Child Find

The Child Find Law is an essential responibility of every teacher and school district

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The Law Requires Children Suspected of ADHD to be Evaluated by Schools

United States Departmentof Education

Washington, DC 20202

Memorandum

FROM : Jeanette J. Lim, Acting Assistant Secretary for Civil Rights

SUBJECT: Clarification of School Districts' Responsibilities to Evaluate Children with Attention Deficit Disorders (ADD)

Under Section 504, if parents believe their child has a disability, whether by ADD or any other impairment, and the LEA has reason to believe the child needs special education or related services, the LEA must evaluate the child to determine whether he or she is disabled as defined by Section 504. If the LEA does not believe that the child needs special education or related services, and thus refuses to evaluate the child, the LEA must notify the parents of their due process rights.

This memorandum is intended to clarify the responsibility of LEAs to evaluate children suspected of having ADD, based on parental request.

OCR Facts: Section 504 Coverage of Children with ADD

QUESTION: What is ADD?

ANSWER: Attention Deficit Disorder (ADD) is a term used to describe a chronic behavioral disorder in children who are inattentive, easily distracted, and impulsive. This kind of behavior is usually matched with certain other criteria, such as hyperactivity, before a child is diagnosed as having ADD. Symptoms of ADD may be manifested differently depending on the particular subtype of the disorder and its severity. For example, with Attention Deficit Hyperactive Disorder (ADHD), hyperactivity is the primary characteristic. In this fact sheet, the term ADD is being used to refer to any form of the disorder.

QUESTION: Are all children with ADD automatically protected under Section 504?

ANSWER: No. Some children with ADD may have a disability within the meaning of Section 504; others may not. Children must meet the Section 504 definition of disability to be protected under the regulation. Under Section 504, a "person with disabilities" is defined as any person who has a physical or mental impairment which substantially limits a major life activity (e.g., learning). Thus, depending on the severity of their condition, children with ADD may or may not fit within that definition.

QUESTION: Must children thought to have ADD be evaluated by school districts?

ANSWER: Yes. If parents believe that their child has a disability, whether by ADD or any other impairment, and the school district has reason to believe that the child may need special education or related services, the school district must evaluate the child. If the school district does not believe the child needs special education or related services, and thus does not evaluate the child, the school district must notify the parents of their due process rights.

QUESTION: Must school districts have a different evaluation process for Section 504 and the IDEA?

ANSWER: No. School districts may use the same process for evaluating the needs of students under Section 504 that they use for implementing IDEA.

QUESTION: Can school districts have a different evaluation process for Section 504?

ANSWER: Yes. School districts may have a separate process for evaluating the needs of students under Section 504. However, they must follow the requirements for evaluation specified in the Section 504 regulation.

QUESTION: Is a child with ADD, who has a disability within the meaning of Section 504 but not under the IDEA, entitled to receive special education services?

ANSWER: Yes. If a child with ADD is found to have a disability within the meaning of Section 504, he or she is entitled to receive any special education services the placement team decides are necessary.

QUESTION: Can a school district refuse to provide special education services to a child with ADD because he or she does not meet the eligibility criteria under the IDEA?

ANSWER: No.

QUESTION: Can a child with ADD, who is protected under Section 504, receive related aids and services in the regular educational setting?

ANSWER: Yes. Should it be determined that a child with ADD has a disability within the meaning of Section 504 and needs only adjustments in the regular classroom, rather than special education, those adjustments are required by Section 504.

QUESTION: Can parents request a due process hearing if a school district refuses to evaluate their child for ADD?

ANSWER: Yes. In fact, parents may request a due process hearing to challenge any actions regarding the identification, evaluation, or educational placement of their child with a disability, whom they believe needs special education or related services.

QUESTION: Must a school district have a separate hearing procedure for Section 504 and the IDEA?

ANSWER: No. School districts may use the same procedures for resolving disputes under both Section 504 and the IDEA. In fact, many local school districts and some state education agencies are conserving time and resources by using the same due process procedures. However, education agencies should ensure that hearing officers are knowledgeable about the requirements of Section 504.

QUESTION: Can school districts use separate due process procedures for Section 504?

