Chapter 4 REFERRAL AND IDENTIFICATION What This Chapter Is About A parent or school can refer a student with a disability for special education services; in fact, schools have an affirmative obligation to find students with disabilities who may need help, including students who are homeless and those attending private or charter schools. A student with a disability is eligible for special education services and supports if he or she fits into one of 13 categories of disability. Students who do not fit into one of the categories may still receive help under Section 504 of the Rehabilitation Act. Advocacy Hints in Chapter 4 * Make sure your local charter school fulfills its student find responsibility (Page 2). * Request a due process hearing if your child attends private school and your public school district will not evaluate him or her for special education (Page 4). * Once your child is eligible for special education, he or she may receive any of the full range of special education services available (Page 5). * Eligibility for special education services is determined by the IEP Team and not by labels the student carries from other service systems (Page 6). * Use the “other health impairment” category to make your child with attention deficit disorder or other health conditions eligible for special education (Page 7). * Children up through age 7 may be identified with early childhood developmental delay, but programs and services under that category may serve children only up through age 5 (Page 7). * The new “response to intervention” approach to identifying students with specific learning disabilities may benefit students with other disabilities, but it is not required for those students prior to evaluation for eligibility and may not be used to delay a requested evaluation (Page 8). * Use the definitions of “major life activities” in federal law to help your child be eligible for assistance under Section 504 (Page 12). * Students with attention deficit disorder or other disabilities may be eligible for services under Section 504 (Page 13). The process the school must use to determine which students are eligible for special education is set forth in the Michigan Administrative Rules for Special Education (MARSE). The MARSE describe each step of the procedure, identify the expertise of the evaluators, and explain the protections afforded. Clear timelines are provided so that the student does not have to wait indefinitely for help. In most situations, the need for special education is clear and uncontested by either the school or the student’s parent. For some students, however, additional evaluations, extraordinary expertise or the exercise of due process rights is necessary. Special education eligibility and the educational assistance and protections this offers the student are extremely important. It is important to know the process for determining eligibility and to know what to do if there are difficulties along the way. Child Find IDEA instructs the state to engage in “Child Find” activities. This means that schools cannot just sit back and wait for parents, teachers, or other interested people to notify them about a student who may need special education services. They must have a method in place to search out and identify students who need services. The school must also find ways to determine which children are receiving special education and related services. 20 USC 1412(a)(3); 34 CFR 300.111. Child Find extends to nonpublic schools as well. 34 CFR 300.131. Under the 2004 IDEA Amendments, schools must consult with private schools regarding child find and the needs of private school students with disabilities. Private schools may complain to the state and to OSEP if they feel the consultation process has not been followed or was not meaningful. 20 USC 1412(a)(10); 34 CFR 300.136. ?Advocacy Hint: Child Find in charter schools. Because charter schools operate as a separate school district, using public money, they have the same responsibilities as any other district in Child Find matters. As may any other school district, a charter school may call upon their intermediate school district for assistance and expertise on special education issues. Protections for Students Not Yet Identified Holding schools responsible for finding students in need of special education services protects students in several ways. It provides help for students whose parents may not know about available services; it identifies a source of information and assistance for the parents of an infant with disabilities, or at risk of developing them; it protects students who may not have a “parent” to address their rights; and it provides an experienced pool of teachers and administrators who may recognize disabilities before a parent may suspect their existence. The responsibility for identification also protects students who have behavior difficulties which have led to suspension or expulsion. Repeated suspensions or expulsion may indicate that a student may have an undetected disability that may qualify them for special education or services under Section 504. If there is some reason to suspect that the student has a disability such as an emotional impairment or a learning disability but the student has not been evaluated, a special education referral will stop the expulsion process and will return the student to school or an alternative educational placement until an evaluation and an individualized education program team (IEP Team) can determine whether the student is eligible for services. If the student is eligible for special education, the student returns to school with the protections and services of this law. If the student has already