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Special Educationin the Modern Age

Child Find Under the Microscope

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What We’ll Examine Today . . .

Overview of Child Find Legal Obligations

Federal (IDEA) and California law

Specific Child Find Issues and Case Examples

Child Find Obligations to Parentally Placed Private School Students

Child Find Obligations to Homeless and Highly Mobile Students

Child Find Under Section 504

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Introduction . . .

Identify . . . Locate . . . Evaluate

Child find is one of the most important special education legal obligations for school districts

It is a cornerstone of the IDEA – along with IEPs and parental participation – and is the foundation of FAPE

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I. Overview of Child Find Legal Obligations

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Legal Standard

IDEA

Affirmative, ongoing duty to identify, locate and evaluate all children with disabilities residing in the state who are in need of special education

California law

Education Code’s child find requirements includes homeless children, wards of the state, children attending private schools

Applies regardless of the severity of disabilities

(34 C.F.R. § 300.111; Ed. Code, §56301)

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Two Components to Child Find

General “public notice” responsibility

Inform and educate public about need to locate and identify all children with disabilities

Obligation to specific child

Triggered when district knows – or should know – that student may have a disability

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General Responsibilities

Neither IDEA nor Education Code specifies which general activities are sufficient to meet child find obligations

Ed Code obligates each SELPA to establish child find policies and procedures for use by its districts

(Ed. Code, §56301)

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General Responsibilities (cont’d)

U.S. Department of Education guidance:

Child find generally includes, but is not limited to, activities such as:

Widely distributing informational brochures

Providing regular public service announcements

Staffing exhibits at health fairs and other community events

Creating direct liaisons with private schools

(71 Fed. Reg. 46593 (Aug. 14, 2006))

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General Responsibilities (cont’d)

Case law

Reasonable procedures must be in place to make parents aware of availability of services

District met obligations when it:

Published annual notices in newspapers with special ed contact information

Provided pamphlets to hospitals and business

Maintained website

Conducted regular meetings with health care providers

(L.S. v. Tustin Unified School Dist. (C.D. Cal. 2007) 109 LRP 45311)

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General Responsibilities (cont’d)

Staff Training

Essential component of continuous child find responsibilities

Student v. Santa Barbara USD decision:

OAH scolded District for lack of general training for staff on child find

Continuing failure to meet child find obligations deemed “egregious”

ALJ ordered six hours of mandatory training

(Student v. Santa Barbara Unified School Dist. (OAH 2013) No. 2012080468, 113 LRP 1802)

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Obligation to Individual Students

Triggered when district has knowledge of –or reason to suspect – student has disability Threshold for suspicion is “relatively low”

Appropriate inquiry: Whether student should be referred, not whether he or she will qualify

Child find violated if district overlooks clear signs of disability and offers no rational justification for not evaluating

But, Child find does not guarantee eligibility

(Department of Educ. State of Hawaii v. Cari Rae S. (D. Hawaii 2001) 35 IDELR 90)

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Obligation to Individual Students

Affirmative obligation to act

Not dependent on parent request for evaluation

Child find not excused even when parent interferes with process

Passive approach – deciding not to “push” or to “wait and see” – equates to active and willful refusal to take action

(Compton Unified School Dist. v. Addison (9th Cir. 2010) 54 IDELR 71)

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Violations of Child Find

Issue of whether district had reason to suspect disability must be viewed based on what information it possessed at relevant time

“Snapshot” – not a retrospective

Violation of child find duty is “procedural” violation and amounts to denial of FAPE only if:

Impedes right of student to a FAPE;

Significantly impedes opportunity of parents to participate in decision-making; or

Causes deprivation of educational benefits

(34 C.F.R. §300.513(a)(2); Ed. Code, §56505, subd. (f))

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Child Find Responsibilities

Practice Pointer

To avoid confusion over child find process and staff responsibilities

Ensure everyone has copy of – and understands –SELPA’s child find policies and procedures

Conduct child find training – with periodic review –that includes all relevant staff

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II. Specific Child Find Issues and Case Examples

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What Triggers Child Find Duty? Could be any one of numerous indicators,

including: Declining academic performance

Problematic behavior issues

Bullying (either target or perpetrator)

Extended illness

Medical diagnosis of recognized disability

Nonattendance, school refusal or anxiety

Psychiatric hospitalization and/or attempted suicide

Parental request for assessment

Also unique child find issues arise regarding: English learners

RTI process

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Let’s look at some cases!

