Child Find and Initial Evaluation

The Individuals with Disabilities Education Act (IDEA) includes the Child Find mandate (20 U.S.C. § 1412(a)(3)), which essentially requires schools to identify, locate and evaluate all children with disabilities, regardless of severity, including children who receive passing grades and are “advancing from grade to grade,” children who attend private schools and public schools, highly mobile children, migrant children, homeless children, and children who are wards of the state. 34 C.F.R. § 300.101; 281 I.A.C. 41.101.

Iowa’s Rules of Special Education require that a child be evaluated when the school or AEA is aware of facts and circumstances that would cause a reasonably prudent school or AEA to suspect that the child might have a disability for which the child might be eligible for special education and related services. If it is suspected that a child’s educational difficulties arise from a disability and that the child may need special education services, the AEA and school district are obligated to promptly seek parental consent to conduct a Full and Individual Initial Evaluation (FIE).

Although a school district may attempt to resolve educational difficulties before deciding to conduct a FIE, this must not delay an appropriate evaluation if the child is suspected of having a disability, regardless of the number of days, tiers, or levels in such interventions the child has completed, if any. As stated by the United States Department of Education concerning “pre-referral interventions,” the school district “in conjunction with the AEA “cannot refuse to conduct the evaluation or delay the evaluation until the alternative strategies have been tried if the school district  suspects the child has a disability.” Letter to Anonymous, 19 IDELR 498 (OSEP 1992). 

Occasionally, some school personnel do not “suspect” a child has a disability, although the parent has provided copies of the child’s diagnostic report, and symptoms of the disability are significantly interfering with the child’s functioning at school. When this problem confronted an Iowa parent, she contacted me.  With a few changes to conceal her identity and her written permission, I am posting the first parts of our initial email exchange. I was especially pleased that the parent contacted me to address this matter before her child missed further school and became more frustrated at school.  

How can we get the school to evaluate our first grade son for special education services? He was diagnosed with and has been treated for ADHD since he was three. At home we keep problems to a minimum by using a visual schedule, clearly explaining rules and checking to make sure he understands (at at time when he isn’t tired, hungry or upset), preparing him in advance for transitions, and positive reinforcement. His doctor and preschool teachers told us that punishments will backfire, so we keep them brief and to a minimum. However, punishments seem to be the only way the school deals with his symptomatic behaviors.

This year, he has been suspended four times in three months. The first time the principal had me pick him up because at recess he tried to go to the playground by crawling out a (ground floor) window. The next time he was given an in-school suspension for telling the principal, “I hate you,” after he was sent to her office for chewing his pencil after being told to stop. The next time she had me take him home because he wouldn’t stand still on the risers while rehearsing for the Thanksgiving concert. He was suspended for the rest of the day and not allowed to participate in the concert. He is currently on a day-and-a-half suspension for a “weapons violation” (at recess he was using his bare hand as a "gun" and “shooting” at other boys who were falling down very dramatically). 

I have given the principal copies of his evaluation reports from 2016 and 2017, and have provided a report from his speech therapist (he has articulation difficulties), and asked her at least seven times (in person and by email) to have him evaluated. Each time she has responded, “In Iowa we don’t like to put labels on children. While he may have ADHD, Iowa is a ‘noncategorical’ state in which special education is for children who have ‘educational disabilities,’ not medical diagnoses.” When I pointed  out that the behaviors for which he is punished at school reflect his ADHD symptoms, she responded, “Whether or not he has ADHD, he needs to learn to stop making bad choices.”

This is very frustrating. I would like to talk with his teacher, but the principal has told me that I can only communicate through her. . . .

To make a long story short, the parents and I resolved this matter through a state-facilitated mediation. The child now has an appropriate IEP and BIP, and is receiving compensatory education to make up for the class time he missed while being suspended from school. The school district’s attorney educated the principal in regard to the District’s duties under Child Find, the parents are now able to communicate as needed with their child’s classroom teacher, and some other issues were satisfactorily addressed.

