What to do after the “trigger date”…..

The term “trigger date” has now entered our lexicon, and I think you will be relieved to hear that it has nothing to do with firearms.  “Trigger date” is the term used by the 5th Circuit for that point in time when the school should start to do something to address the possibility that a student may need special education. 

Let’s consider two scenarios, one of them very clear, and the other one murky.  In the first, the parent requests a special education evaluation. Let’s say the parent does that today, and there is no ambiguity about what the parent has asked for: “I would like you to conduct a full, initial, individualized evaluation of my child to determine if special education services are needed.”  In that scenario the “trigger date” is crystal clear.  It’s today.  Furthermore, the school’s legal responsibility is equally clear. Within 15 school days the school must seek parent consent to do the evaluation, or give “prior written notice” to explain why it will not do that. Looking at the calendar, I see that 15 school days after today is Friday, September 24th.  By that date, the school should have responded. Let’s assume the school was a week ahead of that deadline, and provided the parent with a consent form on September 17.  Let’s assume the parent sat on it over the weekend, but turned it in on Monday, September 20.  Now you have a new timeline—your FIIE must be done within 45 school days of September 20th.  This is going be somewhere close to Thanksgiving.

In the second, messier scenario, the parent never made that straightforward kind of request.  But later, the parent alleges that the school was “on notice” that something needed to be done.   The parent accuses the school of missing signs of disability and failing in its responsibility to refer the student for an evaluation.  This is where the courts use the term “trigger date” which the 5th Circuit defines as follows:

A school district’s child find duty is triggered when the district “had reason to suspect the child had a qualifying disability.”  Dallas ISD v. Woody, 865 F.3d 303, 320 (5th Cir. 2017).  Although there is no bright-line rule, a school district generally has sufficient notice if it is aware of facts suggesting the child has a disability and that the child is struggling academically. 

In the cool logic of the law, the courts apply this standard:

Ultimately, our evaluation of a school district’s compliance with the child find mandate “turns on three inquiries: 1) the date the child find requirement was triggered due to notice of a likely disability; 2) the date the child find duty was ultimately satisfied; and 3) the reasonableness of the delay between these two dates.”

In the recent case, the court upheld the hearing officer’s view that the “trigger date” was April 27, 2017.  The district satisfied its obligation when it obtained parent consent for an evaluation, but that didn’t happen until October 19, 2017. That’s almost six months later. Was that a reasonable delay?   No.  The court held that this was too long, and it was not entirely attributable to summer break.  There was a 504 plan in place, but the court found that it was not producing good results. Moreover, the court relied on the 504 plan, in part, to establish that the school was aware of “facts suggesting the child has a disability and that the child is struggling academically.”

It’s a lot easier for a hearing officer to pinpoint a “trigger date” months or years later, based on records and testimony. It’s a lot harder to spot it in the hustle and bustle of everyday schooling.  But that’s the task.  Notice that the “trigger” happens based on a “suspicion”—not a certainty. But it has to involve a suspicion of two things: both a qualifying disability, and a need for specially designed instruction.

It’s D.C. v. Klein ISD, decided by the 5th Circuit in an unpublished opinion on June 17, 2021.  We found it at 2021 WL 2492842.