Return to School Roadmap — Child Find Under Part B of the Individuals with Disabilities Education Act (Aug. 24, 2021)
Summary
This Q&A document on Child Find Under Part B of the Individuals with Disabilities Education Act (IDEA) reaffirms the importance of appropriate implementation of IDEA’s child find obligations, which requires the identification, location and evaluation, of all children with disabilities in the states. An effective child find system is an ongoing part of each state’s responsibility to ensure that free appropriate public education (FAPE) is made available to all eligible children with disabilities.
Letter
UNITED STATES DEPARTMENT OF EDUCATION
OFFICE OF SPECIAL EDUCATION AND REHABILITATIVE SERVICES
OSEP QA 21-05
Return to School Roadmap:
Child Find Under Part B of the Individuals with
Disabilities Education Act
August 24, 2021
The U.S. Department of Education’s (Department) Office of Special Education and Rehabilitative Services (OSERS) has received multiple requests from a diverse group of stakeholders asking that the Department issue new guidance interpreting requirements of the Individuals with Disabilities Education Act (IDEA) in light of the many challenges of the COVID-19 pandemic and as more schools and programs are returning to in-person services. Topics include meeting timelines, ensuring implementation of initial evaluation and reevaluation procedures, determining eligibility for special education and related services, and providing the full array of special education and related services that children with disabilities need in order to receive a free appropriate public education (FAPE).[1] Similarly, stakeholders have inquired about the implications of delayed evaluations and early intervention services to infants and toddlers with disabilities and their families served under IDEA Part C.[2] The purpose of the Return to School Roadmap IDEA guidance documents,[3] which focus on school reopening efforts, is to support the full implementation of IDEA requirements. The documents also serve to clarify that, regardless of the COVID-19 pandemic, or the mode of instruction, children with disabilities are entitled to FAPE, and infants and toddlers with disabilities and their families to appropriate IDEA Part C services.
OSERS is issuing this guidance to State educational agencies (SEAs), local educational agencies (LEAs),[4] parents,[5] and other stakeholders to reaffirm the importance of appropriate implementation of the child find obligations under Part B of the IDEA. An effective child find system is an ongoing part of a State’s responsibility to ensure that FAPE is made available to all eligible children with disabilities. The child find requirements in IDEA require SEAs and LEAs to have policies and procedures in effect to ensure that all children with disabilities residing in their respective jurisdictions who need special education and related services are identified, located, and evaluated, regardless of the severity of the disability, and consistent with the State’s child find and eligibility standards.
It is particularly important that we provide information about the IDEA Part B child find requirements at this time since, as a result of the COVID-19 pandemic, a number of children have not registered for school or have unenrolled from schools. Many others have received instruction only virtually. Given these challenges, as they prepare to return to full-time, in-person learning for the 2021-2022 school year, SEAs and LEAs may need to evaluate whether their current child find procedures are sufficiently robust to ensure the appropriate referral and evaluation of children who may have a disability under IDEA.
A. General Child Find Requirements
Answer: es. As a result of the educational disruptions due to the COVID-19 pandemic, a considerable number of students withdrew from public schools to attend private schools or were home schooled. As stated in the responses to Questions A-1 and A-2, SEAs and LEAs are responsible for carrying out child find obligations to all children residing within the jurisdiction. 34 C.F.R. §§ 300.111 and 300.201. This includes children whose parents have chosen to home school them or place them in private schools, rather than enrolling them in the public schools. Generally, the LEA where the child’s parents reside is responsible for conducting child find activities, including initial evaluations and reevaluations, for children who are home schooled. As noted in the response to Question A-2, the LEA in which the private school is located is responsible for child find activities for parentally placed private school children, which could be different than where the child resides. 34 C.F.R. § 300.131.
