Nov / 28

Is Your Child Eligible to Walk Through That Door? 13 Eligibility Categories [IEP 005]

IEPcontent Podcast 0

What are the 13 categories for determining student eligibility for special education? How are they practically (and legally) applied? In this episode, Amanda and I break down the different categories and explain, from a legal standpoint, what is necessary to be eligible under each one.

What You’ll Learn in this Episode:  

  • What the 13 eligibility categories for special education under the Federal Individuals With Disabilities Education Act (IDEA) are
  • Why it’s more important to get through the door of eligibility rather than being concerned over which door to get through
  • What does “specific learning disability” mean?
  • Once you get through the eligibility door, that is when each child should receive an individual education plan (IEP)
  • Why the medical diagnosis of a learning disability is different than the IEP in an academic setting
  • Aside from the medical side of the disability affecting learning, there’s the processing side. What is that?
  • What an emotional disturbance is
  • Which eligibility categories require additional services
  • What are the practical application of these eligibility categories

Resources Mentioned

UCI Law School legal clinics

DSM-5

Ca Education Code Section 56043

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Full Transcript of Episode

Vicky Brett:                        Welcome to the Inclusive Education Project. I’m Vicky Brett.

Amanda Selogie:              I’m Amanda Selogie. We’re two civil rights lawyers on a mission. To change the conversation about education, civil rights, and modern activism.

Vicky Brett:                        Each week, we’re going to explore new topics, which are going to educate and empower others.

Amanda Selogie:              Give them a platform to enact change in education and level the playing field.

Vicky Brett:                        Hey, Projectors. Just kidding. I was trying out a nickname for fans.

Amanda Selogie:              Projectors?

Vicky Brett:                        It just makes it seem like they’re people that are objects, but I was trying something new. I don’t know. Hi everyone. Thanks for coming to the Inclusive-

Amanda Selogie:              Wait, wait.

Vicky Brett:                        Wait?

Amanda Selogie:              What did you say?

Vicky Brett:                        I said, “Hey, Projectors.”

Amanda Selogie:              Projectors like when we were in elementary school and you had the projectors?

Vicky Brett:                        Yes. Inclusive Education Project, so then I just put we are Projectors. I know. I know, I was trying something new. Hi everybody.

Amanda Selogie:              No, I totally get that.

Vicky Brett:                        Thanks for coming to the Inclusive Education Project.

Amanda Selogie:              [inaudible 00:01:18].

Vicky Brett:                        No, no. We’re not cutting this. This is happening. Welcome to our podcast, thanks for coming back. We’re getting a lot of positive feedback, so we’re going to keep doing this. This is Vicky Brett.

Amanda Selogie:              This is Amanda Selogie.

Vicky Brett:                        Because you’ve come back, you know that this is the Inclusive Education Project Podcast, where Amanda and I felt that we needed to record our conversations because we have a lot of them in our office and we felt that it was our duty, if you will, to try to share that, and like we have said in previous podcasts, knowledge is power and just trying to get the word out about the things that we deal with every day. Just talk about what we see as special education attorneys. Today we have a really great podcast for you guys. We are going to be talking about eligibility for special education. We’re going to do two things. First, we’re going to talk about what that means. What is eligibility for special education? Then we wanted to do something where we talk about that practical application. How do you request for your child to be eligible under those services. We’ll get right into it.

For special education, there’s 13 eligibility categories, and-

Amanda Selogie:              Just to clarify for our listeners, you’re talking about IEP eligibility or 504 eligibility?

Vicky Brett:                        Okay. I’m talking about 13 eligibility categories for special education. We will talk about 504, and 504 is a different code section of the federal law of the Rehabilitation Act, section 504. We’re going to be dealing with the Individuals with Disability Education Act and the 13 eligibility categories under there. Just to run down them very quickly, like I said, it’s under the federal Individuals with Disability Education Act, which the acronym is IDEA, or Idea.

Amanda Selogie:              Idea. As Vicky loves to say, the idea behind the IDEA.

Vicky Brett:                        Behind the IDEA. I do. I say that at presentations a lot. Always gets a laugh, though I continue to do it. You guys can tell me differently if you don’t like it. Yeah, we deal with a lot of acronyms in special education as well. We always say the IDEA or Idea. I’m going to run down the eligibility categories, and then we can discuss each of them and our experiences with them.

Amanda Selogie:              Yeah.

Vicky Brett:                        In no particular order, we have specific learning disabilities. Other health impairment. Autism Spectrum Disorder, and Amanda and I will come back to it’s been autistic-like, it’s been ASD, it’s been …

Amanda Selogie:              That’s the variation between the IDEA and the state education code. The IDEA doesn’t change, but the state education codes, for here us in California, California education code tends to change every couple of years, makes it broader or more narrow-

Vicky Brett:                        Exactly.

Amanda Selogie:              … As they see fit.

Vicky Brett:                        Exactly. Emotional disturbance. We’ll get to that one as well. Speech or language impairment, visual impairment, including blindness, deafness. Hearing impairment, which is different than deaf blindness. Orthopedic impairment. Intellectual disability, formerly mental retardation, and I think in previous podcasts, we’ve talked about Obama passing the law in all the federal statutes, yeah [crosstalk 00:04:53].