ANSWER: Yes. School districts may have a separate system of procedural safeguards in place to resolve Section 504 disputes. However, these procedures must follow the requirements of the Section 504 regulation.

QUESTION: What should parents do if the state hearing process does not include Section 504?

ANSWER: Under Section 504, school districts are required to provide procedural safeguards and inform parents of these procedures. Thus, school districts are responsible for providing a Section 504 hearing even if the State process does not include it.

Source: NICHCY, National Clearinghouse

Revised: 04/18/06

Created: 01/01/00

This page printed from: http://www.wrightslaw.com/info/add.eval.ocrmemo.html

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Child Find describes who is covered, what schools are required to do, and describes two cases where courts found that a school, school district, or state department of education failed to comply with the child find obligations, resulting in compensatory education and damages to children with disabilities.

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Dr. Russell Barkley- 30 Essential Ideas for Parents (About ADHD)

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ADHD Info for teachers

Dear Colleagues,

If a student is not succeeding, there is a reason.  You can’t allow him or her to languish; you must take action.

ADHD is the most common neurobiological disorder (9.5% according to the Center for Disease Control at cdc.gov), so it should be considered.

ADHD is a disability and is specifically addressed as such in the IDEA and state education codes.

There are three distinct subtypes: predominantly hyperactive, predominantly inattentive (but with a hyperactive brain that keeps switching channels), and the combined presentation.   

Sadly, the combined type is most common.

We no longer separate the hyperactive and the inattentive with the different labels of ADD and ADHD.  Since the inattentive type has a hyperactive brain, we now call them all ADHD.

A  letter from the Office of Special Education Rights (OSER) was sent to every school district in 1991 clarifying that ADHD students must be identified, screened, and offered necessary support.  Anything less is a violation of their civil rights.

Your district has known for more than two decades that ADHD students are supposed to be identified and properly supported.

ADHD students rarely need a special education setting.  They usually need medication (when parents are willing) and simple classroom accommodations through a 504 plan.

ADHD accommodations are usually good for all students.

Unidentified ADHD students cost school districts time (meetings concerning behavior and grades), money (they are unnecessarily placed in expensive alternative sites), morale (unmedicated ADHDers wear-out educators and support staff) and test scores.

It appears to others as though unidentified ADHD students rob their classmates of valuable learning time and individual support from the over-burdened teacher. They are disruptive time and attention suckers- but it is not their fault.  They would really like to be less difficult- but they can't.

ADHD sufferers are born with smaller frontal cortexes, less connective tissue between brain hemispheres, and impaired neural functioning.  Their emotion center behaves differently.

This doesn’t affect their intelligence in the least.  It affects their social skills, impulsivity, short-term memory, executive functioning, emotional reactions and maturity.

ADHD students are 30% behind developmentally.  They do not catch up until they are 26 to 30 years old.  A 16 year old ADHDer will have the maturity of an 11 year old.

ADHD is a physical disability, just like nearsightedness.  Yelling at an ADHD child for acting impulsively is exactly the same as yelling at a nearsighted child for not seeing something.  It won’t do any good whatsoever.  It’s just cruel.

You cannot “train” an ADHD child to sit still, pay attention, remember directions, or follow the rules; just as you can’t train a nearsighted person to see better.

They know the rules; they lack enough executive control to follow them.

You can aid an ADHDer by making some modifications to their environment: allowing breaks such as a walk to the nearest outdoor drinking fountain, minimizing distractions, reducing homework, seating near the front, seating next to a helpful peer, using positive behavior interventions, etc…

…You would make modifications for a nearsighted student that didn’t wear glasses, wouldn’t you?..

…And if you suspected that a student of yours was nearsighted, you would bring that to the attention of the parents, right?  Teachers must do the same for ADHD.

Even though we are not optometrists, we wouldn’t think twice about telling a parent that their child needs glasses.   There is no stigma to wearing glasses.  Yet many teachers are directly told not to talk to parents about the possibility of ADHD, even though it too is a physical disability- and a very disabling one at that.  There is still too much stigma attached.   We have to break that wall.  It’s no one’s fault.