Special Education Due Process Hearings Part 1: The Complaint

"Mediation didn’t work . . . the school district and its attorney are known for their stubborn opposition to parent special education requests, and there’s still a serious problem . . ."

In my experience, the vast majority of special education disputes are resolved through mediation. However, under some circumstances, parents and the attorneys who represent them decide it is necessary to go a step further and file a due process complaint with the state department of education, in order to have the case decided by an administrative law judge or hearing officer.

Federal regulations that implement the Individuals with Disabilities Education Act (IDEA) require the states to have a dispute resolution system and procedures in place, including provisions for impartial due process hearings. 34 CFR § 300.511. Common subjects of due process complaints include: eligibility for special education, a child’s educational placement, and issues involved in the provision of a free appropriate public education (FAPE) to a child.

A due process action begins when the parent (or school district) files a written complaint with the state department of education in which the child’s school is located. A complaint filed on behalf of the parents of a child with a disability must contain specific information, including a statement that the school district has violated a requirement of the IDEA or its implementing regulations, and provide the facts upon which the statement is based.

It is very important that the filed complaint contain all the issues in dispute because the party requesting the due process hearing will not be allowed to raise any issues at the due process hearing that were not raised in the due process hearing complaint. If after filing the complaint the parents believe they need to change or add to it, they may do this only if the school district (and any other education agency named in the complaint) agrees to this in writing, or the administrative law judge (or hearing officer) grants permission to amend the complaint.

It is also very important that the complaint be timely filed. The violation or violations alleged in the complaint may not have occurred more than two years before the date the parent or public agency knew or should have known about the acts/omissions that form the basis of the complaint.

Mediation and Special Education Dispute Resolution

"I’m calling to ask you about whether there is anything I can do about . . ."
 
Most of the parents who call about special education matters tell me that they’ve talked with their child’s school district and IEP team, and remain in disagreement in regard to one or more of the following:

1. The school district says my child isn’t eligible for special education.

2. The IEP team doesn’t think my child needs more or different special education and related services.

3. The school isn’t providing the assistance or services contained in my child’s current IEP. . . .

4. The IEP team wants to move my child to a different classroom.

5. The IEP team changed my child’s IEP in a manner that I don’t think is appropriate. . . .

6. The school won’t allow my child to participate in . . .

The good news is that many times there is something the parent can do, and it can often be done through the process of mediation.
 
When Congress enacted the Individuals with Disabilities Education Act (IDEA) it recognized that sometimes parents and school districts would disagree about the special education instruction, services and placements needed by each unique child in order to receive a free and appropriate public education (FAPE). As a result, the IDEA requires that each state department of education (DOE) have dispute resolution procedures, including special education mediation. (20 U.S.C. 1415(e); 34 CFR 300.506).

A special education mediation is a voluntary and confidential meeting that is facilitated at the DOE’s expense by a trained, impartial mediator. Discussions that occur during the special education mediation conference must be confidential and may not be used as evidence in any subsequent due process hearings or civil proceedings. However, the parties may conclude the mediation by placing written statements of their agreements into a formal mediation agreement that becomes legally enforceable after both parties have signed the document.

When a parent (or the parent’s attorney) files a request for mediation with the state DOE, the DOE and a mediator schedule a time, place and date for the mediation. Mediators, unlike administrative law judges or hearing officers in due process hearings, are not decision-makers. They don’t judge, give opinions, or take sides. Instead, they set out the structure and rules of the mediation, and help to keep it on track. One of Iowa’s experienced mediators always admonishes the parties to "be hard on the problems, and not on each other."