Amanda Selogie:              Yeah.

Vicky Brett:                        Making it intellectual disability, traumatic brain injury, and number 13, multiple disabilities.

Amanda Selogie:              One thing I will say, and we try to use this analogy for parents to understand because a lot of people get hopped up on eligibility. What does it mean? Which category should I be on, right? Parents are really hooked on one category or another, and so are school districts, and look, the way that Congress intended the eligibility categories to be was just a stepping stone. Imagine that you’ve got 13 doors in front of you, and behind these doors is special education, and what special education is, is a whole other story, but services, right, is behind those doors.

Vicky Brett:                        Right.

Amanda Selogie:              Whether you go through door number one, two, three, all the way up to 13, you’re getting into the same room. It’s basically 13 doors going into the same room. No matter which door you choose or which door you go through, you’re going to get the services that is unique to that individual child. It doesn’t matter which door you go into. Once you get through that door, it’s almost like those doors don’t exist. When a parent or a school district is hooked on one eligibility or another, we try to explain to them that the way the law was intended was that you just have to get through the door. Eligibility is a way to get through one of those 13 doors. It doesn’t matter which one. Once you’re through, you get special education.

Vicky Brett:                        There’s case law on this.

Amanda Selogie:              Right. Unfortunately, the implications, which we’ll get to in a minute, show that sometimes there is a difference between which door you go through, but there shouldn’t be. In everything that we talk about, we always say there’s a difference between what should happen and what actually happens. As we’ll do in all of our podcasts, we talk about what the law says and what should happen, and then we’ll talk about practical implications about what we see actually happen.

Vicky Brett:                        Right. Specific learning disability, essentially an umbrella term designated by SLD, and it’s conditions that affect a group of children that are having difficulties with reading, writing, listening, speaking, doing mathematic reasoning. A couple examples of children that you and I have seen fall under this category could be a child with dyslexia, which in it of itself is its own umbrella of just-

Amanda Selogie:              Right.

Vicky Brett:                        … A spectrum, just like autism, right, is a spectrum. Children with dysgraphia, any type of auditory processing disorder, or non-verbal learning disability.

Amanda Selogie:              The way that the code and the law used to treat specific learning disability was that there was a standard deviation difference between cognitive ability and academic achievement. That was the old school way of thinking about specific learning disability. That your achievement was average or above average, and when I say your potential, I mean your IQ and we don’t always use IQ, but we use … What’s your potential, right? What’s the high end of the spectrum of where you can be? You compare that with academic achievement. Where are you actually functioning? Sometimes kids fall under the specific learning disability when they’re not meeting their potential. We used to have, it was a very specific set of rules. If you did not meet the standard deviation difference between your potential and your achievement, you didn’t qualify. Now we’re seeing a shift where we’re looking more towards the impact. If there is a substantial impact, if there is a substantial-

Vicky Brett:                        Right.

Amanda Selogie:              … Difference between, depending on your circumstances, between your potential and your achievement. I was just at a presentation the other day with some of our UCI law students at Chalk. We were at the Children’s Hospital, Orange County, talking-

Vicky Brett:                        Just take a step back. When Amanda says our UCI students, we actually have a clinic-

Amanda Selogie:              A legal clinic with UCI Law School.

Vicky Brett:                        … A legal clinic with UCI Law School where we are supervising attorneys for this pro bono project that they have that they’re trying to get off the ground, where they’re able to provide free services to families in the Orange County area that require special education. Amanda was able to go to one of these presentations that they had arranged in order to speak to pediatricians.

Amanda Selogie:              It was with social workers and-

Vicky Brett:                        Social work, okay.

Amanda Selogie:              … Representatives that work with students who either are in and out of the hospital setting or are enrolled through their school setting. These are kids who are going through any kind of medical treatment from cancer treatments to … I was talking to a one social worker that has a caseload of kids with fibromyalgia. They are in and out of the hospital maybe six times a year.

Vicky Brett:                        Wow.

Amanda Selogie:              We’re talking about kids who from either two months at a time or three days every two weeks they’re in the hospital versus in school.

Vicky Brett:                        Wow.

Amanda Selogie:              We’re talking to kids where they’re missing a chunk of school. Maybe they don’t have an actual disability in the sense that we think of Down Syndrome, autism-

Vicky Brett:                        Okay.

Amanda Selogie:              … Dyslexia even.

Vicky Brett:                        Right.

Amanda Selogie:              Rather the impact of their medical treatment or simply the missing of school to a substantial degree has caused there to be a discrepancy between their potential and where they achieve. Are they behind?

Vicky Brett:                        Right.

Amanda Selogie:              The easiest way to say it is are they behind. Should they be learning at grade level and are they not? Are they having difficulties keeping up with the curriculum. The eligibility is supposed to be it doesn’t matter what is causing this discrepancy, but that there is a discrepancy. They’re behind in some way.

