New Federal Guidance Reiterates Child Find Responsibilities

Franczek P.C.
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Franczek P.C.

Welcome to the 2021-2022 school year. As the new year gets underway, the Office of Special Education and Rehabilitative Services (OSERS) within the Department of Education advised states and districts that it will be providing a series of guidance documents addressing “school reopening efforts and intended to support the full implementation of IDEA requirements.” The letter emphasizes and reiterates the guidance provided throughout 2020 that no IDEA requirements were waived and that, regardless of the instructional delivery approach, districts remain responsible for ensuring that a free appropriate public education (FAPE) is available to all children with disabilities. The first guidance document addresses child find, reviewing well-established principles and commenting on the impact of the pandemic. Read on for highlights.

Broad Application

In line with the administration’s focus on supporting marginalized and vulnerable students, the guidance begins with a reminder that the requirement to identify, locate, and evaluate children with disabilities extends to children experiencing homelessness or who are wards of the state, highly mobile and migrant children, English learners, children residing in nursing homes because of serious health problems, and those in correctional facilities. The child find obligation also applies to parentally placed private school children, including those who are home schooled. The guidance notes that, during the pandemic, many families withdrew their students from public schools to attend private schools or home school. Districts have a responsibility to include these students in child find activities.

Funding

The guidance notes that IDEA funds can be used to fund child find activities, including the additional IDEA Part B funds appropriated under the ARP Act and funds provided to states and districts through the ESSER Fund and the GEER Fund. The guidance also suggests that districts consider using these funds to address any backlog of initial evaluations that were delayed due to the pandemic.

MTSS and Limited Instruction

OSERS reiterates prior guidance that the implementation of MTSS strategies cannot be used to delay or deny an initial evaluation when a child is suspected of having a disability. If, however, the district does not suspect a disability, it must provide prior written notice to the parent explaining the decision not to conduct an evaluation. At the same time, the guidance notes that students who are behind due to disruptions in instruction because of the pandemic should not necessarily be referred for evaluations. If the student’s needs appear related to a lack of appropriate instruction rather than to a suspected disability, the district should work to identify additional general education supports and interventions to address the student’s needs.

Additional COVID-19 Considerations

The guidance notes that referrals for initial evaluations may have been impeded because remote instruction does not provide the same opportunities for informal assessment and observation of student learning that in-person instruction does. In response, OSERS recommends reviewing the district’s child find procedures and identifying alternative ways to find children who may be in need of special education, cautioning against relying primarily on parents to make referrals. Additional child find practices could include increased screenings and increasing awareness of special education services by providing information in places families are likely to view it, such as physician’s offices, public parks, children’s stores, and social media.

As OSERS provides additional guidance on other IDEA Topics, we will continue to provide updates.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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