With school back in full swing, school officials must take care to comply with the Individuals with Disabilities Education Act (IDEA) and Section 504 of the Rehabilitation Act to identify students with disabilities who may require special education and related services.
The IDEA and its implementing regulations place an affirmative duty on public schools to ensure that all students with disabilities who need special education and related services are “identified, located, and evaluated.” This mandate is commonly called the school’s “child find” obligation. Schools must have policies and procedures in effect that ensure that all students with disabilities are identified, located, and evaluated. Those obligations are ongoing and apply to any student who is suspected of having a disability, including students who may “fly under the radar,” such as students who are advancing from grade to grade or students who are considered “highly mobile” (i.e., migrant children).
Parents do not have to request an evaluation for their child to trigger the school’s child find obligation. Rather, schools must watch for signs of potential disability and take action when those signs are present. Courts have held that school officials who overlook clear signs of a disability violate the IDEA’s child find obligation.
Once a student is identified as potentially eligible for services, the student should be referred for an evaluation to determine eligibility. If school officials suspect that a student has a disability, the school must seek parental consent to evaluate the student within a reasonable time period. If a parent refuses to consent to an initial evaluation, the school may, but is not required to, use the IDEA’s consent override procedures.
Section 504 Requirements
Section 504 of the Rehabilitation Act also has a child find obligation that requires schools to annually “undertake to identify and locate every qualified [individual with a disability] residing in [the school’s] jurisdiction who is not receiving a public education.” Further, schools must evaluate students “who because of a [disability] need or are believed to need special education or related services.” This broad obligation applies to resident students who attend private schools, students in hospitals, and homeless students. Section 504 obligations, however, do not specify how schools must conduct “child find” for these students.
Like the IDEA, Section 504’s child find obligation is not only triggered when a student’s parent requests an evaluation. Hearing officers have found schools to be in violation of Section 504 for failing to evaluate students when they had reason to suspect a disability. For example, a school violated Section 504 when it failed to evaluate a student after the student’s father provided medical documentation supporting the student’s depression diagnosis. Another court found that a school should have conducted an evaluation when a student with cerebral palsy began using a wheelchair.
School officials also must ensure that they are not side stepping their Section 504 child find obligations by relying on an individual health plan to support students who may be Section 504 eligible. The U.S. Department of Education’s Office for Civil Rights found that the presence of an individual health plan does not negate the need to evaluate a student to determine the student’s Section 504 eligibility. A school’s failure to do so may amount to a denial of a free appropriate public education.
As the school year progresses, school officials should watch for red flags that may require a closer examination of whether a student is a student with a disability under the IDEA or Section 504. Red flags may include students:
Failing to timely identify and evaluate students with disabilities under IDEA or Section 504 can have serious consequences for a school, including, but not limited to, compensatory education or tuition reimbursement claims beginning from when school officials first should have suspected that a student had a disability.