Author: Martin, Stacy D; Zirkel, Perry A
Date published: March 1, 2012
The process to identify students entitled to special education under the Individuals with Disabilities Education Act (IDEA) consists of two overlapping issues: child find and eligibility determination. In an earlier issue of Communiqué, we focused on IDEA eligibility of students with attention deficit hyperactivity disorder (ADHD) with a case-scenario discussion synthesizing recent relevant court decisions (Martin & Zirkel, 2011a). However, keeping school psychologists informed about current topics in the case law concerning IDEA (and, supplementally, Section 504) identification for students with ADHD merits corresponding coverage of the overlapping issue of child find.
The IDEA regulations define child find at a collective level, requiring schools to locate, identify, and evaluate all children with disabilities (§ 300.m[a][i][i]), but the current significance is at the individual level, which is much more nuanced in the regulations. More specifically, various explicit and implicit references in the regulations establish the district's obligation to evaluate a student when there is reason to suspect that the student may meet the two eligibility criteria: qualifying for one or more of the recognized classifications and needing special education. For example, the regulations specify that child find applies to a child suspected of meeting these criteria although "advancing from grade to grade" (§ 300.111 [c][i]). Similarly, the regulations apply this requirement to parentally placed private school children (§300.i23[a] ). Likewise, the regulations warn districts that they may not use "early intervening services," such as response to intervention (RTI), to "delay appropriate evaluation of a child suspected of having a disability" (§ 300.226 [c]) and that their evaluation must assure that "the underachievement of a child suspected of having a specific learning disability is not due to lack of appropriate instruction in reading and math" (§ 300.309 [b]).
The obligation of individual child find inevitably overlaps with that of individual eligibility determination, with the evaluation process being the connector. For example, if a parent provides such clear-cut evidence of a district's reason to suspect that their child has a disability, such as a cogent independent educational evaluation, the court may conclude not only that the district's failure to evaluate the child was a child find violation but also that the proof was sufficient to demonstrate the child met the IDEA eligibility criteria. In a comprehensive analysis of the identification case law for students with an ADHD diagnosis, we found that the courts rendered an eligibility ruling in a small, but not negligible, minority of the child find cases (Martin & Zirkel, 2011b).
Despite this overlap, child find court cases have unique considerations, especially with specific populations such as students with ADHD. Inasmuch as almost a third of the identification court decisions in our study addressed child find (Martin & Zirkel, 2011b) , school psychologists needto be knowledgeable about the special considerations of current child find disputes. Based on the case law in our original analysis and more recent child find cases for students with ADHD (Daniel P. v. Downingtown Area School District, 2011; D.G. v. Flour Bluff Independent School District, 2011), the following casescenario and accompanying question-and-answer discussion highlight the latest child find topics for students with ADHD.
John is currently a third-grade student enrolled in the Parkway School District. Beginning in first grade, John had notable academic and behavioral difficulties. He scored in the lowest quartile on a classroom-based assessment of early literacy skills, and he had difficulty concentrating and following teacher directions. Due to these academic and behavioral challenges, John's first-grade teacher referred him to the school's early intervention team in January. The team, which included John's parents, developed and implemented a variety of supports and accommodations to address his academic and behavioral needs. After implementation of the accommodations, John's academic performance improved and, althoughhe still demonstrated some behavioral difficulties, his teacher informed the early intervention team she did not need additional assistance managing his behaviors.
John continued to receive the accommodations recommended by the early intervention team when he was in second grade. However, in November, John's teacher requested an early intervention team meeting because John exhibited difficulty concentrating and, based on apparent frustration during independent seatwork, made inappropriate comments about the assignments and teacher. At the meeting, John's parents shared documentation of a physician's diagnosis of ADHD to the team, and stated that John was also experiencing problems at home. The team decided to revise his early intervention plan and encouraged his parents to implement a reinforcement system at home to help with some of John's behavioral challenges. In April, the principal requested a meeting with John's parents because he had started to engage in more significant disrespectful and disruptive behaviors within the classroom. At the meeting, the principal also relayed the second-grade teacher's concerns that John continued to have difficulty during independent seatwork and that it was negatively impacting his grades.
