When Child Find activates, when MTSS becomes a delay, and how to document either decision. Texas-specific, with TAC, TEC, IDEA, OSEP, and OCR citations.
Child Find activates when the LEA has reason to suspect both:
The child has a disability, and
The child may need special education and related services as a result.
Federal standard:School Bd. of Norfolk v. Brown, 769 F. Supp. 2d 928 (E.D. Va. 2010); W.B. v. Matula, 67 F.3d 484 (3d Cir. 1995). A Child Find violation occurs when school officials "overlooked clear signs of disability and were negligent in failing to order testing, or there was no rational justification for not deciding to evaluate."
Note: "Reason to suspect" is a low bar. It does not require certainty, a confirmed diagnosis, or completion of MTSS tiers. It is the threshold at which the LEA's affirmative duty begins.
What Counts as "Reason to Suspect"
✓ Triggers Child Find duty
Parent expresses concern in writing to any administrator, teacher, or supervisor
Parent requests evaluation (any form — verbal or written, though written starts the 15-day clock)
Teacher or staff expresses specific concerns about a pattern of behavior or academic difficulty
Failure to respond to appropriate, fidelity-implemented MTSS interventions
Significant discipline data — repeated referrals, suspensions, removals
Failed dyslexia screener with continuing concerns (HB 1474)
Significant decline in performance or regression
Independent evaluation (IEE) presented to the district
✗ Not by itself a trigger
Single failing grade in one subject
One-time behavioral incident
Parent inquiry about general academic support (without disability concern)
Slow but measurable progress within Tier 2
New transfer student with limited cumulative data
Behavior tied to a documented situational stressor that resolves
A single yellow flag rarely triggers Child Find. Convergence of two or more, or any clear red flag (parent request, outside diagnosis, dyslexia screener fail with ongoing concern), typically does.
The "Reasonable Time" Doctrine
IDEA does not define a deadline between when Child Find is triggered and when consent must be requested. Courts have read in a "reasonable time" standard.
How courts have ruled: Delays of 10–18 months have been found unreasonable. Shorter delays may be reasonable if the LEA was actively gathering data, parent was non-responsive, or specific exceptions applied. The doctrine is fact-specific.
13 months — unreasonable (El Paso ISD v. Richard R., W.D. Tex. 2008)
18 months — Section 504 violation (Harrison School District Two, OCR 2011)
The 15-school-day and 45-school-day Texas clocks (next tab) only begin once a written request is made or consent is signed. Before that, the federal "reasonable time" doctrine governs.
The Core Rule
OSEP 2011 Memorandum to State Directors of Special Education: "It would be inconsistent with the evaluation provisions… for an LEA to reject a referral and delay the provision of an initial evaluation on the basis that a student has not participated in an RTI framework." OSEP Memo 11-07
MTSS and Child Find are not mutually exclusive. They can run simultaneously. What MTSS cannot do is gate-keep an evaluation when there is reason to suspect a disability.
The Parent's Absolute Right
Regardless of where a student is in the MTSS process, a parent may request an initial evaluation at any time. The LEA must either:
Honor the request and seek consent, or
Issue Prior Written Notice (PWN) of refusal to evaluate, with rationale.
The LEA cannot simply continue MTSS in lieu of responding. 34 CFR §300.50334 CFR §300.301(b)
Stone County (MS) OCR (2008): District was not required to evaluate a student responding to RTI — but was found in violation of Section 504 for failing to notify the parent of its decision not to evaluate and failing to provide procedural safeguards. Decline if appropriate, but you must always respond formally.
Common Campus Pushback — and the Correct Response
What you may hear
What it actually requires
"We need 6–8 more weeks of Tier 2 before we can refer."
If a disability is suspected and a need for special education is suspected, MTSS completion is not a prerequisite. OSEP 2011 directly addresses this.
"She's making progress on her interventions, so she doesn't qualify."
Progress within MTSS does not bar an evaluation when disability is suspected. Eligibility is determined by the evaluation, not by MTSS data alone.
"We haven't done all the tiers yet."
Tier completion is not a Child Find prerequisite. Texas TAC §89.1011 does not condition referral on exhaustion of MTSS.
"He's passing his classes."
Passing grades do not bar Child Find. 34 CFR §300.111(c)(1) explicitly preserves the duty for students advancing grade to grade. Consider impact, accommodations effect, and masking.
"The parent didn't put it in writing."
A verbal concern still creates "reason to suspect." Document it, follow up in writing with the parent, and treat it as a referral trigger.
"We're collecting MTSS data first."
MTSS data may inform the evaluation, but the evaluation itself must proceed within reasonable time. MTSS and FIE can run in parallel.