been expelled, the referral, evaluation and IEP TEAM can still take place. The student’s school district retains the responsibility for evaluating and holding an IEP Team and for eligible students, providing services in the appropriate environment. Please see the “Suspension and Expulsion” chapter of this manual for a complete explanation of this process. The protections of IDEA apply to each student for whom it can be determined that the school has some indication that special education services may be needed. IDEA lists three situations in which it is determined that the school knew that a student may have needed special education services: 1. The parent of the student has expressed concern in writing (unless the parent is illiterate or has a disability that prevents compliance with the requirements contained in this clause) to supervisory or administrative personnel of the appropriate educational agency, or the student's teacher, that the student is in need of special education and related services; 2. The parent of the student has requested an evaluation of the student; or, 3. The teacher of the student, or other personnel of the local educational agency, has expressed specific concerns about a pattern of behavior demonstrated by the student directly to the director of special education of such agency or to other supervisory personnel in the agency. 20 USC 1415(k)(5); 34 CFR 300.534. Referral Any parent or school representative can refer a student as possibly needing special education. Within ten (10) school days after receipt of a written referral, the school must notify the parent of the referral and request written consent to initially evaluate the student. This notice must include the parent’s procedural safeguards, the reasons for and scope of the evaluation and a list of available special education services within the intermediate school district. 34 CFR 300.504; R 340.1721. A student is eligible for special education if he or she: 1. is not more than 25 years old as of September 1st; 2. has one or more of the disabilities listed in the federal or state rules; 3. needs special education or related services; and 4. has not graduated with a high school diploma. A student who turns 26 after September 1st is eligible for special education services until the end of the next school year. R 340.1702. Referral in Private Schools The school district’s Child Find plan must include a provision for individual evaluation of students who may qualify for special education and are attending a private school located geographically within that school district. If a parent or teacher of a student enrolled in a private school or in a registered home school suspects that a student may have a disability requiring special education services, they may also contact the school district in which the student lives to request that the student be evaluated. The process and timelines for completing a private school referral are the same as for any other student in the district. 34 CFR 300.131. ?Advocacy Hint: Child Find and due process. When parents voluntarily place children in nonpublic schools for reasons not related to special education services, they forfeit the right to request a due process hearing in most situations—except for a school district’s failure to conduct Child Find, including individual evaluations. 34 CFR 300.140. Referral in Charter Schools and Public School Academies Because of the status of charter schools, also known as public school academies (PSAs) in Michigan, as separate school districts, the process for identifying students as possibly eligible for special education and evaluating them may be carried out entirely by the charter school. Charter schools who lack staff or expertise may request help from their ISD as may any other school district. Eligibility Under IDEA and State Law Students with disabilities who may be eligible for special education services include those who: * have a cognitive impairment, R 340.1705; * have an emotional impairment, R 340.1706; * are deaf or hard of hearing, R 340.1707; * have a visual impairment, R 340.1708; * have a physical impairment, R340.1709; * have another health impairment, R 340.1709a; * have a speech and language impairment, R 340.1710; * have early childhood developmental delay, R 340.1711; * have a specific learning disability, R 340.1713; * have severe multiple impairment, R 340.1714; * have autism spectrum disorder, R 340.1715; * have a traumatic brain injury, R 340.1716; or, * have a deaf-blindness determination, R340.1717. ?Advocacy Hint: One category, all services. Qualifying under a specific disability category is a “ticket” into the special education system. The category does not determine or limit placement or services. All special education services determined by the evaluation process to be necessary for the student to benefit from his or her education must be provided. 34 CFR 300.304(c)(6). The criteria that establish eligibility for special education under each of the disability categories are summarized below. Note: The terms used in the federal special education regulations to describe impairment categories in which students qualify for special education services vary somewhat from those in the MARSE. Differences that may be important to individual students are noted. 