Vicky Brett:                        Jumping to Autism Spectrum Disorder and the relation between specific learning disabilities, about 10 years ago, there was this mass exodus of parents that were going to their pediatricians and saying, “Hey, if my kid has ADHD, do you think that they could potentially be on the autism spectrum, and can you diagnose them as that?” What was happening was parents saw that a child with autism was getting certain services just automatically. Ten years ago, it wasn’t appropriate then, but it’s really not appropriate now just based on Supreme Court cases that have come out, but they would get certain amounts of speech and language services, and occupational therapy services, and parents were like, “Hey, my kid has ADHD, but do you think it could fall within the spectrum? Can you diagnose my child with this so that I can go to the school district and”-

Amanda Selogie:              Right.

Vicky Brett:                        … “I can tell them okay, my child has autism, so you need to give me A, B, and C services,” because that was automatic.

Amanda Selogie:              Right. It almost used to be a combo meal, right? You go to McDonald’s and-

Vicky Brett:                        100%. Yes.

Amanda Selogie:              … You ask for combo number two, and that includes a burger, a fries, and a coke. I’m sorry, I don’t go to McDonald’s. I don’t even know, so I probably don’t know what a number two is, but anyway, you order that meal and-

Vicky Brett:                        Right.

Amanda Selogie:              … You gain everything within it. It used to be where parents thought, “I have to ask for autism eligibility because that meant I got X, Y, and Z services automatically.”

Vicky Brett:                        Case law has proven, and that’s where Amanda had started, is that you just need an eligibility, you get through the door, and then it’s individualized to the child, right? That’s what an IEP is, individualized education program. I know that we keep saying that, we keep spelling out the acronym, but that’s why we have a job, right.

Amanda Selogie:              Yeah, exactly. I will say that I have kids on my caseload that have a diagnosis of autism and their eligibility is not autism under their IEP because when you look at the eligibility category of autism and you look at what it entails, it has, and this is why California switches on and off is because they’re looking at certain characteristics of autism, and sometimes a kid will have these characteristics, but not have a diagnosis, or they’ll have a diagnosis, but not have these characteristics. What’s one thing that a lot of people associate with autism? Eye contact.

Vicky Brett:                        Right.

Amanda Selogie:              Right? They think if a kid can’t have eye contact, they have autism, or if they have contact, they can’t have autism. That’s not right. That’s not in eligibility categories and it’s also not in the DSM V, and when we talk about diagnoses, medical diagnoses, we’re talking about the DSM V. How psychologists actually and doctors diagnose students versus eligibility categories.

Vicky Brett:                        That’s what we often we get with parents. “I have an autism diagnosis.” Okay, that was from an actual doctor. A school psychologist may not necessarily be a doctor, right, that could make-

Amanda Selogie:              Most likely is not.

Vicky Brett:                        Right. Most likely they’re not. They just have their BS and gone through whatever training they need to be a school psychologist. The medical basis is different from the what are we seeing in the school and is it affecting this child’s academic. An IEP is not necessarily just the child’s academics. We need to take into consideration vocational and social-emotional status, which is under the federal law. This isn’t anything-

Amanda Selogie:              Right. Remember, as we go through these eligibility categories, it’s not just that they have these impairments, but there’s a two-prong approach. It’s whatever the eligibility category is that they have that impairment, and that impairment impacts their ability to make education progress.

Vicky Brett:                        Right.

Amanda Selogie:              A kid might have a diagnosis of autism and they may 100% be diagnosed, but maybe they’re high functioning autism, so the characteristics that would typically go along with impacting education or since we’re separating on topics. A student that’s in a classroom-

Vicky Brett:                        Right.

Amanda Selogie:              [crosstalk 00:15:05] on topics is not able to stay focused on the topic at hand and maybe will call out, will make verbal comments, may not be able to focus on what’s being taught to them, it’s going to impact how they’re able to perform on the assignments that they are given, right. A student that doesn’t have [inaudible 00:15:24] but may still have autism, it may not impact their ability. Maybe their autism, we look at Asperger’s, right, the high functioning autism.

Vicky Brett:                        Now the DSM V is, we no longer use Asperger’s, but this is a terminology that most people are familiar with, so that’s why we still use it.

Amanda Selogie:              Right.

Vicky Brett:                        It’s Autism Spectrum Disorder.

Amanda Selogie:              Right.

Vicky Brett:                        ASD.

Amanda Selogie:              What we would probably say most kids who are diagnosed with that “Asperger’s” may not actually qualify under autistic-like behaviors or autism under the Cal ed code or the IDEA because their main impairments revolve around social skills or interpreting certain things. I really encourage you, if you’re interested in learning more about Asperger’s, or high functioning autism, a new show that just came out, The Good Doctor, there’s been a lot of shows in the last probably five years-

Vicky Brett:                        Parenthood. Remember when they showed …

Amanda Selogie:              My gosh, you’re going to make me cry.

Vicky Brett:                        I know.

Amanda Selogie:              Parenthood was one of the first that really portrayed a kid with autism in such a good light, in its true light.

