Do Schools Have Any Legal Obligation to Identify and Test Students?

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Several weeks ago, someone who was using the Special Education Law and Advocacy Multimedia training program asked a question about the school’s legal obligation to identify and test students.

As a tutor who works with students struggling in reading and math, she was concerned about the number of her students who have never been tested or received any services, despite having continually performed below grade level.

These kids’ parents were unaware that they could request testing, or that their children might have a learning disability and be eligible for special education services.

Do you  have a struggling student?

If you have a student who is struggling and has not been evaluated or received any specialized help, read what IDEA 2004 says about the Child Find mandate.

As she learned more about advocacy, this tutor has helped parents request testing and get IEPs. She worries that for many kids, this is too little and too late. Many of her students were never identified and are now in middle school.

For parents, tutors, and others who read this and are not aware of these legal requirements – YES, schools are required to identify and evaluate all children who may have disabilities under the Child Find mandate. If you have a student who is struggling and has not been evaluated or received any help, read what IDEA 2004 says about Child Find.

The Individuals with Disabilities Education Act includes the Child Find mandate.  Schools are required to locate, identify and evaluate all children with disabilities from birth through age 21. (20 U.S.C. 1412(a)(3))

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.

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)).

For more information about these requirements, read “The Child Find Mandate: What Does it Mean to You?”

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133 Comments on "Do Schools Have Any Legal Obligation to Identify and Test Students?"

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These questions have helped me on how the systems works. I am confident in walking into my sons IEP meeting & not being blindsided. 30 yrs since my own IEP, it was special ed in NYC. IT was one shot deal. My parents had issues w/ the program, couldn’t change so I had to leave resource room & special ed and Return to main stream w/o further help from 2gr . Awful, being dyslexic; prevented me from continuing w/ HS. Now, sadly as an adult I still can’t pass the GED, no matter how many times I prepare w classes. zero adult classroom HS by me. Now, I do wonderfully in class but nothing near me in NJ. So, thank you, going the extra mile, & helping when it’s clearly not easy. I can at least help my child.

Help please, my son is now 17 soon 18, I’ve requested he be tested for iep several times. He struggles in math and science, he fails every class, I’ve brought up several times he’s repeating the same thing every term. He’s frustrated.
This began at his previous high school where the school refused to enroll them in 9th grade for 3 weeks.since they were on a block.program this set them.back.6 weeks. I’m currently trying to.obtain an attorney to represent them.both.his twin sister has since suffered severe medical.issues. .. How can any of this be allowed in public schools?

Your state parent training & information project will know your state rules, & should be able to assist you.

My daughter has been having behavioral issues at school since K. This year it is getting worse, she doesn’t complete work, had concentrations and impulse control issues, and is beginning to fall behind. However, she is still at grade level. I requested testing to see if there is an underlying issue that is being missed. The school (CA) refused based on her not being behind grade level. Is this allowed? On what grounds can the school refuse testing, and if it is not allowed what can i do?

BTW my son had all of those issues and we had to go outside of the school – he was diagnosed with ADHD

You have to put it in writing that you want your child tested look up IEP request letters!!

I was told by my grandson’s guidance counselor in Pasco County FL that the schools do not evaluate for learning disabilities. Is this true? It it legal?

No its not true at all. If you ask the school to do the evaluation they have 60 days from your request to do so. I believe you fill out the paperwork with your Education Department and they submit it to the school.

If an evaluation should be done at no cost to the parent, why do I have to take off of work for the psychoed? The CSE did not offer to test my child at school. My son already travels an hour to school and the CSE office is about 30-40 min from there. Should I be concerned that I am having to miss work and he is missing a half day of school (due in large part to travel time)?

My child was recently diagnosed with CAPD and dyslexia. His school does not recognize the CAPD saying its the same as dyslexia even though I have given them a copy of the Dr’s report. Can I request that my child be tested for a specific learning disability in order for him to get other services? What is my next step to get him more help?

Dyslexic is a specific LD and the school should provide services in order to help your child’s needs in each area of impairment! Find out what your child’s weaknesses are and then you can better help him with accommodations in school. Look up the website amazing place for help!!