34 CFR 300.8. The criteria for each disability category also include the necessary members of the multidisciplinary evaluation team for each category. The state rules specify which professional evaluators must be included on the team for each area of suspected disability. In addition to those professionals identified in the rules, multidisciplinary teams that perform initial evaluations should include qualified professionals that will evaluate the student in all areas of suspected disability. Cognitive Impairment — development at a rate approximately 2 or more standard deviations below the mean as determined through intellectual assessments, scores approximately within the lowest 6th percentile on a standardized test in reading and arithmetic, lack of cognitive development, impairment of adaptive behavior, and an adverse effect on the student’s educational performance. The multidisciplinary evaluation team must include a psychologist. R 340.1705. Emotional Impairment — manifestation of behavior problems primarily in the affective (emotional) domain over an extended period of time that adversely affect the student’s education to the extent that the student cannot profit from learning experiences. The behavior includes one or more of the following characteristics: * inability to build or maintain satisfactory interpersonal relationships in school; * inappropriate types of behavior or feelings; * general pervasive mood of unhappiness or depression; or * tendency to develop physical symptoms or fears associated with personal or school problems. * Students with emotional impairment also include those who exhibit behavior related to schizophrenia or similar disorders but does not include students who are “socially maladjusted, unless it is determined that the persons have an emotional impairment.” Therefore, if the student is determined to have an emotional impairment and found to be socially maladjusted, the student will still meet the eligibility criteria. The multidisciplinary evaluation team must include a school social worker and a psychologist or psychiatrist. The team must document behavior in all settings and the interventions used to address it. R 340.1706. (Note: In the category "Emotional Disturbance," Federal rules add a fifth possible element — “an inability to learn that cannot be explained by intellectual, sensory, or health factors” — and require only that the behavior adversely affect educational performance, not an inability to benefit from education. 34 CFR 300.8(c)(4).) ?Advocacy Hint: Different systems, different labels. In some cases, a student may be eligible for mental health services as a student with an emotional disturbance (defined by the U.S. Department of Health and Human Services), but not eligible for special education as a student who has an emotional disturbance or emotional impairment (defined in special education law). Eligibility for special education services under any special education category is determined by the IEP Team and not by labels the student carries from other service systems. Deaf or Hard of Hearing — any type or degree of hearing loss that interferes with development or adversely affects educational performance in a regular classroom setting. The multidisciplinary evaluation team must include an audiologist and an otolaryngologist or otologist. R 340.1707. Visual Impairment — an impairment that interferes with development or adversely affects educational performance plus one or more of the following characteristics: * a central visual acuity for near or far point vision of 20/70 or less in the better eye after correction; * a peripheral field of vision restricted to no greater than 20 degrees; or, * a diagnosed progressively deteriorating eye condition. The multidisciplinary evaluation team must include an optometrist or ophthalmologist. R 340.1708. Physical Impairment — a severe orthopedic impairment that adversely affects educational performance. The multidisciplinary evaluation team must include a physician. R 340.1709. Other Health Impairment — a chronic or acute health problem that limits a student’s strength, vitality, or alertness, adversely affecting educational performance. Examples include asthma, ADD/ADHD, bipolar disorder, diabetes, epilepsy, fetal alcohol spectrum disorder, lead poisoning, Tourette syndrome, and others. The multidisciplinary team must include a physician. R 340.1709a. ?Advocacy Hint: “Other health impairment” may include ADHD and other conditions. Many students with attention deficit disorder receive special education under this category. In order to address the medical part of the evaluation, the student’s pediatrician or primary care physician may provide the parent with a letter or some other documentation of the diagnosis. If this isn’t possible, but the parent suspects this disability, the school can contract with a doctor to complete this evaluation or seek information from the family’s doctor, provided the information is provided at no cost to the family. The regulations implementing the 2004 IDEA Amendments added Tourette Syndrome explicitly and suggested by implication that conditions such as bipolar disorder and fetal alcohol spectrum disorder were neurological conditions that might fit under the definition of other health impairment. (See 71 Fed.Reg. 46550 (8/14/06)). Speech and Language Impairment — one or more of the following communication impairments that adversely affects educational performance: 1. articulation impairment, including omissions, substitutions or distortions of sound; 2. voice impairment, including inappropriate pitch, loudness, or voice quality; 3. fluency impairment, including abnormal rate of speaking, speech interruptions, and repetition of sounds, words, phrases, or sentences, that interferes with effective communication; or 4. one or more language impairments, i.e. phonological, morphological, syntactic, semantic, or pragmatic use of aural/oral language. The multidisciplinary evaluation team must include a speech and language impairment teacher or speech and language pathologist. R 340.1710. Early