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

Request for initial evaluation (Sec. 300.301(b))

Comment: Several commenters recommended that teachers and related services providers be included as individuals who can refer a child for an initial evaluation. A few commenters requested clarification as to whether States can authorize other individuals who are acting on behalf of a public agency (e.g., family court, probation officers, staff from other public agencies) to refer a child for an initial evaluation, and whether individuals responsible for protecting the welfare of a child who are not acting on behalf of an SEA or LEA, such as physicians and social workers, can refer a child for an initial evaluation.

Discussion: Section 614 (a)(1)(A) of the Act provides that an SEA, other State agency, or LEA shall conduct a full and individual evaluation of a child before the provision of special education and related services. In Sec. 300.301(a), we interpret this language as requiring public agencies, as that term is defined in Sec. 300.33, to conduct evaluations, because those are the only agencies in the State responsible for providing FAPE to eligible children. The same language is used in section 614(a)(1)(B) of the Act to describe the agencies that may initiate a request for an initial evaluation to determine if a child is a child with a disability. We similarly interpret this language to be referring to the entities that are public agencies under Sec. 300.33. Therefore, Sec. 300.301(b) states that either a parent or a public agency may initiate a request for an initial evaluation. The language does not include employees of SEAs or LEAs (e.g., teachers and related services providers), unless they are acting for the SEA or LEA, or of other State agencies (e.g., probation officers, social workers, or staff from State agencies that are not public agencies as defined in Sec. 300.33).

The requirements in Sec. 300.301(b) pertain to the initiation of an evaluation under Sec. Sec. 300.301 through 300.305 and should not be confused with the State's child find responsibilities in Sec. 300.111 and section 612(a)(3) of the Act. The child find requirements permit referrals from any source that suspects a child may be eligible for special education and related services. Child find activities typically involve some sort of screening process to determine whether the child should be referred for a full evaluation to determine eligibility for special education and related services. Therefore, persons such as employees of the SEA, LEA, or other public agencies responsible for the education of the child may identify children who might need to be referred for an evaluation. However, it is the parent of a child and the public agency that have the responsibility to initiate the evaluation procedures in Sec. Sec. 300.301 through 300.311 and section 614 of the Act.

Changes: None.

Comment: Several commenters stated that the regulations should clarify that the 60-day timeframe in Sec. 300.301(c) to complete an evaluation does not begin if a parent requests an initial evaluation, the LEA denies the request, and the parent challenges the LEA's decision in a due process hearing.

Discussion: We believe the regulations already address the commenters' concern. Section 300.301(b) provides that a parent may initiate a request for an initial evaluation to determine if the child is a child with a disability. If the public agency agrees to conduct the evaluation, Sec. 300.304(a) requires the public agency to provide notice to the parents, in accordance with Sec. 300.503, that describes any evaluation procedures that the agency proposes to conduct. The public agency must obtain informed consent for the evaluation, consistent with Sec. Sec. 300.9 and 300.300, prior to conducting the evaluation. The 60-day timeframe begins when the public agency receives the consent for evaluation.

If, however, the public agency does not suspect that the child has a disability and denies the request for an initial evaluation, the public agency must provide written notice to the parents, consistent with Sec. 300.503(b) and section 615(c)(1) of the Act, which explains, among other things, why the public agency refuses to conduct an initial evaluation and the information that was used as the basis to make that decision. The parent may challenge such a refusal by requesting a due process hearing, but the timeline for conducting the evaluation does not begin prior to parental consent for evaluation. A parent would not be able to give consent under this part without knowing what specific evaluation procedures the public agency is proposing to conduct.

Changes: None.

Comment: A few commenters recommended that the regulations clarify whether a public agency has the right to deny a parent's request for an initial evaluation.

Discussion: The regulations are sufficiently clear on this point. Section 300.503(a), consistent with section 615(b)(3) of the Act, provides that a public agency may refuse to initiate or change the identification, evaluation, or educational placement of the child, or the provision of FAPE to the child, if the public agency provides written notice. This includes situations in which a public agency wishes to deny a parent's request for an initial evaluation. The written notice must meet the requirements in Sec. 300.503(b). Thus, for situations in which a public agency wishes to deny a parent's request for an initial evaluation, the written notice would provide, among other things, an explanation of why the public agency refuses to conduct an initial evaluation and the information that was used to make that decision. A parent may challenge the public agency's refusal to conduct an initial evaluation by requesting a due process hearing.

Changes: None.