1) adversely affects his/her educational performance and

2) requires special education.

The qualifying areas of impairment set out in state eligibility regulations are:

Hearing impaired;
Both hearing and visually impaired;
Speech or language impaired;
Visually impaired;
Severely orthopedically impaired;
Impaired in strength, vitality, or alertness due to chronic or acute health problems severely chronic or acute health problems (other health impaired);
Autistic-like behaviors;
Mentally retarded;
Seriously emotionally disturbed;
Learning disabled.
Autism
Traumatic brain injury

The IEP team makes the actual determination of eligibility for special education and related services, based upon the assessment reports. The determination is not made solely by assessment personnel. Even if the student does not meet the eligibility criteria based on standardized testing, the IEP team may still find him eligible for special education services. Other measures of school performance may enable the student to qualify for services. Examples of other measures include class grades, classroom performance, school behavior, etc.

In terms of minimum age, a child may be eligible for special education services, in the form of early intervention services, from birth. Early intervention services are discussed in on the page titled Early Intervention Services. After age three and until school age, a child may be eligible for preschool special education. This is discussed on the Preschool Education Services page.

In terms of maximum age (and assuming the student has not yet graduated from high school), a student continues to be eligible for special education through his 18th year. Each state is different and may offer services for the student into his/her early twentys'. However, for services to continue through to this age, the student must have been in special education prior to the age of 19.

Your child does not need to be deaf to qualify as hearing impaired. Your child is eligible if s/he has either a permanent or fluctuating hearing loss that impairs his/her ability to process information presented through amplified hearing channels and which also adversely affect the educational performance. [34 C.F.R. Sec. 300.7(b)(3)]

If your child has both hearing and visual impairments which, in combination, cause severe communication, developmental, and educational problems, s/he is eligible for county and district programs. [34. C.F.R. Sec. 300.7(b)(2)]

A student with speech and language difficulties is eligible for special education services if she meets one or more of the following criteria:

1)Articulation Disorder which reduces intelligibility and significantly interferes with communication and attracts adverse attention. The student's articulation competency must be below what is expected for his/her chronological age or developmental level.

2)Abnormal Voice which is characterized by persistent, defective voice quality, pitch, or loudness.

3)Fluency Disorder in which the flow of verbal expression, including rate and rhythm, adversely affects communication between the student and listener.

4)Language Disorder in which the student has a language disorder when s/he meets both of the following criteria:

(a) Scores at least 1.5 standard deviations below the mean, or below the seventh percentile, for her chronological age or developmental level, on two or more standardized tests in one or more of the following areas of langguage development: morphology, syntax, semantics;

(b) Displays inappropriate or inadequate usage of receptive or expressive language as measured on a representative spontaneous language sample of a minimum of fifty utterances.

Once a student qualifies for special education services, s/he is eligible for any service required to meet her/his educational needs. The related service of speech and language therapy may be the only service some students need. Other students have speech and language disorders that are too severe for placement in a communicatively handicapped or severe language disorder special day class program. [34 C.F.R. Sec. 300.7(b)(11)]

Visually handicapped means a visual impairment which, even with correction, adversely affects a child's educational performance. The term includes both partially sighted and blind children.

The child's condition would have to:

1) affect your child's educational performance adversely and

2) not be temporary in nature.

Students with traumatic brain injury are also eligible for special education. These include an injury to the brain caused by an external force, resulting in total or partial functional disability or psycholsocial impairment, or both, that adversely affects his/her educational performance. The term applies to open or closed head injuries resulting in impairments in one or more areas, such as:

congition
language
memory
attention
reasoning
abstract thinking
judgment
problem-solving
sensory
perceptual and motor abilities
psychosocial behavior
physical functions
information processing
speech

The term does not apply to brain injuries that are congenital or degenerative or to brain injuries induced by birth trauma. [34 C.F.R. Sec. 300.7(b)(12)]

In order for a student to be considered mentally retarded, s/he must show deficits in adaptive behavior, as well as significantly below average general intellectual functioning, which adversely affects the child's educational performance. [34 C.F.R Sec. 300.5(b)(4)]

A student is considered seriously emotionally disturbed if he exhibits one or more of the following characteristics, over a long period of time and to a marked degree, which adversely affects educational performance:

1) An inability to learn which cannot be explained by intellectual, sensory, or health factors.

2) An inability to build or maintain satisfactory interpersonal relationships with peers and teachers.

3) Inappropriate types of behavior or feelings under normal circumstances exhibited in several situations.

4) A general pervasive mood of unhappiness or depression.