Do intermediate Schools in Florida have the right to ask a parent about treatment they are pursuing for their childs ADHD, or ask if they are on medication anymore, or even hint that they should be? My son is currently receiving the multi-tier (MTSS) extra help evaluation, and we’ve been having school meetings. The multi tier help lady seems to be curious about the biomedical treatment, (which is naturopathic)we are wanting to pursue for my son and has asked me if I have any research on it and it’s Effectiveness. I’m unsure if this is something I need to share with them, or if they’re overstepping their boundaries. We have tried ADHD medication and don’t feel comfortable going that route at this time based On the side effects. Thanks!

I have a 15year old son that is having trouble at school he has an iep and is adhd and bipolar he dont understand stand alot of things and has a hard time staying focus and caues problems as well time to time and the court is going to take him away because of his disabilty i am disabled as well and dont know what to do can someone please tell me what to do or what i need to do

Does anyone know how Arkansas’ mainstreaming of hearing impaired children being mainstreamed into public elementary schools compares to California’s.

How long does it take for your child to get evaluated for special ed? I have been waiting a couple of month’s, still waiting. they told me it is still possessing. should I wait? my daughter is in 5th grade and almost getting close for star test.

Patty, as a general rule, after parents give written consent, the school has 60 calendar days to evaluate and complete the eligibility process.

BUT IDEA, the federal special ed law, says that if a state has a different timeline, they can use their timeline, even if it’s different from 60 days. The range is between 45 to 90 calendar days. The answer to your question is in your state special ed regs and should be provided when you signed consent that I hope you signed for your child to be evaluated. Way back then.

In Texas they legally have sprint days to complete each step. It’s horrible I am in the beginning process myself for my daughter and I had an argument about that same thing with the district coordinator. I have been trying to get her tested for dyslexia for 3 years and they refused each time as she continued to struggle in school. So I’m not as accepting of these time frames.

I have a question. I have been getting the run around with the school district in getting my daughter tested for dyslexia. Her primary doctor and neurologist stated to me that the school is supposed to do an evaluation on my daughter first. once they do the evaluation, I then can bring the results to the attention of the doctors. The school is telling me that they do not do the evaluation/testing and that her doctor is suppose to run these evaluation. My question is if I requested for the school to run a reevaluation on my daughter are they suppose to do the evaluation for dyslexia?

Jaianne, write a short letter to the effect that you are requesting that the school do a comprehensive special education evaluation on your child, and that your letter is your informed written consent.

You represent your child’s interests. You need to educate yourself about what a comprehensive evaluation must include – there is a list of required elements in the law. You also need to educate yourself about your child’s rights and your rights and responsibilities. If you, as her parent, do not advocate for her, no one will.

Thank you and I definitely agree with you. Last week I went directly to the special education department and write a letter requesting a meeting. Her annual review is up this year. This meeting will be about the evaluations and another service she needs that do not deal with dyslexia.

Yes they are but I went through the exact same thing. I asked specifically and just got the run around every time. It took me a year to get an appointment but I was finally able to get her tested at a dyslexia center. Now I have the diagnosis on paper. But the process of getting her help is awful. You have to be very stern and know exactly how to present the request but the center that diagnosed her is guiding me. So if you can save all of her school work that she brings home even tests, report cards to show decking grades, take her somewhere that specializes in dyslexia. We had to go 3.5 hours away. If not get online and look up the laws for your state to see what they are for making them test for dyslexia. I hope this helps. Don’t give up. Good Luck.

Thank you! This is awful I definitely agree. I just requested a new meeting for her because she needs another service besides the testing.

From everything I read and people that I have talked to I get the impression that schools must perform an evaluation if it is formally requested by the parents. I formally requested an evaluation for reading issues at the beginning of the school year for my son, but received a form and a copy of the IDEA handbook about two weeks later saying that they declined my request to evaluate. They referenced his MAP scores and fluency numbers (low but not quite failing) and said he would continue to receive Title I intervention. I went on to have him evaluated myself and will be receiving a dyslexia, dysgraphia and ADHD diagnosis from an educational psychologist. My question is – was the school allowed to deny my request and what recourse do I have since he does indeed have a LD?

