Individualized Education Program, Timelines and Eligibility FAQ

What is the role of each person on an IEP team
Neither the California Education Code nor the Federal Code of Regulations delineates roles for IEP team members. IEP team members are listed in California Education Code in Section 56341 (b). Briefly, they are (1) one or both parents (2) not less than one regular education teacher (3) not less than one special education teacher or special education provider (4) a representative of the local educational agency (LEA), (5) an individual who can interpret the instructional 
implications of the assessment results. The individual may be a member of the team described in (2) to (6). * (6) At the discretion of the parents or the LEA, other individuals who have knowledge of the pupil including related services personnel as appropriate. (7) Whenever appropriate, the individual with exceptional needs.

Under (b)(2) the regular teacher shall participate in the development … of the IEP including assisting in the determination of appropriate positive behavioral interventions and supports, and other strategies for the pupil and the determination of supplementary aids and services, program modifications, and supports for school personnel that will be provided for the pupil.

The LEA representative meets the following: (A) is qualified to provide or supervise the provision of specially designed instruction; (B) is knowledgeable about the general education curriculum; (C) is knowledgeable about the availability of resources of the LEA.

Section 56341 (c) adds- for a pupil suspected of having a specific learning disability, at least one member of the IEP team shall be qualified to conduct individual diagnostic examinations of children, such as a school psychologist, speech-language pathologist, or remedial reading teacher.

*Note- an individual of the IEP team may serve in more than one capacity at the meeting.

There is an 18-year-old student enrolled in an alternative high school and is scheduled to graduate before the due date of the initial IEP meeting. Can an IEP meeting be held for a student when he is no longer enrolled?
A student that has graduated from high school is no longer eligible for special education under IDEA. An LEA has no obligation to hold an IEP meeting if special education is not a consideration, as the student has already graduated. It would be appropriate to provide the report and offer to explain anything that was unclear.


Has there been a change in the 60-day timeline that allows not counting vacation days in excess of five?

This provision remains in the California Education Section 56344.


If consent to an assessment plan is received 30 days before the end of the school year, it is due within the first 30 days of the new school year. If the assessment plan is received 35 days before the end of the school year, are we required to complete the assessment before the end of the school year?

Districts may interpret this in different ways. However, according to California Education Code the timeline is not truncated and the district would have 25 days into the following school year.


How does a student with ADHD qualify for special education?

The student with ADHD can qualify for special education under the following eligibility criteria: Emotionally Disturbed, Specific Learning Disability, and Other Health Impaired. OHI and ED criteria do not require a specific ability/achievement discrepancy.
If the team feels that the child with ADHD is most appropriately eligible as a student with a specific learning disability, then an ability achievement discrepancy is typically required, unless using other models of assessment.


Is a doctor’s prescription necessary to diagnose ADHD for educational purposes?

No. A school psychologist can identify students as having ADHD and is probably the most qualified professional to make this determination. There is no requirement in either Federal Code of Regulations or in California Education Code for a medical doctor to make this diagnosis. Generally, the term “identify” is used when evaluating students for a disability, as per IDEA. 
An August 14, 1999 letter to Deanne Neiman from Sam Neustadt, California Department of Education clearly states that no doctor’s prescription is needed for an ADHD identification. Further, “Identifying and Treating ADHD” published in 2003 by the US Office of Special Education states: “The child’s IEP team uses the results of the evaluation to determine the educational needs of the child. The results of a medical doctor’s, (school) psychologist’s, or other qualified professional’s assessment indicating a diagnosis of ADHD may be an important evaluation result, but the diagnosis does not automatically mean that a child is eligible for special education and related services.” In an earlier document, OSEP letter to Michel Williams, March 14, 1994 there is a requirement that if an LEA does require a medical diagnosis, the district must pay for the evaluation.


Does a student need to have a formal diagnosis of ADHD to be placed on an IEP?

Having a diagnosis of ADHD by itself does not make a student eligible for an IEP. The assessment must also show that by reason of the disability the student needs special education and related services.