Childhood Developmental Delay — a student through 7 years of age whose primary delay cannot be differentiated through existing criteria and who manifests a delay in 1 or more areas of development equal to or greater than one-half of the expected development for chronological age as measured by more than one developmental scale. The rules do not specify which professionals must be on the multidisciplinary evaluation team. R 340.1711. ?Advocacy Hint: Eligibility does not determine placement. The corresponding program and services for children with early childhood developmental delay are only legally appropriate for children up through age 5. Children between 5 and 7 years old can be eligible for special education under this category but should not receive services in early childhood settings. R 340.1754, 1755. Specific Learning Disability — a "specific learning disability" means a disorder in one or more of the basic psychological processes involved in understanding or in using language, spoken or written, that may manifest itself in an imperfect ability to listen, think, speak, read, write, spell, or do mathematical calculations. The term includes such conditions as perceptual impairments, brain injury, minimal brain dysfunction, dyslexia, and developmental aphasia. “Specific learning disability” does not include students who have learning problems that are primarily the result of visual, hearing, or motor disabilities, of a cognitive impairment, of an emotional impairment, of autism spectrum disorder, or of environmental, cultural, or economic disadvantage. R 340.1713(1). The 2004 IDEA Amendments made fundamental changes in how learning disabilities are identified. Under IDEA 2004, schools can no longer require the use of a severe discrepancy between achievement and intellectual ability to be found eligible. The schools must permit the use of a process based on the child’s response to scientific, research-based intervention and may permit the use of other alternative research-based procedures. 34 CFR 300.307(a). State law does permit the use of alternative procedures, such as a “pattern of strengths and weakness” analysis, in determining specific learning disability. 34 CFR § 300.309; R 340.1713(2). The multidisciplinary team must include, at a minimum, a general education teacher and an evaluator such as a school psychologist, speech and language teacher, or teacher consultant. 34 CFR 300.308(c)(10); R 340.1713(3). ?Advocacy Hint: RTI is not required for everyone. The new standard may also benefit students with other disabilities, and parts of IDEA 2004 encourage schools to engage in “preventive” interventions. Some schools may, however, erroneously interpret this language to mean that students who may have other disabilities must use response to intervention approaches before seeking eligibility for special education, thus delaying evaluations. IDEA does not require use of the response to intervention approach when serving students who may have other disabilities and does not authorize school districts to delay evaluations. When determining whether or not a child has a specific learning disability, the following three criteria must be met: * The child does not achieve adequately for his/her age or meet State approved grade-level standards in one or more of the following areas, when provided with appropriate learning experiences and instruction: oral expression, listening comprehension, written expression, basic reading skills, reading fluency skills, reading comprehension, mathematics calculation, or mathematics problem solving; * The child does not make sufficient progress to meet age or State-approved grade-level standards in the above-mentioned areas or demonstrates, through assessments, a relevant pattern of strengths and weaknesses; and, * The group determines that the above-mentioned discrepancies are not the result of a visual, hearing or motor disability, cognitive disability, emotional disturbance, cultural factors, environmental or economic disadvantage, or limited English proficiency. 34 CFR 300.309. The school must also look at the child’s history. Did the school provide appropriate instruction in a general education setting from qualified personnel? Were there formal assessments of the child’s progress made available to the parent? Unfortunately, the IDEA regulations do not say how long such instruction should occur before a learning disability can be identified. The school must ensure that a child is observed in his/her learning environment. 34 CFR 300.310. The documentation of determination of eligibility must contain: * whether the child has a specific learning disability; * the basis for the determination; * any relevant behavior (from observations); * any educationally relevant medical findings; * whether the child does not achieve adequately to meet age or State-approved grade-level standards; and 1) the child does not make sufficient progress to meet age or State-approved grade-level standards; or 2) the child exhibits a pattern of strengths and weaknesses; and * the determination of the group regarding the effects of visual, hearing or motor disability, mental retardation, emotional disturbance, cultural factors, environmental or economic disadvantage, or limited English proficiency on the child’s achievement level; and the findings from any and all assessments related to research-based intervention. 