Take your paper work from the psychologist with what he is diagnosed with and ask to speak with someone who deals with 504 or IEP and write a note stating that you are requesting for an IQ and achievement test to be done on your child sign and date and have them make a copy for themselves always keep original copies they cannot deny any child with a disability also get a note from his doctor requesting the test and give them a copy after they send in the request they have 30 days to answer you do not let them give you the run around your child’s psychiatrist should know the rules and regulations that the school has to follow so make sure you get the info from them another helpful thing that I did was to request a case worker to help advocate for my child at school

My granddaughter is 6 and her first grade teacher recognized what she thought was a vision perception disorder and gave my daughter info on where to get her tested. She went and she does in fact have this disorder. Treatment consists of therapy once a week for an hour for 24 to 32 weeks. This is not covered by insurance and the cost is $120.00 per session. Is the school district required to cover these costs if they do not have their own resources to work with her in the school? We live in Pennsylvania.

My son’s principal is refusing to give him an IEP for additional time on tests and classroom work. He has an IEP for speech already so it would just need to be added to that. He was diagnosed with ADHD in March and my pediatrician wrote a letter at that time requested an additional IEP for Other Health Impaired for ADHD. His principal refused at that time. I didn’t fight it since it was the end of the year, but now his pediatrician wrote another letter a couple weeks ago and the principal is STILL refusing the IEP. I’ve been told by multiple teachers and his dr. that she is breaking the law by not giving him one. Can somebody please tell me if she is indeed breaking the law? I have the Whose IDEA is this guide but is there another website or anywhere I can get additional information?Thanks

His current IEP should be changed to include the new accommodations. It’s not necessarily another IEP, but you are an important member of your child’s IEP team and if you request modifications for his best interest backed by medical evidence and documentation the school absolutely must comply.

She is breaking the law and she has no right to make that decision on behalf of your child. So what you should do is schedule a meeting with the school board or head up to the administration office and voice what is happening, make sure that you always have every piece of documentation from the diagnoses to request for testing and when you have reached out to the school and what was said. Documentation is everything! and always put everything down in writing and sign and give a copy to them so they can put in your child’s file also reach out for a case manager that will help you advocate for your child

Unless the principal is acting as the LEA representative on the IEP team she is not involved in the decision-making process concerning an IEP. Also the decision of Eligibility is never unilateral. It is not made by one person . It is made by the IEP team. The letter from your doctor should be discussed by the team at a meeting which you can request and which must be given to you. At that time a discussion of your child’s needs, weaknesses current levels of achievement should be thoroughly discussed

Why do the schools want to do another full battery of tests even after my child’s Dr is doing them? That makes no sense at all because the teacher complains about her attention and as soon as I decided to go ahead and have the full battery of tests run, I called a meeting so everyone is on board and in the loop and then they decide they want to do the same after the Dr is done BUT to be sure they get ALL reports from the Dr and I felt like we were treated like morons! Ugh it is so frustrating. Any answers or has anyone else had an issue like this?

Yes. I don’t understand it either. The evaluation after a doctor has diagnosed something seems like a waste of time. I’m having a hard time even getting the school to do the evaluation. They dismiss the doctor’s report and act like i am the one insisting on testing when it is their protocol so my child can get the help he needs. Jumping through hoops and getting the runaround is ridiculous. I have a meeting next week set up with the school and my lawyer is coming to push things along. Here i thought everyone is there to do what is best for the kids but they’re dragging their feet because testing is more work. Skip the extra eval a d use the doctors diagnosis then!

i wiuld like to know what happened with ur case

I suspected adhd in my son for years. He was diagnosed with adhd combination type and dysgraphia. He began medication therapy for the adhd and the report was sent to his school.I called and set up a meeting with the special ed dean to go over the report for him to get accomodations in place the day before school started. She wrote down accommodations and attached the list the neuropsych attached to the report. She told me an evaluation for iep because of dysgraphia would be done within 30 school days. We are 48 days and no evaluation. After many calls and viaits to school, OT called me to say his teacher thinks he is doing fine so no eval needed. Can they legally dismiss a diagnosis? Can i insist on evaluation anyway?