In the following fall, John was not performing at grade level in several academic subjects and was consistently engaging in disruptive behaviors, with many warranting administrative intervention. In December, John was suspended for threatening behavior. Later that month, frustrated with the school's response to their son's difficulties, John's parents consulted an attorney and filed for a due process hearing. They sought compensatory education, claiming that the district had violated the IDEA'S child find mandate. Specifically, they alleged that the school district had reason to suspect that John was eligible for special education in first grade when his teacher first made a referral to the early intervention team and even more strongly so during the subsequent referral in second grade. After conducting the proceedings, the hearing officer ruled that the school district had not violated its child find obligation under the IDEA for the 2 years at issue. John's parents appealed the decision of the hearing officer in federal court.
Question 1: What is the likelihood John's parents will prevail in court for their child find claim for first grade?
Consistent with our finding as to the majority (67%) of child find rulings (Martin & Zirkel, 2011b), the likelihood is that the court will reject the parents' child find claim for first grade. In child find disputes, courts have to determine if there were indicators or red flags present to trigger the school district's child find obligation. In John's case, for the first eligibility criterion (i.e., classification) the court would most likely conclude that the district did not have reason to suspect Other Health Impairment (OHI) in the absence of (a) an ADHD diagnosis, and/or (b) excessive and pervasive problematic behaviors occurring to a greater degree than other children in school. For example, rej ecting the argument of the parents of an elementary school student that his school difficulties were "clear signs" of his ADHD, the Sixth Circuit Court of Appeals in Board of Education of Fayette County v. LM. (2007) found persuasive testimony of the school personnel that his behaviors were "not atypical of immature young boys" (p. 126). Similarly, the Third Circuit in Richard S. v. Wissahickon School District (2009) upheld reliance on the teachers' professional opinion that his school difficulties were attributable to "low motivation, frequent absences, and a failure to complete homework" (p. 247), not ADHD. Most recently, in D.K. v. Abington School District (2010), the same outcome applied even though the school psychologist testified that "in hindsight that [the student] did exhibit some behaviors consistent with ADHD prior to his diagnosis" (p. 124); the key was the testimony of school personnel that the behaviors the child displayed in kindergarten and first grade were typical of other children the same age.
In John's case, even if the court did rule there was reason to suspect ADHD when he was in first grade, it would follow the same framework that applies in eligibility cases (Martin & Zirkel, 2011a) by addressing the second, essential criterion - the need for special education. More specifically, the "mere existence of ADHD does not demand special education" (Strock v. Independent School District No. 281, 2008, p. 278). It is unlikely the court would rule there was reason to suspect John needed special education in first grade in light of his improvement after the implementation of general education accommodations. For example, in Jackson v. Northwest Local School District (2010) the court rejected the argument that a student's ADHD diagnosis in first grade was reason for the school district to refer her for an IDEA evaluation; her satisfactory progress after interventions demonstrated that she needed, at most, only related services, not special education.
Question 2: Would John's parents have a higher likelihood of prevailing on their child find claim for second grade?
Yes. Various red flags to suspect John had a disability were apparent by April, if not sooner, in second grade. First, John now not only had a confirmed ADHD diagnosis but also its symptomatic behaviors (e.g., difficulty concentrating) were affectinghis academic performance. Second, despite revisions in John's early intervention plan, both his academic andbehavioral difficulties continued and worsened. In the aforementioned Jackson v. Northwest Local School District (2010), the court rejected the parents' child find claim for first grade because the student made adequate progress with interventions, but concluded that "circumstances changed" (p. 77) when the student was in third grade; she exhibited an increase in academic and behavioral difficulties severe enough to warrant a referral to an outside mental health agency from the early intervention team. Thus, courts differentiate pink flags from those that subsequently become red.
