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Friday, May 8, 2015

Special Education Law 101 - Part V #Eligibility

From Attorney Jim Gerl's
Special Education Law Blog

By Jim Gerl, Esq.
May 6, 2015

Our series providing an introduction to special education law continues. Previous posts have introduced the two basic concepts underlying IDEA, free and appropriate education and least restrictive environment. Today's post concerns eligibility and identification.

Identification and Eligibility

Issues pertaining to identification and eligibility are governed by IDEA § 612(a)(3) and 614 (b)(4)-(6). See, 34 C.F.R, § 300.121- 300.125, 300.300, 300.306, 300.307 – 300.311.

In summary, to be eligible, a child must have one of these enumerated conditions: mental impairment, hearing impairment (including deafness), speech or language impairment, visual impairment (including blindness), serious emotional disturbance (referred to in this part as “emotional disturbance”), orthopedic impairment, autism, traumatic brain injury, some other health impairment, a specific learning disability, deaf-blindness or multiple disabilities (which adversely affect his/her education) and, by reason thereof, needs special education and related services.

In addition as a third requirement for eligibility, most of the disabling conditions require that the condition adversely affects the child's educational performance.

Some Important Circuit Court Decisions

Marshall Joint School District No. 2 v. CD by Brian & Traci, D 616 F.3d 632, 54 IDELR 307 (7th Circuit, 8/2/10)

Seventh Circuit reversed HO (Hearing Officer) who found student eligible solely upon physician’s opinion that the student could benefit from adaptive PE. The Seventh Circuit noted that a physician may not simply prescribe special education; IEPT must consider relevant factors.

Alvin Independent School District v. AD by Patricia F., 503 F.3d 378, 48 IDELR 240 (5th Circuit, 10/4/07)

The fifth Circuit affirmed a holding that despite a fifth grader’s ADHD, he was not eligible for special education. The student consistently received passing grades, he succeeded on statewide tests and he was achieving in social situations. Accordingly, he did not by reason thereof “need special education and related services,” and, therefore, he was not a child with a disability as defined by the IDEA

Hood v. Encinitas Union School District, 47 IDELR 213 (9th Circuit, 4/9/07)

The Ninth Circuit applied the Rowley standard to an eligibility issue. Where the student consistently received above-average grades despite her disability, she received educational benefit and, therefore, was not eligible for SpEd. NOTE: One legal scholars has questioned whether the Rowley test is too restrictive for eligibility purposes. Weber, Mark: "The IDEA Eligibility Mess." 

IDEA also places a child find duty upon school districts. A district has an affirmative duty to identify and evaluate children with disabilities.
(District of Columbia Public Schools, (JG) 111 LRP 25934 (SEA DC 3/18/11).

The standard for child find is suspicion of a disability rather than actual knowledge. (District of Columbia Public Schools, (JG) 111 LRP 25934 (SEA DC 3/18/11).

Compton Unified School District v. Addison, 598 F.3d 1181, 54 IDELR 71 (9th Circuit, 3/22/10)

By a 2-1 vote, the Ninth Circuit rejected a school district argument that there is no child find duty because of language pertaining to prior written notice. The district argued that only an action or refusal is a violation. The Ninth Circuit held that a parent could file a DPC on any matter related to identification, evaluation, FAPE or placement so, therefore, Child Find violations are actionable.

Ridley School District v. MR & JR ex rel, ER 680 F.3d 260, 58 IDELR 271 (3d Circuit, 3/19/12)

Third circuit conducted a detailed review of the law concerning Child Find, and concluded that the Hearing Officer erred by failing to allow the school district a reasonable time to identify the student as disabled.

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