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OCR Decision Highlights Common Child Find Red Flags

K-12 Education

A recent OCR decision out of Wyoming is a reminder to school districts of their Child Find obligations—including during remote instruction. In Teton County School District, Wyoming, OCR found in favor of the school district who responded to a doctor’s note diagnosing anxiety and depression with immediate supports and initiating an evaluation. The case illustrates the perils of informal communication about disabilities but confirms that not every reference to a disability triggers the obligation to evaluate.

In the Wyoming case, there were several red flags that unfolded for school personnel.

First Red Flag: The parents requested “strict” confidentiality when disclosing to the school counselor that then son was diagnosed with depression. The school counselor then took it on herself to work one-on-one with the student on planning and catching up in his assignments. The student continued to fall further behind, but there were explanations other than disability, including absences for a family vacation. The student continued to struggle, and the counselor did not expand the support due to the parent’s request for confidentiality and the belief the student’s struggles were directly related to his missing work from his absences.

Second Red Flag: The counselor was in frequent email communication with the parents about missing assignments. In the course of the emails, the mom mentioned that the student thought he might be dyslexic. The counselor responded by sharing the screening methods available for dyslexia, however, did not initiate an evaluation. Instead, the counselor continued focusing on the student’s missing work (rather than the underlying causes of the missing work).

It was only after two problem-solving meetings and the start of COVID-19 shutdown that the parents inquired into whether any testing was done to qualify the student for an IEP or 504. The District initially responded that evaluations were on hold until school resumed.

Third Red Flag: The parents then provided a doctor’s note with new diagnosis. It was after this third red flag that the District initiated the 504 eligibility process. The District also provided a list of supports it would immediately implement for the student during the evaluation process. The District ultimately determined the student was eligible based on ADHD, Anxiety, and Depression.

The parents filed a complaint stating the District was aware the student had a disability as early as 2018 when it became aware of his depression (the “strictly” confidential disclosures). They further argued the District’s Child Find obligations were triggered once the mother mentioned the son’s belief he may have dyslexia. OCR determined the student’s comments about dyslexia were not sufficient without more evidence or data that the student may be dyslexic or had a reading disability that triggered the District’s obligation. OCR found there was insufficient evidence the District was aware or had reason to believe the student had a disability and failed to timely evaluate the student. However, OCR made clear, if the District suspected the student was dyslexic or had a reading disability and needed an evaluation, the District was not relieved of its obligation to refer the student despite parent preference.

This decision emphasizes several points for Districts:

  • Confidential Report Can Trigger Obligations. There is no such thing as a “strictly confidential” disclosure of a disability that does not trigger child find obligations.
  • Child Find Continues During Remote. Districts must be aware of their Child Find obligations and ensure compliance with them including during periods of remote instruction. If Districts are unsure how to proceed with data gathering for the Child Find Process, they should contact their school attorney.
  • All Communication with Parents Matter. Districts must be clear and intentional in all staff communications and discussions with parents. This is imperative when discussing the possibility of a student disability and/or the option of evaluation. These issues may come up subtly or even as an afterthought at times. That, however, may not exempt the District from the Child Find obligation. Consequently, district personnel should be intentional to ensure to follow up with parents if there are any questions as to the possibility of disability and/or evaluation.

If you have questions regarding the compliance with Child Find obligations or about Special Education in general, contact the author of this alert or any Franczek attorney.