The Child Find Mandate: What Does It Mean to You?

The Child Find Mandate: What Does It Mean to You?
by Pamela Wright & Pete Wright, Esq.

I think my child has a disability and I requested that the school evaluate him. They did a screening test and said he was not eligible for special education.

I am a Kindergarten teacher. Several students are showing signs of learning and behavioral problems. Is the school responsible for evaluating them? I thought this was the parents’ responsibility.

We learned that our son had learning disabilities and ADHD when he was 5. The school is aware of his problems. They never offered to evaluate him or provide any help. Now he is 16 and he failed the state exit exam. Why isn’t he entitled to special education?

What is Child Find?

The Individuals with Disabilities Education Act includes the Child Find mandate. Child Find requires all school districts TO identify, locate and evaluate all children with disabilities, regardless of the severity of their disabilities. This obligation to identify all children who may need special education services exists even if the school is not providing special education services to the child.

The IDEA requires all States to develop and implement a practical method of determining which children with disabilities are receiving special education and related services and which children are not. (20 U.S.C. 1412(a)(3); Wrightslaw: Special Education Law, pages 72, 206-207).

Who is Covered by Child Find?

Schools are required to locate, identify and evaluate all children with disabilities from birth through age 21. The Child Find mandate applies to all children who reside within a State, including children who attend private schools and public schools, highly mobile children, migrant children, homeless children, and children who are wards of the state. (20 U.S.C. 1412(a)(3))

This includes all children who are suspected of having a disability, including children who receive passing grades and are "advancing from grade to grade." (34 CFR 300.111(c)) The law does not require children to be "labeled" or classified by their disability. (20 U.S.C. 1412(a)(3)(B); 34 CFR 300.111(d)).

Note: You will find the Child Find requirements in Wrightslaw: Special Education Law, pages 72, 206-207]

Why is Child Find Necessary?

The primary purpose of the Individuals with Disabilities Education Act is to ensure that all children with disabilities receive a free appropriate public education, including special education and related services that are "designed to meet their unique needs and prepare them for further education, employment and independent living …" (20 U.S.C. 1400(d); Wrightslaw: Special Education Law, pages 48, 207)

Another purpose of the law is to help each State implement a statewide, comprehensive, coordinated multi-disciplinary system of Early Intervention Services for infants and toddlers with disabilities. Young children with disabilities must receive appropriate early intervention services to "prepare them for further education, employment, and independent living."

Congress encourages states to provide Early Intervention Services so children with developmental delays and other disabilities will receive treatment early. Congress enacted the Early Intervention Program for Infants and Toddlers to provide interagency coordination of services to children from birth to two years of age. Under IDEA, states must ensure that children with disabilities are eligible for special education services by age three.

How is Child Find Implemented?

The Child Find mandate requires each state to devise a practical method to determine which children are receiving the needed special education services, and which children are not. After identifying children who may need services, all necessary evaluations must be completed on these children, at no cost to parents.

The Individuals with Disabilities Education Act mandates "general public notice obligations", i.e., using notices to inform and educate the public about the need to locate and identify all children with disabilities.

What methods should school districts use to identify and locate children who may need special education services?

In one case, the Court compared estimates of children with disabilities in the general population to the number of youngsters who had been identified by the school district to determine if the district had made adequate efforts to identify children under the Child Find mandate. See Akers v. Bolton, 531 F. Supp. 300 (D. Kan 1981).

The Office for Civil Rights (OCR) of the Education Department has accepted plans that include door-to-door surveys, brochure mailings, public education programs and other public meetings, physician referrals, contacts with day care providers, and surveys of private school personnel. See Luling, TX Indep. School Dist., 1975-1985 EHLR 257:417. [Note: EHLR is now known as the Individuals with Disabilities Education Law Reporter (IDELR) and is available in many school district and law libraries. It is published by LRP Publications.

The regulations that implement Section 504 of the Rehabilitation Act also include public notice and child identification requirements.