Question 3: Instead of suspending John in December of third grade, assume that the school district obtained parental permission to conduct an IDEA evaluation and, within the required period for completion, found John eligible. Would the court rule the district complied with its child find obligation by initiating an evaluation in December?
Not likely, due to the length of time between when the school had reason to suspect eligibility in second grade and when it initiated the evaluation in December the following year. When deciding if a school district met its child find obligation, several courts have expanded their inquiry beyond whether the school district had reason to suspect the student was eligible under the IDEA to focus on the length of time between the reason-to-suspect trigger and the initiation of the evaluation (e.g., Daniel P. v. Downingtown Area School District, 2011; D.G. v. Flour Bluff Independent School District, 2011; El Paso Independent School District v. Richard R., 2008; Strock v. Independent School District No. 281, 2008). More specifically, these courts concluded that the evaluation must be "within a reasonable time after school officials have notice of behavior likely to indicate a disability" (Strock v. Independent School District No. 281, 2008, p. 278).
The courts acknowledge that there is "no bright line rule" (D.G. v. Flour Bluff Independent School District, 2011, p. 260) as to the length of time that is reasonable. The court in El Paso Independent School District v. Richard R. (2008) concluded that a 13-month time period between when the school district first had reason to suspect and offered an evaluation was unreasonable. More recently, a court confirmed that 1 year between first suspicions and the meeting to consider special education eligibility was not a reasonable time, and ultimately concluded that an evaluation should have occurred "within a few months" (p. 261) of escalating behavioral problems (D.G. v. Flour Bluff Independent School District, 2011, p. 260). In John's case, his parents could argue that the period between when the school first had reason to suspect eligibility (i.e., ADHD diagnosis in October and reason to suspect resulting special education need in April of second grade) and the initiation of the evaluation in December of the following year did not meet the reasonable time standard, but the exact odds in their favor are uncertain.
Question 4: In the original case scenario (i.e., John did not receive an evaluation and his parents subsequently pursued litigation under the IDEA), would his parents be able to additionally claim a child find violation under Section 504?
Yes. Section 504 is more directly explicit and direct in requiring individual child find, mandating an initial evaluation for each student "believed to need special education or related services" (§104.35). Depending on their state procedures, parents may pursue this alternate claim in either the same IDEA hearing or in a separate impartial hearing under Section 504 (Zirkel 8c McGuire, 2010).
Question 5: If John's parents' Section 504 child find claim reached federal court, would it have a higher probability of success than their corresponding claim under the IDEA?
Yes. They would have better odds of succeeding due to the broader definition of disability under Section 504, which - effective January 1, 2009, due to the Americans with Disabilities Act amendments - now includes concentration as a major life activity. Further, Section 504 has a broader definition of free appropriate public education, as the quoted regulation's "or related services" language shows. In asserting the district's reason to believe that John needed at least related services, such as counseling, they could point to his persistent and escalating behavioral difficulties. Moreover, in asserting reason to suspect eligibility under the three criteria of disability under Section 504 - (a) physical or mental impairment (i.e., ADHD) that (b) substantially limits (c) a major life activity - they could also argue that behavioral control was a major life activity, which one court has accepted (T.J.W. v. Dothan City Board of Education, 1997).
Question 6: Instead of John's parents filinga Section 504childfind violation, assume that after being notified of John's ADHD diagnosis, the school district obtained parental consent and conducted a Section 504 evaluation and, after determining he was eligible under its broader definition of disability, provided him a Section 504 plan. Would this action under Section 504 absolve the school district from its IDEA child find responsibilities?
No. The IDEA and Section 504 are two separate, albeit overlapping, laws, and compliance with Section 504 does not necessarily mean compliance with the IDEA regulations. Further, a court could view a district's provision of a 504 plan as evidence the school had reason to suspect IDEA eligibility, particularly for a learning-related impairment such as ADHD and especially if the student continued to struggle after implementation of the plan. For example, in D.G. v. Flour Bluff Independent School District (2011) the court concluded that the district should have conducted an IDEA evaluation "in light of [the student's] continued behavioral problems and the apparent ineffectiveness of Section 504 accommodations" (p. 261).
