If the school does not “believe in dyslexia,” can they deny my son eligibility for an IEP and a 504 plan?

Dear Allison:

Your questions, as well as many others, raise questions about what the definition is of a learning disability is for purposes of eligibility for special education. You both also describe situations in which your child has been diagnosed as having dyslexia, but the school reports that dyslexia is not a covered disability or one the school recognizes. The federal special education (IDEA) regulations define a specific learning disability as follows:

(i)Specific learning disability. Specific learning disability means a disorder in one or more of the basic psychological processes involved in understanding or using language, spoken or written, that may manifest itself in the imperfect ability to listen, think, speak, read, write, spell or do mathematical calculations, including such conditions as perceptual disabilities, brain injury, minimal brain dysfunction, dyslexia, and developmental aphasia.

(ii)Disorders not included. Specific learning disability does not include learning problems that are primarily the result of visual, hearing, or motor disabilities, of mental retardation, of emotional disturbance, or of environmental, cultural, or economic disadvantage.” 34 Code of Federal Regulations Sec. 300.8(c)(10)

Obviously, dyslexia is specifically referenced as an example of a possible specific learning disability. However, in order to qualify for eligibility, as with any disability, it must be demonstrated that the disability adversely affects educational performance and that the student requires special education. 34 CFR 300.308. However, in evaluating a child’s educational performance, the school must consider the child’s developmental and functional progress as well as academic progress. 34CFR 300.304(b)(1).

In relation to evaluating whether a child has a learning disability, the statute and regulations have some specific additional criteria. The regulations provide a complex and confusing procedure that also requires, among other things, that the child does not achieve adequately for the child’s age or to meet State-approved grade level standards in one or more of a number listed areas, such as oral or written expression, listening comprehension or various reading and math skills, when provided with learning experiences and instruction appropriate for the child’s age or State- approved grade level standards; and either:

1. the child does not make sufficient progress to meet age or grade level standards in one or more of the areas identified when using a process based on the child’s response to scientific, research-based intervention; or
2. the child exhibits a pattern of strengths and weaknesses in performance, achievement or both, relative to age, State-approved grade-level standards, or intellectual development, that is determined to by the group (presumably the IEP team) to be relevant to the identification of a specific learning disability, using appropriate assessments; and
3. the group determines that the problem is not primarily the result of a visual, hearing or motor disability, mental retardation, emotional disturbance, cultural factors, environmental or economic factors, or limited English proficiency. 34 CFR 300.309 (a).
4. Any evaluation for a learning disability must also include observation of the child in the child’s learning environment to document the child’s academic performance and behavior in the area of difficulty. 34 CFR 300.310.

Before a district considers whether the child meets the criteria for eligibility as having a learning disability, the statute allows states to adopt procedures to allow schools to provide scientific, research based intervention in regular education. Data from that intervention process must be considered by the eligibility team in making the decision as to whether the child requires evaluation and/or meets criteria for LD. 34 CFR 300.309.

However, the school must promptly follow the procedures governing referral for evaluation if the child either fails to respond to intervention in an appropriate period of time or the child is referred by the parent or staff for an evaluation. 34 CFR 300.309(c).

This means that a parent retains the right to seek an evaluation even if the child has been referred for intervention through a regular education reading intervention program. If the parent requests an evaluation by the school, the school must either agree to conduct the evaluation and obtain written parental consent or it must provide the parents with notice that it is denying the request for evaluation and that the parents have the right to seek a due process hearing to challenge the school’s refusal.