Posts tagged with "CHILD FIND"

Special Education Referrals, and the Planning and Placement Team

If you’re a parent and determined that your child meets the requirements for SPED, what happens next? Rather than immediate referrals and placement, your school district will first attempt to keep the child in a regular classroom and incorporate an alternative general education program. It is within your authority to approach the school district on implementing an alternative program for your child, but should he or she continues having problems in a non-SPED classroom, a referral is the next course of action.

A referral is “a written request for an evaluation of a child who is suspected of having a disability and who may be in need of special education and related services.”[1] Various parties may submit the referral:

  • The student, if 18 years of age or older.
  • The parent, guardian, or surrogate parent of the student.
  • A member of the school’s personnel.
  • Other qualified individuals, such as the student’s physician or social worker, provided parental permission to make the referral was previously granted.

The student need not actually be attending school yet to qualify for a referral: remember, one of the qualifications for SPED under the Individuals with Disabilities Education Act (IDEA) covers an age range of 3 to 21 years. Your school district is obligated to “identify children in need of special education from birth on, [a duty called] ‘child find.’”[2]

If you are not the individual who made the referral, you will receive a written notification (or notice) of it. In addition, you will have the right to participate on your child’s PPT, which is tasked with “review[ing] existing evaluation information that the school district has about your child to determine whether there is a need for any additional data or information.”[3] In other words, this is the group of individuals that determines whether the information they have on hand supports SPED placement, and you have the ability to directly impact that decision through your own participation.

The following is a list of those who typically comprise the PPT:

  • The child’s parents
  • One or more of the child’s regular education teachers (if any)
  • One or more of the child’s special education teachers/providers
  • A school district representative “who is qualified to provide or supervise the provision of specially designed instruction to meet the unique needs of children with disabilities and is knowledgeable about the general curriculum and about the availability of resources of the school district”
  • A member of student services, such as a guidance counselor or school psychologist
  • An individual “who can interpret the instructional implications of evaluation results” (possible dual-role with previously listed individuals, except for the parent)
  • The student him- or herself, when warranted
  • “[O]ther individuals who have knowledge or special expertise regarding children.”[4]

As a parent, you have the right to refuse consent of an evaluation. Informed consent means “you must be given full and complete disclosure of all relevant facts and information pertaining to your child regarding certain proposed activities by your local educational agency.”[5] It is required in the referral process when:

(a) [Y]our child undergoes an initial evaluation to determine his or her eligibility for special education and related services, (b) before your child is placed in special education services, (c) before your child is placed in private placement, and (d) before your child is reevaulated.

Consent to an initial evaluation does not automatically extend to the additional steps listed above: rather, new consent is required before the school district may take action. However, “a parent’s failure to give consent to a reevaulation may be overridden if the school district can show that a good-faith effort was made to obtain consent and the child’s parent failed to respond.”[6] Regardless, if you reject a proposed course of action, the school district must still provide your child with a free appropriate public education, or FAPE.

The upcoming articles will focus on the initial evaluation process, as well as the product of the PPT if the parent agrees to go forward with a SPED program and the child’s eligibility is upheld: the individualized education program, or IEP. If you are the parent of a child that has a disability, it is imperative that you participate in this process so as to help maximize your child’s educational opportunities. Should you have any questions about special education or education law in general, it may prove beneficial to seek the counsel of an experienced school law practitioner. Please do not hesitate to contact Attorney Joseph C. Maya, Esq. He may be reached at Maya Murphy, P.C., 266 Post Road East, Westport, Connecticut (located in Fairfield County), by telephone at (203) 221-3100, or by email at JMaya@mayalaw.com.

Written by Lindsay E. Raber, Esq.


[1] “A Parent’s Guide to Special Education in Connecticut,” by the Connecticut State Department of Education, pp.2. Accessed October 8, 2012: http://www.sde.ct.gov/sde/lib/sde/PDF/DEPS/Special/Parents_Guide_SE.pdf

[2] “Advocating on Your Child’s Behalf: A Parent’s Guide to Connecticut School Law,” by Joseph C. Maya, Esq., pp.10-11.

[3] See Footnote 1.

[4] See Footnote 1.