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Academic Performance Child find duty extends to students who are advancing from

grade to grade; but poor or declining grades, without more, do not necessarily establish violation

Case Example: Student v. Capistrano USD Student’s grades began declining in ninth grade – GPA

slipped from 3.17 to 1.20; isolated disciplinary incidents

Late in school year, Student sold codeine pills (and was eventually expelled)

Reacted violently when father attempted to punish him, resulting in hospitalization and Parents’ decision to place him in residential facility

Parents alleged decline in grades (with other factors) should have caused District to suspect disability

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Academic Performance

Student v. Capistrano USD (cont’d)

ALJ found no child find violation

Credited District’s expert witness’s explanation that ninth-graders often experience drop in grades

Drastic grade decline resulted, in part, from expulsion and failure to complete work

Other factors: Discipline incidents were minor, “selling drugs does not equal disability” and District was not aware of hospitalization

(Student v. Capistrano Unified School Dist. (OAH 2011) No. 2011040869, 111 LRP 75100)

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Behavior Pattern of behavior that affects performance or disrupts

classroom might be an indication of possible disability

Case Example: Student v. Panama-Buena Vista USD 14-year-old earned good grades but had extensive

disciplinary history since kindergarten

By eighth grade, incidents were increasing in frequency and severity – but District relied only on warnings, detention and suspension to discourage bad behavior

Parents met with all Student’s teachers to discuss behavior problems and asked for weekly reports

Subsequent due process claim alleged child find violation based on failure to assess despite behavior issues

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Behavior

Student v. Panama-Buena Vista USD (cont’d)

ALJ found District failed in its child find obligation beginning from time Parents met with teachers

Evidence that misbehavior persisted – and increased –despite warnings, detentions and suspension was sufficient to establish Student had significant behavior problem requiring assessment

Despite good grades, ALJ found missed classroom time from suspensions “must have affected Student’s academic performance”

District ordered to implement assessment plan

(Student v. Panama-Buena Vista Unified School Dist. (OAH 2014) No. 2014010855)

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Behavior On the other hand, disruptive behaviors occurring exclusively

at home typically will not trigger child find

Case Example: Student v. Ventura USD When Student began 10th grade (2009-2010), his home

behavior problems escalated – as did his marijuana use

However, no behavior incidents occurred at school

Parents moved Student to charter school for 11th grade (2010-2011), where attendance problems developed and Student continued oppositional conduct at home

Student returned to District for brief period, but violent incident at home forced involuntary hospitalization and subsequent residential placement

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Behavior

Student v. Ventura USD (cont’d) ALJ found no child find violation for 2009-2010

Student’s grades improved after Student Assistance Team’s intervention and he had no behavior problems

Parents never reported severity of behavior issues at home and those issues did not impact Student at school

ALJ also found no child find violation for 2010-2011

Parents did not inform District about Student’s charter school truancy, increased marijuana use, medication or hospitalization

(Student v. Ventura Unified School Dist. (OAH 2012) No. 2011080552, 112 LRP 21671)

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Academic Performance and Behavior Issues

Practice Pointer

Involve the Student Study Team or intervention personnel at first sign of a problem so that interventions can be implemented, progress monitored and a referral made if interventions are not succeeding

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Bullying U.S. Department of Education guidance advises that

incidents of bullying or harassment – either when a student is the target or the perpetrator – can trigger child find

Case Example: Anaheim City SD v. Student Student had been eligible as ED in three previous

districts, but was exited from special ed after she made progress and behaviors were being addressed

When Student moved to new district, behavior issues re-emerged; “bullied, baited and threatened other students”