Vicky Brett:                        In the socialization, the tantrums.

Amanda Selogie:              Right.

Vicky Brett:                        So many layers.

Amanda Selogie:              So good because a lot of times, maybe you’re listening and you’ve never dealt with someone with autism or maybe you have. Maybe you have a perception of what a kid with autism looks like.

Vicky Brett:                        Right.

Amanda Selogie:              The Good Doctor is a show about an adult who has gone through his career and he’s actually surgeon.

Vicky Brett:                        Right.

Amanda Selogie:              He is going through residency, becoming a surgeon, and he’s so brilliant and so bright, but there’s some things that he has more difficulties with. When we talk about okay, he went through medical school, right, and obviously-

Vicky Brett:                        He got there.

Amanda Selogie:              … This is a drama.

Vicky Brett:                        Yeah.

Amanda Selogie:              This is not reality.

Vicky Brett:                        [inaudible 00:17:07].

Amanda Selogie:              This absolutely happens in real life. When we talk about how impacts their academic performance, are they able to function on a math test, 100%. Absolutely. In fact, some of the kids could be considered GATE students.

Vicky Brett:                        Right.

Amanda Selogie:              This is something we’ll talk about in a later episode, but twice exceptional students is what they’re called, the kids who are very bright.

Vicky Brett:                        Right.

Amanda Selogie:              Have very high potential, but that still need accommodations for certain needs, and for kids with Asperger’s or high functioning autism, maybe they need help with the social-emotional and social skills side.

Vicky Brett:                        That’s one aspect of it, right.

Amanda Selogie:              Right.

Vicky Brett:                        When we get into high school, we’re doing group projects. If Bobby, for example, can’t effectively communicate with his partners to complete an assignments, that completes his academic.

Amanda Selogie:              Right.

Vicky Brett:                        I think it hits the head of another category, which is other health impairment, which is almost a catch all, and what we see is that typically that limits a child’s strength, energy, or alertness. We oftentimes see children with ADHD or sometimes autism can mimic ADHD. We’ll see that child fall under other health impairment.

Amanda Selogie:              Right.

Vicky Brett:                        Right? That’s another category that a child could fall under, even though they have a medical diagnosis of autism.

Amanda Selogie:              Right. On the other health impairment spectrum, we have the kids with the medical diagnosis of ADHD or maybe they’re going through, like I said before, the chemo treatments for cancer treatments. They have gone through anesthesia, or I had a kiddo that went through open heart surgery at the age of three, but by the time he was six, he had had seven open heart surgeries. That was anesthesia at a very young age-

Vicky Brett:                        Crazy.

Amanda Selogie:              … That alters the brain chemistry.

Vicky Brett:                        [inaudible 00:18:53].

Amanda Selogie:              You’re talking about a medical diagnosis that affects the ability to learn. You have the medical side, but then you also have the side that is the processing. Auditory processing or visual processing, or language processing. We always give this example of we tell parents all the time. Have you ever asked Johnny to go upstairs to his room, get his backpack, take a pen out of his backpack, and come back down and bring it to you? They get up to their room and they go, “What was I supposed to do?”

Vicky Brett:                        [inaudible 00:19:25] the time, I go into the room and then I’m like-

Amanda Selogie:              Right.

Vicky Brett:                        … “What did I want?”

Amanda Selogie:              For us, eventually we’re able to figure it out, right? For some of these kids, it’s the processing of that information because they were given it orally, right. They were only told it and they only heard it, or we have kids that read and they will literally read a page, right, because they’re able to read, they’re good at reading, right. They’ve read an entire page, and if you were to stop them after reading a page and said, “Can you tell me what you just read?” They’d be like, “I don’t know.” A lot of times, teachers or parents view that as they’re just not listening.

Vicky Brett:                        Defiance.

Amanda Selogie:              They’re defiant, right. We have these auditory processing or visual processing deficits with some of these kids. When we were growing up, you remember being in school, figuring out how best you learn, right? I was in high school doing flashcards, and this is a little … I don’t want to say OCD because I don’t have OCD, but-

Vicky Brett:                        No, it was OCD.

Amanda Selogie:              … When I was in high school-

Vicky Brett:                        I know Amanda.

Amanda Selogie:              Look. Listen.

Vicky Brett:                        Listen.

Amanda Selogie:              When I was in high school, I was one of those kids with the multi-colored pens when I wrote my notes and I wrote notes in multi-colored pens.

Vicky Brett:                        Okay. I respect.

Amanda Selogie:              Look.

Vicky Brett:                        All right.

Amanda Selogie:              I wrote my notes during class and it was almost like outlined form, right, to make it organized for me, and I had my different colors for my different things. Then I’d come home after school and I didn’t have the most neat writing. My penmanship was not perfect like my sister’s probably was because always, but I would come home and I would see my notes being very messy. I would rewrite my notes. One thing I learned from these experiences was that I was a very organized learner that was visual and that I learned from doing. Right? By seeing the different colors, I learned better. By writing it twice, I learned better. By the time I got to law school, it was a snap, right? I had learned by myself how best I learned.

