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?”

http://www.wrightslaw.com/info/child.find.mandate.htm

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

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My daughter has always struggled in the areas of Reading and Math. I believe she is dyslexic. Her third grade year she was evaluated and denied special education services. The school uses a descrepancy formula. I was told that there was not a severe descrepancy between ability and achievement. Unforturnately, I did not understand the law and my rights at that time. My daughter is now in the 7th grade, and is failing. She is being ignored, I have received no letters of concern for her problems, NOTHING! What should I do, and can the school be held accountable for not providing FAPE?

I am having to opposite problem of many of you. My son is in 2nd grade and received this test 2 weeks into school. Part of the test instruction was if you don’t know the answer just x it out and move on to one you know. Well my son answered a few but x out most. When I looked at his test it was clear that he didn’t try. He made all A’s in first grade and is making an A in math right now. Math is his easiest subject. I asked that he not be apart of this program. I was told that I didnt have a choice, it wasnt my right to refuse. Do I have a right to refuse?

Linda, My son was given special education services prior to going to school and the school did a multifactored evaluation that qualified for the services. When he went to kindergarten he remained on the IEP and some of the goals were adjusted accordingly. He recieved a new evaluation every 3 years unless we requested additional testing which is our right up to one per year. If some of the parents are being told this it does not sound accurate. If you go to an outside place to get an evaluation you me be entitled to having the school pay for it if they cannot/will not do the testing in a legal time frame. Evaluations must be done in a certain time frame or they are out of compliance.

LINDA-EVALS-DIAGNOSIS See Child Find in the federal regs,also look at your state regs-Schools have an obligation to locate, evaluate and indentify all students supsected of having a disability. Good Luck!

parents in our area are being told they must receive a diagnosis in order for their preschool child with a disability to continue to receive services when they enter Kindergarten. There is a very long waiting list for these evaluations since we only have one center that does these evaluations. Please advise.

What is a school district’s responsibility to assess a child’s suspected disability if the parent’s refuse to give consent?

I had my first meeting today. Ig ave the dyslexia results to the school. The meeting had six school employees. The school psychologist stated the evaluation results to her did not show dyslexia. She mentioned the normal explanation about writing backwards. My son does not do this except d and b.

What should i do now? The principle is going to look at all the information and get back with me. My son has an IEP since thirty four months old, he is now eight. The IEP is for speech. He is in second grade and mostly tested in early first grade.

I have a daughter that has had trouble in school since she was in kinder care. I have sense that she has problems keeping things in memory. Now that she is in second grade her teachers are seeing the same thing but not wanting theproper testing to see if it any diability. The school now wants to retain her. I need help from someone, the board of education does not have any solutions. The school my daughter attends states she needs a hearing and eye test done, both have been completed and still no coporation from anyone. What should I do as a single parent help my child?.

I am 26 year of age. Recently diagnose with dyslexia. I am a Senior at the California State University system. I feel am at a huge disadvantage because I am on academic probation because I never received the helped I needed. I also have a substantial amount of student loans, because I never qualified for scholarships due to my grades. I have always had the same problems I present. What can I do? Can I request grade changes?

AMY-RTI
Many advocates expressed concerns over school districts using RTI as an excuse not to evaluate. You can find these concerns and how the US DOE responded to those concerns in the commentary of the federal regs. The commentary of the federal regs is a MUST READ.
Parents still have the right to request an eval during the RTI process, there must be documentation that the parents were notified of this right and RTI does not replace an evaluation. Parents should make request in writing. If school refuses to evaluate and gives prior written notice and child is later identified as a student with a disability only one phrase comes to my mind……………….compensatory services for their failure to evaluate.

DANA-WHO CAN GIVE PSYCH EVALS
A teacher can’t give a psycho educational evaluation, unless she/he is a board certified psychologist. A teacher may give a “screening” to a student, but this is NOT a psycho educational evaluation. Make the request in writing, put at the bottom of the letter, “Please consider this letter my informed consent to evalaute.” Keep a copy.

RtI would fall into part of the evaluation process… and can be used for 504 or campus/district support programs. If the kids can get help and be successful in general ed, that is the best place for accommodations. Special ed is the last avenue. Some times kids are a drain on interventionists/gen ed teachers’ patience and special ed takes the burden off their plate. We need more gen ed support in the class… NCLB has hurt not helped that!