District offered assessment plan, but Parent refused consent

District sought OAH permission to assess

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Bullying

Anaheim City SD v. Student (cont’d) ALJ granted District’s request to conduct assessment

Sufficient maladaptive and aggressive behaviors toward other students to trigger child find obligation

Current behaviors were continuation of prior patterns resulting in ED eligibility in three previous districts

ALJ noted that incidents of bullying can be sign that student needs special education

(Anaheim City School Dist. v. Student (OAH 2013) No. 2013040142, 113 LRP 28570)

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Bullying

Practice Pointer

Child find also can be implicated when a student is reportedly being bullied

Be aware that behaviors that made student a “target” might constitute a disability

Even if investigation reveals no bullying occurred, consider that student may have social/emotional difficulties that led to misinterpretation of normal childhood interactions

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English Learners When an EL student struggles with classwork, it is often

difficult to distinguish between learning difference (language) or possible learning disability

Case Example: Student v. Los Angeles USD Parent expressed language concerns when Student was

enrolled in Head Start, but never informed District when Student enrolled in kindergarten

Parent requested language and speech assessment during kindergarten year, but, after screening, District pathologist concluded that language difficulties were related to Student’s EL status

Student ultimately was assessed during first grade and found not to be eligible for special ed

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English Learners

Student v. Los Angeles USD (cont’d) ALJ found no child find violation prior to Student’s

enrollment in kindergarten since Parent did not advise District of Head Start concerns

Also no duty to assess when Student began kindergarten because EL status, without more, did not trigger child find

However, District failed in child find later in Student’s kindergarten year

Student’s language deficits could not be reconciled with EL status given primary language delays

No denial of FAPE because no proof Student required special ed to access kindergarten curriculum

(Student v. Los Angeles Unified School Dist. (OAH 2013) Nos. 2012090211 and 2013010694, 113 LRP 28915)

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English Learners

Practice Pointer

It is a myth that districts must wait until student has received EL services for at least five years before making special ed referral

Skilled assessors can determine if student has a disability (vs. a language difference) even if student has not yet fully acquired English

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Extended Illness While not every medical issue implicates child find, lengthy

illness or illness resulting in extended hospital stay may indicate need for assessment

Case Example: Student v. Antioch USD and Pittsburg USD Student diagnosed with MS while in 10th grade at AUSD

Section 504 plan developed after two months in hospital

No assessment for special ed as school year ended before 504 accommodations exhausted, but Student received several “incompletes”

Student enrolled in PUSD for 11th grade

MS caused her to miss more than 40 days, but she received good grades and remained on track to graduate

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Extended Illness Student v. Antioch USD and Pittsburg USD (cont’d)

AUSD did not violate child find due to short time between MS diagnosis and end of school year

Information AUSD possessed was insufficient to suspect that MS symptoms were adversely affecting education

However, ALJ found PUSD should have assessed Student for OHI based on “incompletes” from AUSD

ALJ: PUSD’s child find violation did not deny FAPE

District Court reversed: Failure to assess impeded Parent’s ability to participate in decision-making

Court ordered District to assess and ALJ to make determination of need for comp ed

(Student v. Antioch Unified School Dist. and Pittsburg Unified School Dist. (OAH 2013) No. 2012110571, 113 LRP 33626)

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Medical Diagnosis of Disability Knowledge that student meets definition of one (or more) of

13 IDEA disability categories almost always is enough to trigger child find’s “low threshold,” even when doubt exists about whether student will require special ed

Case Example: Student v. Newport-Mesa USD In December of senior year, Student struck by auto and

sustained traumatic brain injuries

District was aware of accident when it occurred

Offered Section 504 plan when Student returned in March

District subsequently assessed Student, but report was not completed until August after Student had graduated with regular diploma

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Medical Diagnosis of Disability

Student v. Newport-Mesa USD (cont’d) ALJ found child find violation

District knew of Student’s TBI from outset and was aware that injuries might impact ability to learn

Development of Section 504 plan was “immaterial” and did not absolve District of child find obligation