"Her behavior is a discipline issue, not a disability."
Significant discipline data is itself a Child Find signal — especially when paired with a known diagnosis or pattern. See Jackson v. Northwest Local.
When MTSS Is Appropriate to Continue (Without Referral)
✓ MTSS may continue
No parent request
No outside diagnosis presented
Student making documented, measurable progress
Concerns are recent and limited in scope
Intervention has been implemented with documented fidelity for an appropriate duration
Pattern of teacher concerns across settings or time
Lack of response to appropriate interventions
Significant discipline data, including suspensions
Failed dyslexia screener with continuing concerns
Combination of yellow flags converging
Texas-Specific Statutory Clocks
Day 0
Written parental request for evaluation received by the district.
Trigger event for the 15-school-day response clock.
Within 15 school days
LEA must respond — either provide written notice of consent for evaluation, or PWN refusing to evaluate.
TEC §29.0041(a)
Day 0 (consent)
Parent signs consent for evaluation. The 45-school-day clock begins.
TEC §29.004
Within 45 school days
FIE must be completed and the written report provided to parent.
TEC §29.004(a) · See exceptions below.
Within 30 calendar days of FIE completion
ARD committee must convene to consider the evaluation results.
34 CFR §300.323(c)(1)
Exceptions to the 45-School-Day Clock
The clock pauses (or is extended) in specific circumstances. Texas Education Code permits exceptions when:
The student is absent for three or more school days during the evaluation period
The student transfers to another district before the evaluation is complete
A parent or adult student repeatedly fails or refuses to make the student available
The consent is received within 35 school days of the end of the school year (extends into the next year — must be completed by the 30th instructional day of the next school year)
Always document the exception in writing and notify the parent. Exceptions are not informal — they require specific Texas-compliant documentation. Reference: TEC §29.004(a-1)
The Gap Before the Clocks Start
The Texas statutory clocks only start at written request or signed consent. Before those points, federal "reasonable time" doctrine governs.
Practical implication: Don't sit on a known concern just because no one has written it down yet. If you have "reason to suspect" — from a teacher, a screener, a parent verbal concern, or convergent data — your Child Find obligation has already been triggered. Move to formalize the referral promptly.
Disciplinary Removals — Expedited Evaluation
When a student is facing disciplinary action that would constitute a change of placement (more than 10 school days of removal in a school year) and the LEA has reason to suspect a disability, an expedited evaluation may be required regardless of MTSS status. 34 CFR §300.530–.537Letter to Combs (OSEP 2008)
Primary Federal Guidance
OSEP — U.S. Department of Education, Office of Special Education Programs
2011 Memorandum to State Directors of Special Education (OSEP Memo 11-07) — the foundational statement that RTI cannot be used to delay or deny an initial evaluation when disability is suspected.
2007 Q&A on Response to Intervention (RTI) and Early Intervening Services (EIS) — clarifies RTI as one tool among many, not a substitute for comprehensive evaluation.
Letter to Zirkel (2007, 2008, 2011) — states cannot prohibit RTI use, cannot require severe discrepancy exclusively, and RTI data should be considered when used.
Letter to Combs (2008) — expedited disciplinary evaluation supersedes ongoing RTI process.
OCR — U.S. Department of Education, Office for Civil Rights
Polk County (FL) Public Schools (2010) — Section 504 violation; district required parent to wait for RTI completion before evaluating despite ADHD documentation.
Harrison School District Two (CO) (2011) — Section 504 violation; 18-month delay during RTI while student's behaviors deteriorated.
Stone County (MS) School District (2008) — District not required to evaluate student responding to RTI, but violated Section 504 by failing to provide PWN and procedural safeguards.
Key Court Decisions
W.B. v. Matula, 67 F.3d 484 (3d Cir. 1995)
Established the "reasonable time" doctrine — Child Find obligations must be met within a reasonable time of notice of behavior suggesting disability.
Forest Grove School District v. T.A., 557 U.S. 230 (2009)
Child Find violations constitute procedural violations of IDEA; tuition reimbursement available even when student was never previously eligible.
School Bd. of Norfolk v. Brown, 769 F. Supp. 2d 928 (E.D. Va. 2010)
Child Find procedural violation standard: parent must show "school officials overlooked clear signs of disability and were negligent in failing to order testing, or that there was no rational justification for not deciding to evaluate."
Michael P. v. Department of Education, 656 F.3d 1057 (9th Cir. 2011)
Hawaii violated IDEA by requiring exclusive use of severe discrepancy model. States cannot prohibit RTI as a method of SLD identification.
Daniel P. v. Downingtown Area School District, 2011 WL 4572024 (E.D. Pa.)
