Understanding Who Is and Who Is Not Eligible for Special Education

Eligibility is a very confusing concept for most parents trying to negotiate their ways through the bureaucracy of special education. It’s an unfortunate reality that special education has to be regulated in order to make objective determinations as to whether students benefitted from their services or not, but the regulations create what is to some parents seemingly insurmountable barriers to entry.


This is further compounded by an industry-wide (and I am considering public education an industry, here) initiative to intervene before students are so far gone that they actually need special education. On the surface, this sounds like a good idea. If acted upon in good faith, it’s a great idea. Why wait until a child is so far behind that he/she may never catch up Why resort to labeling the child as “disabled” when what’s closer to the truth is that he/she was never taught the way he/she actually learns?


However, far too often, in the name of preventing an unnecessary referral for special education, strategies are attempted in the name of “regular education accommodations” and “Response to Intervention” that aren’t successful. In the end, it becomes apparent in these instances that these “strategies” were nothing more than bad faith delay tactics used in the hopes that the parents would reach the conclusion that their children were beyond help and simply give up.


After all, teaching children who are struggling to master certain concepts is really, really hard. It’s a lot easier simply to not. The employees of the education system get their paychecks either way. This is a deplorable situation for parents and educators who truly care, alike.  Good teachers are constantly fighting an uphill battle to do the right things.  After a while, it’s easy to burn out and give up, leaving behind all the people who are inclined to take the easy path and just not do much of anything.


That said, when it comes right down to it, who is really eligible for special education? It is a misconception that the presence of disability automatically qualifies a child for special education. It does not. A disability must be present in an eligible child, but that by itself is not enough.


There must be a negative educational impact caused by the disability – it must interfere with the child’s learning or participation at school to a significant enough degree that specialized instruction, modifications, accommodations, and possibly related services such as speech-language services and occupational therapy are necessary in order for the child to receive educational benefit.


For more than two decades, everyone has been carrying on about the abysmal standard established by Rowley. Or, more accurately, Rowley has been misrepresented by public schools as meaning they don’t have to do a whole lot. Amy Rowley was passing her classes without the sign language interpreter her parents wanted and could get around school just fine, in spite of her hearing loss.  That really doesn’t speak to the circumstances of a child with learning disabilities and ADHD who is reading three grade levels below his current grade.


There is another case, Mercer Island, in which the appellate decision declared that the Rowley standard of “some educational benefit” and “a basic floor of opportunity” is dead. Rowley was decided in 1982 in light of the predecessor of the Individuals with Disabilities Education Act (“IDEA”), the Education of Handicapped Children Act of 1975 (“EHA”). The EHA was meant simply to give children with disabilities access to the public schools. Prior to the EHA, at least a million children with disabilities were denied enrollment and there was often no programming to meet their educational needs even when they were permitted to attend school. They simply stayed home or spent pointless hours in regular classrooms with no supports waiting for the day when they could drop out.


In 1997, the EHA was replaced with the IDEA. With it came much stronger language about what kinds of outcomes are to be expected. I concur with the findings in Mercer Island for the very obvious reason that the purpose of any education system is to teach students what they need to know so they can take care of themselves as much as is reasonably possible when they grow up. That’s what benefits the children and their families the most. That’s what benefits society the most. (See our posting, “The Big Picture – Special Ed Issues Impact Everyone.)


The need for specialized instruction in order to receive educational benefit (setting aside for the moment how “educational benefit” is exactly defined) on the basis of a handicapping condition is what drives eligibility for special education. This could be something as relatively benign as an articulation disorder that prevents the student from speaking clearly enough to participate effectively in group learning activities with peers, read aloud in class, and/or effectively communicate personal needs or lack of understanding to instructors.  It could be something as severe as quadriplegia that prevents the student from independently navigating a school campus. There are a million ways to be disabled.


However, let’s say we have a child with quadriplegia who has mastered the use of his electric wheelchair and can get anywhere on campus he wants, is intellectually intact without any learning disabilities or emotional problems, and is able to hold his head upright and turn it sufficiently to follow instruction in the classroom. He grasps what the teacher is saying.  And, at most all he needs in his academic classes are accommodations, such as a set of books at home, a set of books at school, note-takers in class, access to a computer with dictation software on it, and assistance using his materials in the school setting in order to participate. Does this child require special education?