Parents often do not initially appreciate the info.  Many equate organic brain dysfunction with environmentally induced mental illness- which might make it their fault.   They become defensive.

Although unpleasant for you at the time, you have planted a seed.  As soon as their child really struggles, they will ask for an evaluation.

Even when a parent reacts badly to the idea that their child should possibly be screened for ADHD, and anything similar, you must still report your suspicion of a disability to your principal or special education director.

Administrators all over the country tell teachers, “You are not a doctor.  You cannot suggest to parents that their child might have ADHD, or something similar.”  They are wrong.  You can and must.

Even though the IDEA guidelines are clear, administrators are terrified that the school district will have to pay for doctor’s visits and medication.  Not true.  

It is against the law for administrators to discipline teachers for discussing any valid observations about a student to their parents/ guardians.

Report any retaliation to your union, the state office of education and/ or the federal Office of Civil Rights (www.hhs.gov/ocr - easy, online form).

Any support required to enable the student to succeed at school and in extracurricular activities, academically, behaviorally, and emotionally, must be given at no cost to the parents.  ADHD students usually need some support for all situations.

Disabled students are not entitled to “Cadillac” support- only enough support to give them a fair chance to get a good education.  

By law, school administrators must actively seek out, screen, and whenever appropriate, offer to evaluate all students suspected to be disabled.  This is called the “Child Find” law.

Teachers are in the best position to notice disabled students. Tell your principal or special education director about any students you suspect are disabled.

Child Find requires administrators to follow up on teacher reports concerning student disabilities with a screening to see if the request has merit.  

If the child will be assessed, be sure that the child will be evaluated for all suspected disabilities.  Don’t count on the psychologist to correctly understand what you noticed.  Check!

Specify an ADHD inventory and evaluation whenever appropriate.

Suspected ADHD students should absolutely be evaluated for common comorbid conditions such as specific learning disabilities, Oppositional Defiance Disorder, anxiety disorders, depression, dyslexia, dyscalculia, etc.

They should be evaluated for conditions that look like ADHD such as Bipolar Disorder, Autism, substance abuse, PTSD, and a sudden change in their life.  

To protect yourself legally, put the request for an evaluation in writing and keep a copy.  See   Compton v Addison   for an idea of how many times your name will be listed in a court case pasted on the Internet.  You will want to be the good guy.

If your school district refuses to do the screening, file an online complaint with the Office of Civil Rights.  Don’t pass up a chance to change that child’s life.

40 years of studies now show conclusively that ADHD is best ameliorated with a multimodal approach:  medication, family training, school staff training, modification of the environment, and therapy.

The next best ameliorative is medication alone.  Just using meds came fairly close to achieving the same results as the multimodal approach in long-term double blind tests.

If severe ADHDers are not medicated by prescription, they will self medicate with drugs and alcohol by high school. That’s how badly their life sucks.

Juvenile halls, jails, drug dens, prisons, and rehabs are filled with ADHDers.

It is a myth that ADHD is over-diagnosed- just the opposite.  Too many kids are not thriving in school.  Too many adults are unable to keep a job.

It is common all over the world- although it may go by a different name.

European scientists were the first to do double blind testing.  Many nations are far ahead of us in understanding ADHD and eliminating stigma.

Boys are diagnosed with the hyperactive type 4:1 over girls.

Girls are diagnosed 4:1 with the inattentive type.

Naturally, we catch the hyperactive boys at a younger age.  They are a bigger classroom problem.

ADHD rates are exactly the same for male and females in adult populations, but in childhood far more boys are diagnosed than girls.  This means we are not identifying enough girls.

If an unsupported ADHD child is of average or small size, he or she will be bullied and ostracized.  If he or she is big, they will probably be the bully.

Identifying and supporting ADHDers will dramatically cut down on school bully problems.

ADHDers are ten times more likely to have trouble making friends, so help them out when you can.

ADHDers, especially the inattentive type, can usually manage classwork until junior high.

By about 7th grade their lack of executive functioning and poor short term memory make it impossible to keep up with complex schedules and multi-step assignments.

They really struggle to complete homework- unless they have patient one-on-one help and/or proper medication. They need constant praise, small rewards, and someone to keep them going.

