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?”

  1. My child has had stacked diagnosis from an early age. Despite already on a IEP for speech. Teachers noticed and began reporting concerns in the 1st grade. My response was always to get an external eval, I spent thousands, but the school continued to only offer speech therapy. He was diagnosed with dyslexia, phonological disorder, executive functioning disorder, sensory processing disorder, alexia, OCD, and ADHD. I kept running to get evals when the teachers continued sharing concerns.

    It was brought to my attention by a psych that he might have ASD. Indeed, he was diagnosed after 2 yrs of struggling and severe unchecked bullying, elopement, school avoidance, etc that led to me transferring schools.

    I’ve only now learned that in a BASQ report (after I pressed for an eval) in 1st grade, that the school actively removed the chart reflecting “clinical significance” for autism. With early intervention being so critical, I’m infuriated and confused that this was not willful misconduct or negligence on their part.

    My attorney advised we can’t go after the school for anything but FAPE deprivation and comp ed. But I see cases recouping so much more than this when I search.

    Any advice?? Thanks in advance for your time!!

  2. Could a child with a possible hearing loss be denied testing for special education? I suspect a disability but I was told testing would be unethical due to the possible hearing issues.

    • Mark, I can’t imagine how anyone could think it’s “unethical” to find out if a child has a disability in hearing.

      The law requires schools to evaluate children’s hearing and vision. Any child with a suspected hearing problem should be evaluated to determine the child’s need for special education and related services.

    • An issue may arise if looking to evaluate for SLD. It is hard to say a child has a learning disability if they have been missing instruction due to a hearing loss. Most test manuals state that you must determine if the child has appropriate hearing and vision capabilities to access the testing materials. But like what was already said, evaluation for a Hearing Impaired eligibility absolutely would be appropriate.

    Hello, I am seeking help in what to do. My stepson is currently in the 11th grade on OCA which is an online school. He has ASD and has an IEP. I thought his school had accommodations for him concerning the state tests, but they do not and he is below passing in all of his state tests. I know when my sister was in high school she was able to graduate without taking the state tests, and I asked OCA if they gave parents this option and they said they DO NOT, they are trying to do some form of tutoring but I know this will not help, because my son has a hard time understanding certain things and IO feel it will not help. I don’t know what to do, I don’t know if it is too late to try to enroll him in another program. I absolutely do not want him going to public schools, before the pandemic when he was in a private school, we had so many problems with the teachers, students, and he was a very violent child that didn’t know how to communicate and express himself. Online schooling has helped that amazingly. I want him to be able to graduate, but I feel he is getting discouraged at this point and loosing the motivation to try and graduate. I need help, I am lost and don’t know what to do, or what program I can turn to, now that he will be entering his Senior year soon.

  4. My child was suspected of being autistic by his pediatrician, I asked him what to do and he stated that since he was about to start kindergarten, t enroll him in school and put him through the system and that the school system would evaluate him. While in kinder, I spoke with his teacher several times about him possibly being autistic. His GT teacher came to me on her own to tell me she thought that he might be autistic. My son skipped 1st grade and went into 2nd grade. I had several conversations with his GT teacher regarding his autism and began to have conversations with the assistant principal as well. The assistant principal was in charge of discipline and my son was “getting in trouble” a lot. 2nd grade came and went and 3rd started with so many problems, phone calls pulling me out of work, my son spending days in In School Suspension for behavior. At the winter break, it was suggested to me by a parent on a FB group that I should submit a formal request to the school for evaluation. I was not aware that I could do this. My request was denied stating that my son only had discipline problems. The school brought in a psychiatrist from the local high school to come and observe him. In her findings, she stated that my son’s problems were simply behavior. I replied to her email and copied the teachers, the principal, the vice principal and the schools diagnostician rebutting her findings and gave tons of examples stating that a lot of what was happening was obviously signs of autism. I even brought up the teachers from the previous years who were in agreement. The evaluation was finally approved and there was a rush, by the school, to complete it before the end of his 3rd year. I received the results during the summer. AUTISM. My son started 4th grade and the behavior issues started again. I called the district SPED department asking if they had a program or any special teachers or schools for autistic students. I was told no and that every teacher in the district received 30 hours or training on special education children. Half way through the 4th grade year, a meeting is called by the principal and a bunch of people I didn’t know telling me that he needed to me moved to another school that was more equipped to work with him because they had a SPED program and a SPED teacher at their school. My son gets move and the behavior continues. I realize that it isn’t behavior but his needs not being understood, not being met and proper classroom guidance and assistance from the school. Behavior and focus are so bad they assign a TA to sit with him all day everyday to help get his work done. End of 5th grade year, my son has had it. He wants to kill his teachers, his parents and himself. The school sends him home as dangerous and wont let him return without a level of threat assessment done at the emergency room. The determination is that he is depressed, he hates himself and feels no self value or worth. I decide to NOT send him back for the end of school. I enroll him in a Partial Hospitalization Program and we go from there. Of course I have not included everything but I have had this gut feeling for years that there should have been help.