I’ve always known my daughter has a learning disability. She struggled in Kindergarten so I started homeschooling her in the 1st grade. I also had her evaluated that year by the school system to try to get special ed for her. They found her ineligible. So I continuedto homeschool her since I didnt want to put her in school knowing her struggles. Finally after 3 years of homeschooling she had not made a lot of progress in reading so I requested to have the school test her again. This time they found her having a “specific learning disability.” We wasted so many years. So my question is, can I sue the school system for failing to identify her disability the first time?

My daughter is home school and I’m thinking of putting her in public school. I was wondering is there going to be a test where they see where your students are at? if there is and they’re below the average, what happens? do they get held back?

I have requested for both my kids an IEP to be done at their middle school. I had the meeting to sign the assessment on September 23, 2016 but on Wednesday September 21, 2016 the school district decided to go where i reside to verify if i live there. I wasn’t home nor was i aware of this until Friday September 23 when i had the meeting and was told they would not go ahead and proceed with the IEP until my home gets verified. My concern is that I rent a room and the people who i live with don’t agree with their home being checked nor having other people go inside there home. They have asked me to move out before November 1st and i don’t know what to do. Now i need to find a new home and meanwhile my kids wont get their special needs testing. Is there anything i can do so they could proceed?

I’m curious why do they need to do a home check for an IEP? That I have never heard of before so I’m just curious.

My son is 7 years old diagnosed with reading dyslexia ADHD. I’m fighting the school for two years to get him help. I just realized this year there are rules and laws. what law or rule can I put in front of the schools to say you must help? what is my next step? he is getting violent because he could not understand it and he is going to hurt someone. I need the help and the school is denying it. he is also going to speech therapy. just need one rule or law of the many I have read to say You must help. please help me.

Homeless Act

hi, you can contact an advocate in your area to help you with that. I had to do that with my grandson. Look up the IDEA act on your computer. My grandson has had an IEP (individualized education plan) for 6 years and schools still will try to get around helping that child. I finally hired an advocate to go with me to the school meetings. I also had a legal aide lawyer go with me to make sure the school adhered to his IEP. People are taking schools to court because of ignoring the LD children. It’s a shame.

My 5 yr old is having problems with behavior in kindergarten. Cussing throwing things throwing fits. Leaving the class. They want to do extra testing and need me to sign a permission form. What kind of stuff are they gonna do that requires a permission form?

My son has been having issues in school and has been retained in 1st this year. He was recently diagnosed with adhd. Last year i asked for testing or what we could do. School told me they are going to retain him and give an extra year in 1st grade. The school wont do any test. They stated they would just give him extra time on tests. I took him to a dr to get tested. The school wants me to pay for the school evaluation and then also the counseling they will provide weekly. Is this how its supposed to be? What are they required to do by law. This is a consultation school.

You should NOT have to pay for an evaluation! That is crazy. Ask them for a child study team IN WRITING (all correspondence should be in writing. Schools are less likely to break the law if there is a paper trail). They are legally obligated to provide that in the USA. If they refuse tell them you will contact a lawyer. That should scare them.

Hi, My daughter is currently 3 years old. She is in Pre-K class(ESE) in an Elementary school in Florida. She was assessed by school district office and she got eligible for the public school based on her delay in development. My question here is,
1. Do all states have Pre-K class in public school for 3 years old (For developmentally delayed kids)?
2. when we move to a different state, will she be eligible for a public school in the other state, just because she is in the public school system already?
3. Is there any reason, they can deny her in the public school in a different state (She is just 3 years old)?
4. If she is eligible, can we have the current IEP of her in the new school?

Thank you for helping me.