Giving failing grades because homework was not turned in is unfair for these students.

Catching ADHDers in middle school is common but too late (but better than not at all).  They should have received support much earlier for better long term results.

By middle school they’ve developed maladaptive coping behaviors and connected maladies such as depression and anxiety.   Typically, they need three times the support of a student who is identified earlier, and they may not have enough time to develop coping skills for adulthood.

That amount of support is costly for districts.  Earlier identification is cheaper.

ADHDers can easily be identified in preschool or Kindergarten- if we know what to look for.  Teacher training is crucial- and it’s the law.

ADHD students can be identified by your school psychologist and then be eligible for services..

It is not necessary to have a doctor’s diagnosis before a student receives support for ADHD.

Of course, a doctor's diagnosis is required for medication.

ADHDers are often misdiagnosed with bipolar disorder, particularly the boys, because they can throw quite a tantrum when they perceive mistreatment by authority figures.  It appears to be a sudden mood change, but the meltdowns do have a trigger.

If a student is offered an IEP with the designation of “Emotionally Disturbed” (a category sometimes used for emotional ADHD students) be sure to insist on a Functional Behavior Assessment (FBA).  If the trigger that causes the emotional behavior can be identified and eliminated, then a huge barrier to that child’s progress has been removed.

An FBA is far cheaper and less invasive than all the possible money-sucking alternatives.  Many of these students end up in expensive district-paid residential schools.

You must attend your student’s IEP and 504 meetings and actively participate.  

Speak up for what is best for your student.  That’s why you are there.

It is not your job to save your district money.  In the long run, your lack of advocacy will cost your district and your community much more.  Just follow the law for the correct result.

All decisions at IEP/504 meetings are made by consensus.  Your voice is equal to any other at the table.   Don’t let any one person rule the meeting.  No one can make a unilateral decision.  Be sceptical of agendas that try to limit participation.

You have the right to request an IEP/504 meeting whenever you believe your student needs a change in services.  Let your union and your state agency know if your requests are ignored.

Parents are rapidly becoming quite savvy concerning special education laws- and they expect the people with whom they entrust their child to be an advocate.  Federal and state laws back up their contention.  

During the last ten years, lawyers have found it lucrative to take on special education cases- particularly ADHD cases.

As time goes on, it becomes much more difficult for a district to plead that they interpreted the laws a certain way.  Each court case further defines the laws.  There is little wiggle room left.

Compton Unified School District v Addison cleared the way for individual educators and entire school districts to be sued under 42 USC section 1983 (also known as the Ku Klux Klan Act) for damages related to educational neglect.  Essentially, educators are accused of robbing the student of their education.  

60% of ADHDers are also diagnosed with Oppositional Defiance Disorder (ODD) by 8th grade.  Scientists seem divided: is it in their genes, or does it develop over time because adults and peers are so hard on them?

Left untreated, ODD can progress into Conduct Disorder, where rules and laws are meaningless.  When they become adults, we usually label these people psychopaths.

It is crucial that we intervene with massive support as soon as ODD is identified.   

ADHD is primarily an inherited condition (75%).  If one parent is ADHD, there is a 50% chance each child will be ADHD.  

ADHD students most often come from low income families.  Most likely one or both adults have ADHD, therefore they often have addictions and trouble holding a job.

Ironically, parents who have ADHD are usually not the best fit for their children with ADHD.  Special Education administrators and teachers have to brace themselves for possible inappropriate parent responses.  It’s no wonder that districts avoid providing support to ADHDers - but they must.

ADHDers have neural receptors that work inefficiently- and they are the parts that control brain function.  Proper medication helps them work more efficiently.

Proper medication for an ADHDer is the equivalent of taking blood pressure medication, or insulin.  Some need a lot, some just a little.

Most ADHD children suffer without medication.  They can’t think properly, and therefore act properly.  They will fail at something everyday.  They are yelled at and picked on.  It’s humiliating.

Parents that medicate their ADHD child are heroes.  It is difficult to prescribe just the right drug at the correct dosage on the first try.  Parents have to return to the doctor, sometimes several times, to get the dosage just right.  As the child grows, the dosage must change.  Typically, parents must visit the doctor once per month.  With co-pays for visits and prescriptions, it can be expensive, but the right thing to do.