Vicky Brett:                        Right.

Amanda Selogie:              I knew what I needed to do to be able to achieve. A lot of people learn that way. They figure it out, either it’s in middle school, high school-

Vicky Brett:                        It’s a coping mechanism.

Amanda Selogie:              Right. We figure it out, but there are some kids, some individuals, who aren’t able to figure it out on their own. They’re being told by their parents, their teachers, “You’re just not trying. You’re not putting in initiative. You’re not doing this, you’re not doing that.” They’re not able to figure out this works best for me, right? It’s the idea of sometimes we can figure it out on our own and sometimes we need help figuring it out.

Vicky Brett:                        It’s a miscategorization of how the child learns, right? Another eligibility category that I wanted to jump into was emotional disturbance. This is a tough one because-

Amanda Selogie:              Yeah.

Vicky Brett:                        … Emotional disturbance, you hear that and you’re just like, “Absolutely not. This is awful.”

Amanda Selogie:              Yeah.

Vicky Brett:                        Psychopaths are in this and it’s just not a good … I don’t want my child ever to be ED because that’s the acronym for it.

Amanda Selogie:              If you listened to our episode a couple weeks ago where we talked about mental health and mental illness and the stigma that gets attached, and that’s often what happens with ED, emotional disturbance. The stigmas attached. I really wish the IDEA and the California education code would just like how we took mental retardation and changed that, and said we’re not using that word anymore, I really wish they would do that with this because I still get people who talk about mental illness and they will say, “They’re mentally ill.” That’s not an appropriate thing to say. We want to say that they have mental health challenges. It’s that PC way of saying it right, but-

Vicky Brett:                        Right.

Amanda Selogie:              … It’s still an important area.

Vicky Brett:                        Right, and it could be a number of mental health disorders, right? We oftentimes see kids with anxiety, pre-schizophrenia because schizophrenia is one those that in the DSM V, you can only diagnose when they’re in their late 20s and we’ve seen some children with pre-schizophrenia, bipolar disorders, obsessive compulsive disorders, depression, and it’s oftentimes one of those characteristics that there’s a couple different categories with which a child can fall under-

Amanda Selogie:              Right.

Vicky Brett:                        … Fear of school and things like that. We don’t want to get too much into it. It’s obviously in the educational code, but-

Amanda Selogie:              Right.

Vicky Brett:                        … It’s oftentimes one of those eligibility categories that is hard to swallow for a lot of parents because it just sounds bad, right? It’s the connotation of it. Emotional disturbance, you’re disturbed emotionally.

Amanda Selogie:              Right. That’s the hard thing is that when we look at these eligibility categories that we’ve listed off so far, if you have a kid with severe anxiety that’s going through school withdrawal and not wanting to be able to come to school-

Vicky Brett:                        Right.

Amanda Selogie:              I’m sorry, I shouldn’t say not wanting to. Not being able to, physically able to go to school. There’s not many other categories that fit and in reality, maybe that’s the next step, right, is that we change the name because it is in some sense, it doesn’t matter the eligibility category, but it is a category that’s on their documents. It’s still something that is being labeled and we always try to say we shouldn’t label these kids, but unfortunately with the IDEA, you have to assign them to a category in order for them to walk through that door.

Vicky Brett:                        Right. Through the ed code, emotional disturbance means a condition exhibiting one or more of the following characteristics over a long period of time and to a marked degree, that adversely affects a child’s educational performance. There is an A, B, C, D, E, and F. As long as you’re able to indicate, it’s at least one of these categories a child should qualify under it. You can go into the ed code and look into that, and not trying to rush through it, but it’s one of those things where the point of this podcast is to try and give you the information so that you can look into it, or be aware of it, right?

Amanda Selogie:              Right.

Vicky Brett:                        That’s why I’m going to go right into the next eligibility category, which would be speech or language impairment, which again is an umbrella term, and it covers a number of communicational issues that a child may have. It could be anything from stuttering, having impaired articulation, having any language impairment, or a voice-

Amanda Selogie:              Being non-verbal.

Vicky Brett:                        Yeah, or being non-verbal or of voice impairment.

Amanda Selogie:              One thing that’s often missed with the speech and language impairment is kids who have language processing issues can often be categorized under speech and language impairment. We talked earlier about the auditory processing, visual processing, and the language processing, that processing piece, and that’s something that it does go under speech and language because it’s speech and language. We oftentimes have trouble when kids get qualified under speech and language, the speech and language pathologists will look at their speech and say, “They’re speaking to me.”

Vicky Brett:                        They can talk.

Amanda Selogie:              Right, and I think sometimes they miss the language piece.

Vicky Brett:                        What’s the language component?

Amanda Selogie:              Right.

Vicky Brett:                        Can a child actually have a conversation?

Amanda Selogie:              Do they understand language?

Vicky Brett:                        Do they even understand language? That’s a big issue that I, at least in 2017, have encountered many times with a lot of my clients.

