Lori Kirsch-Goodwin, Esq. and Hope N. Kirsch, M.A.Ed., Esq.
Kirsch-Goodwin & Kirsch, PLLC
8900 East Pinnacle Peak Rd., Suite 250
Scottsdale, Arizona 85255
All children with disabilities, including children with disabilities who are homeless children or are wards of the State - and children with disabilities attending private schools - regardless of the severity of their disabilities, and who are in need of special education and related services, must be identified, located, and evaluated and a practical method is developed and implemented to determine which children with disabilities are currently receiving needed special education and related services. 20 U.S.C.A. § 1412(3)(A).
Each State is required to have policies and procedures to ensure that “all children with disabilities . . . including children with disabilities who are homeless children or are wards of the State, and children with disabilities attending private schools, regardless of the severity of their disability, and who are in need of special education and related services, are identified, located and evaluated.” 20 U.S.C. § 1412(a)(3)(A); 34 C.F.R. 300.111(a)(1)(i). This obligation is known as the “child find” requirement. 34 C.F.R. 300.111, titled “Child Find.” IDEA requires Child Find to include “children who are suspected of being a child with a disability … even though they are advancing from grade to grade.” 34 C.F.R. 300.111(c)(1). The IDEA “child find” mandate is an affirmative ongoing obligation for schools.
Arizona in turn requires each public education agency (school districts and charter schools) to identify and evaluate all students suspected of having a disability, and to have policies and procedures in place for such identification and evaluation. Arizona Administrative Code, R7-2-401(D) and (E) (emphasis added). Thus, at least in Arizona, the threshold is very low, requiring nothing more than a suspicion.
A school’s Child Find obligation is triggered where there is knowledge of, or reason to suspect a student has a disability, and reason to suspect that a student may need special education services to address that disability. Dept. of Educ. v. Cari Rae S., 158 F. Supp.2d 1190, 1194 (D. Hawaii 2001). The threshold for suspecting that a child has a disability is relatively low. A school's appropriate inquiry is whether the child should be referred for an evaluation, not whether the child actually qualifies for services. Id., at 1195.
Beyond the initial 45-day screening, under Child Find, schools are obligated not only to seek out disabled students, but to also evaluate or provide services when it has “knowledge” of a disabled child. Knowledge includes poor grades, behavioral concerns, and/or “off-task” classroom behavior. J.S. v Shoreline school, 220 F.Supp.2d.1175, 1184, 170 Ed. Law Rep. 264 (W.D. Wash. 2002). Parents expressing concern their child might have autism triggers an evaluation. Orange Unified school v. C.K., 59 IDELR 74 (C.D. Cal. 2012). Reported anxieties also trigger the obligation to evaluate. Forest Grove School District, Oregon State Educational Agency, 9/12/2012 (finding Child Find violation when no evaluations were completed to determine why the student was exhibiting anxious behaviors and how they were interfering with her education).
Thus, there are no magic words that trigger the duty to evaluate; there need be nothing more than suspicion, possibility, or concern. The suspicion threshold is relatively low because the key is not whether the child actually qualifies for special education services, but whether the child should be referred for an evaluation.
The school district responsible for child find:
· Non-profit private schools district in which non-profit school is located. Arizona Administrative Code (“A.A.C.”) Rule 7-2-401(D)(4)(b).
· For-profit private schools, the district where the parent resides. Letter to Chapman , (OSEP 2007).
This is what Letter to Chapman says:
“Under section 612(a)(3)(A) of IDEA and 34 CFR §300.111, a State must ensure that all children with disabilities residing in the State, including children with disabilities attending private schools, and who are in need of special education and related services, are identified, located, and evaluated; this includes children with disabilities attending for-profit private schools. A State determines which public agency is responsible for conducting child find under 34 CFR §300.111 for children suspected of having a disability attending for-profit private schools. Generally, this agency is the LEA in which the child resides.”
Under Arizona statutes, homeschooled students are considered private school students. A.R.S. § 15-763(C). Charter schools are responsible for child identification activities for students enrolled in the charter school. A.A.C. R7-2-401(D)(4)(a). However, charter schools are not responsible for outreach under the child find regulations because charter schools have no specific geographical boundaries.