There are several possible ways that an LEA within which private elementary or secondary schools are located can meet its child find responsibilities. For example, the LEA may assume the responsibility itself, contract with another LEA (including the LEA where the child’s parent resides) or make other arrangements by contracting with a third party to conduct child find activities. Note also, that under 34 C.F.R. § 300.134(a)(2), during consultation between the LEA and private school officials and parent representatives, the LEA must discuss how parents, teachers, and private school officials will be informed of the child find process. During consultation, the LEA can solicit ideas from participants about ways to engage and educate stakeholder groups about what is involved in locating, identifying, and evaluating children with suspected disabilities under IDEA who are enrolled by their parents in private schools. Examples of such practices include, but are not limited to, the following: holding professional development sessions for private school teachers on IDEA’s evaluation and reevaluation requirements; posting flyers in private school facilities to inform stakeholders of the availability of child find; and facilitating round table discussions with community members.
Answer: Yes. IDEA Part B funds (both the regular IDEA Part B funds and the additional IDEA Part B funds appropriated under the ARP Act), and funds provided to States and LEAs through the ESSER Fund and the GEER Fund may be used for child find activities. However, under 34 C.F.R. § 300.131(d), if an LEA uses funds from its IDEA Part B allocations to carry out child find activities for parentally-placed children in private schools, these expenditures may not be considered in determining if the LEA has met the requirement under 34 C.F.R. § 300.133(a) to spend a proportionate amount of IDEA Part B funds on the provision of special education and related services for parentally-placed children with disabilities attending private schools located in the LEA.
An LEA may also want to consider using these funds to address any backlog of initial evaluations not completed within the timeline or that were delayed due to circumstances related to the COVID-19 pandemic. Funds could be used to hire additional special education and related services staff; contract with outside vendors and practitioners to perform assessments, consistent with State procurement rules; pay costs associated with training existing staff to acquire the necessary expertise and qualifications to conduct evaluations; and upgrade assessment and evaluation tools, such as those that perform auto-calculations of data to reduce burden and streamline report-writing.
B. Referral and Initial Evaluation
Answer: IDEA’s child find requirements permit referrals from any source who believes a child may be eligible for special education and related services. Any source includes, but is not limited to, a parent, teacher, health care provider, or other individual with knowledge about the child.
However, consistent with the child find requirements and with the parental consent requirements under IDEA and the implementing regulations, only the child’s parent or the child’s LEA may initiate the request for an initial evaluation LEA. 34 C.F.R. § 300.301(b).
Answer: No. If the LEA does not suspect the child has a disability, it may deny the parent’s request for an initial evaluation. In this circumstance, the LEA must provide written notice to the parent, consistent with 34 C.F.R. § 300.503(b), that explains, among other things, why the LEA refuses to conduct an initial evaluation and the information that was used as the basis to make that decision. The parent may challenge the LEA’s refusal by requesting a due process hearing under 34 C.F.R. § 300.507 or filing a State complaint under 34 C.F.R. § 300.153. See Assistance to States for the Education of Children with Disabilities and Preschool Grants for Children with Disabilities, Final Rule, 71 Fed. Reg. 46540, 46636 (Aug. 14, 2006); OSEP Memorandum 11-07 (Jan. 21, 2011).
However, if the LEA believes the child may have a disability under IDEA, it must obtain the parent’s informed consent, consistent with 34 C.F.R. § 300.9, to conduct an initial evaluation. 34 C.F.R. § 300.300(a). The evaluation must be conducted within 60 days of receiving parental consent or within the State-established timeline for conducting the evaluation. 34 C.F.R. § 300.301(c)(1). Although IDEA and its implementing regulations do not prescribe a specific timeframe from referral for evaluation to parental consent, it has been the Department’s consistent and longstanding interpretation of the IDEA that evaluations be conducted within a reasonable period of time after the agency’s receipt of a formal request for evaluation, if the LEA agrees that an initial evaluation is needed.[9]
Answer: No. MTSS is a comprehensive continuum of evidence-based, systemic practices to support a rapid response to students’ needs with regular observation to facilitate data-based instructional decision-making. Many LEAs have implemented successful MTSS frameworks, thus ensuring that children who simply need short-term and targeted, or intensive interventions are provided those interventions, IDEA, however, does not require, or encourage, an LEA to use an MTSS approach prior to a referral for evaluation or as part of determining whether a child is eligible for special education or related services.