To receive funding under Part C of IDEA, Early Intervention to Infants and Toddlers with Disabilities, states are required to establish "A comprehensive child find system . . . including a system for making referrals to service providers . . . that ensures rigorous standards for appropriately identifying infants and toddlers with disabilities for services …" (20 U.S.C. 1435(a)(5).

Note: Part C of IDEA about special education services to Infants and Toddlers is in Wrightslaw: Special Education Law, pages 135-151.

What Does This Mean to You?

Damages Under Child Find

What happens if a school refuses to evaluate a child? In the fall of 1995, a landmark case about damages under Child Find was issued by the Court of Appeals for the Third Circuit. The case is W.B. v. Matula, 67 F.3d. 484 (3rd Cir. 1995).

W. B. v. Matula, 67 F.3d. 484 (3rd Cir. 1995)

Before E.J. entered first grade, his mother went to the school and shared concerns about her son with the school principal, Ms. Matula and others. The school did not offer any help. The mother continued to talk with school personnel, including the principal, the school nurse, the first and second grade teachers, and the guidance counselor for months. Despite the parent's repeated requests for help, the school refused to evaluate the child.

Finally, the mother took E.J. to a private psychologist for an evaluation. The psychologist found that E.J. had several serious neurological problems. The school refused to reimburse Ms. B. for the independent evaluation that described serious problems that were affecting E.J.'s ability to learn. The school continued to stonewall, refusing to provide E.J. with any assistance.

The mother requested a due process hearing to request reimbursement for the evaluation and to force the school to help her child. When E.J. entered second grade, the school was still withholding help.

The case was appealed to the U. S. Court of Appeals for the Third Circuit. The Court found that monetary damages were available as a remedy under Section 504 of the Rehabilitation Act and under Section 1983. The Court held that there is nothing to suggest that relief under the law is limited in any way.

The Court found that:

Plaintiff, on behalf of her disabled child, seeks damages for the persistent refusal of certain school officials to evaluate, classify and provide necessary educational services.

Despite resistance by school officials and following extensive administrative proceedings, the mother ultimately succeeded in having her child evaluated, classified as neurologically impaired and provided with special education services. Plaintiffs then sued for compensatory and punitive damages incurred in the period before the school agreed to provide these services.

Despite the finding that E.J. suffered from ADHD and was thus entitled to Section 504 services, defendants did not provide them. Concerned that the evaluation had not fully assessed E.J., W.B. asked defendants to fund an independent evaluation. Defendants refused.

This decision would not be complete without a comment on Mansfield's [Board of Education] seemingly endless attacks on the parent, W.B. Evidently, Mansfield believes not only that W.B. is overly persistent, but also that she is trying to wear down the district to obtain services to which E.J. is not entitled. In my view, however, W.B. was essentially correct about the major points in dispute in these proceedings including evaluation, classification and placement.

Nonetheless, the district has consistently denied W.B.'s reasonable, appropriate, and meritorious requests related to E.J.'s education. The basic dynamic of this entire dispute is that the district has denied W.B.'s meritorious requests and W.B. has been left with no alternative to an enormously burdensome struggle in order to obtain E.J.'s rights under IDEA. In my view, the burden placed on W.B. was unnecessary, unwarranted and largely the product of the district's unwillingness to recognize and appreciate E.J.'s neurological impairments despite ample reliable evidence thereof.

Among the specific conditions a state must satisfy is the requirement that it demonstrate that "all children residing in the State who are disabled, regardless of the severity of their disability, and who are in need of special education and related services are identified, located, and evaluated."

This is known as the "child find" duty.

To establish a violation of Section 504, plaintiffs must demonstrate that (1) E.J. is disabled as defined by the Act; (2) E.J. is "otherwise qualified" to participate in school activities; (3) the school or the Board receives federal financial assistance; and (4) E.J. was excluded from participation in, denied the benefits of, or subject to discrimination at, the school. Nathanson v. Medical College of Pennsylvania, 926 F.2d 1368, 1380 (3d Cir. 1991); 34 C.F.R. Section(s) 104.4(a).

