Systemic violations of IDEA and Section 504 in the eligibility process
As parents, navigating the special education system to secure an Individualized Education Program (IEP) or a Section 504 Plan for your child can often feel like an overwhelming, uphill battle. While federal law—the Individuals with Disabilities Education Act (IDEA) and Section 504 of the Rehabilitation Act—is designed to protect your child's right to a Free Appropriate Public Education (FAPE), we consistently see districts across the country making the same systemic errors in eligibility meetings. These common mistakes often result in the wrongful denial of services, leaving students who desperately need support stuck in a cycle of intervention without formalized help. This post breaks down three of the most persistent and egregious violations of federal guidance, providing you with the language and legal sources you need to challenge these practices in your next meeting.
1. Cherry-Picking Data to Deny Eligibility
This is a procedural and substantive violation of the Individuals with Disabilities Education Act (IDEA) and Section 504, as both require a comprehensive, individualized evaluation.
The Legal Requirement:
IDEA (34 CFR §300.304(b)(2)) requires the school to use a variety of assessment tools and strategies to gather relevant functional, developmental, and academic information. It explicitly states that no single procedure is used as the sole criterion for determining whether a child is a child with a disability.
Misinterpreting "Good Grades" or Average Test Scores:
Districts frequently cite above-average grades or standardized test scores (e.g., above the 25th percentile) as the sole reason for denial, ignoring significant weaknesses that require accommodations or specialized instruction.
Resource: The U.S. Department of Education's Office of Special Education and Rehabilitative Services (OSERS) has issued guidance clarifying that good grades do not automatically disqualify a student from special education eligibility if other data (like processing speed, organizational skills, or a significant discrepancy between ability and achievement) show a need for specially designed instruction (SDI).
Sources:
2. Failure to Consider the Impact of Extraordinary Home Support (e.g., Tutoring)
The evaluation must determine a student's needs without the benefit of intense, outside intervention, which is considered a mitigating measure under Section 504 and should be factored in the decision making process for 504 or IEP eligibility.
The Legal and Policy Basis:
Under Section 504/ADA Amendments Act (ADAAA), the determination of a "substantial limitation" must be made without considering the ameliorative effects of mitigating measures (like medication, hearing aids, or intensive private tutoring). If a student only maintains average performance because of daily private tutoring, their eligibility must be determined as if they were not receiving that tutoring.
Dear Colleague federal guidance states: “You also asked if the evaluation team should consider any tutoring that the child receives outside of the school day, or any modifications or compensatory strategies that are used with the child, and that the child needs in order to succeed academically, when determining whether the child is eligible for services under Part B. Although this specific issue is not addressed in the Part B regulations, a team may find that a child has a specific learning disability if the team determines that "[t]he child does not achieve commensurate with his or her age and ability levels in one or more of the areas listed in paragraph (a)(2) of this section, when provided with learning experiences appropriate for the child's age and ability levels . . . ." 34 CFR § 300.541(a)(1). Generally, it would be appropriate for the evaluation team to consider information about outside or extra learning support provided to the child in developing the written report required at 34 CFR § 300.543, as such information may indicate that the child's current educational achievement reflects the service augmentation, not what the child's achievement would be without such help.”
Parents should present evidence (invoices, hours of service, tutor reports) of the extraordinary support provided outside of the general education classroom to the eligibility team. The team is supposed to make their decision based on how the student would perform without that support.
Source: Lillie Fenton Dear Colleague Letter: https://flspedlaw.com/wp-content/uploads/2018/10/lilliefenton.pdf (Page 6)
3. Denying eligibility because of any small amount of “Progress” (as determined by the district) during Intervention (MTSS/RTI)
Focusing on any level of “progress” as a reason for denial, rather than the student's Rate of Progress (ROP) compared to their peers, violates the spirit of the Response to Intervention (RTI) model within a Multi-Tiered System of Supports (MTSS).
The Difference: Progress vs. Rate of Progress:
Progress (simply moving forward) is expected for all students.
Rate of Progress (ROP) compares the student's learning trajectory against that of typical peers. A student may be making some progress, but if their ROP is too slow, the gap between them and their peers will continue to widen (referred to as a "widening achievement gap").
IDEA/RTI Framework: When using an MTSS model for Specific Learning Disability (SLD) eligibility, the team must consider that the student does not achieve adequately for the child's age or to meet State-approved grade-level standards and that they do not make sufficient progress to meet age or grade-level standards. This sufficiency is measured by the rate of progress.
If interventions do not close the achievement gap, it strongly suggests the student requires Specially Designed Instruction (SDI), which is the definition of special education services and requires an IEP. MTSS is not meant to be a gatekeeping mechanism to indefinitely hold students out of special education; it is an evaluation component.
We often see school districts deny IEP eligibility because a student “made progress” during intervention. THIS IS NOT THE STANDARD! Any small modicum of progress does NOT give the district a valid reason to deny eligibility. They are supposed to be looking at “RATE of progress” and whether there is “sufficient progress” to meet grade level standards in a reasonable amount of time.
Source: IDEA Sec. 300.311 (a) (5) (ii) (a) - https://sites.ed.gov/idea/regs/b/d/300.311