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U.S. Department of Education: Promoting Educational Excellence for all Americans

Subpart D--Evaluations, Eligibility Determinations, Individualized Education Programs, and Educational Placements

Parental Consent[select]

Section 300.300, regarding parental consent, has been revised, as follows:

(1) Paragraph (a) of Sec. 300.300, regarding consent for initial evaluation, has been changed to provide that the public agency proposing to conduct an initial evaluation to determine if a child qualifies as a child with a disability must, after providing notice consistent with Sec. Sec. 300.503 and 300.504, obtain informed consent, consistent with Sec. 300.9, from the parent of the child before conducting the evaluation. A new paragraph (a)(1)(iii) has been added to require a public agency to make reasonable efforts to obtain the informed consent from the parent for an initial evaluation.

(2) Section 300.300(a)(3), regarding a parent's failure to provide consent for initial evaluation, has been changed to clarify, in a new paragraph (a)(3)(ii), that the public agency does not violate its obligation under Sec. 300.111 and Sec. Sec. 300.301 through 300.311 if it declines to pursue the evaluation.

(3) Section 300.300(b), regarding parental consent for services, has been modified by a new paragraph (b)(2) that requires a public agency to make reasonable efforts to obtain informed consent from the parent for the initial provision of special education and related services.

(4) Section 300.300(c)(1), regarding parental consent for reevaluations, has been modified to clarify that if a parent refuses to consent to a reevaluation, the public agency may, but is not required to, pursue the reevaluation by using the consent override procedures in Sec. 300.300(a)(3), and the public agency does not violate its obligation under Sec. 300.111 and Sec. Sec. 300.301 through 300.311 if it declines to pursue the evaluation or reevaluation.

(5) A new Sec. 300.300(d)(4) has been added to provide that if a parent of a child who is home schooled or placed in a private school by the parent at the parent's expense, does not provide consent for an initial evaluation or a reevaluation, or the parent fails to respond to a request to provide consent, the public agency (A) may not use the consent override procedures (described elsewhere in Sec. 300.300), and (B) is not required to consider the child eligible for services under the requirements relating to parentally-placed private school children with disabilities (Sec. Sec. 300.132 through 300.144).

(6) A new Sec. 300.300(d)(5) has been added to clarify that in order for a public agency to meet the reasonable efforts requirement to obtain informed parental consent for an initial evaluation, initial services, or a reevaluation, a public agency must document its attempts to obtain parental consent using the procedures in Sec. 300.322(d).

(originally published on December 1, 2008 – 73 FR 73006; effective date – December 31, 2008)

Section 300.300(b)(4) has been revised to require that parental revocation of consent for the continued provision of special education and related services must be in writing and that upon revocation of consent a public agency must provide the parent with prior written notice in accordance with Sec. 300.503.

Additional Procedures for Evaluating Children With Specific Learning Disabilities (SLD)[select]

Section 300.307 (Specific learning disabilities) has been revised, as follows:

(1) Proposed paragraph (a)(1) of Sec. 300.307, which allowed a State to prohibit the use of a severe discrepancy between intellectual ability and achievement for determining if a child has an SLD, has been removed, and proposed paragraph (a)(2) of Sec. 300.307 has been redesignated as paragraph (a)(1).

(2) Section 300.307(a)(2) (proposed paragraph (a)(3)) has been changed to clarify that the criteria adopted by the State must permit the use of a process based on the child's response to scientific, research-based intervention.

Section 300.308 (Group members) has been changed to require the eligibility group for children suspected of having SLD to include the child's parents and a team of qualified professionals, which must include the child's regular teacher (or if the child does not have a regular teacher, a regular classroom teacher qualified to teach a child of his or her age) or for a child of less than school age, an individual qualified by the SEA to teach a child of his or her age; and at least one person qualified to conduct individual diagnostic examinations of children, such as a school psychologist, speech-language pathologist, or remedial reading teacher. These are the same requirements in current Sec. 300.540.

Section 300.309 (Determining the existence of a specific learning disability) has been revised, as follows:

(1) Paragraph (a) of Sec. 300.309 has been changed (A) to clarify that the group described in 300.306 may determine that a child has a specific learning disability if the child does not achieve adequately for the child's age or to meet State-approved grade-level standards in one or more of eight areas (e.g., oral expression, basic reading skill, etc.), when provided with learning experiences and instruction appropriate for the child's age or State-approved grade-level standards; and (B) to add "limited English proficiency" to the other five conditions that could account for the child's learning problems, and that the group considers in determining whether the child has an SLD.

(2) Section 300.309(b) has been changed to clarify (A) that, in order to ensure that underachievement in a child suspected of having an SLD is not due to lack of appropriate instruction in reading or math, the group must consider, as part of the evaluation described in Sec. Sec. 300.304 through 300.306, data that demonstrate that prior to, or as a part of, the referral process, the child was provided appropriate instruction in regular education settings, delivered by qualified personnel, and (B) to replace (in paragraph (b)(1)) the term "high quality research-based instruction" with "appropriate instruction."