RTI use upheld where student was making documented progress and the district timely identified eligibility when progress stalled. Demonstrates RTI and Child Find can coexist when implemented faithfully.
Jackson v. Northwest Local School District, 2010 WL 3452333 (S.D. Ohio)
District unduly delayed evaluation of ADHD student — suspended him rather than evaluating despite mounting behavioral concerns. Child Find violation.
Meriden School District (Ill. Hearing Officer 2010)
RTI process that collected no progress monitoring data over several months violated Child Find. RTI is not a Child Find shield without documented fidelity.
Ms. H. v. Montgomery County Board of Education, 784 F. Supp. 2d 1247 (M.D. Ala. 2011)
Court rejected SLD eligibility based on convergent factors — attendance, attitude, and grades attributable to non-disability causes. Demonstrates Child Find requires "reason to suspect disability" — not all academic struggle qualifies.
Texas-Specific Authority
19 TAC §89.1011 — Referral for Full Individual and Initial Evaluation
TEC §29.004 — Evaluation timeline (45 school days from consent)
TEC §29.0041 — 15-school-day response to written parental request
19 TAC §89.1040 — Eligibility criteria for all 13 categories
TEA Guidance for the Comprehensive Evaluation of SLD (2025) — convergent evidence standard
When the FIE follows a period of MTSS, the evaluation should document what was tried, with what fidelity, and what the data showed. This protects the evaluation from later challenge.
MTSS history — progress noted
Prior to referral for evaluation, [Student] received [tier level] intervention in [area] for approximately [duration]. Progress monitoring data collected weekly indicated [pattern of response]. Despite intervention implemented with documented fidelity, [Student] continued to demonstrate concerns in [specific skill areas], suggesting a comprehensive evaluation was warranted to investigate the presence of a suspected disability.
MTSS history — minimal data available
[Student]'s pre-referral intervention history was reviewed. Available data from [source] documented [brief summary]. Given [trigger — parent request / outside diagnosis / etc.], the evaluation team determined that proceeding with comprehensive evaluation was appropriate to investigate the suspected disability without further delay.
MTSS history — concurrent with FIE
[Student] received Tier [X] intervention concurrently with the special education evaluation. Intervention data was reviewed as one of multiple data sources informing the determination of eligibility, consistent with the convergent evidence framework articulated in TEA's Guidance for the Comprehensive Evaluation of SLD (2025).
Child Find Decision Rationale — When Proceeding
Documenting the trigger
On [date], [trigger source — parent / teacher / screener / outside provider] expressed concern regarding [Student]'s performance in [domain(s)]. Review of cumulative data, including [specific sources], indicated a reasonable basis to suspect [Student] may have a disability and may need special education and related services. The evaluation team will conduct a comprehensive Full Individual Evaluation in the following suspected areas: [list].
PWN Language — Declining to Evaluate
When the district has been asked to evaluate but determines there is no reason to suspect a disability, Prior Written Notice is required. The notice must explain the decision and the data underlying it.
PWN — declining initial evaluation
The district has reviewed [list specific data sources — academic records, MTSS data, teacher input, parent input, screener results, etc.] and, at this time, does not have reason to suspect [Student] has a disability that adversely affects educational performance and creates a need for specialized instruction. The basis for this decision includes [specific findings]. The district will continue [current supports / interventions / monitoring] and will reconsider this decision if [conditions — new concerns, lack of response, additional information from parent]. Parents retain the right to request evaluation at any time and to seek an Independent Educational Evaluation. Procedural safeguards are enclosed.
Do not issue a PWN of refusal solely on the basis that MTSS is incomplete. The PWN must address the substantive question — whether disability is suspected — based on the data the district has, not on what MTSS data the district has not yet gathered.
Parent Communication — MTSS Continuation
Email — MTSS update with parent rights notice
Thank you for sharing your concerns about [Student]. The campus team would like to continue current interventions and gather additional data over the next [X] weeks. We will share progress with you on [date]. Please know that, as [Student]'s parent, you have the right to request a full special education evaluation at any time, regardless of where we are in the intervention process. If you would like to request an evaluation, please contact [name] in writing. The district will respond within 15 school days as required by Texas Education Code §29.0041.
Internal Documentation — Decision File
When a Child Find question arises and the team decides not to evaluate at this time, maintain an internal record documenting:
Date the question was raised and by whom
Data reviewed by the team
The team's reasoning (specific to "reason to suspect" — not a generic statement)
What ongoing monitoring or interventions are in place
What conditions would trigger reconsideration
That PWN was issued (if the question came from a parent request)
A thin documentary record is the most common weakness in Child Find defense. Even when the decision is correct, undocumented decisions look like avoidance in hindsight.