The current child find case law for students with ADHD has implications for school districts, and particularly for school psychologists, in complying with the requirements of the IDEA identification process. First, school districts should consider providing their personnel examples of "reason to suspect" indicators, with explicit explanation that one indicator alone does not typically suffice as a warning sign, unless of great severity, but rather the presence of multiple indicators increases the likelihood there is reason to suspect the student has a disability. Possible indicators include academic problems (e.g., failing grades, poor standardized assessment performance, lack of progress from RTI or 504 plan), behavioral difficulties (e.g., high frequency of disciplinary referrals, rise in unexcused absences), mental health concerns (e.g., psychiatric diagnosis or hospitalization), and referral from a parent, teacher, or community professional for special education evaluation and/or services (Weatherly, 2011).
To address the more difficult task of determining if such indicators amount alone or in combination to the requisite red flag, school psychologists can educate school personnel about the variables courts consider when making this determination. Specifically, courts take into account whether the student had a psychiatric disorder diagnosis, such as ADHD, or exhibited behaviors to such a severity to make school personnel suspect the student had the disorder. Additionally, courts consider the provision of supports and accommodations and resulting progress, and the current status of the student in comparison to prior performance and the performance of peers.
Moreover, school psychologists need to advocate for reasonable time lines between identification of red flags and an evaluation. While courts have not agreed on what a reasonable time is between a child find trigger and the evaluation, school psychologists need to be aware of and share with others the use of one court's outer boundary of a 'few months." Finally, school psychologists should educate other school personnel that (a) individual child find applies under not only the IDEA but also Section 504, (b) compliance with Section 504 child find does not remove the corresponding obligation under the IDEA, and, indeed, (c) a 504 plan for learning-related impairments, such as ADHD, could serve as a red flag for suspected IDEA eligibility.
The goal of such processes should be early identification of, and intervention for, student needs in order to prevent special education under- and overidentification and to minimize legal disputes.
Bd. of Educ. of Fayette County v. L.M., 478 F.3d 307 (6th Cir. 2007).
Daniel P. v. Downingtown Area Sch. Dist., 57 IDELR « 244 (E.D. Pa. 2011).
D.G. v. Flour Bluff lndep. Sch. Dist., 56 IDELR « 255 (S.D. Tex. 2011).
D.K. v. Abington Sch. Dist., 54 IDELR « 119 (E.D. Pa 2010).
El Paso lndep. Sch. Dist. v. Richard R., 567 F. Supp. 2d 918 (W.D. Tex. 2008).
Individuals with Disabilities Education Act regulations, 34 C.F.R. § 300.1 ef seq. (2010).
Jackson v. Nw. Local Sch. Dist., 55 IDELR « 71 (S.D. Ohio 2010).
Martin, S. D., & Zirkel, P. A. (2011a). Current issues in eligibility decisions for students with ADHD: What the courts say. Communiqué, 40(4), 26-27.
Martin, S. D., & Zirkel, P. A. (2011b). Identification disputes for students with attention deficit hyperactivity disorder: An analysis of the case law. School Psychology Review, 40, 405-422.
Richard S. v. Wissahickon Sch. Dist., 334 F. App'x 508 (3d Cir. 2009).
Section 504 regulations, 34 C.F.R. § 104.1 et seq, (2010).
Strock v. lndep. Sch. Dist. No. 281, 49 IDELR « 273 (D. Minn. 2008).
T.J.W. v. Dothan City Bd. of Educ., 26 IDELR « 999 (M.D. Ala. 1997).
Weatherly, J. J. (2011). Child-find cases to remember in an "RTI world." Unpublished manuscript.
Zirkel, P. A., & McGuire, B. L. (2010). A roadmap to legal dispute resolution for students with disabilities. Journal of Special Education Leadership, 23, 100-112.
Stacy D. Martin holds a PhD in school psychology and is an independent consultant in Easton, PA.
Perry A. Zirkel is university professor of education and law at Lehigh University and a frequent contributor to Communiqué.