THE 'CHILD FIND MANDATE' IMPLICATIONS FOR PARENTS, CHILDREN, AND LEAs? by Pamela Darr Wright, MSW Licensed Clinical Social Worker In 1975, Congress passed Public Law 94-142 (Education of All Handicapped Children Act), now codified as IDEA (Individuals with Disabilities Education Act). In order to receive federal funds, states must develop and implement policies that assure a free appropriate public education (FAPE) to all children with disabilities. The state plans must be consistent with the federal statute, Title 20 United States Code Section 1400 et.seq. (20 USC 1400) (For more information on IDEA, legislative history, implications, see the other files in forum libraries, especially those that relate to the Shannon Carter case which was argued before the US Supreme Court on October 6, 1993.) EARLY INTERVENTION AND 'CHILD FIND' Because early identification and intervention are viewed as crucial to the successful remediation of children with disabilities, local educational agencies are required to locate, identify, and evaluate all children with disabilities who may be in need of special education services from birth to age 21. This obligation to identify children who may need services exists, regardless of whether educational services are actually being provided. School systems and State Departments of Education must insure that "All children who are handicapped, regardless of the severity of their handicap, and who are in need of special education and related services are identified, located and evaluated; and (that) a practical method is developed and implemented to determine which children are currently receiving needed special education and related services and which children are not currently receiving needed special education and related services." (Volume 34 of the Code of Federal Regulations, Section 300.128 (1991)). (Like statutes, the Regulations are normally cited as 34 CFR 300.128 and are in many larger public libraries and in all law libraries.) Congress has encouraged states to provide early intervention to prevent or ameliorate developmental delay and other disabilities. The Early Intervention Program for Infants and Toddlers was enacted to provide interagency coordination of services to children from birth to two years of age. Under IDEA, states are obligated to ensure that children with disabilities are eligible for special education services by age three. HOW 'CHILD FIND' IS TO BE IMPLEMENTED As part of the "Child Find mandate", each state is required to devise a practical method to determine which children are receiving the needed special education services (and which children are not). After identifying children who may be in need of services, the necessary evaluations are to be provided to these children, free of cost to parents. IDEA mandates "general public notice obligations", i.e., the need to inform the public in an effort to identify and locate all children with disabilities. What methods are local educational agencies to use in this difficult task of identifying children in need of services? The Office of Civil Rights (OCR) of the United States Department of Education has accepted plans that include door-to-door surveys, brochure mailings, public education programs and other public meetings, physician referrals, contacts with day care providers, and surveys of private school personnel. (Luling, TX Indep. School Dist, 1975-1985 EHLR 257:417)(The Education for the Handicap Law Reporter is now known as IDELR, Individuals with Disabilities Education Law Reporter and is also in law libraries. It is published by LRP Publications in Horsham, PA) In another case, the Court compared estimates of children with disabilities in the general population to the number of youngsters who had been identified by the school district to determine if the district had made adequate efforts to identify children under the "Child Find" mandate. (Akers v. Bolton, 531 F. Supp. 300, 1981-1982 EHLR 553:225) Under the "Child Find" mandate, absenteeism may also trigger an evaluation. Absenteeism is often caused by a psychological disorder, disability, or disruptive behavior problem. In 1989, the OCR stated that if a child is hospitalized for treatment of depression, dysthymia or other emotional problems, the child should be evaluated. A child with a substance abuse problem should be evaluated. And, if a psychologist refers a child for evaluation after a psychiatric hospitalization, then an evaluation must be performed. LIABILITY DUE TO FAILURE TO ACT If a school system has a reason to suspect that a child might be entitled to services, i.e., the child is demonstrating typical ADD and or LD characteristics and the school system does nothing, then they have violated the "Child Find" mandate. The child's atypical behavior puts the teacher, psychologist, principal and/or any other staff, on "Notice". If the teacher, psychologist, social worker, etc., is either ignorant of the characteristics of a disability, or is aware and fails to act, and if the child remains unserved, then the school system can be held liable and at fault. Incidentally, "Notice" to one school system employee is "Notice" to the school system. Negative behavioral comments in the child's folder (that suggest ADD/LD problems), coupled with the school's failure to refer the child for a comprehensive special education evaluation, often becomes evidence that can be used directly against the school system in later litigation. If school system employees knew or had reason to suspect that the child had a disability, or as educators, they should have known, then these school system employees have an affirmative duty to act on the child's behalf. If they fail to do so, then they have defaulted in their obligation to evaluate and provide an individualized special education program for the child. In summary, schools have an affirmative duty to locate, identify and provide services to children who may be disabled or handicapped. Failure to do so may result in subsequent litigation that could result in the child's entitlement to services to continue beyond the child's twenty-second birthday, under the legal special ed concept known as "compensatory education."