Child Find and Eligibility.
Child Find.
34 CFR 300.111 & 20 USC § 1412
Now to put this in the plainest terms imaginable, your school district, this is the district in which you reside, is 100% responsible for searching for and identifying children who “may” be in need of special education services. It is an affirmative duty – it is up to them to do this even if a parent has done nothing to notify them as to a suspected disability.
The Child Find requirement comes directly from IDEA. It requires that the local educational agencies (LEA), yes, an LEA means the school districts, find and identify every child in the state that they suspect has a disability that may entitle them to special education services.
IDEA requires that each state, and each school district, must have in effect policies and procedures to ensure that— (i) All children with disabilities residing in the State, 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; and (ii) A practical method is developed and implemented to determine which children are currently receiving needed special education and related services.
Child find also must include— (1) Children who are suspected of being a child with a disability under 34 CFR §300.8 and in need of special education, even though they are advancing from grade to grade; and (2) Highly mobile children, including migrant children. 20 USC § 1412
How does Child Find work?
School districts must affirmatively seek out and educate parents on special education services and rights. If a school suspects or has reason to suspect a child has a potential disability, anything from ADHD to Werners Syndrome to psychological issues to a Specific Learning Disability, it must attempt to identify the child and offer to evaluate so that if that child qualifies it can provide the necessary services.
Child Find is the responsibility of the school not the parent.
The first step following “identification” is to offer testing. Identification is an affirmative obligation. If your child is struggling in school or the school is made aware of a disability, this should provide it the necessary reason to suspect.
Testing should be a full and complete educational and psychological evaluation, in addition to evaluations for speech, OT, PT, and/or assistive technology if those are needs for your child.
For more information on the evaluation, click below.
Schools cannot delay offering full evaluations and qualifying children who need services by utilizing RTI or other programs that do not provide specialized education services. This is not meeting its Child Find obligations and is a violation of the law.
The Child Find provision of IDEA applies to, among others, children who are suspected of being a child with a disability…and in need of special education, even though they are advancing from grade to grade.
Your child does not need to be failing to be identified.
Special Education Eligibility
Understanding eligibility for special education.
When it comes to eligibility for special education there are two essential elements that must be met for your child to qualify. Schools can often overcomplicate eligibility because they don’t understand the law, telling the parent of a child with depression or Asperger’s or ADHD that because his or her academic performance is “okay” that means they are not qualified for special education.
A child can be advancing grade to grade but still need services. A child may be very good academically but may struggle functionally and psychologically.
The two-part test for special education eligibility.
Element One of Eligibility: Does your child have a disability?
A disability may be many different things from asthma to ADHD to autism. However, sometimes parents are not sure if their child has a disability. They know that a child has been struggling academically, psychologically, behaviorally or socially.
IDEA lists a number of specific disabling conditions that will in most circumstances qualify a child for special education services. 20 USC 1401(3); 1401(30). IDEA also adds several catch-all categories for children who might have unique needs or have a disability that is not listed. This list is not meant to be exhaustive by any means. For instance, a child with ADHD could fall under one of the classification called Other Health Impairment (OHI). This is the catch-all area of IDEA as its list wasn’t meant to be exhaustive.
IDEA’s list includes 1) autism, 2) deafness and blindness, 3) hearing impairments, 4) mental retardation, 5) multiple disabilities, 6) orthopedic impairments, 7) other health impairments, 8) emotional disturbances, 9) learning disabilities, and 10) traumatic brain injury.
Element Two of Eligibility: Does your child’s disability have an adverse impact on his or her functional or academic performance?
If a child has a qualifying disability and it is impacting his or her ability in school to learn, progress, more forward academically, functionally, or psychologically, then yes, the disability is adversely affecting his or her education and they should be qualified for special education.
