        
                       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."
        