Parents worry about the long-term effects of ADHD medication.  Most of the medications have been in use for several decades.  New medications are usually variants of older tried and true meds.  There are many books and online forums for information.

Unmedicated ADHDers are reckless.  They are in significantly  more serious accidents than non- ADHD children.  (Unmedicated ADHD teens should not be allowed to drive.)

They have a higher suicide rate.  Depression is common for ADHDers.

Parents that medicate their children are often thought of as lazy, bad, and uncaring.  There is a stigma.  They need our support.  Speak up whenever one is maligned.

Con artists are making a fortune by selling parents herbal remedies, or “special no-meds-needed cognitive therapy.”  No herb or therapy will re-shape their brain.  If they ask your advice, just tell them “NO.”

We’ve come a long way in developing ADHD meds.  We can now successfully treat 85% of ADHDers without debilitating side effects.  On the other hand…

1.4% of the student population will have ADHD that will be difficult or impossible to medicate.  They may need a 1:1 aide to survive.  They don’t deserve to be excluded or punished unfairly.

Usually, these ADHDers did not inherit their ADHD.  Instead they have the acquired type, which is harder to medicate.  They may have been exposed to prenatal tobacco, alcohol, or drugs.  They may have had a traumatic brain injury, exposure to lead or other toxins, or were born very prematurely.

If you have a diagnosed but unmedicated ADHDer in your class, it is far more likely that the parent(s) decided not to medicate.  

Currently, only 6.1% of ADHD students take meds.

Out of 32 students, you have a 50% chance that one of the three with ADHD will be medicated.    

It is against the law to require a parent to medicate.

It is not against the law to discuss medication with parents- but don’t push your opinions- just offer researched facts.  

Be aware that as they get older, unmedicated ADHDers are far more likely to abuse drugs and alcohol.  Watch for signs.

Study after study shows that it is far safer to properly medicate ADHDers than to allow them to drift into addiction and illegal activities.  

By law, school districts are required to train all educators about the disabilities they will encounter. They must know how to identify and support students with disabilities.

IEPs and 504 plans should always include a requirement that all staff members who interact with a particular ADHD student be knowledgeable and properly supportive.  This includes the bus driver, school secretary, lunch servers, etc.

Untrained teachers and classroom aides can make ADHD effects much worse.  They can do far more damage than good.

ADHD students can, and often do, get PTSD when mistreated.

If you feel you need training, let your administrators know.

Students need to learn all about their ADHD.  They need to be able to speak up if their school modifications are not in place.

There are appropriate books for all ages.  Ask your librarian to stock them.

It is a relief to students to finally understand why they are different.  Otherwise they think they are bad, lazy, stupid, and crazy.

ADHD usually lasts a lifetime, but only half of identified adult ADHDers use medication.  When they receive early support, they develop coping skills (and drink a lot of caffeine).

Imagine how life altering it would be if you identified an ADHD student early enough so that they did not need medication for the rest of their life!

Hyperactivity usually calms down after puberty.  But it will remain difficult to focus on just one thing unless it is really interesting to the ADHDer.

ADHDers have the ability to hyperfocus on something they enjoy.  They will stick to it for hours and days.

With meds, ADHD students can do fine in college, but their counselor needs to be informed.  He/she can recommend professors and arrange some accommodations.  Let your high school parents know.

Sadly, only one out of every eight ADHDers that starts college will ever finish.  Parents must stay proactive because they are developmentally behind.

Autism and ADHD share at least one gene.  It seems likely that we will someday include ADHD in the autism spectrum.  Since they both present with poor social skills, this makes sense.

Currently, autistic sufferers are often misdiagnosed with ADHD.  It is important that teachers speak up if they suspect a misdiagnosis.  Meds and modifications are not the same.

If you have 30 students, it’s probable you’ll have 2 or 3 ADHD students.  Don’t expect them to already be diagnosed and medicated.  Look sharp for the inattentive type.  

You are with your students for six hours a day.  YOU are their educational advocate.  So please do your job.  Report any concerns.  Please stand up for your students’ civil right to a good education.

