By Geneva Englebrecht, Associate
and Adam Newman, Partner
Cerritos Office
It is essential that IEP team members understand how to properly identify students who are eligible for special education and related services. There are times when a referral for an evaluation for special education is made by a parent or teacher for a student who is struggling academically but does not have a true disability or where a student has a medical diagnosis but does not require special education and related services and is consequently also not eligible for special education (and may or may not be eligible for a 504 plan). IEP teams should be sufficiently familiar with the eligibility requirements of federal and state law and avoid the potential harm of wrongly identifying a student as eligible for special education.
Consequences to the school district or county office of education will include limitations to disciplinary options available for the student’s misconduct and “stay-put,” which, subject to certain exceptions not mentioned in this article, require the school district or county office of education to continue providing the student special education placement and services pending the outcome of administrative and/or court litigation.
For a student to receive special education and related services under federal and/or state law, the student must be between the ages of 3-22 and meet the definition of one or more of the identified eligibility categories. One of the most prevalent problems we see as attorneys are assessment reports that don’t do a sufficiently thorough job of applying eligibility criteria to the assessment data. To start, your district or county office of education should copy and paste the specific eligibility criteria from Title 5 California Code of Regulations Section 3030 into assessment reports and analyze the assessment criteria against the specific eligibility criteria. Keep in mind however, that final eligibility decisions are left to the IEP team and the assessment reports should not appear to be making conclusions binding on the IEP team before the IEP team meeting.
Although only 10 disabilities are listed in Section 3030, they comprise the overwhelming majority of the potential eligibilities your district or county office of education assesses, and perhaps more importantly, the criteria are specifically spelled out. If a determination is made that a student has a qualifying eligibility and needs special education and related services, or not, and Section 3030 criteria are utilized, you can rest assured that eligibility decisions are made by IEP teams for the right reason(s). If you are having difficulty locating Title 5 California Code of Regulations Section 3030 (or the other provisions of state and federal law regarding eligibility specifics), please contact our office and we’ll send you a copy.
In our next special education post, we’ll analyze functional analysis assessments, sometimes mistakenly referred to as “functional behavioral assessments” and explain the must have requirements.