34 CFR 300.311. Severe Multiple Impairment — a condition where a student is evaluated as having either of the following combinations of characteristics (either A or B). A. Development at a rate of 2 to 3 standard deviations below the mean and two or more of the following conditions: * a hearing loss so severe that the auditory channel is not the primary means of developing speech and language skills; * a visual impairment so severe that the visual channel is not sufficient to guide independent mobility; * a physical impairment so severe that activities of daily living cannot be achieved without assistance; or * a health impairment so severe that the student is medically at risk. B. Development at a rate of 3 or more standard deviations below the mean or students for whom evaluation instruments do not provide a valid measure of cognitive ability and one or more of the following conditions: * a hearing loss so severe that the auditory channel is not the primary means of developing speech and language skills; * a visual impairment so severe that the visual channel is not sufficient to guide independent mobility; * a physical impairment so severe that activities of daily living cannot be achieved without assistance; or * a health impairment so severe that the student is medically at risk. The multidisciplinary evaluation team shall include a psychologist and other professionals depending upon the nature of the physical disability. R 340.1714. Autism Spectrum Disorder — a lifelong developmental disability that adversely affects a student’s educational performance in academics, behavior, or social interaction. Autism spectrum disorder is characterized by qualitative impairments in reciprocal social interactions, qualitative impairments in communication, and restricted range of interests/repetitive behavior. Determination of eligibility shall include all of the following: A. Qualitative impairments in reciprocal social interactions including a least two of the following: * Marked impairment in multiple nonverbal behaviors such as eye-to-eye gaze, facial expression, body postures, gestures to regulate social interaction; * Failure to develop peer relationships appropriate to developmental level; * Marked impairment in spontaneous seeking to share enjoyment, interests, or achievements with other people, for example, by a lack of showing, bringing, or pointing out objects of interest; or, * Marked impairment in the areas of social or emotional reciprocity. B. Qualitative impairments in communication including at least one of the following: * Delay in, or total lack of, the development of spoken language not accompanied by an attempt to compensate through alternative modes of communication such as gesture or mime; * Marked impairment in pragmatics or in the ability to initiate, sustain, or engage in reciprocal conversation with others; * Stereotyped and repetitive use of language or idiosyncratic language; or, * Lack of varied, spontaneous make-believe play or social imitative play appropriate to developmental level. C. Restricted, repetitive, and stereotyped behaviors including at least one of the following: * Encompassing preoccupation with 1 or more stereotyped and restricted patterns of interest that is abnormal either in intensity or focus; * Apparently inflexible adherence to specific, nonfunctional routines or rituals; * Stereotyped and repetitive motor mannerisms, such as hand or finger flapping or twisting or complex whole-body movements; or, * Persistent preoccupation with parts of objects. A determination may include unusual or inconsistent response to sensory stimuli, in combination with A, B, and C above. While autism spectrum disorder may exist concurrently with other diagnoses or areas of disability, to be eligible under this rule, there shall not be a primary diagnosis of schizophrenia or emotional impairment. The multidisciplinary team must include a psychologist or psychiatrist, an authorized provider of speech and language services, and a school social worker. R 340.1715. Traumatic Brain Injury — an acquired injury to the brain caused by external physical force, resulting in total or partial functional disability or psychosocial impairment, or both, that adversely affects the student'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 brain injuries induced by birth. The multidisciplinary evaluation team shall include a physician. 34 CFR 300.8(c)(12); R 340.1716. Deaf-blindness — concomitant hearing loss and visual impairment, the combination of which causes severe communication and other developmental and educational needs that cannot be accommodated in special education programs without additional supports to address the unique needs specific to deaf-blindness. Deaf-blindness also means both of the following: A. Documented hearing and visual losses that, if considered individually, may not meet the requirements for visual impairment or deaf or hard of hearing, but the combination of the losses affects educational performance; and, B. Functional hearing and visual loss, based upon responses to auditory and visual stimuli in the environment, or during vision and hearing evaluations. The multidisciplinary evaluation team must include a medical specialist, a teacher of students who are deaf or hard of hearing, and a visual impairment teacher. R 340.1717. Eligibility Under Section 504 Students who fall under one or more of the 13 disabilities listed in the state and federal special education law are eligible for special education and related services. Students who do not meet the definitions for these 13 categories may still qualify for extra services and supports under Section 504 of the federal Rehabilitation Act of 1973 or the Americans with Disabilities Act. These laws protect “qualified individuals with disabilities.” Such an individual has a physical or mental impairment which substantially limits one or more major life activities, has a record of such an impairment, or is regarded as having such an impairment. ?Advocacy Hint: Use function, not diagnosis. The definition of “major life activities or functions” comes from the Developmental Disabilities Assistance and Bill of Rights Act of 2000. 