Recent 5th Circuit Child Find Case By: Eric G. Rodriguez

Child Find Cases On The Rise Started with the Houston Chronicle Article OSEP investigation and findings against TEA TEA: Corrective Action Plan and To The Administrator Addressed letters Continued media focus, to include August 21, 2018 article Texas Saved Billions Cutting Special Education. Now the Bill Comes Due.

What is Child Find “Child find” is the affirmative, ongoing obligation of states and local districts to identify, locate, and evaluate all children with disabilities residing within the jurisdiction who are in need of special education and related services. 34 CFR 300.111 (a)(1)(i).

Responsibility for Child Find Districts are responsible for conducting child find and identifying all IDEA-eligible students that reside in their jurisdiction. Because the child find obligation is an affirmative one, a parent is not required to request that a district identify and evaluate a child. D.G. v. Flour Bluff Indep. Sch. Dist., 59 IDELR 2 (5th Cir. 2012, unpublished). Child find requires a district to evaluate a child when it suspects or has reason to suspect that the child has a disability and needs special education services as a result. E.S. v. Konocti Unified Sch. Dist., 55 IDELR 226 (N.D. Cal. 2010).

Krawietz v. Galveston ISD On August 17, 2018, the 5th Circuit affirmed the District Court and Hearing Officer’s finding of a Child Find violation amounting to a denial of a FAPE. Krawietz v. Galveston Indep. Sch. Dist., 72 IDELR 205 (5th Cir. 2018)

Krawietz v. Galveston ISD Background Facts: In 2004, GISD identified Ashley as a student with a disability who was eligible for special education services. IEP addressed learning and behavioral problems In 2008, Ashley withdrew from GISD and began homeschooling following an incident in which she attempted to harm another student. In August 2013, Ashley returned to GISD enrolling as a ninth grade student at AIM College and Career Prep Center. Ashley’s application noted that she had previously received special education services, and Ashley’s family reminded GISD of that fact upon her enrollment.

Krawietz v. Galveston ISD 2013-2014 School Year: GISD was unable to locate Ashley's prior records, and therefore assumed/concluded that she had been dismissed from special education services. In September 2013, the school assigned Ashley to DAEP for two months after she engaged in sexual activities with two other students in a school restroom. In November, GISD referred Ashley for Section 504 services. In addition to behavior issues, she was failing most of her classes. The Section 504 committee determined that Ashley qualified due to post-traumatic stress disorder, attention deficit hyperactivity disorder, and obsessive compulsive disorder. The Section 504 committee put accommodations in place, but no behavior plan. With these accommodations in place, Ashley was able to successfully complete her freshman year.

Krawietz v. Galveston ISD 2014-2015 School Year She performed poorly on the PSAT. She stole a total of $1,500 from her mother via two unauthorized online purchases. In response to the thefts, she was hospitalized from September 24 to October 3, 2014. She completed fewer than half of her expected credits for the fall 2014 semester which concluded on January 21, 2015.

Krawietz v. Galveston ISD 2014-2015 School Year On February 9, 2015, GISD sent a notice of a Section 504 meeting to Ashley's family. Also on February 9, Ashley's family submitted a letter requesting a special education due process hearing under the IDEA. On February 16, Ashley's mother consented to GISD conducting a FIE of Ashley. GISD “eventually completed” the FIE on April 21, 2015, concluding that Ashley was eligible for special education services.

District Court’s Finding In upholding the Hearing Officer's determination that GISD failed to timely comply with its Child Find duty, the district court explained: “Ashley's academic decline, hospitalization, and incidents of theft during the [fall 2014] semester taken together were sufficient to cause GISD to suspect that her several disabilities created a need for special education services. The Court finds that, conservatively, GISD should have suspected the need for an IEP by October 2014. GISD did not attempt to conduct an evaluation until April 2015. The evaluation occurred at least six months after GISD should have suspected that one was required, and three months after Ashley requested a Due Process Hearing. The Court further finds that this six-month delay was unreasonable. ... This is especially true given the extensive notice to GISD and the dire circumstances involved.”

Fifth Circuit’s Finding 5th Circuit affirmed the District Court and Hearing Officer’s finding of a Child Find violation amounting to a denial of a FAPE. “We therefore perceive no reversible error in the district court's conclusion that ‘taken together,’ ‘Ashley's academic decline, hospitalization, and incidents of theft’ should have led GISD to suspect her need for special education services by October 2014, at the latest.

How Long Is Too Long? The Fifth Circuit agreed with the District Court that the District erred in waiting 6 months to evaluate the student for IDEA services. (October 2014-April 2015) GISD argued the District Court should have calculated the delay from the date it sought parental consent for evaluation (February 16, 2015) rather than the date the evaluation was completed (April 21, 2015). The Fifth Circuit held that even a four-month delay to seek consent was unreasonable under the circumstances.

Takeaway Refer students for an evaluation when a student: Has a history of academic and/or behavior problems; Declines academically; and Demonstrates behavior that triggers hospitalization.

The information in this presentation was prepared by Walsh Gallegos Treviño Russo & Kyle P.C. It is intended to be used for general information only and is not to be considered specific legal advice. If specific legal advice is sought, consult an attorney.