Your child does not need to have failed to have an educational impact as a result of his or her disability. A child with a diagnosis of ADHD who cannot sit still or remember the lecture without a copy of the class notes, certainly has an impact from that disability within the school setting. A child with dyslexia who cannot read their social studies book with comprehension of the materials has an impact. A teenager with autism who is unable to socially initiate conversations, make friends, or understand how to hold a conversation in a job interview, has an impact from their disability within the school setting. A child with depression and anxiety who cannot make friends, complete homework, or self-advocate has an impact. A child with a listening comprehension special learning disability who cannot adequately take notes and interpret instructions has an impact. A child who struggles with processing and working memory and can’t keep track of instructions and materials, has an impact.
Frequently Asked Questions About Eligibility
Does eligibility for special education mean that my child must be in a special education room or that they will be treated differently?
Special education is meant to be unique to each child and to provide specially designed instruction that is specific to that child. It can take place 100% in a general education classroom if that is appropriate for your child. Many kids have learning differences, challenges, and needs, and they are not to be treated differently, but rather to be given a program to meet their needs to help them become independent and functional adults. Instruction conducted in the classroom, in the home, in hospitals and institutions, and in other settings. 34 CFR 300.39(a)(1) and 20 U.S.C. 1401 (29)
What does specially designed instruction mean?
Specially designed instruction means adapting, as appropriate to the needs of an eligible child, the content, methodology, or delivery of instruction—(i) To address the unique needs of the child that result from the child's disability; and(ii) To ensure access of the child to the general curriculum, so that the child can meet the educational standards within the jurisdiction of the public agency that apply to all children. 34 CFR 300.39(b)(3) and 20 U.S.C. 1401 (29)
My child is a child with a disability and yet the school has not ever mentioned an evaluation. What should I do right now?
In order for services to begin a referral for a special education evaluation would be made by school staff or the parent. A psychoeducational evaluation would take place of the student by a school psychologist within a set number of school days. Following the evaluation, a case conference committee meeting would be held in which eligibility was determined by the group and then an IEP created for the child. If the school declines to find the child eligible a parent can file with their State Department of Education for a Due Process Hearing in which a Hearing Officer would be appointed to make that determination.
My child has failed multiple classes during their last three grades. Does the school have a duty to evaluate them for possible learning disabilities or other challenges?
If you read this far, you know the answer already - absolutely yes. The school district has the duty to find and evaluate all children who are in need of special education and related services. If the school has not evaluated your child, you should promptly send them a letter (or an email) asking them to evaluate your child. By promptly, I mean turn to the letters section of this book and get that letter out.
If a parent has a child in a private school or home school, can they “opt out” if the school approaches them regarding its Child Find duty and a Request to Evaluate?
Yes. Consent from parents for evaluations and for services are required under the law. 34 CFR 300.9 20 U.S.C. 1414 (a)(1)(D) Parents can tell the public-school no and to have their child acquire services elsewhere, like at a private school. You do not have to let the school evaluate your child. But beware, this also means that the school does not have to offer the services that your child may have been entitled to receive. It also means they have fulfilled their Child Find duty and you cannot come back later and say they have not or ask for compensatory (make-up) educational services. You can ask for these compensatory services when a school has failed to identify or evaluate.
When is a child not qualified for special education?
A child is not qualified for special education if his or her needs are from a lack of appropriate instruction in reading or lack of appropriate instruction in math; or if the child does not otherwise meet the eligibility criteria. In other words, they do not have a disability that has an educationally impact. They may however be qualified for a Section 504 plan, which is why we also cover Section 504 in this book. Children who have disabilities who only need accommodations and not any type of specialized instruction can get those accommodations provided through Section 504.
If my child is qualified, do I have to pay for any services?
All eligible students who have a disability have a right to have access to a Free Appropriate Public Education (FAPE), which means providing an IEP with specially designed instruction, as well as accommodations and related services at public expense. Parents must understand that free really does mean no cost to the parent. 34 CFR 300.17 and 20 U.S.C. 1401 (9)
Eligibility and Specific Learning Disabilities
The law puts special procedures in place for identifying children with specific learning disabilities. This isn’t because they want to make these disabilities harder to identify, it is because the makers of the law wanted to make sure that the children were clearly identified and that an appropriate program with the necessary services and the necessary specialized instruction was designed.