I’d argue that for a kid like this, PE is the only part of the curriculum he can’t participate in without specialized instruction and he would qualify on that basis alone, requiring Adaptive PE as his specialized instruction.  I’d also argue that for self-help needs such as eating and toileting, he would probably need a properly qualified 1:1 aide as a related service.


For a child with a disability that impacts his/her receipt of an education and/or participation at school, but who does not need specialized instruction, the solution is a 504 Plan. That’s another blog posting in and of itself. I’m not going to explain 504 right now.


The point I’m trying to make here, particularly to parents, is that special education really is meant for a specific group of kids.The federal regulations are found at 34 CFR 300.8.? Each state has its own additional language, as well. In California, for example, it’s 5 CCR 3030.


There are some parents who think that getting their child into special education will solve everything. That may not be so.  I’ve encountered parents who were simply looking for something to blame- a defect in their child – rather than their own incompetence as parents for their child’s problems.  Sometimes children are just responding to, or role modeling themselves after, the adults around them.


I’ve also encountered parents whose children did have mild problems that fell just short of qualifying them for special education. That’s the thing with the regulations. Somebody is invariably going to almost, but not quite, qualify for special education. The line has to be drawn somewhere. Those are the kids whose parents need to turn to Section 504 and learn as much about it as they can.


But, I’ve also encountered education agencies that didn’t want to admit that they had failed to conduct “child find” for years running, resulting in a failure to find a child eligible who should have been found eligible long ago, thereby denying the child a Free and Appropriate Public Education (“FAPE”). Because these agencies didn’t want to admit fault and were hoping to avoid being held responsible for providing compensatory education to these children, they lied and said these kids weren’t eligible at all and never had been.


A fair amount of litigation arises over eligibility issues. The important thing for parents to understand is that the regulations spell out who and who is not eligible for special education. You need to understand the rules before you go charging off on a mission. State law usually hones the federal law on this issue.


For example, if a clinical psychologist has given a child a DSM-IV diagnosis of dyslexia, that doesn’t mean the child will qualify for special education as having a learning disability, even though dyslexia is a type of learning disability; what matters is that there is a discrepancy between achievement and ability or the child has failed to respond to scientifically research-based interventions in the regular education setting because of the dyslexia, which is a processing disorder. On that basis, the child can qualify for special education as having a learning disability.


Educators need to appreciate that parents often don’t understand this subtle distinction and be kind and helpful to them as they try to navigate the system. Mocking them for not knowing this is simply inappropriate. Being compassionate to the needs of the student and the angst of the parents who are worried about their child’s academic performance is very appropriate.

9 thoughts on “Understanding Who Is and Who Is Not Eligible for Special Education”

  1. For the hypothetical quadriplegic student, I go along with eligibility based on need for APE and the accommodations, self-help needs, and aide that you suggested. I’d say he also needs instruction in self-advocacy starting at a young age, and as he gets older instruction in civii rights and disability rights and how to access them not only in the K-12 arena, but in further education and employment in his adult life. Most teenagers have a lot of independence and get around town on their own to a certain extent, and by the time this student gets to high school, he might also need some life skills training in how to use public transportation for present and lifelong getting around. Chances are he may eventually need some kind of supported living arrangements, so he may need to start learning about services and benefits that he may become entitled to as he turns 18.
    I also wonder about his opportunities for social skills development & meaningful opportunities for inclusion with nondisabled peers at recess/lunch, summer activities, etc.

    1. Daunna,

      I think those are very good points. A lot of it depends on what the outcome of a competent social/emotional, and maybe even pragmatic language, assessment reveals. Certainly as he gets older, and qualifies for a transition plan as part of his IEP, the community access issues and referrals to other agencies that serve adults with disabilities have to be taken into consideration. If this hypothetical youngster is in a state with a regional center system, or something like it, though, such an entity would be responsible for at least some of those kinds of things. At that point, there has to be an examination of what is educationally necessary and what falls on the shoulders of other publicly funded agencies that have an obligation to an adult with these kinds of needs. It gets a lot stickier, then.


  2. Hey there, my sister has been having trouble getting my nephew, who has special needs, the adjustments he needs in the educational system. She is considering hiring a special needs attorney to fight for his rights and make sure he gets the tools he needs for a conducive learning environment since she is frustrated with the lack of assistance. It’s also horrifying to learn that most parents attempting to navigate the special education system find eligibility to be a very perplexing idea.

