Lrp national institute child find

Finders Keepers: Child Find Rules Under the IDEA and Section 504 Karen Haase TUESDAY, MAY 6 • 3:00 – 4:15 P.M.

Child Find? 

IDEA Part C

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IDEA Part B

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Section 504 A Hearing Exhibit

Child Find?

Child Find in IDEA Part C •

Quality indicators in 2011 regulations compare percentage of identified infants to national average.

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Research shows still under identification issues.

Child Find in IDEA Part B 

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Affirmative, ongoing obligation of states and local school districts to identify, locate, and evaluate all children with disabilities.

Specifically references: • Homeless.

• Wards of the state.

• Those attending private schools.

• Migrant and mobile students.

Regardless of the severity of disability.

Even if they are advancing in grade.

34 CFR 300.111

Section 504 of the Rehab. Act 

A recipient that operates a public elementary or secondary education program or activity shall annually:

(a) Undertake to identify and locate every qualified handicapped person residing in the recipient's jurisdiction who is not receiving a public education. (b) Take appropriate steps to notify handicapped persons and their parents or guardians of the recipient's duty under this subpart.

34 CFR 104.32

What is NOT Required to Trigger Child Find

Enrollment Is Not Required to Trigger Child Find

Robertson County Sch. Sys. v. King, 24 IDELR 1036 (6th Cir. 1996) • • • •

Parent of toddler with PDD. Mom called school.

Mom found private placement.

Special education director: – “Would have to be tested.”

– “Not even our student.”

• Parents filed claim for tuition reimbursement for three years.

Robertson County Sch. Sys. v. King, 24 IDELR 1036 (6th Cir. 1996) • Court: – Child find obligations not limited to students enrolled in the district.

– Should have given parent notice of parental rights.

• Borrowed three-year personal injury statute of limitations to award all three years of preschool tuition.

Parent Request Not Required to Trigger Child Find

Compton Unified Sch. Dist. v. Addison, 54 IDELR 71 (9th Cir. 2010) • 9th-grade student.

– Poor grades.

– Reading at 4th-grade level.

– Below first percentile on standardized tests.

• Counselor: transitional year.

• 10th grade.

– Failed every class.

– “Like a stick of furniture.”

– Played with dolls.

– Colored with crayons.

– Urinated on self.

Compton Unified Sch. Dist. v. Addison, 54 IDELR 71 (9th Cir. 2010) • Mom reluctant to have child “looked at.”

• School decided “not to push.”

• School referred to mental health counselor; counselor recommended SLD assessment.

• School promoted to 11th grade • Mom asked for evaluation – student verified.

Compton Unified Sch. Dist. v. Addison, 54 IDELR 71 (9th Cir. 2010) • Mom sued for child find violation.

• School: – IDEA's written notice requirement applies to proposals or refusals to evaluate or place.

– School didn’t refuse to act; simply chose to do nothing.

• Court: Child find creates affirmative obligation to act.

D.A. v. Houston Indep. Sch. Dist., 55 IDELR 243 (5th Cir. 2010) • Preschool: – Student struggled – below peers.

– Teacher: No evals in preschool.

• Kindergarten: – Working below grade level.

– Teacher: needs to repeat kindergarten.

– Promoted “so he can be tested for special education.”

• 1st grade: – – – –

Student still below peers.

Behavior problems.

School required mom to sit with student.

Teacher tried to refer; SAT rejected.

D.A. v. Houston Indep. Sch. Dist., 55 IDELR 243 (5th Cir. 2010) • Parents sued for violation of child find.

• Court: – Clear child find violation.

– Should have referred at beginning of 1st grade.

– Should have provided mom with written notice of delay to implement other interventions.

– No individual liability for principal and counselor.

Parent Cooperation Not Required to Trigger Child Find

M.J.C. v. Special Sch. Dist. No. 1, 58 IDELR 288 (D. Minn. 2012) • Elementary child struggling.

– In 4th grade, mom requested eval.

– School evals for SLD and behavior.

– School knew private ADD assessment was being conducted.

• Private physician diagnosed ADD. – Mom wouldn’t provide.

– School nurse called doctor.

– School stopped trying to obtain eval.

M.J.C. v. Special Sch. Dist. No. 1, 58 IDELR 288 (D. Minn. 2012) • Court: – Once school agreed to conduct eval for OHI, obligated to assure complete evaluation was conducted.

– This includes procuring medical services, if necessary, at no cost.

M.J.C. v. Special Sch. Dist. No. 1, 58 IDELR 288 (D. Minn. 2012) “It is understandable that the District was frustrated by [mom’s] failure to provide a physician’s diagnosis. But when a child like M.J.C. is so obviously failing, and his disability and need for special education are known, the law requires the District to act.”

RTI Strategies Not Required

Daniel P. v. Downington Area Sch., 57 IDELR 224 (E.D. Pa. 2011) • • • • •

Student received RTI services in kindergarten and 1st grade.

In December of 1st grade, school evaluated but did not verify.

RTI continued through 2nd grade.

Student increasingly anxious and frustrated about school.

In 3rd grade, student tested and verified.

Daniel P. v. Downington Area Sch., 57 IDELR 224 (E.D. Pa. 2011) •

Parents sued claiming violation of child find.

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Argued RTI improperly implemented.

Student was making trivial progress with RTI. Deteriorating progress should have notified school that RTI wasn’t working .

Court: – – –

Had a peer group at similar instructional level.

No discrepancy between ability and performance.

No basis for concluding that the district should have acted sooner.

City of Chicago Sch. Dist. 299, 109 LRP 72479 (SEA IL 2009) • • • •

10-year-old with turbulent family history – ward of the state.