In 2010, CADRE, the National Center on Appropriate Dispute Resolution in Special Education, published the results of a six-year study that was performed in order to identify effective state special education dispute resolution systems and the components of those systems that contributed to their effectiveness. The states of Iowa, Oklahoma, Pennsylvania and Wisconsin were identified as having the most effective systems, and CADRE developed profiles of their procedures for use as models for other states. During the six-year period of CADRE’s study, Iowa, a state which incorporated mediation procedures into its state special education regulations in 1995, consistently had the lowest combined rates of written state complaint and due process complaint filings among all states. 

As an attorney who represents parents in a number of special education mediations each year, it has been my experience that a substantial majority of parent-school district disputes can be resolved by mediation in manner that is satisfactory to all the parties (parent, school district and area education agency).  I believe that Iowa's procedures and the preparation of its mediators are very important to the success of its system in resolving disputes that would otherwise have gone to due process.  However, experience has also demonstrated that no matter how effective the state's procedures or the quality of its mediators, mediation as a dispute resolution tool breaks down quickly when a school district is represented by legal counsel with a limited grasp of special education and special education law, who does not approach the mediation table as a problem-solver, but rather as defense counsel. Under those conditions, even "no-brainer" disputes can end up in due process litigation.  Perhaps a future CADRE study will find that school districts represented by such attorneys have higher rates of due process hearings.

Special Education Time Frames Part 1

While some federal and state special education regulations describe the timeframes in which a school district and area education agency must take certain actions.  While some of these regs state a specific number of days, others indicate that actions should be taken in an unspecified but timely way.  In this post, I will begin setting out some of the time frames that apply to specific actions under the special education regulations contained in the Iowa Administrative Code. 

Child Find  -- See 281—41.111
School districts and AEAs are responsible to conduct activities on an ongoing basis to identify:
1. children who require SPED and
2. children who need general education interventions under subrule 281--41.48(2).

Full and Individual Initial Evaluation -- See 281--41.301, 281—41.302 and 281—41.312(4)
A parent, AEA or school district may request a full and individualized initial evaluation of a child at any time to determine whether or not a child is a child with a disability and identify the child's educational needs.  Even if the evaluation team has implemented general education interventions to address the child’s needs, the parent may still request a full and individual initial evaluation.
[A screening for instructional purposes is not evaluation to determine whether a child is a child with a disability. The screening of a student by a teacher or specialist to determine appropriate instructional strategies shall not be considered to be an evaluation for eligibility for special education and related services.]

Parental Consent for an Evaluation  -- See 281—41.300
The school district and AEA must obtain informed parental written consent before it may perform a full and individual initial evaluation. 

Parental Consent for Special Education-- See 281—41.300
The school district and AEA must obtain informed parental written consent before it may begin providing special education and related services

Refusal to Perform a Full and Individual Initial Evaluation -- See 281—41.503 
The school district and AEA must give written notice to the parents within a reasonable time before either agency refuses to initiate or change the identification, evaluation, or educational placement of the child or the provision of FAPE to the child, including notice that the parent  may file a request for a mediation or due process hearing.

Completion of a Full and Individual Initial Evaluation -- See 281—41.301  
Initial Evaluation Completion An evaluation must be completed within 60 days of the request for it.
The full initial evaluation must be conducted within 60 calendar days of receiving parental consent for the evaluation.

Office of Civil Rights Focuses Public Schools’ Attention on Students’ Rights Under the Americans With Disabilities Act and Section 504

On January 19, 2012, in a letter to public schools, the U.S. Department of Education (USDOE) announced that it is stepping up its efforts to ensure that public schools are complying with the Americans with Disabilities Act (ADA) and Section 504 of the Rehabilitation Act of 1973.

On behalf of the USDOE, Russlynn Ali, Assistant Secretary for Civil Rights (OCR) wrote that although the 2008 amendments to the ADA took effect three years ago, the OCR has become aware that public schools need guidance in regard to their related responsibilities. She stated that the OCR will be working to eliminate disability discrimination in public elementary and secondary schools by investigating complaints, conducting compliance reviews, issuing policy guidance, providing technical assistance, and working closely with the Department of Justice. For additional information, she referred schools to the USDOE’s publication titled “Questions and Answers on the ADA Amendments Act of 2008 for Students with Disabilities Attending Public Elementary and Secondary Schools.” That publication addresses the broadened definition of disability and the changes made by the 2008 amendments, explains how the amendments affect Section 504, and explains the obligations of school districts under Section 504 and the AEA.