Amanda Selogie:              I think the best way to explain it to people who are not in the special ed realm all the time is you know when you get a one to two-year-old who’s just starting to talk, and they’re using words, and the parents are so excited that they’re using these words, and they’re like, “They understand, they said dada, they said mama”? They’re saying words, right, but it’s do they really understand the words that they’re saying?

Vicky Brett:                        Right.

Amanda Selogie:              Sometimes they’re bright kids and they do, yes, but other times, they’re repeating words that you said, but they don’t understand what that words means to them.

Vicky Brett:                        They’re like a parrot.

Amanda Selogie:              Exactly. Exactly. It’s like that idea of that one to two-year-old who’s just learning language the first time, sometimes our kiddos who are seven, eight, nine, 10 are still learning language at that same effect because maybe they didn’t even start becoming verbal until age of five instead of age one or two.

Vicky Brett:                        Exactly. Moving towards the other categories of visual impairment, including blindness, right. Pretty straightforward. Children with visual problems, they have a visual impairment. This can include partial sight, full on blindness. If you wear any type of glasses that could also be considered a visual impairment, but if it’s just in the sense of I’m wearing glasses and now that I’m wearing glasses, I can see, that wouldn’t necessarily be an automatic you get an IEP, right?

Amanda Selogie:              Right.

Vicky Brett:                        You’re wearing corrective lenses.

Amanda Selogie:              We’re not on Oprah. We’re not saying, “You get an IEP and you get an IEP and you get an IEP.”

Vicky Brett:                        I love Oprah. Oprah, if you’re listening, we love you. Just moving towards all of the eligibility categories, and we have deafness. Pretty self-explanatory. You have a severe hearing impairment. You’re not able to process language through hearing, but there’s a difference between that and actually having a hearing impairment, right. It’s that hearing impairment refers to a hearing loss that’s not covered by deafness. We have a lot of kids that may have a sensory right ear or-

Amanda Selogie:              Right.

Vicky Brett:                        … Cookie ear bite-

Amanda Selogie:              We might have a-

Vicky Brett:                        … Hearing loss.

Amanda Selogie:              … Processing or yeah, partial hearing loss. We have kids that have cochlear implants or hearing aids that alter their ability to hear. They may have FM systems in school.

Vicky Brett:                        Right.

Amanda Selogie:              One thing to know about the deaf and hard of hearing and the visual impairment categories is those are all considered what we call low incidence eligibility categories. Beginning of the episode, I talked about those 13 doors and all you had to do was walk through the door and you got the same thing. This is the exception. The one exception. When you have a low incidence disability, deaf, hard of hearing, blind, visually impaired, you are considered a low incidence disability. You are considered eligible for low incidence services. What that means is that when we talk about the services that are required under the law for students, these are one of those categories that you actually are required to get more out of it because with those eligibility categories, we’re not just talking about the student needing special education or specialized academic instruction. We’re also talking about access. Access to the curriculum.

A student who has low vision or is hard of hearing may have cognitive abilities that are above average or average, but because of their hearing impairment or visual impairment, they are having difficulties accessing the curriculum, and if they’re not able to access the curriculum at an early age, it then contributes to that discrepancy between what we talked about earlier, the abilities and the achievement. We’re not just talking about their abilities at a basic level, but we’re also talking about access. Maybe the child, and it also is different if the child was born blind or deaf versus if they become blind or deaf later on. That’ll have an effect.

Vicky Brett:                        The hearing impairment doesn’t apply if there’s any type of auditory processing disorder. That would fall under a different category.

Amanda Selogie:              Yeah, OHI.

Vicky Brett:                        Right. Then we have those children that deaf and blindness is a diagnosis that they have where they have both hearing and visual impairments, and their communication and any other types of needs are more so than if you were just blind or you were just deaf. One other one I’ve had some experience with, orthopedic impairment, and that’s really any type of impairment that is towards the child’s body, right, no matter whatever the cause is. One example is cerebral palsy, where there’s damage to areas of the brain that control the body. Particular district likes to try and make 14 categories of eligibility where it’s multiple disabilities, orthopedic, that does not exist under the federal law as an eligibility category, but this particular district-

Amanda Selogie:              The California education code.

Vicky Brett:                        Right, and this particular district makes it happen. Then when that is on the child’s individualized education program or IEP, it makes it very difficult for a private or non-public school to accept the child because they’re like, “We don’t have a physical therapist and this child has an orthopedic impairment.” I’m like, “No, they have a multiple disabilities impairment eligibility, but this particular district is putting orthopedic and it’s not necessarily the primary eligibility of this [inaudible 00:32:53].”

Amanda Selogie:              Right. What Vicky’s talking about is when we talk about these categories, the way that a child is eligible for an IEP is that one of these eligibility categories is determined to be the primary eligibility category, and it’s supposed to align with what the IDEA and the state education code has as their option. We’ve discussed 13, right? Those 13 are possibility-

Vicky Brett:                        Almost.

Amanda Selogie:              Almost.

Vicky Brett:                        Almost discussed.