We are in MO.We have had issues since K,went to behavior therapist,ADD testing,FINALLY did 3rd party testing with Applied Learning,met with school,they said thanks and that was it(didn’t even put in his records).Ped advised we needed to request SPED testing,we did,they have a team along with a process coord. who determined he didn’t meet the criteria for testing.In fact referred him for the gifted program testing.In the meantime our Ped sent us off for OT eval,Speech and Reading eval over the summer.He has been diagnosed with Dysgraphia and Dyslexia.In preparation for the school year (3rd grade) I reached out to Counselor to ask again about SPED testing and support plan this year.Side note:gifted testing came back with an overall IQ of 111 however memory recall was in 1%.What can I do?

My son was in 2nd grade last year in California, at a charter school. he was diagnosed a few years ago with severe ADHD with compulsive tendencies. He had a very tough year last year and stIill struggles to read. I felt like the teacher pushed him through to be retained. now he should be starting 3rd but because he can’t read at a 3rd grade level they want him retained. I requested testing on several occasions throughout the year and finally at the end of the year last year they called a meeting with the school psychologist. they said he didn’t need any services at that time and would not test him. I even had a not from his psychiatrist saying he needed further evaluation. I was under the impression that if I asked they had to test. I am lost at this point…any help or suggestions

Sarah, you need write a letter to request a special education evaluation for your son. In your letter, provide a brief summary of his reading difficulties and what you have done or help you have requested. In our book, From Emotions to Advocacy, we include sample letters that parents can use in these situations.

Don’t blame. Give facts, not feelings.

Before the school can evaluate a child, they need the parent’s informed consent. To speed things up, include a statement in your letter that you give your informed consent to the evaluation. In your letter, emphasize that you want to communicate with the psychologist prior to the evaluation.

I volunteer as a class aide in an adult ESL program at a community college. I’ve been working closely with one student in particular for five months. They are one of the best English speakers in the class but they’re illiterate in their first language (Spanish). They’re still struggling with the alphabet and can’t tell the difference between words such as “to” and “the.” One of the instructors from last term mentioned to me in private that this student might have a learning disability or memory issues. Is there a way to suggest the student be tested for a learning disability or other kind of disability without it being perceived as discrimination? Would hate to see them keep struggling and not make progress.

We are new to all this IEP stuff, and have made every mistake along the way. Our school is notoriously hard to work with for special needs families (imagine hearing a giant “UGH!” every time you say your school’s name to child advocates or former students). Last fall, after our son met with the school psychologist, she recommended to us that we have him tested for Autism at the local Easter Seals because she used to work there. We still have no idea whether or not he was tested at the school, but we did not know at that point the school was required to do an ADOS. We assumed the testing would be free, but were recently hit with a $450 bill for it. We recently hired our own advocate, and are thinking about an ed attorney. Is there a way to get the school to pay for the Easter Seals eval?

I have a 5 year old granddaughter who is a student in a Kindegarden class at a local, well known school. It is the latter part of the year, and she is struggling in math; adding, and subtraction. My daughter thinks she may have a learning disability. She is very little, and she was born premature. However, she is VERY active, and smart, and funny.

The legal guardian needs to put in writing that she wants a meeting to discuss the students progress. Presuming the teacher has noticed similar issues in mathematics, ask what interventions have been employed thus far. Does the school have RTI or SPL? These are general education initiatives that give students extra help without the need for identification of a Specific Learning Disability. As a group, you can come up with strategies to help the youngster.

Unfortunately, it is extremely difficult to find a learning disability in kindergarten or even 1st grade.

I took my daughter out of public school when she was in kindergarten due to her being bullied and she wasn’t progressing in her reading. I discussed this with her teacher and was told she was too young to worry about a learning disorder. I homeschooled her the rest of the year and into first grade before I spoke to the school again because she still was not progressing. I was told that because she was not a student in their school and they were not getting money for her they were not allowed to test her for anything. I had the testing done through her pcp. She was diagnosed with a learning disorder. I have since reached out to the school for testing of adhd and was actually told that since the state doesn’t give them money for her it is illegal for them to test her for anything. Has anyone ever had this problem ?

There seem to be a few issues here. First, since she is home schooled, the school may not be obligated to provide special education services. However, they are obligated to conduct an evaluation if necessary.
Second, if she were to go back into the public school system, she will be placed according to the grade she was in when she left public school unless you can provide documentation that she mastered that grade level.