What level of credential is needed by the person doing the diagnosing? Is it valid/justified to use a diagnosis from county mental health if the “therapist” is an intern?

It is the responsibility of the district to conduct its own assessment. The IEP team may consider an outside assessment but has no obligation to use it. No single factor determines eligibility and it is a team decision. 


Does consideration for special education services for a child with a TBI now fall under SLD? What is the Ed code language to be used in the report?

No, TBI became a separate disability category under IDEA in 2004 and has also been a separate disability under CA Title 5. It should never be mis-labeled as SLD because TBI, by its nature, is completely different from SLD in etiology, and so requires different assessments, interventions, and treatment. Students who suffer mild to severe TBI may experience a prolonged (months to years) partial recovery. This does not occur with SLD. 

IDEA defines TBI as “an acquired injury to the brain caused by an external physical force, resulting in total or partial disability or psychosocial impairment, or both, that adversely affects a child’s educational performance. The term applies to open or closed head injuries resulting in impairments in one or more areas such as cognition; language; memory; attention; reasoning; abstract thinking; judgment; problem solving; sensory, perceptual and motor abilities; psychosocial behavior; physical functions; information processing, and speech. The term does not apply to brain injuries that are congenital or degenerative, or to brain injuries induced by birth trauma,” [34 Code of Federal Regulations 300.7(c)(12)].

Definition of TBI: TBI is a complex disability. A teacher who will instruct a student with TBI must have a special credential authorization in order to work with the student. [Note: Authority cited: Section 56100, Education Code. Reference: Sections 56026, 56320, 56333 and 56337, Education Code; 20 U.S.C. Sections 1401(3)(A) and 1414(a) and (b); and 34 C.F.R. Sections 300.8, 300.300, 300.301, 300.304, 300.305, 300.306, 300.307, 300.308, 300.309 and 300.311.]


Is Developmental Disability a fourteenth disability under federal or California law?

No. According to the Centers for Disease Control and Prevention “Developmental disabilities are a group of conditions due to an impairment in physical, learning, language, or behavior areas. These conditions begin during the developmental period, may impact day-to-day functioning, and usually last throughout a person’s lifetime.”


Who makes the determination of Emotionally Disturbed (ED) eligibility when the site team of a school psychologist, a school social worker, and a school behavior specialist do not agree?

Although the Ed Code specifies that only the school psychologist can assess emotional functioning, it is the IEP team that makes the determination of the disability. The assessments by each provider should be carefully reviewed.


Legally, which part of the Ed Code needs to be in the psych report and/or in the eligibility statement regarding Specific Learning Disability?

  1. Per California Ed Code, all reports should have the following information:
  2. Whether the pupil may need special education and related services and the basis for that determination
  3. Relevant behavior noted during observation of the pupil
  4. The relationship between the behavior and the pupil’s academic and social functioning
  5. Educationally relevant health and development and medical findings, if any
    For students with learning disabilities, any discrepancy between ability and achievement that cannot be corrected without special education and related services
  6. A determination of the effects of environmental, cultural, or economic disadvantage
  7. The need for specialized services, materials, and equipment for low incidence disabled students

Of these, only number five specifically references specific learning disabilities. The California Ed. Code gives multiple options for determining a discrepancy, including a) comparing achievement with ability as measured by a test of intellectual ability, b) comparing achievement to state-approved grade-level standards, c) comparing achievement to response to research-based interventions, or d) examining a “…pattern of strengths and weaknesses in performance, achievement, or both, relative to age, State-approved grade-level standards, or intellectual development.” Although there is no mandate to “include Ed Code” in your report, it would be good practice to explain your decision regarding eligibility by referencing one of the approaches above.
Ed. Code also requires that students suspected of a learning disability be observed in their “learning environment.” If a student receives instruction in a classroom, the regulations appear to require an observation in that environment. Your report should clearly state that you did an observation and it should be included in your report although there is no mandate that it be in a separate section of the report. It is more in keeping with the intent of the law that the observation be useful in determining the presence of a disability and be integrated with other information in your decision rather than be a stand-alone piece of data that does not appear to contribute anything to your decision.