By Geneva Englebrecht, Associate
and Adam Newman, Partner
Cerritos Office
In our April 2012 post we touched on the dangers of over-identifying and misidentifying students who may or may not be eligible for special education and related services. For May, we’ll explore the opposite side of the coin: failing to seek out and identify students.
Various federal and state laws govern the process for locating and identifying students potentially eligible to receive special education and related services. Child find obligations start at age 3 (federal and state law), and further, students between the ages of 6 and 18 years are subject to compulsory full-time education. (Education Code Section 48200, et seq.) California law requires local education agencies ("LEA") to actively seek out children who may be eligible for special education. LEAs are required to have systems in place that ensure that individuals with exceptional needs are referred for assessment when necessary. (California Education Code sections 56300-56302)
Keep in mind, the threshold triggering the requirement for an assessment is whether the LEA suspects that a student has a disability. A district must timely and appropriately seek out potentially eligible students residing in its boundaries or attending privately schools in its boundaries. While the child find threshold is low, the liability for failing to meet that threshold can be significant. A due process hearing may be requested if an LEA fails to fulfill its child find obligation with all of the risks that go along with that, such as hefty awards for compensatory education and payment of the student’s attorney’s fees, which frequently run into the six figure range.
Because the Education Code requires that LEAs actively and systematically seek out potentially eligible students, it is essential that LEAs (often times through the SELPA), have a sufficiently comprehensive community based notification system to meet the child find obligation. A community notification system includes notification activities such as placing advertisements in local newspapers throughout the SELPA area in a variety of languages, holding meetings with private schools, widely distributing informational brochures, providing information on the LEA’s website, etc.
Beyond notification systems and as a matter of the natural adult-student interactions that happen on school campuses, many times a student with a disability is easily identifiable; however, that is not always the case. It is important that LEAs equip their staff with sufficient training on how to identify the less readily evident disabilities, particularly those of a social/emotional/psychological nature. As for academic based concerns, LEAs that have successfully implemented response to intervention ("RTI") programs to address at-risk students suspected of having learning disabilities can attest to the efficacy of these early detection and intervention systems.
