Two weeks ago the 5th Circuit issued an important decision with implications for general and special educators. Because of the significance of the case, and the number of key legal issues it addresses, we are going to spend all week on O.W. v. Spring Branch ISD. Today, we take up one specific component of the Child Find responsibility.
The issue is this: once the school has notice that the student may have a disability, how long does the school have to begin the process by making a referral for testing? We know exactly how long we have to conduct an evaluation after the parent has given consent for it—that timeline is spelled out in the law. But let’s consider what happens before that. Suppose you have clear indications that the student may have a qualifying disability. Do we have to refer the child that day? Within a week? A month? What’s the timeline?
Courts have the luxury of looking backward and pinpointing a specific date when the district was “on notice.” In the hectic rush of day to day schooling, it’s rarely that clear. In this case, the court concluded that the district had notice of a possible disability by October 8, 2014. That was the date when the school held a 504 meeting, declared the student eligible for a 504 plan and began implementing a BIP (Behavior Intervention Plan).
The school implemented that 504 plan for the rest of that fall semester, but by January 15, 2015, the school concluded that more extensive services might be needed. Thus on that date the school initiated a referral for a Full Initial Individual Evaluation (FIIE)—the first step toward determining the student eligible for an IEP.
So there is your timeline: we have “notice” of a possible need for special education on October 8th. We refer for testing on January 15th. That’s 99 days. Is that OK?
The court noted that the law did not provide a specific timeline, so we look to the standard of “reasonableness.” How long of a delay is “reasonable”? Courts look to their earlier decisions to decide issues like this. Here, there were two cases that were relevant. In Dallas ISD v. Woody the 5th Circuit held that a delay of 89 days was reasonable. But in Krawietz v. Galveston ISD the 5th Circuit held that four months (120 days) was too long. So 89 days is OK; 120 is not OK. How about 99?
The court did not base its decision on a specific number. Instead, the overall reasonableness of the actions of the school would be the decisive factor. Here is the key holding:
Taken together, Krawietz and Woody stand for the proposition that the reasonableness of a delay is not defined by its length but by the steps taken by the district during the relevant period. A delay is reasonable when, throughout the period between notice and referral, a district takes proactive steps to comply with its child find duty to identify, locate, and evaluate students with disabilities. Conversely, a time period is unreasonable when the district fails to take proactive steps throughout the period or ceases to take such steps.
So what “proactive steps” did the district take from October 8th to January 15th? In accordance with our state regulations, the district attempted regular behavioral interventions—specifically RtI, Response to Intervention. The Texas Administrative Code requires schools to consider general education interventions, including RtI “prior to” making a referral for special education testing.
The 5th Circuit rode roughshod over that regulation, noting that RtI strategies “cannot be used to delay or deny the provision of an “cannot be used to delay or deny the provision of an [evaluation] .” The court did not say that RtI would never be an appropriate “proactive step” but only that it should have been obvious that it wasn’t going to work in this case. Key Quote:
The record in this case reflects that as of the October 8 notice date, the School District had attempted to engage with O.W. and his parents for the purpose of offering positive incentives and that such attempts had utterly failed to improve O.W.’s behavior.
Thus the court concluded that “the continued use of behavioral interventions was not a proactive step toward compliance with the School District’s child find duties and that, therefore, a child find violation occurred.
This is a 5th Circuit decision that sends a strong message. A 504 plan is not an adequate substitute for a student who needs “specially designed instruction” under IDEA. RtI cannot justify the delay of a referral of a student demonstrating signs of a disability under IDEA.
The case is Spring Branch ISD v. O.W., decided by the 5th Circuit on September 16, 2019. We found it at 2019 WL 4401142. More on this case tomorrow.
DAWG BONE: IT’S SAFER (LEGALLY) TO MAKE THAT IDEA REFERRAL SOONER RATHER THAN LATER.
Tomorrow: the 5th Circuit addresses some Toolbox issues!