Legal Mailbag – 1-11-24

By Abby Booth, Associate, Shipman & Goodwin LLP – GUEST COLUMNIST

The “Legal Mailbag Question of the Week” is a regular feature of the CAS Weekly NewsBlast. We invite readers to submit short, law-related questions of practical concern to school administrators. Each week, we will select a question and publish an answer. While these answers cannot be considered formal legal advice, they may be of help to you and your colleagues. We may edit your questions, and we will not identify the authors.

Please submit your questions to: legalmailbagatcasciacdotorg.

Dear Legal Mailbag:

We are having a discussion about whether it could be appropriate at a PPT meeting to consider whether to exit a student with a specific learning disability (SLD)/dyslexia from special education because he may no longer need specialized instruction to access the general education curriculum. However, this student does benefit from accommodations to support his dyslexia. Given this information, the team is pondering whether transitioning the student to a Section 504 accommodation plan would be appropriate, but we are unsure about how to navigate the SDE multidisciplinary evaluation report to determine that the student may not require specialized instruction even though we know he has a profile of dyslexia. Also, would the evaluations completed during his initial eligibility PPT enough to make the move to 504?

Appropriate to Exit?


Dear Appropriate:

Legal Mailbag thanks you for a great question and understands the challenges in determining whether a student qualifies for an individual education program under the Individuals with Disabilities Education Act (“IDEA”), or a 504 Plan under Section 504 of the Rehabilitation Act of 1973.

There is a two-part test for determining whether a child qualifies as a “child with a disability” under the IDEA: the child must (1) be evaluated to have a qualifying disability, such as a specific learning disability, and (2) by reason of their disability, need special education and related services. 20 U.S.C. § 1401(3). The IDEA defines “special education” as “specially designed instruction . . . to meet the unique needs of a child with a disability.” Id. § 1401(29). The IDEA regulations, in turn, define “specially designed instruction” as “adapting, as appropriate to the needs of an eligible child . . . the content, methodology, or delivery of instruction . . . to address the unique needs of the child that result from the child’s disability . . . and to ensure access of the child to the general curriculum.” 34 C.F.R. § 300.39(b)(3).

At times, it can be difficult to answer whether a student has a qualifying IDEA disability or whether a student who has such a disability “needs” special education. Unfortunately, neither the IDEA nor its regulations define what it means to “need” special education. To be sure, if a student only requires minor accommodations in the regular education classroom and is meeting academic standards, the student likely would not require specially designed instruction, at least for academics. However, like everything in the world of special education, adherence to special education procedures is critical in reaching the correct outcome.

You first ask whether a student can still have dyslexia if you determine that the student does not meet the definition of SLD under the IDEA. Before we get too far, however, we must pause to ensure we are following the proper procedures. If the PPT is considering discussing whether a student continues to qualify for special education, the PPT will need to obtain and review a current reevaluation that meets IDEA requirements prior to making such a determination. Once an appropriate reevaluation is completed and reviewed at PPT, then the team can consider the student’s eligibility. Connecticut has developed a number of eligibility forms and worksheets for PPTs to review, including the multidisciplinary evaluation report (MER) for students suspected of having an SLD. Following the MER steps will allow the PPT to determine both (1) whether the student still has SLD/dyslexia (or any other SLD type) and, (2) if so, whether the student requires special education and related services.

It is certainly possible that a student with SLD/dyslexia who once qualified for special education may no longer require specially designed instruction after acquiring or improving certain skills. However, Legal Mailbag cautions against any abrupt reversal of the PPT’s initial determination that the student had an SLD and required special education simply because the student can now access the general education with accommodations. The correct inquiry is whether the student meets the criteria for SLD and, if so, whether he needs specially designed instruction. Moreover, if the team still believes that the student has SLD/dyslexia, the team is by definition concluding that the student is making insufficient progress to meet age or grade-level standards in certain areas or that he exhibits a pattern of strengths and weaknesses in either performance or achievement in those areas. Therefore, while some students with SLD/dyslexia may be able to access the general education curriculum with certain accommodations (for example, with assistive technology) the team should carefully consider the student’s underlying literacy skills and whether specially designed instruction is necessary to address such skill deficits that contribute to inadequate achievement of age or grade-level standards. Such a determination must be made on an individual basis based on the evaluative information and team discussion.

Assuming for the sake of argument that the PPT does determine that the student no longer qualifies for special education, you next ask whether the evaluations completed during the student’s initial eligibility PPT are sufficient to determine eligibility under Section 504 and develop a 504 Plan. The answer to this question is probably not.

Perhaps not surprisingly, there is also a two-part test for determining whether a student qualifies as an individual with a disability entitled to accommodations under Section 504 of the Rehabilitation Act: (1) the student must have a physical or mental impairment (for example, SLD/dyslexia) and (2) that impairment must substantially limit one or more major life activities. 34 C.F.R. § 104.3(j). In determining whether a student is eligible for services under Section 504, districts must conduct an evaluation by considering a variety of sources of information, which can include parent/caregiver reports, teacher reports, student performance, medical documentation, evaluation results, and degree of impact. Id. § 104.35. Importantly, the evaluative information must be recent enough to be relevant. If your student made such sufficient progress since his initial PPT evaluation to no longer require special education, then it is likely that the initial PPT evaluation should be supplemented with updated performance reports, evaluative data and teacher and parental input that accurately reflect the student’s current performance. However, if you take Legal Mailbag’s advice to conduct a new reevaluation through the PPT process before exiting the student from special education, then that reevaluation could be sufficient for the 504 evaluation process.

The PPT and Section 504 eligibility processes are not always straightforward. Educators want to ensure that students receive the services that they need, but at the same time we are mindful of the importance of building students’ independence and not over-identifying students as students with disabilities. There are often no bright lines in the world of special education, but Legal Mailbag applauds you for thinking about these complicated issues and striving to do the right thing for your students.