(3) Section 300.309(c) has been changed to provide that the public agency must promptly request parental consent to evaluate a child suspected of having an SLD who has not made adequate progress after an appropriate period of time when provided appropriate instruction, and whenever a child is referred for an evaluation.

Section 300.310, regarding Observation, has been revised, as follows:

(1) Paragraph (a) of proposed Sec. 300.310 has been revised (A) to remove the phrase "trained in observation, and (B) to specify that the public agency must ensure that the child is observed in the child's learning environment.

(2) A new Sec. 300.310(b) has been added to require the eligibility group to decide to (A) use information obtained from an observation in routine classroom instruction and monitoring of the child's performance that was done before the child was referred for an evaluation, or (B) have at least one member of the group described in Sec. 300.306(a)(1) conduct an observation of the child's academic performance in the regular classroom after the child has been referred for an evaluation and parental consent is obtained. Paragraph (b) of proposed Sec. 300.310 has been redesignated as new Sec. 300.310(c).

Section 300.311 (Written report) has been renamed "Specific documentation for the eligibility determination," and has been revised, as follows:

(1) Section 300.311(a)(5), regarding whether the child does not achieve commensurate with the child's age, has been modified and expanded to add whether the child does not achieve adequately for the child's age or to meet State-approved grade-level standards consistent with Sec. 300.309((a)(1), and (A) the child does not make sufficient progress to meet age or to meet State-approved grade-level standards consistent with Sec. 300.309(a)(2)(i), or (B) the child exhibits a pattern of strengths and weaknesses in performance, achievement, or both, relative to age, State-approved grade level standards or intellectual development consistent with Sec. 300.309(a)(2)(ii).

(2) Proposed Sec. 300.311(a)(6), regarding whether there are strengths or weaknesses or both in performance or achievement or both relative to intellectual development, has been removed.

(3) A new Sec. 300.311(a)(6) has been added to clarify that the documentation must include a statement of the determination of the group concerning the effects of visual, hearing, or motor disability, mental retardation, emotional disturbance, cultural factors, environmental or economic disadvantage, or limited English proficiency on the child's achievement level.

(4) A new Sec. 300.311(a)(7) has been added to provide that if the child has participated in a process that assesses the child's response to scientific, research-based intervention, the documentation must include the instructional strategies used and the student-centered data collected, and documentation that the child's parents were notified about (A) the State's policies regarding the amount and nature of student performance data that would be collected and the general education services that would be provided, (B) strategies for increasing the child's rate of learning, and (C) the parents' right to request an evaluation.

Individualized Education Programs[select]

Section 300.320 (Definition of IEP) has been revised in paragraph (a)(5) to replace "regular education environment" with "regular class," in order to be consistent with the language in the Act.

Section 300.321(e), regarding attendance at IEP Team meetings, has been revised to clarify that the excusal of IEP Team members from attending an IEP Team meeting under certain circumstances, refers to the IEP Team members in Sec. 300.320(a)(2) through (a)(5).

Section 300.322, regarding parent participation, has been revised to: (1) include, in Sec. 300.322(d), examples of the records a public agency must keep of its attempts to involve the parents in IEP meetings; (2) add a new Sec. 300.322(e), which requires the public agency to take whatever action is necessary to ensure that the parent understands the proceedings of the IEP meeting, including arranging for an interpreter for parents with deafness or whose native language is other than English; and (3) redesignate paragraph (e) as paragraph (f) accordingly.

Section 300.323(d) has been revised to require public agencies to ensure that each regular teacher, special education teacher, related services provider, and any other service provider who is responsible for the implementation of a child's IEP, is informed of his or her specific responsibilities related to implementing the child's IEP and the specific accommodations, modifications, and supports that must be provided for the child in accordance with the child's IEP. These are the same requirements in current Sec. 300.342(b)(3)(i) and (b)(3)(ii).

Section 300.323(e), regarding IEPs for children who transfer public agencies, has been revised to: (1) divide the provision into three separate paragraphs (Sec. 300.323(e), (f), and (g)) for purposes of clarity and improved readability (e.g., transfers within the same State, transfers from another State, and transmittal of records); (2) adopt "school year" in lieu of "academic year" as the term commonly used by parents and public agencies; and (3) adopt other modifiers (e.g., "new" and "previous") to distinguish between States and public agencies that are involved in transfers by children with disabilities.

Section 300.324(a)(4), regarding changes to an IEP after the annual IEP meeting for a school year, has been restructured into two paragraphs, and a new paragraph (a)(4)(ii) has been added to require the public agency to ensure that, if changes are made to a child's IEP without an IEP meeting, that the child's IEP Team is informed of the changes.

Section 300.324(b), regarding the review and revision of IEPs, has been changed to include a new paragraph (b)(2), to clarify that, in conducting a review of a child's IEP, the IEP Team must consider the same special factors it considered when developing the child's IEP.