Providing an IEP May Not Suffice if a District Fails in Its Child Find Obligation

Suppose a child exhibits troubling behaviors and/or difficulties learning basic skills in kindergarten or another early grade. Suppose further that, despite the child’s problematic performance, no teacher or other public school employee recommends that the child be evaluated. Perhaps that child passes through first and part of second grade with similar problems until finally a referral is made, an evaluation completed, and an IEP developed. Problem solved? Not entirely. The question remains whether the district should have taken these steps much earlier and whether any remedy is available to make up for the lost time and services.

The District of Columbia Circuit recently held that, although a school district’s provision of an IEP may satisfy the district’s obligations now and for the immediate future, parents may still be entitled to compensatory education for the months or years when their child was not yet on an IEP or identified as eligible for special education. Boose v. District of Columbia, 786 F.3d 1054 (D.C. Cir. 2015).

“Child find” is a bedrock principle under IDEA. It requires the states to ensure that all children with disabilities who reside or attend private school within the state be “identified, located, and evaluated” to determine their need for special education and related services. 20 U.S.C. § 1412(a)(3)(A). (Massachusetts places this obligation on the district of residence. M.G.L. c. 71B, § 3.) This obligation does not depend on anyone outside of the school district, including parents, asking for a child to be evaluated; it is on the district to maintain a system to find and evaluate any child (starting in Massachusetts at age 2½) who may have a disability that undermines his or her access to and/or progress in education. At the least, public school teachers and others with direct information about a child’s school performance must take steps to initiate the evaluation process if they suspect such a disability. If a district fails to seek an evaluation in a timely manner and if that failure adversely affects the child’s education by delaying services that the student should have received, then the district has denied the child FAPE, in violation of IDEA.

What remedy is available for a child find violation? As Boose states, when a district fails to meet its child find obligation in violation of FAPE, a court (or, we submit, a hearing officer) may order “compensatory education,” meaning any services that may be necessary “to make up for past deficiencies in a child’s program.” 786 F.3d at 1056. In Boose, the child went through kindergarten with some behavioral problems, yet passed through to first grade without being referred for evaluation. His problematic behaviors continued in first grade, at which point his classroom teacher administered a screening for ADD, ADHD, and anxiety, but failed to refer him for a full evaluation. The parent then filed a hearing request alleging that the District of Columbia Public Schools (“DCPS”) had not complied with IDEA’s child find mandate. A hearing officer ruled against her, concluding that the student had, in fact, received FAPE up to that point as his academics and behavior had improved and he was performing on par with his classmates.

The parent then requested that DCPS evaluate her son to determine whether he needed special education. When three months passed without any sign of an evaluation, the parent turned to the federal district court to challenge the hearing officer’s decision regarding child find, as well as the school’s failure to provide a prospective IEP. Sure enough, DCPS conducted the evaluation and determined that her son was eligible for special education going forward.

The issue remained as to whether the child should receive compensatory services to make up for the services he missed due to DCPS’ failure to comply sooner with its child find obligation. DCPS argued that the case should be dismissed as moot because the parent had received what she wanted through the evaluation and granting of an IEP. The district court agreed. The Court of Appeals, however, found that the issuance of an IEP, which was necessarily “forward looking,” did not moot the claim for compensatory education, which “is meant to ‘make up for prior deficiencies.’” 786 F.3d at 1058. As the Court stated, an IEP “‘carries no guarantee of undoing damages done by prior violations,’” and thus “[an IEP] alone cannot do compensatory education’s job.” Id. The Court remanded the case for the district court to determine whether compensatory services were warranted and, if so, to determine (or require the school district to determine) what form those services should take.

What does this mean for parents? You should keep in mind that IEPs provide for future services; they do not stand as a substitute for past services that the district should have provided, but failed to offer. If you believe that your district has erred by failing to identify your child in a timely manner, you may have a claim for compensatory education. Keep in mind that you will need to show that your child now meets the criteria to be eligible for special education; that he or she would have qualified earlier if the district had performed an evaluation when it should have; and that the failure to find the student eligible at an earlier date deprived him/her of FAPE. If you meet these criteria and the district has not offered any compensatory services (or has offered such services but they are not sufficient to make up for what your child lost), your claim may be very much alive.

We note, incidentally, that child find responsibility does not apply only in a child’s early years but at any time when a district should spot the possibility that a disability may be undermining a student’s engagement and progress in his or her education. We have seen many instances in our practice where, for example, a previously well-performing student goes off the track in middle school or high school, becoming emotionally troubled, engaging in substance abuse or other risky efforts to allay anxiety or a growing sense of incompetence, avoiding school intermittently or altogether, and so on. Often, the district responds in a punitive manner rather than referring the student for a special needs evaluation. Where a disability is or should be suspected, IDEA’s child find obligation requires that districts identify such students as possible candidates for an IEP; the fact that a student’s behavior may cross the line of the district’s disciplinary codes is no excuse for failing to comply with that obligation. Depending on the amount of time that elapses, compensatory education once (if) such a student is ultimately evaluated and found eligible for an IEP may well be among the remedies to which s/he is entitled.

Note that a right to compensatory education may arise in many contexts other than a district’s failure to meet its child find obligation, the most obvious of which is when a district fails to provide services that are clearly included within an agreed-upon IEP. Other possible grounds will be the subject of future posts.

Robert Crabtree and Eileen Hagerty are partners in the Special Education & Disability Rights practice group at Kotin, Crabtree & Strong, LLP in Boston, Massachusetts. They wish to acknowledge the contribution of Boston University School of Law student Ricki Meyer to this post.

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