[5] See Footnote 2 at 11.

[6] Id at 11-12, citing 34 C.F.R. § 300.300.

THE IDEA’S “CHILD FIND” PROVISION: JUST HOW HARD DOES A SCHOOL DISTRICT HAVE TO LOOK?

            Parents, school administrators, and education attorneys are waiting to see if the United States Supreme Court will review the decision of the United States Court of Appeals for the Ninth Circuit in Compton Unified Sch. Dist. v. Addison, 598 F.3d 1181 (9th Cir. 2010).  That decision significantly increased a School District’s obligation to identify students eligible for special education, and greatly expanded parents’ rights to a due process hearing to determine if the District had failed to discharge its duty.  Although handicapping the Supreme Court is crystal ball gazing, at best, the Court may well not only hear the case, but also reverse the Court of Appeals.  Until the appellate dust settles, this article will give you the new legal landscape and inform students and parents of their expanded rights.

            The Individuals with Disabilities Education Act (“IDEA”) conditions federal funding to states on their adopting policies and procedures ensuring that “all children with disabilities . . . who are in need of special education services[] are identified, located, and evaluated.”  This provision is known as the “child find” requirement.  The IDEA further requires School Districts to provide written notice to a child’s parents whenever it “proposes to initiate or change” or ”refuses to initiate or change the identification, evaluation, or educational placement of the child . . . .”

            The student involved in the case, Starvenia Addison, received horrific and indefensible treatment at the hands of the Compton, California School District.  Her school counselor did not consider it atypical for Addison, a ninth-grader, to perform at a fourth-grade level.  In the fall of her tenth-grade year, Addison failed every academic subject.  The counselor considered these grades to be a “major red flag.”  Teachers reported Addison’s work as “gibberish and incomprehensible.”  A third-party mental health counselor recommended that the District assess Addison for learning disabilities.  Despite the recommendation, the District did not refer Addison for an educational assessment and instead promoted her to eleventh grade.

            Addison brought an administrative claim under IDEA seeking compensatory educational services for the District’s failure to identify her needs and provide a free appropriate public education.  An administrative law judge found for Addison and the U.S. District Court subsequently agreed.  An appeal followed to the Court of Appeals.  The Ninth Circuit, obviously (and understandably) deeply offended by the District’s actions, phrased the District’s arguments in such pejorative terms that it was obvious that it, too, was going to find in Addison’s favor.  For example, the Court said: “the School District seeks to cast its deliberate indifference as something other than a ‘refusal.’”  Two Judges of the three-judge panel affirmed the District Court in perfunctory fashion with only casual references to broad legal generalizations.

            The remaining Appellate Judge, however, filed a dissenting opinion that dwarfs the majority opinion in terms of depth, breadth, and legal analysis.  He, too, was troubled by the distressing facts, but essentially found that under the IDEA and state law, a due process hearing may be held only where the District purposefully acts, or refuses to act, as opposed to where the complained-of conduct is best described as negligent.  Actually, the complained-of conduct could also be fairly described as gross negligence or reckless indifference but the dissenting Judge chose not to go there, perhaps fearing that it would lead him to a different result.  The otherwise thorough and well-reasoned dissent offers the Supreme Court a road map to overturning the decision of the Court of Appeals.

            For the time being, however, the decision of the Ninth Circuit in Addison is binding on the Federal Courts in the nine most western states of the United States, and may be considered persuasive, and therefore followed, by other Courts throughout the nation.  In petitioning the Supreme Court to take up the case, the District cites liberally to the dissenting opinion and laments the majority’s creation of a claim for educational malpractice where none has previously existed.  Finally, because there are 2200 school districts and over one million special education students served within the geographical boundaries of the Ninth Circuit, the Supreme Court may consider the Addison case sufficiently impactful to warrant review.

            Until  Addison is affirmed, reversed, or otherwise clarified, special needs students and their parents have additional ammunition with which to press their School District for an educational evaluation, an IEP, a due process hearing, and potentially the bringing of an action in U.S. District Court.

       

If you have any questions regarding your child’s education, or any education law matter, contact Joseph Maya at 203-221-3100 or by email at JMaya@MayaLaw.com.