Violation denied FAPE because it inhibited parental participation in determining Student’s services

District ordered to pay $2600 to Student for educational tutoring; also ordered to provide independent vocational and AT assessments

(Student v. Newport-Mesa Unified School Dist. (OAH 2014) No. 2013060620, 114 LRP 6941)

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Nonattendance/School Refusal/Anxiety

When significant absences affect educational performance and there is suspicion of underlying emotional or medical condition, districts generally will owe duty to evaluate

Case Example: Student v. Berkeley USD In October of first-grade, Student began demonstrating

anxiety and refused to go to school

In January, teacher contacted Parent about Student’s numerous absences

In February, Parent notified teacher that Student was seeing therapist and asked for meeting to share concerns

In May, District convened Student Study Team

Student assessed the following fall; found not eligible

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Nonattendance/School Refusal/Anxiety

Student v. Berkeley USD (cont’d) District’s knowledge of excess absences – combined with

Parent’s report to teacher of anxiety and school refusal –triggered child find duty by March

By that time, Student had missed 51 days of school

Child find obligation was not dependent on first finding source of Student’s anxiety about attending

However, child find violation did not deny FAPE as Student ultimately found not to be eligible for services

(Student v. Berkeley Unified School Dist. (OAH 2014) No. 2013120159, 114 LRP 17833)

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Nonattendance

Practice Pointer

On some occasions, it may be apparent that chronic nonattendance is not school-related and may not require an assessment

But prompt investigation of reason for chronic absence – and then addressing its cause – is essential in helping to avoid subsequent child find claim

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Psychiatric Hospitalization and/orAttempted Suicide Many child find cases involving psychiatric hospitalization

and/or attempted suicide have found that “low threshold” of suspicion of disability (particularly ED) has been met

Case Example: Student v. Anaheim Union HSD During summer following ninth-grade year, Student had

emotional breakdown at home resulting in suicide threat and psychiatric hospitalization

In September, Parent informed District about incident and asked for Section 504 plan to address anxiety

In February, following removal for marijuana, Student was assessed and found eligible as ED and OHI

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Psychiatric Hospitalization and/orAttempted Suicide Student v. Anaheim Union HSD (cont’d)

Before school year began, District had no reason to believe that assessment was warranted

Child find obligation triggered in September when Parent advised District of Student’s hospitalization and suicide threat

District should have assessed Student at that time rather than six months later

Because Student likely would have been found eligible in September, child find violation denied FAPE; District ordered to provide counseling services

(Student v. Anaheim Union High School Dist. (OAH 2013) No. 2012031076, 113 LRP 13659)

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Response to Intervention OSEP has stated that districts may not delay assessment of

suspected disability on basis that they have implemented RTI and are waiting to see how student responds

Case Example: Student v. Rosedale Union ESD Student began receiving RTI at beginning of second-

grade year to address her reading difficulties

Parent expressed concern about lack of progress and, in February, met for third time with Student’s teacher after six months of RTI

District’s data team decided to delay assessment until fall of third grade to “wait and see” if RTI would work

Student ultimately assessed and found eligible as SLD

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Response to Intervention

Student v. Rosedale Union ESD (cont’d)

ALJ: District waited too long; should have assessed Student in February

Student was not responding to RTI after six months of interventions as indicated by poor report cards, poor performance on standardized tests and weekly RTI reports

Consistent pattern of low performance and minimal response to RTI should have led to assessment

District unable to support “wait and see” approach

(Student v. Rosedale Union Elem. School Dist. (OAH 2013) No. 2013080692, 113 LRP 52135)

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RTI and Other Interventions

Practice Pointer

Explain to parents about decisions to implement RTI or other pre-referral interventions, including advising them of their right to request special ed assessment at any time

If parents request a special education assessment and subsequently consent to implement RTI instead, obtain this consent in writing

Document all communication to ensure records exist of parent participation and consent

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III. Child Find Obligationsto Parentally Placed

Private School Students

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Responsibility for Child Find Activities

Child find rules apply equally for public school students and student placed by their parents in private school