For more information:

Go to youtube and watch: 30 Essential Ideas for Parents, by Dr. Russell Barkley, an internationally acclaimed ADHD researcher and activist.  He also has several great books.

Check out ADDitudemag.com, cdc.gov, chadd.org, and wrightslaw.com for far more information.  Wrightslaw.com is a central source for legal information.

All my information came from the sources above, particularly Dr. Barkley’s excellent book, Taking Charge of ADHD, Revised Edition: The Complete, Authoritative Guide for Parents, completely revised in 2013.  It is well-written, with several laugh-out-loud passages, and a few stories that will break your heart.

Respectfully,

A teacher with ADHD (I HATED school!)   

Updated: 2-14-2015

#adhd

#teachers

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2011 California Child Find Case

Will Supreme Court Agree to Hear Child Find Case? Compton v. Addison by Peter Wright, Esq. and Pamela Wright, MA, MSW

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In Compton v. Addison, a school district failed to identify or evaluate a child who was failing academic classes, functioning years behind her peer group, and suffering from severe, disabling anxiety.

Despite clear signs that Addison had a disability and needed special education services, the district failed to evaluate her. The district did not advise her mother of her right to request an evaluation for her daughter.

Sound familiar?

The Individuals with Disabilities Education Act (IDEA) requires states to enact policies and procedures to ensure that:

“All children with disabilities … regardless of the severity of their disabilities, and who are in need of special education and related services, are identified, located, and evaluated …” 20 U.S.C. § 1412(a)(3)(A)  - Wrightslaw: Special Education Law, 2nd Edition, Page 72.

Background

Eighth Grade

Addison had a long history of academic problems. On standardized testing in eighth grade, she was reading at the 4.0 grade level and doing math at the 4.3 grade level. Although Addison was more than four years behind her peers in reading and math, the school did not propose to evaluate her to determine if she had a disability and needed special education services.

She was promoted to ninth grade.

Ninth Grade

In ninth grade, Addison’s schoolwork and emotional health spiraled down. She received low and failing grades in academic subjects. On standardized testing in ninth grade, Addison’s reading and general mathematics were below the 1st percentile.

Despite failing grades and extremely low scores on standardized testing, Addison was promoted to the tenth grade.

Tenth Grade

In tenth grade, Addison was quiet and withdrawn. She had no friends. Her teachers described her work as "gibberish and incomprehensible." Her anxiety increased. She could not enter the classroom without coaching. She colored with crayons, played with dolls, and urinated on herself in class.

The school counselor referred Addison for mental health services. The mental health provider recommended that Addison be evaluated for learning disabilities and an IEP. The school did not follow though on these recommendations.

At the end of tenth grade, Addison failed all academic subjects. She failed the California High School Exit Exam, and performed below the first percentile in reading and math.

Addison was promoted to the eleventh grade.

Eleventh Grade

In September 2004, Addison’s mother wrote a letter to the school. She requested that the district conduct an evaluation, a behavioral assessment, and hold an IEP meeting for Addison.

A Student Study Team (SST) meeting was rescheduled several times. A school psychologist evaluated Addison in December 2004. On a nonverbal test of cognitive ability, Addison received a standard score of 82 (12th percentile; low average range). On the Woodcock-Johnson-III, Addison's academic skills were:

Broad reading: 5.4 grade Broad math: 3.8 grade Dictation language: 6.6 grade

The school psychologist found that Addison had deficits in visual motor skills, visual processing difficulties, and auditory memory deficits. Although social emotional tests were deemed invalid, the school psychologist did not conduct additional testing.

In January 2005, the school found Addison eligible for special education as a child with a specific learning disability:

"Academically, Student was unable to focus, complete class assignments, and was behind her peers in reading, writing, speaking, and listening. Behaviorally, Student did not ask for help, was lost in a large regular education class, and was isolated from her peers." (ALJ Decision, page A-71)

The IEP team developed an IEP that placed Addison in a resource program for about two hours a day. School staff felt she needed more intensive services than provided in the resource placement, but thought they had to comply with "least restrictive environment" requirements. Other team members "did not want to push Student too far."