In addition, to be liable, defendants "must know or be reasonably expected to know of" E.J.'s disability. Nathanson, 926 F.2d at 1381. However, plaintiffs "need not establish that there has been an intent to discriminate in order to prevail under Section(s) 504." Id. at 1384. See Alexander v. Choate, 469 U.S. 287, 297 (1985).

Neither the statutes nor regulations establish a deadline by which time children who are suspected of having a qualifying disability must be identified and evaluated, but we infer a requirement that this be done within a reasonable time after school officials are on notice of behavior that is likely to indicate a disability.

Although we specifically announce the "reasonable time" requirement only today, we think the requirement is implicit in the "child find" duty and as such was clearly established in September 1991. First, the statutes and regulations enacting the "child find" duty clearly establish the obligation to identify and evaluate disabled children. Second, to hold otherwise -- to hold that the duty need not be discharged within a reasonable time -- would eviscerate that duty and thwart the undisputed legislative intent that disabled children be identified, evaluated, and offered appropriate services. It can come as no surprise to a reasonable school official that children must be located and evaluated within a reasonable time, and thus we conclude that a school official who failed to carry out his or her "child find" duty within a reasonable time "would understand that what he is doing violates that [duty].

Note: In contrast to the decision in W.B. v. Matula, some courts have disallowed monetary damages in special education cases. Law is always changing and evolving.

Liability Due to Failure to Act
Jamie S. v. Milwaukee Public Schools (E.D. WI, Case # 01-C-928)

Jamie S. v. Milwaukee Public Schools (E.D. WI, Case # 01-C-928) is a class action lawsuit against Milwaukee Public Schools (MPS) and the Wisconsin Department of Public Instruction.

The case began in September 2001, when the plaintiffs filed a complaint alleging violations of the Individuals with Disabilities Education Act. In November 2003, the Court entered an Order that defined the class as follows:

"Those students eligible for special education services from the Milwaukee Public School System who are, have been or will be either denied or delayed entry or participation in the processes which result in a properly constituted meeting between the IEP team and the parents or guardians of the student."

Two trials were held between October 2005 and April 2006.

On September 11, 2007, Judge Aaron Goodstein issued a decision in the case. He concluded that the school district failed to implement Child Find requirements for at least five years. Between 2000 and 2005, the school district failed to evaluate students who had suspected disabilities, failed to review all relevant data to determine the child's needs, and routinely suspended students instead of determining if they needed special education services.

"The Court concluded that . . . the Milwaukee Public Schools violated the Individuals with Disabilities Education Act and related state statutes. These violations consisted of the failure of MPS to comply with the provisions of the IDEA known as Child Find . . . MPS failed to adequately identify, locate and evaluate children with disabilities in need of special education and related services . . ."

The judge also found that the Wisconsin Department of Public Instruction violated the IDEA by failing to discharge its oversight and supervisory obligations to ensure that Milwaukee Public Schools was in compliance with the IDEA.

In Summation

All schools have an affirmative duty to locate, identify and provide services to children who may be disabled and may need special education and related services.

If school employees know or have reason to suspect that a child has a disability, these school employees have an affirmative duty to act on the child's behalf. If they fail to do so, they have defaulted in their obligation to identify, locate and evaluate children with disabilities who need individualized special education programs.

If the school district fails to act and the child does not receive the necessary services, the school district and the state department of education may be liable for this failure.

Several remedies exist. In exceptional situations, the child may be entitled to monetary damages, as in W.B. v. Matula.

In Jamie S., the court is considering compensatory education for a large class of students. Compensatory education provides educational services that may continue beyond the child's twenty-second birthday.

Related Articles and Cases

Class Action Lawsuit: Judge Orders Sanctions Against School District, Remedies for Kids

Appeals Court Rules that School Must Offer an IEP to a Child with Disability

Cases

Jamie S. v. Milwaukee Public Schools, (E.D. WI 2007, Case # 01-C-928)

Knable v. Bexley, 238 F.3d 755 (6th Cir. 2001)

W.B. v. Matula, 63 F.3d. 484 (3rd Cir. 1995)

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Created: 09/25/07

Updated: 01/08/19


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