    My feeling is that the first teacher in kinder should have initiated the process for my son to be evaluated. There were so many teachers and admins involved that did nothing for 3 years. Were they required to act on their saying he might be autistic? If so, that evaluation should have been done year one, in kinder? If done in kinder, my son would have begun receiving supports at the beginning during the formative schooling years instead of being left to run around year after year and not being moved to the supportive program until at the end of fourth grade. Too little too late.

    • The school was definitely negligent. You might want to look into speaking with an experienced education attorney to see what your options are. Using education attorneys, I was able to get the help my child needed (IEP was already in place but my child was falling behind academically and was denied accommodations recommended by a neuropsychologist). It took time and a due process, but it was worth it. Save every communication with the school (email/letter to and from the school and all IEP/504’s). There is a time statute though, usually 2 years, although your situation might be different. This is why speaking with an education attorney is so important. Good luck.

  5. Hello, my daughters a Junior in HS. She is hearing impaired was allowed extended test taking (ETT) as a carryover from her IEP at another school. We have recently been advised by a college administrator that the ETT will not be allowed unless we have proof of a learning disability requiring it that is not related to a hearing impairment. My daughter desperately needs the extra time for testing as she does not do well in a testing environment. We approached the school to have working memory & processing speeds tested but they refused stating that they only test students to determine if they are eligible for special education. Do you have any suggestions?

    • It is not clear what testing the college person was referring to. I suggest talking to one or more HS counselors to see if you are getting accurate information from that person, & the school. Your state vocational rehab agency may be of some help. Also the Deaf education department of the state education agency.

  6. The school failed to identify my son and my daughter. They are both now in high school.
    My son in particular has really struggled over the years. He did have a 504 plan since 5th grade but was never evaluated. 9th grade was the first time the school suggested an evaluation. He is no longer at that school.
    My question is could we sue ( years later) the school for damages based on the fact that they did not identify his disability in elementary school despite clear symptoms of ADHD, multiple referrals to the principal and even suspensions

  7. The issue I am having when I mention the possibility of dyslexia and/or dysgraphia in IEP meetings is that they already have an ADHD diagnosis and do not want to test for anything further. They refuse to even discuss it despite the fact that my 3rd grader can only read at a 1st grade level. How do I get them to evaluate and provide support for other issues?

    • I suggest writing to the special ed director & request Dyslexia testing. You can request an outside evaluation (independent educational evaluation). If this does not get action, you can use the dispute resolution processes the IDEA rules give parents. A state complaint or request for mediation are probably your best options at this time.

    • You have the right to hold a PPT anytime you want. You need to hold a PPt for that specific concern and don’t back down. State the tests you want done. There are specific tests for dyslexia. My daughter is in 8th grade on the beginning of a 3rd grade reading because they refused to test her. I finally stood up & it came back that my daughter is severely dyslexic

  8. I teach in a district where we have a modified kindergarten day. I currently have a student who clearly has a learning disability. He has memory issues. There is a LD history in the family. Twice a week, he stays for my intervention group. I shared with the principal in the beginning of the year. I kept data. I met again with the principal in February and did the strategies she suggested. He has shown little progress. She is now telling me that he needs eight more weeks of interventions because we did not meet as a team. The teachers on the team recommended a full evaluation on speech and language. They also recommended that we not wait eight weeks to meet again. The principal denied both suggestions and said we have to do more interventions. He is failing kinder.
    Is this legal?

    • No. An educator could make a written request to the special ed director for testing, or someone could whisper in the parent’s ear about requesting testing.

      • Update. I did write to the director and I was denied. I currently am going through the teachers union to see if a complaint can be filed at the state level. There are multiple problems being denied and ignored in our district in regards to special education.
        This year one of my students was screened for speech. He sounds like he has a mouth full of marbles. The SST team met and referred for a full assessment. The director called the family and talked them out of the referral saying that it was because he was a second language learner. At conference time the parents did not fully understand. They told me the director shared that their child would be assessed a second time in the spring, they did not understand that it would be for assessing the level of English, not speech.

  9. My child entered a new school system in the 8th grade. Sh has constantly struggled since. Her grades have always been very low since the first year. She is now a senior in a credit recovery program. I recently requested her to be tested. It resulted in her being dx with cognitive impairment. No teacher or counselor has ever attempted to look into the reason she has struggled. Now she is behind on graduating on time. What is the schools accountability for this situation?