My grand son was diagnosed with ADD. Later, he was diagnosed with bipolar. For 3 years, my daughter requested that he be tested. The school told her he did not meet the guidelines. Even with doctor’s recommendations and two hospitalizations, they refused to evaluate and offered no help.

They set him up to fail. His depression and high’s and lows became worse. They wanted him to repeated his junior year. After we removed him from the school, they tested him right away. He passed summer courses with a B and C. Now the school is allowing him to take 3 courses on the computer.

What recourse do we have against this school?

Dana,
Some states allow teachers to do some testing, but most testing must be done by staff with more training than teachers have. You have a right to be told the type of staff that will do the testing. Through your state education agency and Parent Training & Information Center you can get answers to all of your question.

Look at http://www.taalliance.org/ptidirectory/pclist.asp for the Parent Center in your state.
They can help you with your options to get your child tested before school starts. Schools could test during the summer, but try to avoid this because it costs them to bring staff back when they are on vacation.

Soma Ancillary comments on those of others from a school psychologist:

1.) School districts have a mandate of child find, but only within the prescribed context of state eligibility categories which is to say that an external medical (or psychological) diagnosis from an outside source is not necessary or sufficient for qualification under sp.ed.

2.) Remember that the onus vis-a-vis special ed evaluation is always on finding a condition that impedes a students’ ability to gain from instruction. A child can have ADHD, Autism, and a host of other conditions that have little or no impact on interfacing with curriculum and being successful in school.

E.g.: a diagnosis of dyslexia (which is a clinical form of LD in the DSM-IV) is not sufficient to be labeled LD in my district in NV.
The student must have a dual discrepancy in rate and level of academic achievement (RtI)

3.) Piles and piles of research point to the supremacy of core instruction (Tier 1) in the gen. ed classroom as being the most vital for most students (exceptions always exist). The point is simply that we know that those students who receive instruction at their level in the gen. ed. classroom have the best outcomes.

Please help – I am concerned about who, legally will test my child – the school says that the teachers do – I would like an independent testing agency to do my child’s testing as the school has already procrastinated my requests and now it summer. They have stated that there is no testing during summer so the tests will be given withing the first 60 days of the next school year. I want my child ready to go with an IEP in place as she is already repeating kindergarten. Are there sources for testing through the district that will test my child during summer?

Amy,
I am hearing about this more also. School attorneys are telling schools that RTI should be used.

TX law says that the campus student handbook must include a statement about a parent’s right to request a special education evaluation. That statement now includes mention of RTI. The catch is that even if the parent requests an evaluation, the school can give the parent the “Refusal to” form saying that RTI has not been tried and is being or will be tried.

Hopefully some readers will have ideas of how this can be addressed in TX and other states, because I see this situation increasing in TX and other states.

In response to Chuck, RtI has become a huge mess for parents in Texas. Districts have used RtI as a reason to refuse SpEd initial eligibility and/or dismissed the student from SpEd.

In one case, the student has never been in school since the district does not have a Pre-K program. They state the student must have the Student Support Team (SST) observe the student and there is no timeline for how long this will occur. If and only if the SST deems it is necessary will the student be referred to RtI. The student has Asperger’s, ADHD, OT needs, Speech needs and some behavioral problems.

Second case, student has been in SpEd for years for Dyslexia and OT support. Was recently determined to have Asperger’s and an IQ that is off the charts. The IEP team stated that because the student passed the state assessment and has passing grades, there can be no further SpEd eligibility or support. The student will now have to go back through all three Tiers of RtI.

Regardless of what is presented to the IEP teams, the district will not change their stance. Parents are then put in a position of filing a complaint with the state education agency and wait for their decision.

Any suggestions would be much appreciated. Other attorneys and advocates are seeing this across the state as a “new trend”. Thanks in advance for any input.

Federal and state regulations require a child find responsibility for schools as Pam points out. Some school districts and campuses have always done a better job of this than others. However, now the Response to Intervention (RTI) model has complicated referrals to special education for schools and parents.

The Federal philosophy is that too many students are being referred for special education testing and too many are being placed. The concept is that the proper implementation of the RTI model will reduce the number of referrals for testing and provide struggling learners with appropriate learning through non-special education programs. Some schools understand the concept and are trying to make it work. Other schools seem to be using this to stall or stop referrals, but provide no strong alternative academic programs. This is complicated by limited funding in many schools and increased pressure in some states for schools to reduce the number of special education students.

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