Lack of Progress in Special Education Program

In October 2005, the school reassessed Addison to determine if she was eligible for special education as a child with an emotional disturbance. In this evaluation, the child’s academic skills were essentially unchanged from the evaluation in December 2004:

Broad reading: 5.6 grade (gain of 0.2) Broad math: 3.5 grade (loss of 0.3) Dictation language: 6.6 grade (no change)   Social and emotional testing was limited to a behavior scale completed by the resource teacher and the Behavior Assessment Scale for Children (BASC) administered by the school psychologist.

The psychologist concluded that Addison was not eligible as a child with an emotional disturbance. He recommended that the team develop and implement a behavior support plan (BSP).

In December 2005, the team met to review the recent testing. Addison had not met any of the goals and objectives in the January 2005 IEP. The team continued the same goals for the rest of the school year and lowered the criteria to achieve each goal. Addison’s placement was changed to special day classes for science and history. She continued to receive “support” through the resource program for math and English.

In January 2006, the team met for the annual review of Addison’s IEP. All goals and objectives from the previous year were continued because none of the goals had been met.

In January 2006, Addison was 40 credits shy of the credits necessary to graduate with her classmates.

For a more detailed description of the background, issues, factual findings, legal conclusions, and orders, please read the decision by the Administrative Law Judge (ALJ): http://www.wrightslaw.com/law/caselaw/06/ca.alj.addison.compton.pdf

Due Process Hearing

In November 2005, Addison and her mother requested a special education due process hearing. The hearing was held in March 2006.

Issues:

1. Did the District meet its child find obligation in regard to the Student from November 28, 2002, until January 26, 2005, to identify Student’s disabilities and provide an educational program to address her needs?

2. Was the District’s December 8, 2004 assessment of Student appropriate?

3. Did the District deny Student a free appropriate public education (FAPE) by failing to timely convene an Individualized Education Program (IEP) meeting and failing to provide appropriate academic support and address her social and emotional needs, as described in its January 26, 2005 IEP?

4. If the District failed to identify Student’s disabilities and offer or provide her with a FAPE, is she entitled to compensatory education and services?

The ALJ concluded that

The District knew or had reason to know that Addison was eligible for special education and related services, and was entitled to a FAPE.

The District’s initial assessment was inappropriate because it failed to assess the student in all areas of need.

Addison’s unique academic needs required more intensive academic support in a small-group and one-to-one setting than the limited placement in the RSP program could provide.

The placement in the January 2005 IEP denied Addison a free appropriate public education (FAPE).

Addison did not receive educational benefit from the program described in the January 2005 IEP.

The educational program provided by CUSD was not reasonably calculated to provide Addison with educational benefit, did not comport with the IEP, and did not provide her with a free appropriate public education.

The ALJ held:

“Student is entitled to an independent evaluation, the completion of the referral for a mental health assessment, and three hours of one-to-one academic tutoring by a credentialed teacher every week in an amount not to exceed 150 hours.”

School District Appeals to Federal Court

In July 2006, Compton Unified School District (CUSD) filed an appeal in federal court on one issue:

“… the IDEA does not require or authorize a due process hearing or impose liability based on a school district's negligent failure to timely identify a student as eligible for special educational services under the IDEA.”

The District argued that:

“…Student's allegation that CUSD failed to discharge its obligation under the IDEA child-find provision is … ‘not available for due process’ because the District's failure to assess her for eligibility for SLD services was attributable to neglect, rather than a refusal to act.”

Put simply, the school district appealed because they did not refuse to evaluate Addison, but simply neglected to act.

The District Court did not accept this position.

The school district’s claim“…conflicts with the clear language of the IDEA and federal regulations, is not supported by applicable case law, and would lead to the illogical and unjust conclusion that Student and her mother have a recognized right under the IDEA but no means to enforce (and, ultimately, no remedy for) violations of that right. I reject CUSD's challenge and uphold the ALJ's conclusion …”

The full text of the District Court decision is at http://www.wrightslaw.com/law/caselaw/07/ca.compton.addison.childfind.pdf

Appeal to Court of Appeals of the Ninth Circuit

The school district appealed to the Court of Appeals for the Ninth Circuit. In a 2-1 decision, that Court found that the school district ignored many “red flags” that the child had a disability. “The School District asserts that, because it chose to ignore Addison’s disabilities and take no action, it has not affirmatively refused to act.”

