In order to receive special education services under federal and state law, a student must qualify as a child with a disability. A “child with a disability” is statutorily defined as a child with intellectual disabilities, hearing impairments, speech or language impairments, visual impairments, serious emotional disturbance, orthopedic impairments, autism traumatic brain injury, other health impairment, or specific learning disability and who, by reason thereof, needs special education and related services. 20 USC Section 1401(c)(A). A student with a qualifying disability is not automatically entitled to an IEP. There must be a demonstration of a need for special education and related services.
In 2017, the 9th Circuit Court of Appeals addressed the issue of whether the student had demonstrated the need for special education services. (L.J. v. Pittsburg Unified School District (9th Cir 2017) 850 F.3d 996. The student met three eligibility criteria and was receiving services from the school. The school provided the services as “general education services.” These services included mental health counseling, a one-to-one aide, and other classroom based accommodations. The court found these services to be special education services. It was determined L.J. met both prongs of the eligibility criteria.
The 9th circuit court discussed the distinction between general and special education services. General education is what is provided to non-disabled children in the classroom. Students in the general education setting do not receive specialized services. In contrast, special education is “specially designed instruction” to meet the unique needs of a child with a disability. (34 C.F.R. Section 300.39(a)(1)).
“Specially designed instruction” means adapting, as appropriate to the needs of an eligible child the content, methodology, or delivery of instruction to:
- address the unique needs of the child that result from the child’s disability; and
- ensure access of the child to the general curriculum
( 34 C.F.R. § 300.39(b)(3)).
If your child has a disability (or suspected disability) that interferes with their school performance, they may be eligible for an IEP. You can request the school assess your child by submitting a written request explaining your child’s disability (or suspected disability) and how you believe it impacts their school performance. If the school determines your child has a disability, they will also look at whether your child requires specially designed instruction.
If you have further questions regarding this topic, feel free to contact Kristin Springer at 925-551-1041.
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