How Important is Your Child’s Designation?
July 17, 2012 in Ask the Special Ed Lawyer, Community Wisdom, Featured by dianaglick
As discussed in previous articles, eligibility is found when a student has one or more qualifying disabilities and the IEP team determines that special education services are necessary for the child to access his or her education. When a student has a single and very obvious disability, this is a very straightforward process and if you are not wondering about the designation (disability category) that will be listed on your child’s IEP, you are probably in one of these straightforward situations.
This discussion is geared towards those families who are struggling to identify an appropriate designation and wondering how the choice of one or another might affect their child’s ability to obtain services.
A Ticket to the Game
From a legal perspective, a designation is simply a “ticket to get into the game” and does not necessarily result in any particular placement or services. Further, students and parents are not legally entitled to any particular designation; rather, the right is to a free appropriate public education (FAPE). This is because special education is “specially designed instruction” that is supposed to focus on the unique needs of the child. If your child needs a specialized reading intervention, he or she can access these things through any of the qualifying disabilities on the list. The law does not assign specific services to certain designations but requires that any condition impeding the child’s access to his or her education be addressed. In other words, a child could have a vision impairment, but have “autism” checked on his IEP. As long as that child receives services to address his vision impairment sufficient to be considered a FAPE, the fact that he has a totally random designation means nothing in the legal world.
Back to Reality…
However, setting aside the legal framework of the IDEA and coming back to the real world, it is highly unlikely that a student who is hard of hearing will automatically be considered for mental health services or any other service that may not necessarily jump to mind when thinking about the needs of students with hearing impairments. It also means that a student who is eligible with a designation of Speech/Language Impairment (SLI) may not be offered more intensive interventions that would be considered for a child with a designation of Autism, even if the student with an SLI requires these services in order to access his education. In reality, some families face an uphill battle in obtaining all the services their children need and in those cases it’s important to have the most accurate designation possible.
In addition, some states have categories of “low incidence” disabilities, which are tied to a certain level of funding based on the ability to access federal funds for these particular disabilities. While in an ideal world, a designation determination would never be driven by the funding or services available, this often ends up being a factor in the IEP team’s decision-making process.
One of the most important things to remember is that designation is an IEP team decision, which means that everyone’s input is important, including that of parents, assessors and teachers. There is also a difference between a medical diagnosis and an educational designation. A doctor’s diagnosis can inform the team, but a student’s designation is determined according to educational criteria.
While there is no set formula for determining the proper designation, there are some key questions that can be posed to the team that will help frame the discussion:
1. What, if any, medical diagnoses does the student have?
➢ While the designation is an educational decision, a medical diagnosis in some situations is an excellent “jumping off point” for the IEP team’s deliberations.
2. What are the key areas of need demonstrated by the student?
➢ You will want to consider needs observed during evaluations, in the classroom and by the parents in the home and school settings
3. Of the challenges and deficits experienced by the student, which is the biggest impediment to his ability to access his education?
As a special education attorney, I saw many families face the “ED or OHI?” conundrum. This occurs when a child has a diagnosis of ADHD, which would usually point towards the Other Health Impairment (OHI) category. However, sometimes students with ADHD also have moderate to severe mental health issues and could also be considered Emotionally Disturbed (ED). There are many factors that go into a decision to opt for one designation or another, including the predominant behavioral challenges experienced by the student, his or her age, and in some cases the student’s preference.
Just When You Thought it Couldn’t Get More Complicated
Some District IEP forms contain spaces for a “primary” and a “secondary” disability category. Just as there is no legal right to a particular designation or a correct designation, the law does not distinguish between primary and secondary designations. In some cases, being able to put down more than one category can help resolve a conundrum, such as determining whether a child should be considered ED or OHI. In other cases, it can lead to more confusion and conflict as IEP teams feel compelled to identify which of two disabilities is primary and which is secondary. If you find yourself being dragged into a conflict about designation, take a step back and look at the big picture: what are my child’s needs as determined by the assessments and parental input and what services are being offered to address these needs?
Despite the fact that eligibility categories do not drive litigation, they can have a significant effect on the way a child and his or her needs are viewed by school professionals. The determination and agreement on a child’s designation is a key part of the IEP team’s process of identifying needs and matching services to satisfy those needs, with the goal of offering the child a free appropriate public education.
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Disclaimer:
This column reflects the views of Diana B. Glick in her individual capacity. Diana represented parents and students as a special education attorney for four years and is now a legislative analyst with the California Assembly.
The purpose of this column is to assist in dissemination of information about federal special education law, but no representation is made about the accuracy of the information. The information contained in this column is provided only as general information for education purposes, and topics may or may not be updated subsequent to their initial posting.
By using this column you understand that this information is not provided in the course of an attorney-client relationship and is not intended to constitute legal advice. This blog site should not be used as a substitute for competent legal advice from a licensed attorney in your state. This column is not intended to be advertising and Diana B. Glick does not seek to represent anyone desiring representation based upon viewing this blog site in a state where this blog site fails to comply with all laws and ethical rules of that state.
The most important thing to remember about assessments is that they not only determine eligibility — they also drive placement and services.
This is a rather cynical title. But, in case you ever need to seek the advice of an attorney or bring litigation against the school district over your child’s special education program, there are certain documents that you will want to be able to locate and present to an attorney. On a less cynical note, it’s always good to have an organized binder with your child’s important documentation. There are professional organizers who comment on this blog about organizing your life when you have a child with special needs and nothing in this column should be construed as going against their advice. This is more of an attempt to piggy-back on the concept of organization from a legal perspective.
In the ideal IEP meeting, each of the following occurs:
Sometimes, parents are intimidated by the committee of experts facing them in the meeting (those kid-sized chairs don’t help either!). I try to empower my clients and remind them that they are the parents—who knows their child better? No one! It’s always important to listen to the assessors, teachers and other service providers who are working with your child, but let your gut be your guide. This means that you should feel confident about asking questions and expressing any disagreements you have about your child’s abilities and needs. For example, an IEP will indicate your child’s “present levels of performance.” If a blanket statement is made such as, “Sam is a delightful child with many friends,” and you happen to know that Sam is a delightful child with such a severe language disorder that he cannot participate in age-appropriate conversations and therefore does not have many friends, speak up about this.