The Court of Appeals analyzed the claims under IDEA:

Child Find

“ … States enact policies and procedures ensuring that “all children with disabilities . . . who are in need of special education services [] are identified, located, and evaluated.” 20 U.S.C. § 1412(a)(3)(A). This obligation is also known as the “child find” requirement.

Procedural Safeguards: Due Process Complaint Requirement

“The IDEA also requires states to implement a number of procedural safeguards to ensure that disabled children receive an appropriate education … [including] the opportunity for any party to present a complaint “with respect to any matter relating to the identification, evaluation, or educational placement of the child.” 20 U.S.C. § 1415(b)(6)(A).

Procedural Safeguard: Written Notice

“The IDEA requires that local educational agencies provide written notice to a child’s parents whenever the agency ‘proposes to initiate or change’ or ‘refuses to initiate or change the identification, evaluation, or educational placement of the child’...” 20 U.S.C. § 1415(b)(3).

Court of Appeals Decision

Citing a recent Supreme Court decision, the Court of Appeals held:

A “reading of the [Individuals with Disabilities Education] Act that left parents without an adequate remedy when a school district unreasonably failed to identify a child with disabilities would not comport with Congress’ acknowledgment of the paramount importance of properly identifying each child eligible for services.” Forest Grove School Dist. v. T.A., 129 S. Ct. 2484, 2495 (2009).

. . . .

“We conclude that claims based on a local educational agency’s failure to meet the ‘child find’ requirement are cognizable under the IDEA, and that here, the School District had clear notice of this fact. Accordingly, the district court’s orders granting judgment on the pleadings and awarding attorneys’ fees are AFFIRMED.

Read the full text for the Court of Appeals decision here:    http://www.wrightslaw.com/law/caselaw/10/9th.compton.addison.pdf

The school district requested rehearing and rehearing en banc. No judge requested a vote on whether to rehear the case en banc. The school district’s petition was denied.

Appeal to Supreme Court

In January 2011, CUSD filed a petition for writ of certiorari to request that the Supreme Court  decide the case. (01/07/11)

Petition for Writ of Certiorari: http://www.wrightslaw.com/law/caselaw/11/supct.compton.addison.cert.pdf

Question Presented

Whether the special education due process hearing procedures under the Individuals with Disabilities Education Act (“IDEA”), 20 U.S.C. § 1400 et seq. (2010), allow a parent to bring a claim of negligence against a school district, or whether due process hearing claims are limited to disputes regarding intentional decisions made by the school district.

Reply Brief in Support of Petition for Writ of Certiorari

This brief by attorneys who represent the school district lays out reasons why the Supreme Court should decide the case.  One reason: “Creates a claim for educational malpractice for disabled students where none exists for non-disabled students.”           http://www.wrightslaw.com/law/caselaw/11/supct.compton.addison.brief.reply.pdf

Respondent’s Brief in Opposition

In the Respondent’s brief, Addison’s attorneys focus on why the Supreme Court should not grant cert in her case.

There is no split among lower courts or circuits on the question presented. Although the school district predicted that the decision will “open the floodgates to sweeping claims to educational malpractice,” no evidence supports this claim.

http://www.wrightslaw.com/law/caselaw/11/supct.compton.addison.brief.oppose.pdf

Court Asks Solicitor General for Position

On April 18, 2011 the Supreme Court asked the Solicitor General to file a brief describing the views of the administration in Compton Unified School District v. Addison, et. al, docket 10-886. It may take several months before the solicitor general responds to the Court’s request.  We’ll keep you posted!

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Created: 05/06/11 Revised: 00/00/00 This page printed from: http://www.wrightslaw.com/law/art/compton.addison.analysis.htm

(The Supreme Court did not review the case, so the lower court rulings stand.  School districts cannot claim  that neglect to notice a disabled student is a valid reason to avoid Child Find related reimbursements.  School districts must vigilantly seek out and offer to evaluate students suspected to be disabled.)