In order for a child to qualify as a child with a disability and receive special education services and supports under the Individuals with Disabilities Education Act (I.D.E.A.), a child must first be assessed by the school district. This assessment is called the psychoeducational evaluation. The results of the psychoeducational evaluation will then be presented to the Individualized Education Planning (known as the IEP) team. The IEP team consists of qualified professionals and the parent of the child. The IEP team then has the authority to make decision as to whether a child is eligible for special education.

Generally, an IEP team will find that a child is eligible for special education services if:

  • The child is between 3 and 22 years old
  • The child has one or more of the following: mental retardation, a hearing impairment, a speech or language impairment, a visual impairment, an emotional disturbance, an orthopedic impairment, autism, traumatic brain injury, other health impairment, a specific learning disability, deaf-blindness, or multiple disabilities
  • Because of the disability, the child needs special education services and supports

To be eligible under I.D.E.A., there are thirteen categories:

  • Autism
  • Deaf/blindness
  • Deafness
  • Hearing impairment
  • Mental retardation
  • Multiple disabilities
  • Orthopedic impairment
  • Other health impairment (impairment in strength, vitality, or alertness due to chronic or acute health problem, e.g. ADHD, Epilepsy)
  • Emotionally disturbed
  • Specific learning disability
  • Speech or language impairment
  • Traumatic brain injury
  • Visual impairment

Certain eligibility categories are broader, or require some more explanation to fully understand.

OTHER HEALTH IMPAIRMENT: The category of "other health impairment" is a very broad category that can include a child with attention deficits. This category encompasses children that have a variety of health problems such as diabetes or epilepsy that cause the child to have limited alertness to the educational environment. ADD and ADHD can fall into this category because, if a child is also hyper-alert to extraneous things in the environment, it is then difficult for him to be alert to his or her educational environment. A diagnosis, while helpful, is not necessary to qualify for special education services under this category.

Children with ADD and ADHD can also fall under the category of specific learning disability. Generally, a child will be found to have a specific learning disability if there is a notable difference between his or her intellectual ability (or I.Q.) and actual functioning in the classroom, and this difference is caused by difficulties with processing information. Children with ADD or ADHD can fall under this category if it is found they have difficulties with attention processing.

EMOTIONAL DISTURBANCE: The last category that deserves some attention is that of emotional disturbance. Emotional disturbance generally encompasses children that have mental health diagnosis, or who have severe behavioral issues. However, a diagnosis is not necessary to qualify under this category. A child will be found to qualify under this category if he or she has one or more of the following over a long period of time, in multiple settings (such as the school and the home), and it has an adverse effect on the child's education: (1) the child does not have any intellectual, sensory, or health issues, however, the child is not able to learn, (2) the child cannot build or keep meaningful relationships with friends or with teachers, (3) the child has inappropriate behaviors or feelings under normal circumstances, (4) the child is generally unhappy or depressed, and (5) the child becomes sick or fearful in relation to problems at home or school.

It is important to note that, although a child must be found to fall under one of the 13 eligibility categories to qualify for special education services and supports, these categories are simply legal definitions. The eligibility categories do not drive services. Therefore, if a child is found to be eligible for special education under any one of these 13 categories, then all the services and supports available under an IEP can be considered. The type of services and supports must be driven by the unique needs of each individual child, not by his or her eligibility category.

California Autism Education

A diagnosis is also not necessary for a child to qualify under the category of autism. This is because the law looks at whether a child has "autistic-like characteristics" rather than a diagnosis. If a child has any of the following, he may qualify as a child with autistic-like behaviors: an inability to use oral language to communicate, a history of inappropriate language or difficulties with social interactions, a strong resistance to any changes, extreme preoccupation with objects, or inappropriate use of objects, extreme resistance to controls, unusual movements, and self-stimulating, ritualistic behaviors.

Despite the number of categories, it can be difficult to identify special needs students if their disability is not immediately apparent. There may be assumptions made by teachers and school administrators that these children are just lazy, inattentive or defiant.

The lawyers at Augustin Egelsee understand that not all children fit into neat little boxes. During our extensive evaluation of your child's records, we look for discrepancies between the child's IQ and how he or she is performing, not just whether he or she falls within certain guidelines.

Contact the Orange County special education attorneys at Augustin Egelsee so we can discuss your circumstances, explain your rights and set you and your family in the right direction.

We provide effective and efficient legal representation with the goal of improving the lives of the children we represent.

Services can be provided in Spanish and Korean, upon request.