Are ESE Personnel, including teachers, being made Patsies?

No place else in our society that I know of places scrutiny on the English language to the degree that is found in the language of the law. When Congress reauthorizes IDEA every four years, if one reads the commentary found in the Federal Code of Regulations 34 CFR Parts 300 and 301, one will see how much time and effort one word can be parsed. The commentary adds meaning to the intent of the law and provides a sense of interpretation. The commentary is considered a part of the law.

Follow the links on HCPS ESE website to their compliance paper. Find where it says that a student must be found "eligible" for occupational therapy (look at the chart columns and it says "Program / Eligibility Requirements")

I question the usage of the word "eligibility" in the context that a student already found eligible for special education and related services (these two words go together when you read the law) must then be found "eligible" for a "related service".

Everyone should question it.

Please, someone give me the legal reference that demonstrates that there is a double elgibility criteria.


TITLE 20 > CHAPTER 33 > SUBCHAPTER I > § 1401 Definitions

Title 20 of the US Code as currently published by the US Government reflects the laws passed by Congress as of Jan. 2, 2006.


(3) Child with a disability
(A) In general
The term “child with a disability” means a child—
(i) with mental retardation, hearing impairments (including deafness), speech or language impairments, visual impairments (including blindness), serious emotional disturbance (referred to in this chapter as “emotional disturbance”), orthopedic impairments, autism, traumatic brain injury, other health impairments, or specific learning disabilities; and
(ii) who, by reason thereof, needs special education and related services.
(B) Child aged 3 through 9
The term “child with a disability” for a child aged 3 through 9 (or any subset of that age range, including ages 3 through 5), may, at the discretion of the State and the local educational agency, include a child—
(i) experiencing developmental delays, as defined by the State and as measured by appropriate diagnostic instruments and procedures, in 1 or more of the following areas: physical development; cognitive development; communication development; social or emotional development; or adaptive development; and
(ii) who, by reason thereof, needs special education and related services.

Nothing in there says anything about Occupational Therapy.

Next we would look here TITLE 20 > CHAPTER 33 > SUBCHAPTER II > § 1414. Evaluations, eligibility determinations, individualized education programs, and educational placements - and find:

(4) Determination of eligibility (my emphasis) and educational need
Upon completion of the administration of assessments and other evaluation measures—
(A) the determination of whether the child is a child with a disability as defined in section 1401 (3) of this title and the educational needs of the child shall be made by a team of qualified professionals and the parent of the child in accordance with paragraph (5); and (make sure you read the rest, but for the purpose of this discussion about "eligibility", I left it off.)

If we pay attention, the 1414 (4)(A) references the above 1401(3) and specifically uses the words "determination of eligibility".

Nowhere in this discussion do we see anything about Occupational Therapy (or Physical Therapy or a lot of other related services).

Following along with our quest for information we look at Federal Register / Vol. 71, No. 156 / Monday, August 14, 2006 / Rules and Regulations page 46782

and we finally find the use of "Occupational Therapy" under definition of Related services:
§ 300.34 Related services.
(a) General. Related services means
transportation and such developmental,
corrective, and other supportive services
as are required to assist a child with a
disability to benefit from special
education, and includes speechlanguage
pathology and audiology
services, interpreting services,
psychological services, physical and
occupational therapy, recreation,
including therapeutic recreation, early
identification and assessment of
disabilities in children, counseling
services, including rehabilitation
counseling, orientation and mobility
services, and medical services for
diagnostic or evaluation purposes.
Related services also include school
health services and school nurse
services, social work services in schools,
and parent counseling and training.
(b) Exception; services that apply to
children with surgically implanted
devices, including cochlear implants.
(1) Related services do not include a
medical device that is surgically
implanted, the optimization of that
device’s functioning (e.g., mapping),
maintenance of that device, or the
replacement of that device.
(2) Nothing in paragraph (b)(1) of this
section—
(i) Limits the right of a child with a
surgically implanted device (e.g.,
cochlear implant) to receive related
services (as listed in paragraph (a) of
this section) that are determined by the
IEP Team to be necessary for the child
to receive FAPE.
(ii) Limits the responsibility of a
public agency to appropriately monitor
and maintain medical devices that are
needed to maintain the health and
safety of the child, including breathing,
nutrition, or operation of other bodily
functions, while the child is transported
to and from school or is at school; or
(iii) Prevents the routine checking of
an external component of a surgically
implanted device to make sure it is
functioning properly, as required in
§ 300.113(b).
(c) Individual related services terms
defined. The terms used in this
definition are defined as follows:
(1) Audiology includes—
(i) Identification of children with
hearing loss;
(ii) Determination of the range, nature,
and degree of hearing loss, including
referral for medical or other professional
attention for the habilitation of hearing;
(iii) Provision of habilitative
activities, such as language habilitation,
auditory training, speech reading (lipreading),
hearing evaluation, and speech
conservation;
(iv) Creation and administration of
programs for prevention of hearing loss;
(v) Counseling and guidance of
children, parents, and teachers
regarding hearing loss; and
(vi) Determination of children’s needs
for group and individual amplification,
selecting and fitting an appropriate aid,
and evaluating the effectiveness of
amplification.
(2) Counseling services means services
provided by qualified social workers,
psychologists, guidance counselors, or
other qualified personnel.
(3) Early identification and
assessment of disabilities in children
means the implementation of a formal
plan for identifying a disability as early
as possible in a child’s life.
(4) Interpreting services includes—
(i) The following, when used with
respect to children who are deaf or hard
of hearing: Oral transliteration services,
cued language transliteration services,
sign language transliteration and
interpreting services, and transcription
services, such as communication access
real-time translation (CART), C-Print,
and TypeWell; and
(ii) Special interpreting services for
children who are deaf-blind.
(5) Medical services means services
provided by a licensed physician to
determine a child’s medically related
disability that results in the child’s need
for special education and related
services.
(6) Occupational therapy—
(i) Means services provided by a
qualified occupational therapist; and
(ii) Includes—
(A) Improving, developing, or
restoring functions impaired or lost
through illness, injury, or deprivation;
(B) Improving ability to perform tasks
for independent functioning if functions
are impaired or lost; and
(C) Preventing, through early
intervention, initial or further
impairment or loss of function.