5) A tendency to develop physical symptoms or fears associated with personal or school problems. [34 C.F.R. Sec. 300.7(b)(9)]

Note that the disability category "seriously emotionally disturbed" is a creation of Congress, not a recognized psychiatric diagnostic category. Thus, the term does not require a particular psychiatric diagnosis - such as schizophrenic, depression, etc. A student does not need to have a psychiatric label to be eligible under federal definitions of seriously emotionally distrubed.

A medical diagnosis of attention deficit disorder or attention deficit hyperactive disorder alone is not sufficient to make a student eligible for special education services. An IEP team, after the required comprehensive evaluation, must determine that the student meets a federal and/or state eligibility category. A September 16, 1991, Joint Policy Memorandum from the U.S. Department of Education says that state and local education agencies:

....must ensure that children with ADD who are determined eligible for services. . . receive special education and related services designed to meet their unique needs, including special education and related services needs arising from ADD.

Most commonly, students with ADD/ADHD may be eligible under the "specific learning disability" category, the "seriously emotionally distrubed" category, or the "other health impaired" category. School districts have not widely utilized the "other health impaired" category to qualify a student with ADD/ADHD for special education services. However, the federal Joint Policy Memorandum specifically addresses the "other health impaired" category:

Children with ADD, where the ADD is a chronic or acute health problem resulting in limited alertness, may be considered disabled under Part B solely on the basis of this disorder within the "other health impaired" category in situations where special education and related services are needed because of ADD.

To be considered learning disabled under the eligibility criteria, a student must meet three major requirements.

S/he must have a disorder in one or more of the basic psychological processes involved in understanding or using spoken or written language. The basic psychological processes include:

attention
visual processing
auditory processing
sensory-motor skills
cognitive abilities (including association, conceptualization & expression)

That the disorder may manifest itself in an impaired ability to listen, think speak, read, write, spell or do mathematical calculations.

The student must have a severe discrepancy between intellectual ability and achievement in one or more of the academic areas referred to in the law.

The regulations define intellectual ability as including both acquired learning and learning potential as determined by a systematic assessment of intellectual functioning. The student's level of achievement includes his/her level of competence in materials and subject matter explicitly taught in school as measured by standardized achievement tests. The academic areas identified in the law are:

oral expression
listening comprehension
written expression
basic reading skills
reading comprehension
mathematics calculation
mathematics reasoning

Some people will claim that there is a 2 year rule, that the student must be two years behind academically to be considered LD. There is no reference in the federal eligibility criteria for learning disabilities requiring that a student be two years behind academically. The criteria do require that the student have a severe discrepancy between ability and achievement. Therefore, the student's academic achievement must be compared to his own ability levels, not to other students' ability or to expected grade level performance. The district has an obligation to follow federal eligibility criteria. [34 C.F.R. Sec. 300.7(b)(10)]

A child who may have problems in learning may not be found eligible for special education services because s/he does not fit into one of the special education eligibility categories and/or because his/her learning problems are not severe enough to qualify him for special education. (This is often the case for children identified as being hyperactive or having dyslexia or ADD, none of which automatically qualify a student for special education under federal law.) Such a child, however, may be eligible for special services and program modifications under a federal anti-discrimination law designed to reasonably accommodate the student's condition so that his needs are met as adequately as the needs of non-disabled students. The law is commonly known as Section 504 of the Rehabilitation Act of 1973. [29 U.S. Code Sec. 794; implementing regulations at 34 C.F.R. 104.1 and following.]

Section 504 eligibility is not based on a categorical analysis of disabilities (except that some conditions, such as ADD, are frequently recognized as Section 504 qualifying conditions). Rather, Section 504 protections are available to students who can be regarded as "disabled" in a functional sense. Such students:

1) Have a physical or mental impairment which substantially limits a major life activity (such as learning).
2) Have a record of such an impairment.
3) Are regarded as having such an impairment.

If your child is not found to be "disabled" for purposes of Section 504 accomodations and/or services, you can appeal that determination. The local education agency is responsiblefor arranging the Section 504 hearing process. The hearing officer selected by the local edducation agency must be independent of the local agency. The hearing officer could be, for example, a special education administrator from another school district, from the ocunty office of education or from a special education local plan area - as long as there is not conflict of interest.

The Office of Civil Rights administers and enforces Section 504 protections in education. If you believe your child has not been afferded his/her rights under Section 504, you may file a complaint with your local OCR.

An OCR Memorandum written April 29, 1993, addressess this issue.

The question it was answering was whether or not a child. . . who has a disability within the meaning of Section 504 but not under the IDEA, is entitled to receive special education services.

It stated that if a child. . . is found to have a disability within the meaning of Section 504, s/he is entitled to receive any special education services the placement team decides are necessary. [19 IDELR 876]

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