Grandmother appointed foster parent, enrolled in school.

Grandmother concerned about student’s performance.

School refused to evaluate.

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Spotty prior attendance.

Implemented RTI.

City of Chicago Sch. Dist. 299, 109 LRP 72479 (SEA IL 2009) •

Student failed 3rd grade; grandma withdrew from school.

Grandmother went to due process claiming violation of child find.

Court:

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Inconsistent school attendance did not relieve district of child find obligations.

It may have been reasonable to delay testing at the beginning of the year, but not to wait all year.

Student was not making progress in RTI.

What IS Required to Trigger Child Find

Parent Consent for the Actual Eval.

Fitzgerald v. Camdenton R-Ill Sch., 45 IDELR 59 (2006) • • • • • •

School believed student may have disability.

District decided to evaluate.

Parent withdrew and homeschooled.

School initiated due process.

Missouri ED found for school .

8th Circuit held that school cannot force evaluation.

Letter to Durheim, 27 IDELR 380 (1997) •

No consent requirement in text of Section 504 or regulations.

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Consent still required.

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Parental discretion is “an appropriate and necessary policy component at the initial evaluation phase.”

Reason to Suspect Disability

Montgomery County Pub. Sch., 11 ECLPR 5 (SEA MD 2012) • •

Student had medical history.

Started kindergarten. o o o o o

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Threw things.

Squirted milk.

Didn’t follow directions.

Hitting.

Kicking.

Dad believed student should be evaluated.

School: typical kindergartener, implemented BIP.

Montgomery County Pub. Sch., 11 ECLPR 5 (SEA MD 2012) •

ALJ: School had no reason to suspect a disability: o o

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Behavior typical.

Improved as the year progressed.

ALJ: Even if student is disabled, academic success demonstrates no adverse educational impact.

D.K. v. Abington Sch. Dist., 59 IDELR 271 (3d Cir. 2012) •

Student struggled in lower elementary school. o o o o o

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Poor work.

Defiant, argumentative.

Frequent tantrums.

Obscene gestures to peers (2nd grade).

Fights on bus and playground.

School response: o o o o o

Reward system.

Social skills group.

School psych: “on par with” other students.

Teacher: “providing as many supports as possible.”

Teacher: “too soon to test because not failing.”

D.K. v. Abington Sch. Dist., 59 IDELR 271 (3d Cir. 2012) • • • • •

Parents requested eval; student did not verify.

Parents began private therapy.

Student re-evaluated next school year and verified.

Parents sued claiming violation of child find.

Court: no violation.

D.K. v. Abington Sch. Dist., 59 IDELR 271 (3d Cir. 2012) •

“The school district was not required to jump to the conclusion that DK’s misbehavior denoted a disability or disorder because hyperactivity, difficulty following instructions and tantrums are not atypical during early primary years.”

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Student was making “intermittent progress and even [achieving] academic success in several areas.”

Suspicion of Need for Special Education

Marshall Joint Sch. Dist. No. 2 v. C.D., 54 IDELR 307 (7th Cir. 2010) • • • •

Student with genetic disorder.

Mom wanted adaptive PE. School: modified general PE. ALJ found for parent. o

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Student’s educational performance could be affected if he experienced pain or fatigue at school.

7th Circuit: Test is not whether a condition can affect student’s performance at school, it is whether in reality it does.

Moore v. Hamilton Southeastern Sch. Dist., 61 IDELR 283 (S.D. Ind. 2013) •

Middle school student with history of depression and behavior problems.

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School did not verify because student had average grades.

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Court: denied motion for summary judgment. o o

Unreasonable to rely on grades.

Student’s ability was above average, discrepancy should have been red flag.

Child Must Be in Need of Special Education

D.G. v. Flour Bluff Indep. Sch. Dist., 56 IDELR 255 (S.D. Tex. 2011) • • • • • •

9th-grader with behavior problems.

School assigned to alternative school.

Mom provided 4-year-old ADD diagnosis.

School created 504 – moved kid back to general school.

Misbehavior continued.

School did manifestation – moved back to alternative school.

D.G. v. Flour Bluff Indep. Sch. Dist., 56 IDELR 255 (S.D. Tex. 2011)

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Mom filed for due process. o o

Should have evaluated under IDEA. Should have provided notice of procedural rights.

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District Court: violation of child find.

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5th Circuit: o o

Not necessarily child find violation.

School cannot be liable for child find violations if student is not eligible for IDEA services.

Special Categories of Students

Homeless Students

Homeless Students – Federal Def. 

Lack a fixed, regular, and adequate nighttime residence.

Includes: • • • • • • •

Living with family or in motel.

Abandoned.

Awaiting foster care.

Living in cars, parks, etc.

Migratory children.

Abused, homeless, not yet in system.

Aged out of foster and homeless.

L.R. v. Steelton-Highspire Sch. Dist., 54 IDELR 155 (M.D. Pa. 2010) •

After a house fire, student moved in with relatives.

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School: o Refused to enroll because not a “resident.” o Student not “homeless” because he slept in a house every night.

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Court: Student met definition of homeless in McKinney-Vento.

Truant Students

Syracuse City Sch. Dist., 37 IDELR 232 (SEA NY 2002) • • • • •

7th-grader refusing to attend school.

45 school days: tardy 11, absent 21.

Grandma called guidance counselor when student refused to get out of bed.

Grandma claimed violation of child find.

SRO: absenteeism warning sign of emotional impairment, triggered child find.

Private School Students

Privately Placed Students Child Find Obligation on: •

School district where private school is located.

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School district where student resides.

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Both simultaneously.

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504 obligation to private school students (residents of district).

Questions?