School Districts Must be Proactive

Submitted by Tim on Fri, 11/30/2012 - 04:07 PM

This week, I meant to write about the important legal concept known as "Least Restrictive Environment." But there is a lot of ground to cover about LRE, and I was much busier this week than I anticipated. Instead, I'm going to discuss a different provision of the Individuals with Disabilities in Education Act: 20 U.S.C. § 1412(a)(3)(A). Colloquially known as the Childfind requirement, this provision states:


All children with disabilities residing in the State, including children with disabilities who are homeless children or are wards of the State and children with disabilities attending private schools, regardless of the severity of their disabilities, and who are in need of special education and related services, are identified, located, and evaluated and a practical method is developed and implemented to determine which children with disabilities are currently receiving needed special education and related services. (emphasis mine).


As my emphasis shows, the key idea is that all children with disabilities who need special education must be located and identified by the school district. Even if the child's parents have not requested particular services or even identified their child's disability to the school district, the district is obligated to know about the child's special education needs.


Normally, the provisions of the IDEA only apply to children who are eligible for an IEP. But the reference to children in private schools - who are not eligible for an IEP - indicates that all children are covered by this provision. That means the school district must also know the needs of a child with a Section 504 Plan, even though an IEP generally provides more procedural protections that a 504 Plan.  


In particular, the Childfind requirement - a school district be proactive about knowing a child's needs - is the best answer every time school employees suggest that the parents are not doing enough or doing the right things. Because the school district is required to be proactive about figuring out a child's needs, the district's claim that the parents are insufficiently or incorrectly supportive is almost always a misdirection. The burden is always on the school to correctly understand each child's individualized needs - in order to satisfy other IDEA obligations to provide an individualized plan with services appropriate for that child. Shifting that burden onto the parents is an unfair attempt to avoid legal obligations.


Finally, an important implication of Childfind is that the school district is obligated to identify all a child's needs. Even if a child has an IEP for dyslexia, the school cannot blame failure to make adequate progress on the child's undiagnosed ADHD. The Childfind obligation means that the district should have known about the problem and provided the appropriate services already.


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