General child find activities must be similar and completed in comparable time period

OAH Case Example: District successfully defended claim of child find violation made by parents of private school student by pointing to numerous referrals and inquiries about special ed services it received as result of newspaper ads and brochures (Student v. Glendale USD and

Los Angeles USD (OAH 2012)

(34 C.F.R. §300.131; Ed. Code, §56301)

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Responsibility for Child Find Activities

Purpose of child find for private school students is to ensure accurate count in order to determine IDEA equitable services obligation

Therefore, responsibility for child find lies with district where private school is located

(Letter to Eig (OSEP 2009) 52 IDELR 136; 34 C.F.R. §300.131; Ed. Code, §56171)

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Responsibilities for Assessment and for Provision of FAPE

Once student is identified, district where private school is located also is responsible for assessment to determine eligibility

If student is determined to be eligible for services, and resides in different district than where private school is located, district where student resides is responsible for convening IEP meeting and offering FAPE

If parent intends to keep student enrolled in private school, FAPE obligation is discharged

(34 C.F.R. §300.201; 71 Fed. Reg. 46593 (Aug. 14, 2006))

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Private School Students

Practice Pointer

Remember to instruct staff that in cases where student resides within district boundaries they cannot refuse parental request for assessment on grounds that student is currently attending private school in another district

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IV. Child Find Obligationsto Homeless and

Highly Mobile Students

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McKinney-Vento Act

Homelessness = Those children who lack fixed, regular and adequate nighttime residence

Homeless children must receive services comparable to non-homeless children

Equal access to FAPE

Ability to participate in special ed cannot be hindered by homelessness or frequent school transfers

(42 U.S.C. §11433)

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Application of Child Find Duties

Homeless or highly mobile students are at greater risk of undiagnosed disabilities and need for special ed because of frequent moves from district to district

Districts must begin initial assessment process even if aware student is homeless and might leave school prior to completion of assessment

(Questions and Answers on Special Educ. and Homelessness (OSERS 2008) 110 LRP 212)

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Homeless Students

Practice Pointer

Alert child find personnel that homeless and highly mobile students must be included in established protocol

Although attendance issues and difficulties adjusting to transitions are common for highly mobile students, they also can be signs of a disability

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V. Child Find Under Section 504

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Scope of Child Find Requirement

Section 504 child find rules are similar to IDEA

Public schools must take steps to identify and locate children with disabilities and to publicize the rights established by Section 504

Encompasses all children within boundaries, including homeless children

No specifics in law on appropriate child find activities

OCR Letters of Findings emphasize public awareness programs, notices, news releases and publication of Section 504 procedural safeguards

(34 C.F.R. §104.32; Celina (TX) Indep. School Dist. (OCR 2000) 34 IDELR 41)

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Parentally Placed Private School Students

But, unlike IDEA, if student resides in different district from private school, district of student’s residence is responsible for child find and assessments under Section 504

District where private school is located has no obligation to evaluate student for Section 504 eligibility and services unless student resides in the district

(34 C.F.R. §104.32; West Seneca (NY) School Dist. (OCR 2009) 53 IDELR 237)

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Section 504

Practice Pointer

Although Section 504 has child find requirement similar to IDEA, it has different standards for when student should be identified and evaluated

In particular, after ADA Amendments Act, be alert to:

Impact of possible disability on all major life activities – not just learning

Student’s individualized health care plan may not be considered when determining duty to evaluate

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Take Aways . . . Understand the importance

of child find!

Successfully identifying, locatingand evaluating a student withdisabilities is first major step toward developing effectivestrategies, goals and services to enable student to succeed in school and beyond, which is every district’s mission

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Information in this presentation, including but not limited to PowerPoint handouts and the presenters' comments, is summary only and not legal advice. We advise you to consult with legal counsel to determine how this information may apply to your specific facts and circumstances.

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Information in this presentation, including but not limited to PowerPoint handouts and the presenters' comments, is summary only and not legal advice. We advise you to consult with legal counsel to determine how this information may apply to your specific facts and circumstances.