A. Child Find, Identification and Evaluation



Peter W. D. Wright,  Pamela Darr Wright, Special Education Law, 72 (Harbor House Law Press Inc. 2d ed. 2007); See 20 U.S.C. § 1412(a)(3) (2005); 34 C.F.R. § 300.111(a);
C.R.S § 22-20-103 (4)

1. Child Find Under IDEA

“Child find” is part of IDEA. “Child find requires school districts to identify, locate, and evaluate all children with disabilities, including children who are home schooled, homeless, wards of the state, and children who attend private schools.” 




34 C.F.R. § 300.111(c) (2006).
This includes children suspected of having a disability and needing special education, even though they may be advancing from grade to grade.

State Bd. of Ed. Rule 4.02(1)(a)(i) and (ii), 1 Code Colo. Regs. 301-8 (2009).
In Colorado, child identification is the responsibility of the administrative unit in which the child attends school (public or private), or if the child is not in school, the unit where the child resides.

Rule 4.02(2)(c)(iv).
Child find also applies to students ages 17 to 21 who are out of school, and who may have a disability. 



20 U.S.C. § 1414(a)(1)(B) (2005).
2. Initial Referral and Evaluation Under IDEA

Under IDEA, “a parent of a child, or a State educational agency, another State agency, or local educational agency may initiate a request for an initial evaluation to determine if the child is a child with a disability.”


Rule 4.02(3)(a)(ii).
However, in Colorado, interested persons initiating a referral must work with the parent or the appropriate administrative unit or state-operated program. 

20 U.S.C. § 1414(a)(1)(D)(i).
The school must obtain informed parental consent before conducting the initial evaluation. 

20 U.S.C. § 1414(a)(1)(D)(ii).
If the parents do not provide consent for the initial evaluation, the district may request a due process hearing.

20 U.S.C. § 1414(a)(1)(D)(iii).
If the child is a ward of the state, the agency must “make reasonable efforts to obtain the informed consent from the parent . . . for an initial evaluation to determine whether the child is a child with a disability.”





20 U.S.C. § 1414 (a)(1)(D)(iii)(II).
However, the agency is not required to obtain informed consent from the parents if:
  1. The agency cannot discover where the parents are;
  2. The rights of the parents have been terminated; or 
  3. The parent’s right to make educational decisions has been removed by a judge in accordance with state law, and an individual appointed by the judge to represent the child has consented to an individual evaluation. 
Wright,  supra note 1 at 93; 20 U.S.C. § 1414(a)(1)(C).
If the agency cannot obtain consent from the parents, there are rules to determine whether someone else is acting as a parent or to appoint an educational surrogate parent (ESP). These rules are discussed more fully in the section on Parents and Surrogate Parents. Initial evaluations must be completed within sixty days of receiving parental consent. 

34 C.F.R. § 300.301(d) (2007)
If the child enrolls in a school of another public agency after the sixty days has begun, and prior to a determination by the previous public agency as to whether the child has a disability, the time frame does not apply if the current public agency is making sufficient progress, and the parent and the public agency agree to a specific time when the evaluation will be completed. The time frame also does not apply if the parents have repeatedly refused to produce the child for evaluation. 

34 C.F.R. § 300.304(c)(5) (2006).
However, assessments of children with disabilities who transfer schools should be coordinated between prior and subsequent schools and expedited.

20 U.S.C. § 1415(b)(1)(2005).
If the parents (or surrogate parent) disagree with the evaluation, they may obtain an independent educational evaluation.  

Randy Chapman, The Everyday Guide to Special Education Law, 27 (The Legal Center for People with Disabilities and Older People 2005); 20 U.S.C. § 1415.
Parents may request an independent evaluation at the school district’s expense. The school district must either grant the request for an evaluation or provide an administrative hearing to review the existing evaluation.


Kathleen McNaught, Learning Curves:  Education Advocacy for Children in Foster Care  50 (ABA Center on Children and the Law 2004).
3.  Eligibility Meeting

After the evaluation, a meeting takes place with a multidisciplinary team of evaluators and parents to determine if a child is eligible for special education services.  Advocates and parents should ask for copies of the evaluation before the eligibility meeting, although with the short timelines under IDEA, they may not be available.





Rule 4.02(6)(b)(i).
A multidisciplinary team determines eligibility. This team must include:
  • at least one teacher or other specialist with knowledge in the area of the suspected disability;
  • other qualified professionals as necessary; and
  • a parent. 
McNaught, supra note 16 at 50.
Other advocates also may be invited, at the discretion of parent or school.







Id. at 51.
An advocate for the child should consider:
  • Are the right individuals present?
  • Have procedural safeguards been followed?
  • Are evaluations appropriate?
  • Is the eligibility decision a team decision?
  • Do the definitions of a disability fit IDEA?
Rule 4.02(6)(b).
After the child is determined eligible under IDEA, an IEP will be created. Usually, determining eligibility and creating an IEP is a successful, collaborative process when the right individuals are present. The eligibility meeting and creation of the IEP may occur at the same or different meetings, depending partly upon whether evaluations and IEP proposals have been available to all parties in advance.



34 C.F.R. § 300.300(b)(3).
Before services can be provided initially, the parents must consent. If the parents do not consent, there is no provision for the school to appeal or override this decision.



34 C.F.R. § 300.300(b)(4)(i).
However, if the parent does not consent, the public agency is no longer required to make FAPE available to the child.



34 C.F.R. § 300.300(c)(2).
For a reevaluation, parental consent is also required, but this requirement is excused if the public agency has made reasonable attempts to gain the consent, and the child's parent has failed to respond.



34 C.F.R. § 300.300(b)(3).
Parents often believe they must consent to the IEP each year.  This is not the case, as the regulation only requires that parents consent to the initial provision of special education and related services.



34 C.F.R. § 300.300(b)(4).
Parents may, however, revoke consent for the continued provision of special education and related services, as long as they give prior written notice.  Once again, if parents do this, the public agency is not required to provide FAPE.



34 C.F.R. § 300.300(d)(3).
Parents may refuse to consent to one service or activity without being denied "other service, benefit, or activity of the public agency."

McNaught, supra note 16 at 62-63.
If parents or an educational surrogate parent disagree with the decisions made by the IEP team, procedural safeguards protects their rights. Parents may file a request for a due process administrative hearing, may request mediation with or without filing for a due process hearing, or may file an IDEA complaint with the state department of education. See 20 U.S.C. § 1415 for more details.



34 C.F.R. § 104.33(b)(1).
4. Evaluation under Section 504

Section 504 requires the school to perform an evaluation, and if needed, develop a 504 plan, which need not be in writing. Under Section 504, a free appropriate public education is “the provision of regular or special education and related aids and services that . . . are designed to meet individual educational needs of handicapped persons as adequately as the needs of nonhandicapped persons  are met . . .” 


Chapman, supra note 15 at 79.
Section 504 requires that a child be provided with equal access to an education and focuses on accommodations. Like IDEA, Section 504 addresses placing students with disabilities in the least restrictive environment. 

Id. at 79; 34 C.F.R. § 104.34(b) and 104.37(a).
This includes access to nonacademic and extracurricular activities and services, such as meals, recess, recreational athletics, health services, counseling, clubs, and transportation.

Wright, supra note 1 at 293.
Impartial hearings are also available under Section 504, but there are fewer procedural safeguards. 

http://www.ed.gov/about/
offices/list/ocr/index.html.
However, parents can file a complaint with the Office of Civil Rights, U.S. Department of Education, which will perform a thorough investigation.