    1. Lily,

      Thank you for your comment. What complicates things further is that each state has its own criteria for special education eligibility. They all must align with the IDEA, but they still vary from state-to-state in terms of specifics. This can make the difference between a child being eligible in one state, but not in another. The saving grace for a child who already has an IEP and moves to a state with different eligibility criteria is that the incoming IEP must be honored and only re-evaluation under the new state’s laws can change the eligibility determination, and evaluations require parental consent. The parent has the right to withhold consent to re-evaluation if it’s suspected that the only purpose for conducting it is to exit the student from special ed, but if re-evaluation is due, such as with a triennial evaluation, or warranted because of a change in how the student is impacted by disabilities, then new evaluations are warranted and it can backfire on a parent who withholds their consent.

      Parents have the right to disagree with their school districts’ evaluations and request Independent Educational Evaluations (2nd opinions from outside providers not employed by the district) at public expense (meaning the school districts pay for them or otherwise make sure they are publicly funded, such as through Medic-Aid), but school districts have the right to refuse to fund IEEs if they can prove to a due process hearing officer that 2nd opinions are not warranted. There’s a whole process around IEEs at public expense that is described in the federal regs at 34 CFR Sec. 300.502. This includes disagreeing with assessments that find their children ineligible for special education, regardless of whether the child has ever been previously found eligible for special education or not. The same protections exist for parents disputing an initial evaluation that does not find their child eligible or a re-evaluation that finds their child is no longer eligible. Exiting a child from special education is a change of placement and the parent has the right to invoke “stay-put” if a dispute arises over whether or not the child should be exited; the child must remain in the current placement until the dispute over placement is resolved.

      The “stay-put” sword cuts both ways, though. If a parent is trying to keep their child in the current placement while the dispute is resolved, “stay-put” is awesome. However, if the parent is trying to get the student into a different placement, “stay-put” keeps the student stuck in the placement the parent opposes until the dispute is resolved, which is usually not very awesome at all. In the case of an eligibility dispute, “stay-put” is most helpful to parents trying to keep their child in special education after being told during a re-evaluation that their child is no longer eligible and they disagree. “Stay-put” is not helpful to the parent going through the initial evaluation process for a child still in general education who is being told their child is not eligible for special education, because it means the student continues to suffer in the general education setting until the situation can be worked out.

      If your sister decides to hire a special needs attorney, that person will likely recommend getting an IEE, even if it’s initially at private expense, just to have valid evidence and an expert on her side. Fighting for eligibility requires your sister to prove two things: 1) her child has a disability, and 2) the disability impacts her child’s access to and/or participation in education in some kind of way that requires customization of the instruction so that her child can access it as easily as any other child who doesn’t have a disability. If her child has a disability but it doesn’t require customization of how her child is taught beyond accommodations, which can include direct services such as tutoring, occupational therapy, speech/language services, behavior specialist services, etc., then the student may still require accommodations pursuant to Section 504 of the Rehabilitation Act and the Americans with Disabilities Act, but not full-blown special education via an IEP. Both a 504/ADA accommodations and IEPs are legally enforceable under their respective federal laws. An attorney would help her sort out which makes the most sense in light of valid assessment data, but most attorneys are not also education experts, so there needs to be an expert who has familiarity with the student’s learning needs to help the attorney with those parts of the case. An attorney can enforce legal procedure, but an expert is necessary to inform what is substantively appropriate for a student. A special education due process case targets both procedural and substantive violations, but a student’s legal team needs people knowledgeable of both the law and the science to put the procedural and substantive issues together in a way that makes sense.

      As lay advocates, we help parents build their cases so that, should things nonetheless escalate to the point of pulling in an attorney, the evidence is already on the record and the attorney can go straight to filing for due process. We help parents get IEEs before referring them to attorney, in most instances. If a parent goes straight to the attorney without all the necessary evidence, then the attorney will have to first build the case by seeking and gathering the necessary evidence, and the time put in to do that may not be recoverable; only a parent’s attorneys fees and costs associated an actual legal proceeding, such as a due process hearing or lawsuit in court, are generally recoverable, but this is also a question to put directly to the attorney, the answer to which may also vary from state-to-state. One of the reasons why we try to lay the groundwork as much as we can as lay advocates is because we don’t cost the families as much to do it than what it would cost them to have an attorney partnered with an expert doing the same thing. We marry our advocacy and paralegal skills with our expertise in educational program design and evaluation to build our cases and find that the best way to prevent litigation is to prepare for it. If a case actually goes so far as to require the involvement of an attorney, it’s already “gift wrapped with a box” for the attorney by the time we hand it over.

