School district's refusal to evaluate

Discussion in 'Special Ed 101' started by Sheila, Sep 26, 2007.

  1. Sheila

    Sheila Moderator

    I've recently seen a couple of mentions about school district's refusing to evaluate a child, so this may be timely info for some.

    See for all info. One excerpt:

    "...What happens if a school refuses to evaluate a child? In the fall of 1995, a landmark case about damages under Child Find was issued by the Court of Appeals for the Third Circuit. The case is W.B. v. Matula, 63 F.3d. 484 (3rd Cir. 1995).

    W. B. v. Matula, 63 F.3d. 484 (3rd Cir. 1995)

    Before E.J. entered first grade, his mother went to the school and shared concerns about her son with the school principal, Ms. Matula and others. The school did not offer any help. The mother continued to talk with school personnel, including the principal, the school nurse, the first and second grade teachers, and the guidance counselor for months. Despite the parent's repeated requests for help, the school refused to evaluate the child.

    Finally, the mother took E.J. to a private psychologist for an evaluation. The psychologist found that E.J. had several serious neurological problems. The school refused to reimburse Ms. B. for the independent evaluation that described serious problems that were affecting E.J.'s ability to learn. The school continued to stonewall, refusing to provide E.J. with any assistance.

    The mother requested a due process hearing to request reimbursement for the evaluation and to force the school to help her child. When E.J. entered second grade, the school was still withholding help.

    The case was appealed to the U. S. Court of Appeals for the Third Circuit. The Court found that monetary damages were available as a remedy under Section 504 of the Rehabilitation Act and under Section 1983. The Court held that there is nothing to suggest that relief under the law is limited in any way.

    The Court found that:

    Plaintiff, on behalf of her disabled child, seeks damages for the persistent refusal of certain school officials to evaluate, classify and provide necessary educational services.

    Despite resistance by school officials and following extensive administrative proceedings, the mother ultimately succeeded in having her child evaluated, classified as neurologically impaired and provided with special education services. Plaintiffs then sued for compensatory and punitive damages incurred in the period before the school agreed to provide these services.

    Despite the finding that E.J. suffered from ADHD and was thus entitled to Section 504 services, defendants did not provide them. Concerned that the evaluation had not fully assessed E.J., W.B. asked defendants to fund an independent evaluation. Defendants refused.

    This decision would not be complete without a comment on Mansfield's [Board of Education] seemingly endless attacks on the parent, W.B. Evidently, Mansfield believes not only that W.B. is overly persistent, but also that she is trying to wear down the district to obtain services to which E.J. is not entitled. In my view, however, W.B. was essentially correct about the major points in dispute in these proceedings including evaluation, classification and placement.

    Nonetheless, the district has consistently denied W.B.'s reasonable, appropriate, and meritorious requests related to E.J.'s education. The basic dynamic of this entire dispute is that the district has denied W.B.'s meritorious requests and W.B. has been left with no alternative to an enormously burdensome struggle in order to obtain E.J.'s rights under IDEA. In my view, the burden placed on W.B. was unnecessary, unwarranted and largely the product of the district's unwillingness to recognize and appreciate E.J.'s neurological impairments despite ample reliable evidence thereof.

    Among the specific conditions a state must satisfy is the requirement that it demonstrate that "all children residing in the State who are disabled, regardless of the severity of their disability, and who are in need of special education and related services are identified, located, and evaluated."

    This is known as the "child find" duty.

    To establish a violation of Section 504, plaintiffs must demonstrate that (1) E.J. is disabled as defined by the Act; (2) E.J. is "otherwise qualified" to participate in school activities; (3) the school or the Board receives federal financial assistance; and (4) E.J. was excluded from participation in, denied the benefits of, or subject to discrimination at, the school. Nathanson v. Medical College of Pennsylvania, 926 F.2d 1368, 1380 (3d Cir. 1991); 34 C.F.R. Section(s) 104.4(a).

    In addition, to be liable, defendants "must know or be reasonably expected to know of" E.J.'s disability. Nathanson, 926 F.2d at 1381. However, plaintiffs "need not establish that there has been an intent to discriminate in order to prevail under Section(s) 504." Id. at 1384. See Alexander v. Choate, 469 U.S. 287, 297 (1985).

    Neither the statutes nor regulations establish a deadline by which time children who are suspected of having a qualifying disability must be identified and evaluated, but we infer a requirement that this be done within a reasonable time after school officials are on notice of behavior that is likely to indicate a disability.

    Although we specifically announce the "reasonable time" requirement only today, we think the requirement is implicit in the "child find" duty and as such was clearly established in September 1991. First, the statutes and regulations enacting the "child find" duty clearly establish the obligation to identify and evaluate disabled children. Second, to hold otherwise -- to hold that the duty need not be discharged within a reasonable time -- would eviscerate that duty and thwart the undisputed legislative intent that disabled children be identified, evaluated, and offered appropriate services. It can come as no surprise to a reasonable school official that children must be located and evaluated within a reasonable time, and thus we conclude that a school official who failed to carry out his or her "child find" duty within a reasonable time "would understand that what he is doing violates that [duty].

    Note: In contrast to the decision in W.B. v. Matula, some courts have disallowed monetary damages in special education cases. Law is always changing and evolving...."