42 USC 15001 et seq. This Federal law establishes the definition of developmentally disabled which is a severe, chronic disability of an individual that – (A) is attributable to a mental or physical impairment or combination of mental or physical impairments; (B) is manifested before the individual is attains age 22; (C) is likely to continue indefinitely; (D) results in substantial functional limitations in three or more of the following areas of major life activity—self care; receptive and expressive language; learning; mobility; self-direction; capacity for independence; and economic self-sufficiency. (E) Reflects the individuals need for a combination and sequence of special, interdisciplinary, or generic services, supports, or other assistance that is of a lifelong or extended duration and is individually planned and coordinated. When applied to infants and young students, the term developmental disability applies to individuals from birth through age 9 who have a “substantial developmental delay or specific congenital or acquired condition” with a high probability of resulting in developmental disabilities if services and supports are not provided. 42 USC 15002(8)(B). For education related protections, Section 504 also looks at the age of the individual with the disability and requires access to services and programs for non-disabled individuals of the same age. ?Advocacy Hint: 504 is broader. Students with disabilities such as ADHD who may not be eligible for services under special education law may be entitled to similar protections under the broader provisions of Section 504. The MET should not limit itself to the criteria of eligibility found in IDEA and the MARSE. Also, if an IEP Team determines that a student is not eligible under the IDEA and the MARSE, the school should have procedures in place to have a group of knowledgeable persons determine Section 504 eligibility. Determining Eligibility The importance of evaluations in identifying disabilities, providing information for program planning, and determining eligibility for services is difficult to overestimate. No single evaluation or set of evaluations determines whether a student is eligible or not eligible for special education services. For each student who is referred to special education, there must be an initial IEP Team meeting. The determination of eligibility is made by the IEP Team, not by the multidisciplinary evaluation team. To determine eligibility, the IEP Team uses the evaluation results and any other appropriate evidence including parent and teacher observations and recommendations, statements by doctors and other qualified experts, and cultural background information. R 340.1721a. Occasionally parents will have evaluation results from sources other than the school and may wish to use them in the eligibility process. Parents also have a right to an independent educational evaluation (IEE) at the school’s expense if they disagree with a school district evaluation. The results of these kinds of evaluations must be considered by the school when eligibility is determined. See the chapter on “Evaluations” for more information on independent educational evaluations. Appendix 4-1 Letter Requesting Services (Be sure to keep a copy for your notebook) (Date) (Name of Principal) (Name of School) (Address of School) Dear (Name of Principal): I believe my child may be in need of Special Education Services. I am writing to request that a multidisciplinary team evaluate my child, (student's name), and an Individualized Educational Planning Team meet to consider providing special education programs and services. I believe my child has a disability and is eligible for special education because (Describe the evidence that supports giving special education to your child, such as your observations about learning problems, physician's reports, or observations made by teachers. List every area in which you suspect your child has a disability.) Please evaluate my child in all areas in which he/she may have a disability, including eligibility under Section 504 of the Rehabilitation Act. Please advise me by (date) when the evaluation will take place, and who will be performing the evaluation so that I may give my consent. I plan to attend the IEP Team meeting. Please contact me to arrange a mutually convenient time and place. Sincerely, (Your Name) (Your Address) (Your Telephone Number) Appendix 4-2 Checklist of Eligibility Categories Students with disabilities who may be eligible for special education services include those who: * have a cognitive impairment, R 340.1705; * have an emotional impairment, R 340.1706; * are deaf or hard of hearing, R 340.1707; * have a visual impairment, R 340.1708; * have a physical impairment, R340.1709; * have another health impairment, R 340.1709a; * have a speech and language impairment, R 340.1710; * have early childhood developmental delay, R 340.1711; * have a specific learning disability, R 340.1713; * have severe multiple impairment, R 340.1714; * have autism spectrum disorder, R 340.1715; * have a traumatic brain injury, R 340.1716; or * have deaf-blindness, R 340.1717. The preceding federal definitions are also at 34 CFR 300.8(c). * A student who has a physical or mental impairment which substantially limits one or more major life activities may qualify for services and supports under Section 504 of the federal Rehabilitation Act of 1973. DRM Students with Disabilities: An Advocate’s Guide, revised June 2020 Pg. 4-14 Disability Rights Michigan