      It might be more cost-effective for your sister to work with an advocate at the IEP level by disagreeing with any assessments that make no sense to her and asking for IEEs at public expense, which the district can only deny by filing for due process and proving that IEEs aren’t warranted. Or, she could just go out and pay for private assessments and then bring in the lawyer to seek reimbursement for them as well as advocate for their contents to drive any special ed decisions rather than the district’s assessments, which would turn her outside assessments from just IEEs into IEEs at public expense, if the outside assessments provide better data than the assessments conducted by the district and she can prove that to a due process hearing officer.

      Eligibility is driven by assessments, so you can’t make an informed eligibility determination using inadequate, inaccurate, and/or incomplete assessment data. The only way a district can get out of reimbursing a parent for IEEs is to prove to a judge they aren’t warranted because the district’s assessments were good enough. Sometimes the best way to undermine the district’s burden of proof in an IEE case is to first produce the IEEs, show that they are superior, and seek reimbursement them. It’s harder sometimes to fight for IEEs if the child’s needs are so nuanced that a hearing officer, who, to be clear, may know nothing useful about disabilities or special education to inform an analysis of the parent’s reason for disagreeing with a district’s assessment, but having outside experts testify as to what they found when they did the job better goes a long way towards undermining a school district’s burden of proving its assessments were good enough and that 2nd opinions weren’t warranted. Sometimes, the “proof is in the pudding,” so you have to produce “the pudding” to prove you were right all along.

      Eligibility shouldn’t be that complicated, but many school districts really don’t know what they are doing and make it more complicated than it needs to be. There are a lot of politics involved and competing interests that look to use the special ed process for other financial and political ends than what it’s legitimately designed to do. Add to that the fact that the law basically makes parents responsible for enforcing special education law, but self-serving politics and nearly unfettered access to millions of taxpayer dollars equipping school districts with the means to make parents’ lives Hell if they dare to, and it’s no wonder that so many parents feel overwhelmed. The saving grace, in our experience, is that every new generation of young parents who find themselves dealing with special education issues is infinitely more informed and better able to utilize online resources to get to the truth and hold their local government agencies accountable. The times are finally changing for the better with each new cohort of young parents who enter the special education community, but there needs to be a more unified, intelligent movement among parents to effect the necessary changes and we’re happy to contribute to it in whatever ways we can.

      Our next online Social Justice Group event on Meetup will be on February 13, 2024 at 6:30pm PST. You can see this and all our future live online events at: https://www.meetup.com/kps4parents-social-justice-learners/

      We use these live events to help everyday people build their skills in how to legitimately participate in democracy at the local level with success, using our experience in special education and disability resource advocacy to inform the instruction. It’s obviously going to be helpful to families of children with special needs, but the instruction can be generalized to advocating for any beneficiary of any publicly funded program that is a regulated part of our democratic government. This can include advocating for beneficiaries of public benefits programs such as welfare, food stamps, MedicAid, county mental health, departments of rehabilitation and/or developmental services, HUD, etc. We also have pre-recorded subscriber-based instructional content for parents of children with special needs and the professionals who work with them on our Patreon channel.

      We know that parents are their children’s best advocates, but good advocacy requires an understanding of the “lay of the land,” and “the rules of the game.” The only way to uphold democracy is to participate in it, and the rule of law puts the burden of special education law enforcement on the shoulders of parents to file compliance and due process complaints to police the system. We don’t think that the design of special education under the IDEA with respect to enforcement is particularly helpful and we do think there is a better way to do it, but this is what we have to work with according to the rule of law at this time, so it’s imperative the parents of children with special needs have access to the information they need to successfully advocate for their children. We appreciate your feedback and sincerely hope our resources are useful to all the families, including yours, that are looking for answers to their special education and disability resource advocacy journey.

      – Anne

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