Most districts don't use a strict discrepancy model any more; ours doesn't. We were able to make a case that DS was missing certain key skills, most of them functional or behavioral skills, that are essential. The law specifically says that if a child lacks functional skills they are to be remediated through an IEP. (Searching Wrightslaw's search box for "functional" yielded useful information there.) Sitting still at circle time is a functional skill. As is managing one's anxiety. As is handwriting.
Our district has moved to an RTI model (Response to Intervention). In theory, it means they should be helping remediate known deficits (including things like handwriting) even before a child is identified as needing an IEP; this can delay getting a formal plan in place, but it is not *supposed* to delay getting help.
Now that our school situation is extremely well-functioning (we are past the need-a-lawyer-NOW phase and well into more subtle annual tweaking of the IEP) I have the luxury of worrying less about legal nuances, because my kids are being taught appropriately; it's possible I'm not entirely up to date. I spent DS's kindergarten year reading everything I could about special ed law, but ultimately found that the state Legal Rights Service and my advocate do a better job for me than I can myself. I do follow this stuff, but not as avidly as before...
DeeDee