Amanda Selogie:              What happens sometimes is school districts will make up their own and if those don’t align with what the ed code says, if you try to transfer to another school district or school, it sometimes becomes impossible. One of the things we always try to let parents know is if you’re going to consent to an eligibility, make sure it’s an eligibility that’s a legal eligibility category because if this parent that has this eligibility, the district is proposing this eligibility category that has no bearing under federal or state law, you should not consent to that because it could cause you problems later on.

Vicky Brett:                        Exactly. Just moving really quickly to [inaudible 00:33:59] multiple disabilities, that’s just a child with more than one condition covered by the IDEA, right? You have multiple issues that create educational needs that can’t be met in a program for any one condition.

Amanda Selogie:              Right.

Vicky Brett:                        This is alluding back to where there were parents that were like, “We need to be in this autism-specific program because they’re giving my child all the services that one would need in order to gain an educational benefit.”

Amanda Selogie:              Right. This might get into our second part of the podcast of the practical application and about how you become eligible. When you are looking at … We listed the 13 eligibility categories and when you’re looking at determining what eligibility categories should your child be put into, we normally look at what is the primary eligibility category. What is the primary category that impacts the most? We’ve talked about so many different areas that can overlap over each other, and we’re looking at what impacts their education the most, that should be their primary.

Vicky Brett:                        I think that that’s a really good segue for the last two that we have, which is intellectual disability and traumatic brain injury. With intellectual disability, we have a condition where the child has below average intellectual ability. They have poor communication, they have poor self-care and social skills. Just a typical example is of Down Syndrome, where you have a child with an intellectual disability. Automatically, you think of Down Syndrome, you think yes, they are already at a disadvantage. They can’t accurately communicate their needs and wants. Traumatic brain injury is somewhat similar. The child obviously has just had an injury to their brain by some accident or some physical force. Before this car accident that Jimmy was in, he was fine of average cognitive ability, but then something happened and he had a traumatic brain injury.

Amanda Selogie:              Right. Concussion syndrome can be one of those as well, but also traumatic brain injury can go to things like fetal alcohol syndrome.

Vicky Brett:                        Yeah.

Amanda Selogie:              Things that happen because of birth defects.

Vicky Brett:                        Right, right.

Amanda Selogie:              Birth defects can cause traumatic brain injury as well.

Vicky Brett:                        If you have intellectual disability where you do not have average cognitive ability, you have severely low average cognitive ability, then that would be your primary eligibility category. We have a lot of parents where other health impairment, because of their child’s [inaudible 00:36:36] issues is the primary, but a district will recognize that the child has been diagnosed with autism so that’s their secondary. Parents are like, “I don’t understand. Autism is what he has. Why are they saying that?”

Amanda Selogie:              Right.

Vicky Brett:                        It’s more so because your child is higher functioning, child living with autism, though what is happening is he has above average or average cognitive abilities. He is deficit in his social skills.

Amanda Selogie:              Right.

Vicky Brett:                        The thing that is primarily affecting his academic, socialization, and vocational skills are his attentional issues.

Amanda Selogie:              Right. Might be social skills, we might talk about speech and language. There’s a number of kids who could fall under a number of different categories. The way that we find out, the practical application, if you stuck around, thank you for sticking around, we can talk about how do you become eligible. The first step is requesting a special education assessment from the school district. Oftentimes, the school district will try to circumvent this by doing SST, student assessed team meeting, 504 meeting, but if you have a suspicion that your child has a disability in any sense, maybe they have a diagnosis or you just feel like they’re not doing well in school, you ask for special education assessment.

Vicky Brett:                        That would be an initial assessment and it’s under the California education code 56043. Essentially what ends up happening is that 15 days from the day of referral for assessment, the school is going to give you an assessment plan, right?

Amanda Selogie:              Right.

Vicky Brett:                        That’s one of the first things that they’re able to do. Amanda and I, the ed code exists for California. You can look this up.

Amanda Selogie:              Right.

Vicky Brett:                        Nothing that we say is legal advice. We’re indicating that this is where the education code is. These are the standards that have been placed by the California Department of Education.

Amanda Selogie:              Right. Essentially anyone who refers, does that referral for special education, it could be the teacher, it could be the parent, it could be any outside therapist, anyone that works with the kid that says, “I think something’s going on, I think we need to assess,” the school is obligated to assess in all areas of suspected disability. What they should be doing is looking at each of these eligibility categories and seeing number one, where are they eligible, and let’s say the kid is eligible under autism, under other health impairment, and under specific learning disability. Right? Then we’re looking at what’s the biggest impact? What’s the largest impact, the primary impact on their education? Maybe social skills are deficit, but not horrible, right. They have friends, but just not the best.

Vicky Brett:                        It depends what the parent is actually experiencing, right?

Amanda Selogie:              Right. What the teachers are seeing.

Vicky Brett:                        Right.

