District Failed Child Find for Student with Learning Disability, Owes 72 Hours of Tutoring

What Happened

A nine-year-old girl in Rosedale Union Elementary School District was identified as performing well below grade level in reading from the very start of second grade in August 2011. Her teacher provided classroom accommodations, and the district placed her in progressively more intensive general education reading intervention tiers (called RTI — Response to Intervention). Despite six months of this intervention, the student made only minimal and inconsistent progress: her reading scores barely budged, she earned failing or below-grade-level marks in reading and language arts every quarter, and she scored in the "far below basic" range on the state standardized test. Yet the district's data team, when it finally convened in May 2012, decided to wait even longer — until fall 2012 — to see if the student would respond to yet another tier of intervention before referring her for special education assessment. The district did not actually begin the assessment process until the mother sent a written email requesting one on November 1, 2012. The student was ultimately found eligible for special education under the category of Specific Learning Disability (SLD) in February 2013 — well over a year after the warning signs were clear.

The mother filed for due process in August 2013, raising four issues: (1) that the district violated its "child find" duty by not assessing the student earlier; (2) that the district failed to act on a verbal assessment request the mother claimed to have made in October 2011; (3) that the district blocked meaningful parental participation in IEP decision-making; and (4) that the district unilaterally changed the student's placement at the start of the 2013-2014 school year by dis-enrolling her due to a residency paperwork mix-up. The ALJ ruled in the family's favor only on the child find issue, awarding 72 hours of compensatory one-on-one reading tutoring.

What the District Did Wrong

1. Violated child find obligations starting February 7, 2012. By February 2012, the district had clear evidence that the student was struggling: she was "well below average" on district-wide benchmarks, her report cards showed consistent below-grade-level performance in reading and math, and six months of reading intervention had produced only minimal, inconsistent gains. At that point, the district was legally required to suspect a disability and initiate a special education assessment — regardless of whether the parent had asked. Instead, the district continued to move the student through RTI tiers and ultimately decided in May 2012 to delay assessment further until fall 2012 to "wait and see." That delay lasted until the mother's written request in November 2012. The ALJ found this "wait and see" approach was not permissible under the IDEA and that a timely assessment in February 2012 would have resulted in a finding of SLD eligibility, meaning the student went without needed special education services for approximately one full year.

2. Used RTI as a reason to delay — which is not allowed. The district argued it was reasonable to require students to complete all three RTI tiers before referring them for special education. The ALJ rejected this, noting the district offered no legal support for that policy and that the IDEA prohibits using an RTI approach as a basis to delay assessment of a student suspected of having a disability.

What the ALJ Found

The district prevailed on three of the four issues:

• Verbal assessment request (Issue 2): The ALJ found the evidence did not support the mother's claim that she verbally requested a special education assessment in October 2011. District staff credibly testified they would have followed up on any such request, and the mother's own pattern of emailing the teacher made it unlikely she would have left a verbal request unfollowed-up in writing.
• Parental participation (Issue 3): Once the formal assessment process began in November 2012, the district gave the mother meaningful opportunities to participate — including three IEP meetings, responding to her requests for additional assessment areas, providing assessor credentials, and modifying goals at her suggestion. The IDEA does not require parental participation in RTI decisions made before a student is identified as eligible for special education.
• Unilateral placement (Issue 4): The dis-enrollment at the start of the 2013-2014 school year resulted from a misunderstanding about an inter-district transfer permit expiration and a residency documentation issue — not a unilateral district decision. The student was re-enrolled within a few hours of the first day of school, which was not a material denial of FAPE.

What Was Ordered

1. 72 hours of one-on-one reading tutoring through a Non-Public Agency (NPA) of the family's choosing, as compensatory education for the roughly six months the student was denied special education services due to the district's delayed child find.
2. The family must notify the district of their chosen NPA within 15 days of the decision.
3. The district must contract with the NPA within 30 days of receiving the family's choice.
4. The compensatory tutoring hours must be used by January 31, 2015, or they are forfeited. The district's obligation also ends if the student is no longer enrolled in a district school.
5. The district is not responsible for transportation to access the compensatory tutoring.
6. All other requests for relief were denied.

Why This Matters for Parents

1. Don't wait for the district to act — put your assessment request in writing immediately. The mother in this case claimed she made a verbal request in October 2011, but couldn't prove it. The ALJ sided with the district's staff. Always follow up any verbal request with a dated written letter or email saying: "I am requesting a comprehensive special education assessment for my child." Keep a copy.

2. RTI is not a substitute for special education assessment. Districts cannot legally require your child to "fail" through every level of general education intervention before referring them for special education. If your child has been in intervention for several months with little progress, you can demand an assessment now — the law supports you.

3. Child find is the district's duty, not just yours. The district is legally obligated to identify students who may have disabilities, even without a parent request. If your child has consistently low grades, poor test scores, and minimal response to interventions, the district should already be acting. If they aren't, cite the child find obligation (20 U.S.C. § 1412(a)(3)) in your written request.

4. Document everything — meetings, phone calls, and conversations. The ALJ could not credit the mother's account of a verbal assessment request because there was no written follow-up. After every meeting or phone call with school staff, send a brief confirming email: "This summarizes our conversation today…" This creates a paper trail that protects you.

5. Compensatory education is calculated from when the district should have acted, not when you finally got services. The 72 hours awarded here was based on the six months between when the district should have assessed (February 2012) and when an IEP finally would have been in place. If your district delayed identifying your child, you may be entitled to compensatory services for the full period of that delay — not just a token amount.