that students are evaluated [34 C.F.R. § 300.111(a)(i)] and that they are evaluated in all areas of suspected disability [34 C.F.R. § 300.304(c)(4)] by referring parents to an outside agency to secure an evaluation, for “[s]uch an action does not ‘ensure that the child is assessed,’ as required by 20 U.S.C. § 1414(b)(3)(C).” [N.B. and C.B. v. Hellgate Elementary School District, 541 F.3d 1202 (9th Cir. 2008)]
Does a student lose his/her eligibility for special education when he/she meets the IEP goals?
No. Schools must make a free appropriate public education (FAPE) available to all children with disabilities, with the following exceptions: 1) the student graduates and receives a regular high school diploma that is fully aligned with the State’s academic standards; 2) the student reaches the maximum age of eligibility under state law (which, in Arizona is the school year in which the student turns 22); 3) the student is evaluated and determined by the multidisciplinary evaluation team (MET) to be no longer eligible to receive special education instruction and services; or 4) the student’s parent revokes consent for the provision of special education and related services. [34 C.F.R. §§ 300.102; 300.305(e); 300.300(b)(4)] If a student achieves his/her IEP goals, the IEP team should review the IEP and revise it, as appropriate.
If a student eligible to receive special education receives a GED (general educational development) credential, does the student lose his/her right to receive a FAPE?
No. According to the IDEA, graduation from high school with a regular high school diploma constitutes a change in placement. [34 C.F.R. § 300.102(a)(3)(iii)] However, the regulations go on to say that “the term regular high school diploma does not include an alternative degree that is not fully aligned with the State’s academic standards, such as a certificate or a general educational development credential (GED).” [Id. at subsection (a)(3)(iv)]