Amanda Selogie:              Maybe the attention, there’s attention issues, but they’re attending 15% of the time and their typical peers are attending 75% of the time. Maybe that’s … The behaviors that are off task or maladaptive behaviors are the biggest thing, then maybe we’re going to look towards the autism because we’re looking at those behaviors. Maybe another kid, the biggest issue is they’re attending to task. They’re doing the best they can, but they’re being taught auditorily and they need those visual supports. The biggest thing is that processing. We’re going to look at what’s impacting the most and that’s the eligibility category that should become their primary, but under the law, we have the ability to do a primary and a secondary. Oftentimes, we can find two eligibility categories that will fit for this child, and found eligible through these assessments and through the analysis of the assessments of looking at how is the child testing under the assessments, and how are they doing in class?

Vicky Brett:                        If this is the first time that you’re asking for additional help in the sense of hey, I think my child needs to be assessed for special education services, basically 15 calendar days from the day of that referral, the school district is to respond to you. That’s just the practical application under-

Amanda Selogie:              Right.

Vicky Brett:                        … The ed code. We’ll get into the intricacies of what happens from there and the individualized education program meeting that stems from that.

Amanda Selogie:              Right.

Vicky Brett:                        For the most part, that practical application is A, I have a suspicion that I believe my child or I have a medical diagnosis, you start from the medical diagnosis and you say, “Hey, can you assess in these areas because I think it’s affecting.”

Amanda Selogie:              Right, or I think my child is having some difficulty. Let’s assess, let’s look at it. Let’s see is there something that’s impacting my child’s ability to make meaningful progress?

Vicky Brett:                        School districts are obligated to child [inaudible 00:41:26], right?

Amanda Selogie:              Right. I’m sure we’ll have an episode on child [inaudible 00:41:29] alone [inaudible 00:41:30] we can talk about that.

Vicky Brett:                        Just on child [crosstalk 00:41:32].

Amanda Selogie:              A whole thing, but I hope that we gave you a good overview on the eligibility category-

Vicky Brett:                        yeah.

Amanda Selogie:              [inaudible 00:41:37] eligible.

Vicky Brett:                        It pretty much wraps up what those 13 eligibility categories are, and hopefully it gives you an insight as to what you can expect when you start this process.

Amanda Selogie:              Yeah.

Vicky Brett:                        If you enjoy this, please do not forget to subscribe, and if you subscribe, do not forget to rate. We’re getting a lot of positive feedback and a lot of constructive criticism from our listeners.

Amanda Selogie:              Yeah, absolutely.

Vicky Brett:                        Which is great.

Amanda Selogie:              One thing we wanted to let you know, obviously we are attorneys in this area, but we, like we said, we eat, live, and breathe special education, and education in general. We love this area, we think education really is the key to our future. It’s so important for kids to be properly educated, but we also want to make sure that we’re letting you know more about us because I think it’s important for you to know who you’re talking to. We’re not just figureheads talking about the law. Vicky and I, obviously we live in Orange County and we have our own lives, and I think it’s important that you know a little bit more about us. Vicky, how was your week?

Vicky Brett:                        It was good. It was a long one. You guys might be hearing this at a different time, but it’s the week before Thanksgiving, so a lot of times when you’re trying to get responses from the other side, everybody turns down the week before Thanksgiving. It’s hard to try to elicit responses from, or our parents, from the other side. That’s been interesting, but it’s given me some time to catch up on a couple of things that we need to do. What’s been going on for you?

Amanda Selogie:              The holiday season comes with the end of my soccer season. For those of you who don’t know, I am a soccer coach. I have a team in Huntington Beach in [ASO 00:43:32]. I coach kids, it’s a VIP program, so it’s kids with special needs in their soccer program and it’s an amazing program, I love it. We play against the mainstream teams, but so last week we actually had our team party. We went to Round Table Pizza and the kids got to play some games, and it’s always a fun team party to see them all, and they always see us outside of our soccer gear. I’m always wearing workout clothes to practice and games and have my hair up and sunglasses on.

Vicky Brett:                        Classic Amanda.

Amanda Selogie:              I know, right.

Vicky Brett:                        Classic Amanda.

Amanda Selogie:              Then they see me at our party and I’m wearing real clothes and they almost don’t recognize me, and they go, “Who’s this?” The season’s always great for me. I love coaching. It’s something that I do on my free time and it’s my fun time. I played soccer for 10 plus years growing up, so it’s one of my little …

Vicky Brett:                        Good times.

Amanda Selogie:              Good times.

Vicky Brett:                        Good times.

Amanda Selogie:              End of the season’s always bittersweet.

Vicky Brett:                        Yeah, especially … It’s nice because the holidays [crosstalk 00:44:32].

Amanda Selogie:              It’s the holidays, but you get so used to just hanging out with these kids all the time.

Vicky Brett:                        You have spring.

Amanda Selogie:              I know. I’ll see them in a couple months.

Vicky Brett:                        Yeah. We hope that this was somewhat beneficial for you guys.

Amanda Selogie:              Informative.

Vicky Brett:                        Informative. It’s a little lengthy, but we hope we kept your attention. Thank you so much for tuning into the Inclusive Education Project, and we will talk to you soon.

Amanda Selogie:              We look forward to seeing you next week.

Vicky Brett:                        All right, bye.

Amanda Selogie:              Bye.

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