  10. I am a teacher and recently was told that it was illegal to tell a parent that a child should be tested for special education services.I am not a special education teacher, but I am a high school English teacher with 19 years of experience. This came from my building’s assistant superintendent that I could not mention testing at all to any parent of a high school student and was also told that at this point what would be the purpose or worthiness of special education services. I am disheartened and frustrated with having no admin support. I am just wondering if, legally, this is true and that they are accurate in telling me that I cannot mention testing. Thank you in advance for your response.

    • Have you initiated interventions and have documentation they are not working? Your school should have a RTI (response to intervention- may be called something different in your district) process which the child should go through before testing is discussed. It may not be illegal, but you need to follow the procedures set in place by your district for identifying children.

        • True but teachers often tell parents to have their child evaluated in an attempt to not do RTI (which is required in many states to qualify SLD). I was merely suggesting the teacher follow the procedures her school district has in place and if she had already tried interventions there would be no question about the child needing to be evaluated. What will happen if the teacher has not done any interventions, does not do any while the child is being evaluated and then the child does not qualify for SLD? To many times teachers try to take the easy way out and not do what is needed for children.

    • It is not illegal to tell parents of their right to request that their child be evaluated to determine if a disability exists. Federal law gives schools the responsibility of identifying students who may have a disability. Texas is currently in trouble with the dept. of education because it did not monitor that schools were not meeting this responsibility. Special ed services can be provided by schools to age 21, and in some cases 26.

    • Kelli, good question. The correct answer is “Yes.”
      The federal special ed law (Individuals with Disabilities Education Act) includes the Child Find mandate. Child Find requires all school districts to identify, locate and evaluate all children with disabilities, regardless of the severity of their disabilities. This obligation to identify all children who may need special education services exists even if the school is not providing special education services to the child. Anyone who has concerns abouta child ‘s progress can refer for an evaluation.

    • Kelli, thanks for putting this topic out there. I want to share that it was the “whispers” of teachers who alerted me, as a parent, that my child needed more than what the school system was offering. Those same teachers had little or no administration support as the system was pushing LD students through the systems with inadequate interventions and very low reading levels. Those “whispers” from those teachers put a fire of advocacy in me. I advocated at a high level thanks to Wrightslaw and state resources and my child is now in college. I was a change agent in a rigid school system. The truth is some administrators will “herd” lower performing students through the system without regard for the outcome. It is time for the herding to stop.

      • Morning,
        Sadly what you say is all to true. So many school administrators will just push LD kids through with no care or concern. How do we stop this besides advocating? How do we get these administrators to see the law? That in my view would be the toughest battle. School administrators do this in my opinion because they view LD kids as dumb and will not amount to anything. You are right the herding needs to stop.

  11. If my child has an IEP for ADHD and sensory integration disorder, and we meet with the school to request an evaluation for a learning disability in math are they required to test him? The school refused saying it was his lack of effort. He switched schools and they tested him. He clearly qualified for LD in math functioning on a first grade level when he was in fourth grade. Is there anything we can do? He struggled for two years needlessly because of one principals refusal to assess him.
    Thank you!!

  12. My Grandson is 9 years old in 3rd grade Special education, and has a diagnosis of “development delayed”. He has been in Special education since Kindergarden, Now His teacher said he cannot turn 10 with just a diagnosis of just development delayed! We live in Mississippi, I am wondering if this is correct by Mississippi law???

  13. My grandson has childhood apraxia since PreK. His kindergarten teacher did not understand his speech and he became a discipline problem. He was frustrated and acted out all year. We requested he be tested for Speech and the Diagnostician said on the phone prior to testing that he was Autistic. My son(parent) was upset because the testing not only covered Speech deficits, but a psychological evaluation also. At the ARD meeting we were told if we did not agree to the Autistic label he would not receive Speech therapy. In other words it was all or nothing.We told them we agree with the Speech label but not Autism unless diagnosed by a Child Clinical Psychologist. My grandson never received Speech help and we are seeking legal advice for the Texas School District for demanding such at the ARD.

  14. ok. So I kind of have a different thing going with my son and I am getting very frustrated with the school he is going to. My son had leukemia and missed basically the first two year of school because he was fighting for his life. When he started school in first grade as a repeat he was behind. The very first week of school I tried to get him help with 504 the school told me oh, I don’t need that they can do for him everything a 504 could do. being naive and trusting that they would really help my child I gave it up. About a month before school was out i got oh we can’t get your son where he needs to be so we got him a tutor to help him.Same thing happen this year as well, I just want the school to teach him and not try to group him. because he is more work.Do you have any Idea’s

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