Hello,
Just because your child has two DSM-IV diagnosis's, and is definitely "at risk" as a child being adopted from foster care at an older age, in order to qualify for an IEP, he must have a "disabling condition" from those listed in IDEA AND be experiencing "negative educational impact." Two prior retentions are a REAL problem because they greatly increase his risk of dropping out of high school. Further, when SDs double retain, they fail to realize that many states do not allow 20 year old NON-special education students to attend high school.
The current approach is to TRY intervention and if there is a response, then the child will not qualify for special education. I would argue that your child needs the legal protection afforded by special education qualification, and certainly needs it prior to leaving elementary school. Without it, he is subject to "normal" discipline which includes suspensions and permanent expulsion. Special Education students can not be expelled, ever, and are entitled to attend school through age 22.
Currently, your son has a qualifying disability (ADHD) and if he is unable to perform at grade level, a negative educational impact. If I were you, I would not press for the legal protections that an IEP affords (I told you as back ground information) but rather stress that RtI (what they currently are doing) is insufficient for a child with the risk factors he has and two retentions. He is going to be 16 in the 8th grade....Have they thought about that?
Grades are meaningless...I know you are proud of his grades, and he should be, too, but schools can manipulate grades, and they do, so that there is "no negative impact." What you need is standardized achievement test scores that let you know where he is in relation to where he should be. An example would be the WIAT. Test such as these are normed on a national population and therefore, give a pretty good idea of what your child can do in relation to others. You should ask for AGE norms as well as grade norms for hte following reason: if he is not qualifiable at the by grade norms, then he will surely be behind in comparison to studetns his own age. He "should" be performing according to his age. I would argue that since he is not, assuming there was a reason to retain him twice, this is prima facie evidence of negative educational impact. The SD will not like this argument, particularly if they did not retain him, but nonetheless, it is true.
I hope you can get him qualified, but my guess is that the SD is going to tell you that they are using RtI. IF you sent your request for evaluation by CERTIFIED MAIL, and I hope you did, then the SD must either evaluate, or take you to Due Process to show why they should not. With a double retention and two diagnosis's, I do not think they would win but it would be a hassle.
You probably need to read some threads in the archives of this board to find out more information regarding topics I have raised. Also, reading information on
http://www.wrightslaw.com is very helpful to some parents on this board.
Best to you,
Martie