If your child has learning disabilities, it is critical that you find and address them. Many children with learning disabilities are misdiagnosed and treated for ADHD or behavioral issues for years before testing reveals his or her true challenges.
There are a variety of learning disabilities that can impact children. Below I have listed just a few.
Dyscalculia: This specific learning disability affects a child’s ability to understand numbers, learn math facts, and visualize or actualize mathematics. It is more than just struggling in math but is much more common than parents recognize. A child can spend years being told they are “not trying hard enough” in math only to finally be diagnosed after years of tears. There are enough things in life to cry about that subtraction shouldn’t be one of them. Also remember my friend, there are enough things in life to smile about too, including picking up this book and maybe being able to spot a child who has needs.
Dysgraphia: This learning disability is one that is usually caught because it affects a child’s handwriting ability and fine motor skills. That said, it is much more than an occupational therapy issues, children with dysgraphia struggle with putting their thoughts, ideas, or pictures onto paper. These children may have symptoms that manifest initially with trouble with spelling. It can then spill over into tears with writing assignments, long papers, critical thinking when it comes to writing, and general written expression.
Dyslexia: Dyslexia is the most well-known of the learning disabilities, but it is also one of the most overlooked in schools and not understood by parents. Dyslexia is a language processing disorder that impacts how a child sees and understands words and as a direct effect on their ability to read. It can cause difficulty with decoding, fluency, and comprehension.
Auditory processing disorder: In auditory processing disorder children will have difficulty understanding and processing sounds. They can hear them and repeat them but with varying degrees of severity cannot interpret them quickly or with fidelity. Some children may confuse what is being asked of them or not be able to understand in a classroom with a load of noise. They can also have trouble interpreting instructions that are read aloud and may seem to be ignoring school staff when in fact they do not understand what is being said to them. Since it has varying degrees of severity, a child can often struggle with this for years before it is finally diagnosed.
Non-Verbal Learning Disability: This learning disability leads to children struggling with interpretation of non-verbal cues, like a parent or teachers body language, facial expression, or emotional responses. A child who is challenged in this area may not pick up on sarcasm or responses that are more non-verbal in nature. This can lead to bullying by other children at times.
Language processing disorder: Similar to an auditory processing disorder and the listening comprehension disorder, a language processing disorder impacts a child ability to process spoken language. This can affect their abilities in both receptive and expressive language.
Visual perceptual/visual motor deficit: When a child is challenged with a visual perceptual learning disability they are often first identified by poor hand-eye coordination and frequently losing their places when reading or writing. This learning disability is one which affects not only physical coordination but physical orientation as well. These children often have trouble with directions and confusing similar words and letters.
Frequently Asked Questions About Eligibility and Specific Learning Disabilities
Can a learning disability in one area only qualify a child for special education services?
Yes. A child who has a learning disability in one area can qualify for special educational services if the learning disability impairs their ability to learn or progress in the subject area. Think of a specific learning disability in math or written expression – it doesn’t matter than it is one area it will affect the student across multiple areas of learning. Furthermore, schools can no longer require the use of a severe discrepancy standard between intellectual ability and achievement for determining whether a child has a specific learning disability. In other words, if a child has a learning disability, the school must provide assistance, not wait until the child is so behind that there is a chance they can never catch up because the discrepancy has become so severe. 20 USC 1221e-3; 1401(30); 1414(b)(6).
I believe my child has a learning disability and that they are eligible for special education services. They have failed reading and their year-end achievement tests for three years now. Who determines that they have a learning disability?
Back to the case conference you go. After the evaluation of the student is complete, the determination of whether a child suspected of having a specific learning disability is a child with a disability as defined in IDEA must be made by the child’s parents and a team of qualified professionals, which must include: 1) the child’s regular teacher—or if the child does not have a regular teacher, a regular classroom teacher qualified to teach a child of their age, or for a child of less than school age, an individual qualified by the SEA to teach a child of their age; and 2) at least one person qualified to conduct individual diagnostic examinations of children, such as a school psychologist, speech-language pathologist, remedial reading teacher, or someone else with the necessary expertise who has evaluated your child. 20 USC 1221e-3; 1401(30); 1414(b)(6). Alternatively, if the school has not done it an independent hearing officer can make this determination following an educational due process hearing.