Finally, ADHD is a medical diagnosis. If your daughter has a medical diagnosis of ADHD the school can provide accommodations or modifications if needed. This diagnosis comes a physician and NOT from the school. The physician also needs to note the severity of the disorder….mild, moderate or severe.

Schools often give silly & erroneous responses. This is an example. Send a written request for testing to the special ed director. Your state parent training & information project can assist you.

is it legal for teachers to have your child assessed without your permission in play school?

I am not certain what play school is, but schools can assess any student without consent if it is a routine assessment that is administered to ALL students. For any individual assessments, parental consent must be obtained.

I have a son who is failing math, I asked for a tutor. Two months after asking, the principal sends me a letter saying they have no tutors and that she will let me know if they offer any interventions for his grade. He had intervention last year. Are they required to help your child get the help he needs to pass? I finally found a tutor and am happy but he needs more help at school. He has had trouble the past two years but this year they’re not offering any help. Are they required to? He really needs help, I don’t know if I am giving him or getting him all the help he needs.

school is telling me they do not have a someone to give the test till 2016. Is this legal?

My daughter attends an out of district public school through a tuition waiver in IL. Who is responsible for testing her? The district she is enrolled in or her home district?

The district that she attends is responsible.

I’m in the uk and my daughter has struggled all through out primary school I asked when she was in year3 could she be tested for dyslexia and was told she was too young I then again asked the school when she was in year 4 and was told there was no need as she’s doing well in class How ever she has now started secondary school had some CATs test and I get a call from the school asking for my permission to have my daughter screened for dyslexia which I am happy about but feel it is a little too late! Is there anyway I can make a complaint about the school/teachers I spoke to?

my granddaughter, age 6, has always loved school. Her teacher feels that she is talkative and lazy, she is scared of her teacher and her red pencil. She has gone from achieving on her grade level to having difficulty with her spelling words and math problems. She brings home reports that say she is not working up to her potential and desk work that is redlined.
My daughter has been working with her each night on her weekly list and helping with other homework.
The teacher will only communicate via text or email, even though we have requested testing for her writing letters and numbers backwards. The teacher tells us that in GA they don’t test until the end of 2nd grade, or until they have failed
a grade or two.

Now that’s a bold face lie that they told you.

This is not correct. send it to them in writing about testing ASAP

I live in California and my son goes to public school. I was told that teachers are not allowed to tell a parent if they suspect that their child has a learning deficiency or disability because of legality reasons. This law sounds like it is a false statement I am more inclined to think that the school district tells the teachers not to say anything because then the school is on the hook to have the child tested and if they find that the child has problems that then the school has to pay for special education services.

You are most fortunate to reside in California. For over twenty years the state was forbidden to evaluate students. Since the schools have been given back this responsibility and do NOT ever want to lose it again, they most likely go by the letter of the law which is not necessarily the desires of the parents/teachers.

What about home schooled students? Are the LEA’s still responsible under Child Find to provide special ed services for students that are home schooled?

Hi Maria. Home school laws vary from state to state. The majority of states will evaluate home school students and can find the student eligible as having an educationally handicapping condition. They do NOT have to provide an Individualized Education Program unless you enroll the student in public or private education.

The State of Delaware states that it has no obligation to students who attend “non-public” schools (ie homeschoolers). By my reading of the law, this cannot possibly be what is intended by the law; Delaware has simply given homeschoolers a new name (non-public, rather than public or private) in order to circumvent the law. Perhaps it is time to amend the Federal law to close this loophole. I don’t personally want any state intervention, but some families cannot financially shoulder the load of therapy on their own and need the assistance. They should not be forced back into the public school system wholesale to get it.

I have a girl that have some LD and I contacted the district to do the test. I got a call back the same day promising that they will contact the private school that she goes to, but a more than a week pass by and nothing got done. I decide to call back and I did some promises that someone will call me. A week pass again nothing. I found this company that can do the test for affordable price and I made an app for her and did the test. They told me she needs therapy for 4 month but the price that were asking for was not realistic and I can not afford it. I just need to know what to do to find help for her. thank you

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