What would you do in this situation? The student was served pursuant to Section 504. The annual 504 Team meeting is coming up. The parent forwarded to the school an email he had received from the child’s private psychologist. It read:
We understand that with her specific diagnoses A.B. [the student] qualifies as OHI and is eligible for an IEP—is tutoring covered by her IEP? Is there something that is covered by an IEP that can benefit her?
The parent informed the school that he wanted to discuss the topics raised by the psychologist when the 504 Team met. The court doesn’t tell us what happened at the 504 meeting, but it’s clear what did not happen. The school did not offer to evaluate A.B’s eligibility for special education, did not provide a copy of the Procedural Safeguards, and did not provide a Prior Written Notice explaining why it chose not to look into the student’s eligibility.
Loyal Daily Dawg Readers know where this is headed. The 4th Circuit held that the email along with the parent’s request to discuss it triggered the district’s Child Find duty. The district should have given the parent’s the Procedural Safeguards document along with either 1) a consent form for the evaluation; or 2) a Prior Written Notice explaining why it was declining to do an evaluation.
Defending the district’s failure to act, the lawyer for the district argued that the parent never specifically asked for an IDEA evaluation. The court had little trouble with that line of argument, noting that “magic words” were not required, and that it should have been obvious to public school educators that the parent was asking if his child was eligible for special education.
What about the fact that the parent knew his rights under 504? The court held that 504 rights and IDEA rights are different. When Child Find is triggered under IDEA it’s the IDEA rights that must be explained.
Because of the district’s failure to act, the court held that the statute of limitations had not begun to run. So even though the parent’s initial request for due process hearing came later than allowed under the statute, that didn’t matter. The court held that the district improperly withheld important information from the parent.
It’s Charlotte-Mecklenburg County BOE v. Brady, decided by the 4th Circuit Court of Appeals on April 19, 2023. It’s located at 2023 WL 2994168 and will be published in the Federal Reporter.
DAWG BONE: LOOK AT THE COMMON SENSE OF THE SITUATION. WHAT IS THE PARENT ASKING ABOUT?
Got a question or comment for the Dawg? Let me hear from you at jwalsh@wabsa.com.