Welcome to the first edition of Rivers Law, Inc.’s quarterly newsletter! We are delighted to be expanding the reach of our attorneys’ knowledge to provide you helpful information and insight into key topics within special education law. Please note that this newsletter is intended to provide general information regarding special education law, and should not be construed as providing legal advice, representation or agreement. Every student and case is unique. If you are concerned about special education issues affecting your child, please call our office to schedule a free 30-minute consultation with one of our attorneys at 818-330-7012.

For our first edition, we will be starting at the beginning with a discussion of special education eligibility – how can a student be eligible for special education?

The Individuals with Disabilities Education Act (IDEA)

The first thing to understand is that special education was created and is defined by a very important federal law – the Individuals with Disabilities Education Act, more commonly referred to as the IDEA. If you are interested in reading the law, it can be found starting at 20 U.S.C. §1400. The portions of the California Education Code regarding special education mirror the federal law in many ways, including regarding eligibility.

The IDEA says that a student is eligible for special education if they meet two criteria: (1) The student must meet one of the 13 categories of eligibility AND (2) as a result of that disability, requires special education services to access his or her education.

13 Categories of Eligibility

The 13 qualifying categories of disability included in the IDEA are:

1. Autism
2. Deaf-blindness
3. Deafness
4. Emotional Disturbance
5. Hearing Impairment
6. Intellectual Disability
7. Multiple Disabilities
8. Orthopedic Impairment
9. Other Health Impairment (e.g. diabetes, seizure disorder, heart condition)
10. Specific Learning Disability
11. Speech or Language Impairment
12. Traumatic Brain Injury
13. Visual Impairment, Including Blindness

All thirteen disabilities listed have specific definitions that the IEP team must discuss whether the student meets. To read the definition of any of the above disabilities, please see this section of the Code of Federal Regulations, which provides important definitions for terms used in the IDEA: 34 C.F.R. § 300.8.

A Note on Other Health Impairment (OHI)

One of the most common categories of eligibility that our clients meet is Other Health Impairment, or OHI, for short. One of the reasons many students meet this eligibility is that Attention Deficit Disorder and Attention Deficit Hyperactivity Disorder (ADD/ADHD) are included within this category. These are very common disabilities in children that often require special education interventions. Parents often find it confusing which category their child with ADD or ADHD would meet, since those exact disabilities are not their own categories.

If your child has any other disability (e.g. diabetes, seizure disorder, heart condition) he/she may qualify for services under OHI if the symptoms reduces your child’s strength, stamina, focus, or alertness.

Diagnosis versus Eligibility

It is also important to know that there is a difference between qualifying for services under one of these categories under the IDEA and being diagnosed with a disability or condition by a psychologist, psychiatrist, or other type of doctor. Although there are many similarities in the symptoms these professionals and school psychologists are looking for, school districts cannot require the student to have any diagnosis of a disability to qualify for special education. Instead, they must complete assessments to determine if the student meets the requirements for special education.  However, having a diagnosis or an outside report can be helpful for the school evaluation process and you can always provide copies of those documents to the district to review and consider.

Any time a student shows signs of any of the above disabilities resulting in difficulty making progress in school, his/her school district must refer the student for assessments to determine eligibility and their individual needs for specialized instruction and other services.

Stay tuned for our next edition, where we will be discussing assessments: how to request them, what assessments school districts must complete, and what to expect during the process!

“This newsletter is not to be construed as providing legal advice, representation or agreement by Rivers Law, Inc.”