The 2008 amendments broadened the definition of disability that schools must honor and asked districts to simplify the special education evaluation process. Specifically, they guaranteed that students may qualify for disability services even if they have a condition that affects them intermittently. In addition, they make it clear that a student may be eligible for special education services even if they are already performing well in school so long as they have an impairment that “substantially limits a major life activity,” according to documentation included in the Education Department correspondence. In effect, the amendments broaden the scope of students who school districts are required to evaluate for special education services. Additionally, the amendments state that the ameliorating effects of mitigating measures (other than ordinary eyeglasses or contact lenses) may not be considered in determining whether an individual has a disability; expands the scope of “major life activities” by providing nonexhaustive lists of general activities and major bodily functions, clarifies that an impairment that is episodic or in remission is a disability if it would substantially limit a major life activity when active; and clarifies how the ADA applies to individuals who are “regarded as” having a disability.

Parents May Be “Outvoted” at IEP Team Meetings, But Still Have Rights

The U.S. Department of Education’s Office of Special Education Programs (OSEP) responded to a parent’s letter inquiring about IEP Team decision making in its Letter to Richards, 55 IDELR 107 (OSEP 2010). In the letter, OSEP stated that it is not appropriate for an IEP to make decisions about a child’s IEP by majority vote. OSEP also noted that while the IEP team should try to reach general agreement, the school district has the final responsibility for determining the appropriate services.

When parents and school districts disagree about a child’s IEP, parents commonly have the feeling that they have been, in effect, outvoted by the school district and area education agency (AEA) personnel at the meeting. While the law assigns school districts the final responsibility for determining appropriate services, it also requires that the district provide “prior written notice” of the school district’s decision regarding the child’s educational program and the parents’ right to request a due process hearing.

“Prior Written Notice” is notice given in writing to parents in regard to an action proposed or refused by the school district with respect to a child’s special education program. School districts are required to provide it whenever the district or AEA refuses to implement a parent’s proposal, or proposes to change a child's identification, evaluation, or placement. The proposal or refusal must be in regard to a matter over which the IEP team decision making authority.

The written notice must be provided to the parent after the district or AEA has made the decision to refuse or propose, but within a reasonable time before the district or AEA implements the proposed action. Before the action is implemented, the parent, district, or AEA has the right to request mediation or an impartial due process hearing on any proposed or refused action.

Prior written notice MUST contain the following:

∙ A description of the action proposed or refused.
∙ An explanation of why the district or AEA proposes or refuses to take the action.
∙ A description of the options the district or AEA considered and the reasons why those options were rejected.
∙ A description of each evaluation procedure, test, record, or report the district or AEA used as a basis for the proposed or refused action.
∙ A description of any other factors that are relevant to the district or AEA’s proposal or refusal.
∙ If the proposed action a change in the child’s identification, evaluation, or placement, when that action will be implemented
∙ The name and contact information about the person to whom the parent may address questions regarding the notice
∙ A statement that parents have the right to challenge the decision by invoking their rights under the IDEA’s procedural safeguards.

School districts MUST provide parents with prior written notice when they refuse or propose to do any of the following:

∙ Conduct or deny an initial evaluation
∙ Change or refuse to change a child’s services or placement
∙ Add, refuse to add, or terminate a service, support, or related service
∙ Change or refuse to change the means through which the child’s services are delivered
∙ Provide, deny, delete, or change a child’s access to Extended School Year services
∙ Add, change, or delete an IEP goal
∙ Whenever discipline results in a change of placement