In determining eligibility under the qualification of “learning disability,” what does the above “team” consider?
The first thing that is considered are the results of the school’s evaluation of your child. That is then paired with looking at their achievement in the classroom. This can include a classroom observation to analyze how the learning disability is impacting them so a good plan can be made. The public agency must ensure that the child is observed in the child’s learning environment (including the regular classroom setting) to document the child’s academic performance and behavior in the areas of difficulty. 20 USC 1221e-3; 1401(30); 1414(b)(6).
When can a child who seems to have a learning disability due to consistent failures in school found not to be eligible?
In some cases, the team can make the determination that while a child is failing and seeming to not make progress, it is due to other factors. These factors can include an emotional disturbance, cultural factors, environmental or economic disadvantage, or limited English proficiency. It is important to note that if the child is found to be failing due to emotional or psychological problems, the child may be qualified under this eligibility criteria instead and steps can be taken to assist them. 20 USC 1221e-3; 1401(30); 1414(b)(6).
One of the biggest mistakes parents make is delaying asking for special educational services because they worry about a label or believe that if their child was eligible, the school would have already taken the appropriate steps to make them eligible.
Often a child struggles for years before a parent finally, out of frustration, begins speaking to other parents, their child’s doctor, or even seeks legal advice. Many parents initially think of special education as services only for children who are experiencing significant cognitive challenges, but special education simply entails educational services that are specially tailored to meet any child with challenges who need these services. Special education can be as simple as speech therapy services or as complex as a residential placement with intense psychological and educational interventions.
When can a child who seems to have a learning disability due to consistent failures in school found not to be eligible?
In some cases, the team can make the determination that while a child is failing and seeming to not make progress, it is due to other factors. These factors can include an emotional disturbance, cultural factors, environmental or economic disadvantage, or limited English proficiency. It is important to note that if the child is found to be failing due to emotional or psychological problems, the child may be qualified under this eligibility criteria instead and steps can be taken to assist them. 20 USC 1221e-3; 1401(30); 1414(b)(6).
My child has a learning disability and the school still wants to have him categorized under Other Health Impairment. Can they do this?
It depends. Your child’s needs drive his or her IEP goals, objectives, services, and placement. If the IEP provides for a category of OHI because perhaps your child struggles in a number of different areas, and overall the goals and services meet their needs, that this may be appropriate. The IEP is the centerpiece of your child’s education the eligibility category is only one small component of that centerpiece. Alternatively, if your child’s case conference is developing an IEP with an inappropriate categorization and an inappropriate plan, than you need to get clear on what your child needs and why to that committee.
What do I do if I disagree with my school’s determination of special education eligibility?
Despite the apparent simplicity of determination of eligibility for either special education or a Section 504 plan, there are often disputes. If your child is deemed ineligible, the school must send you a letter as to why they are refusing to make your child eligible or why your child is only eligible under section 504. They must also provide you a copy of your procedural safeguards.
If you disagree, then consider taking the following steps:
Secure an independent evaluation. (See sample letters at end of book.)
Speak to your child’s pediatrician and/or psychologist, psychiatrist, behaviorist, occupational therapist, physical therapist. If these individuals agree that your child has a disability, whether it is dyslexia, autism, a processing disability, a learning disability, ADD, or a disability listed by IDEA, find out their opinion on whether your child’s disability adversely affects their educational needs.
Have your child’s pediatrician and/or psychologist, psychiatrist, or other “expert” state their recommendation for educational classification and education programming.
Compile these documents, along with the independent evaluation, and write a letter to the school requesting a new case conference and a new review of eligibility.
If your school declines your request for a review or at the case conference disputes your child’s eligibility or simply offers you a 504 plan when your child clearly needs educational assistance, request a due process hearing.