A parent may request an initial evaluation at any time to determine if their child is a child with a disability, regardless of whether the child has participated in an MTSS framework. 34 C.F.R. § 300.301(b). The implementation of MTSS strategies cannot be used to delay or deny the provision of a full and individual initial evaluation, pursuant to 34 C.F.R. §§ 300.304 through 300.311, to a child suspected of having a disability under 34 C.F.R. § 300.8.[10] It would be inconsistent with the evaluation provisions at 34 C.F.R. §§ 300.301 through 300.111 for an LEA to reject a referral and delay provision of an initial evaluation on the basis that a child has not participated in an MTSS framework.
If the responsible LEA does not suspect that the child has a disability, and denies a parent’s request for an initial evaluation, the responsible LEA must provide prior written notice to the parent explaining why the LEA refuses to conduct an initial evaluation and the information that was used as the basis for this decision as well as a copy of the notice of procedural safeguards. 34 C.F.R. §§ 300.503 and 300.504. As noted in the response to Question B-2, the parent may challenge the LEA’s refusal by requesting a due process hearing or filing a State complaint. See Assistance to States for the Education of Children with Disabilities and Preschool Grants for Children with Disabilities, Final Rule, 71 Fed. Reg. 46540, 46636 (Aug. 14, 2006); and OSEP Memorandum 11-07 (Jan. 21, 2011).
C. Child Find Considerations Related to the COVID-19 Pandemic
[1] Free appropriate public education (FAPE) means special education and related services that (1) are provided at public expense, under public supervision, and without charge; (2) meet the standards of the SEA, including the requirements of IDEA; (3) include an appropriate preschool, elementary school, or secondary school education in the State involved; and (4) are provided in conformity with an individualized education program that meets the requirements of 34 C.F.R. §§ 300.320 through 300.324. 34 C.F.R. § 300.17.
[2] Additional guidance, including requirements of Part C of IDEA, will be forthcoming.
[3] This Q&A document does not impose any additional requirements beyond those included in applicable law and regulations. It does not create or confer any rights for or on any person. The responses presented in this document generally constitute informal guidance representing the interpretation of the Department of the applicable statutory or regulatory requirements in the context of the specific facts presented here and are not legally binding and does not establish a policy or rule that would apply in all circumstances. The questions and answers in this document are not intended to be a replacement for careful study of IDEA and its implementing regulations. The IDEA, its implementing regulations, and other important documents related to IDEA and the regulations are found at: https://sites.ed.gov/idea/
[4] To make this document more user-friendly, OSERS has used the term “LEA” in place of “public agency.” Public agency is defined in 34 C.F.R. § 300.33 to include the SEA, LEAs, educational services agencies (ESAs), nonprofit public charter schools that are not otherwise included as LEAs or ESAs and are not a school of an LEA or ESA, and any other political subdivisions of the State that are responsible for providing education to children with disabilities.
[5] The term “parent” is defined at 34 C.F.R. § 300.30.
[6] For more information see the Department’s Long COVID under Section 504 and the IDEA: A Resource to Support Children, Students, Educators, Schools, Service Providers, and Families (Jul. 26, 2021).
[7] U.S. Department of Education, Office of Special Education and Rehabilitative Services, Frequently Asked Questions about the Rights of Students with Disabilities in Public Charter Schools under the Individuals with Disabilities Education Act (Dec. 28, 2016).
[8] Homeless Liaison Toolkit | 2020 Edition — https://nche.ed.gov/homeless-liaison-toolkit/
[9] See Assistance to States for the Education of Children with Disabilities and Preschool Grants for Children with Disabilities, Final Rule, Fed. Reg. 46540, 46637 (Aug. 14, 2006); OSEP Memorandum 11-07 (Jan. 21, 2011); and OSEP Memorandum 16-07 (Apr. 29, 2016).
[10] This requirement applies regardless of the referral source (e.g., parental referral, including parents of children who are homeschooled, and public and private school programs, including preschool programs). See also OSEP Memorandum 16-07 (Apr. 29, 2016); and OSEP Memorandum 11-07 (Jan. 21, 2011).
[11] For more information see the Department’s Long COVID under Section 504 and the IDEA: A Resource to Support Children, Students, Educators, Schools, Service Providers, and Families (Jul. 26, 2021).
Last modified on January 5, 2022