The student had reached 10th grade as a general education student with no 504 or IDEA plans in place. Then the grades went down and the student starting seeing a therapist for her anxiety and depression. The mother asked the school for help. She sent the school a note from a doctor suggesting that the anxiety was “significant enough that it might require special accommodations in her educational program.”
How would you advise the mother? Start with a 504 plan, and see how it goes? That’s what the California district did, and it turned out to be a mistake. The school psych advised the parent that we should “start with the 504 plan but to be aware that special education support may be necessary down the road.” He discussed special education services, but did not provide a copy of the state’s Procedural Safeguards document.
In November, the district developed a 504 plan noting that the student’s disability was anxiety. The plan noted also that “anxiety limits learning.” If things had improved after that, we would not be talking about this case. But they did not. Many teachers reported that the student failed to turn in work and often walked out of class for extended periods of time. By February, the student was vaping, smoking pot and drinking alcohol and her highest grade was a D. The 504 plan was not working. Near the end of April the mother learned from a special education attorney that she could ask for a special education evaluation. She did. The district did the evaluation and then determined that the student was not eligible.
A federal court in California has held that this was a Child Find violation. The court held that the student’s anxiety, depression, and declining grades were sufficient to create a suspicion that the student might need special education. The court noted that a 504 plan simply does not cut it:
However, adopting a 504 plan and implementing accommodations does not satisfy a school district’s obligations to conduct a special education assessment under the IDEA.
This case is an excellent illustration of why your 504 eligibility determinations should begin with this question: What is the “major life activity” we think is adversely impacted by a physical or mental impairment? In other words: what is the MLA we are concerned about? If the answer is “learning” or any of its first cousins (reading, thinking, concentrating) then we should 1) talk to the parents about IDEA; 2) provide the Procedural Safeguards document; and 3) either offer to do the IDEA evaluation, or provide Prior Written Notice explaining why we choose not to do so.
This does not mean that every child who is brought to your attention should be evaluated under IDEA. IDEA evaluations are triggered by a suspicion of a disability along with a suspicion of a need for changes in what or how the student is taught. A PWN explaining that we do not currently suspect the need for special education is often the right decision. If PWN is provided, along with the Procedural Safeguards, the district has satisfied its Child Find obligation.
Let’s remember that “learning” is the province of IDEA. Section 504 is an excellent vehicle for addressing other major life activities, but if the MLA of concern is “learning” we should be thinking about an IDEA evaluation, and we should be transparent with the parent in our decision making. Failure to do so can be construed as a Child Find violation. Notice that the 504 plan itself in this case indicated a concern over “learning.”
This case was not about dyslexia, but the analysis of the court illustrates precisely why Texas has changed its tune in how we serve students who may have dyslexia. If you have a suspicion of a physical or mental impairment (anxiety, dyslexia) that substantially limits the student in the major life activity of learning, we should be offering the parent an IDEA evaluation. This court could not have said it more plainly: a 504 plan does not satisfy your Child Find obligation.
It's N.N. v. Mountain View-Los Altos Union High School District, decided by the federal court for the Northern District of California on August 4, 2022. We will have more to say about this case later this week.
DAWG BONE: REPEAT AFTER ME: A 504 PLAN DOES NOT SATISFY YOUR IDEA CHILD FIND DUTY.
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Tomorrow: Toolbox Tuesday!!