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

Exception (Sec. 300.301(d))

Comment: Numerous commenters requested clarification regarding whether the 60-day timeframe for initial evaluations could be extended by mutual agreement between the parent and the public agency. A few commenters asked whether the 60-day timeframe could be extended for reasons other than the exceptions listed in Sec. 300.301(d), and whether a State could include other exceptions in its State policies and procedures.

Discussion: Congress was clear in limiting the exceptions to the 60-day timeframe to the situations in section 614(a)(1)(C)(ii) of the Act. Therefore, we do not believe it is appropriate to include in the regulations other exceptions, such as permitting a parent and a public agency to mutually agree to extend the 60-day timeframe or to include exceptions to the timeframe, that would be in addition to those in the Act and listed in Sec. 300.301(d). However, the Act gives States considerable discretion with a State-adopted timeframe. A State could adopt a timeframe of 60 days or some other number of days, with additional exceptions.

Changes: None.

Comment: A number of comments were received requesting clarification on the provision in Sec. 300.301(d)(1), which allows an extension of the 60-day or State-established timeframe to complete an initial evaluation if the parent of a child repeatedly fails or refuses to produce the child for an evaluation. A few commenters asked whether the exception applies when a child is not available because of absences on the days the evaluation is scheduled. Several commenters stated that "produce" does not necessarily mean the child's physical presence in school. Other commenters requested that the regulations define "repeatedly fails" and "refuses to produce" so that LEAs do not have to engage in exhaustive efforts to obtain access to the child to complete the evaluation.

One commenter recommended that the regulations clarify that an LEA must document that it has made several attempts to address the parent's concerns and clarify any confusion the parent may have about the evaluation, as well as address issues that make it difficult for the parent to bring the child to a scheduled evaluation, such as lack of transportation and childcare.

Discussion: Section 300.301(d) follows the specific language in section 614(a)(1)(C)(ii)(II) of the Act. We do not believe it is appropriate or reasonable to define "repeatedly fails" or "refuses to produce" because the meaning of these phrases will vary depending on the specific circumstances in each case. For example, situations in which a child is absent on the days the evaluation is scheduled because the child is ill would be treated differently than if a parent repeatedly fails to keep scheduled appointments. Similarly, situations in which a parent fails to keep scheduled appointments when a public agency repeatedly schedules the evaluation to accommodate the parent's schedule would be treated differently than situations in which a public agency makes no attempt to accommodate a parent's schedule.

We do not believe it is necessary to clarify that an LEA must document that it has made several attempts to address a parent's concerns and issues about the evaluation. As a matter of practice, LEAs attempt to address parent's concerns and issues prior to scheduling an evaluation because repeated cancellations of appointments or repeated failures to produce the child for an evaluation are costly in terms of staff time and effort.

Changes: None.

Comment: Numerous commenters recommended that there be an exception to the 60-day timeframe when a child transfers to a new school before an evaluation is completed.

Discussion: The exception referred to by the commenters is already in the regulations. Section 300.301(d)(2), consistent with section 614(a)(1)(C)(ii)(I) of the Act, states that the 60-day or State-established timeframe does not apply when a child transfers to a new school before an evaluation is completed, if the new public agency is making sufficient progress to ensure prompt completion of the evaluation, and the parent and new public agency agree to a specific time when the evaluation will be completed. While the exception to the 60-day timeframe, as stated in section 614(a)(1)(C)(ii)(I) of the Act and paragraph (d)(2) of this section, only applies when a child transfers to a school located in another public agency, we do not believe the language in paragraph (d)(2), as proposed in the NPRM, is necessarily clear on this matter. We, therefore, have added language in paragraph (d)(2) to provide additional clarity. We believe it is important that it is understood that the 60-day or State-established timeframe does not apply when a child transfers from one school to another school in the same public agency. When a child transfers from one school to another school in the same public agency, we expect that an initial evaluation will be conducted within 60 days of receiving parental consent for the evaluation, or within the State-established timeframe.

Changes: We have added language to Sec. 300.301(d)(2) to clarify that the exception to the 60-day or State-established timeframe only applies when a child transfers to a new school located in another public agency.

Comment: Several comments were received on the provision in new Sec. 300.301(e) (proposed Sec. 300.301(d)(2)(ii)) that allows an exception to the 60-day or State-established timeframe, only if the new public agency is making sufficient progress to ensure a prompt completion of the evaluation and the parent and new public agency agree to a specific time when the evaluation will be completed. One commenter stated that schools would be unable to meet the 60-day timeframe for children who transfer from another public agency if the new public agency has not been notified of the evaluation timeframe. Another commenter recommended that exceptions to the 60-day timeframe should not be permitted because the term "sufficient progress" is not defined. A few commenters requested that the regulations define "sufficient progress."

One commenter stated that there might be legitimate reasons for not completing an evaluation within the 60-day timeframe, such as differences in the assessment instruments used in the previous and new public agency, and requested that the regulations provide guidance on how a public agency should determine if appropriate progress is being made.

One commenter recommended that if there is no date certain when an evaluation must be completed when a child transfers public agencies, the new public agency should conduct an evaluation within 60 days of the enrollment date of the child; make reasonable efforts to obtain evaluation information from the previous public agency; and consider any available evaluation information from the previous public agency.

One commenter recommended requiring the new public agency to contact the previous public agency within five days to request a report of any actions taken to transfer the child's records, copies of completed evaluations, a copy of the child's file, and an estimate as to when the information will be sent. The commenter stated that public agencies should be required to keep records of such attempts to inform parents of all actions through written communication. The commenter stated that if the information is not received within 15 days, the new public agency should be required to begin a new evaluation and complete it within the 60-day or State established timeframe.

Discussion: The exceptions to the 60-day or State-established timeframe must be permitted because they are statutory. Section 614(a)(1)(C)(ii)(I) of the Act, which is incorporated in Sec. 300.300(d)(2), provides that the 60-day or State-established timeframe does not apply if a child enrolls in a school served by the public agency after the relevant timeframe has begun, and prior to a determination by the child's previous public agency as to whether the child is a child with a disability. The exception applies only if the subsequent public agency is making sufficient progress to ensure prompt completion of the evaluation, and the parent and subsequent public agency agree to a specific time when the evaluation will be completed.

We do not believe it is necessary to define the phrase "sufficient progress" because the meaning will vary depending on the specific circumstances in each case. As one commenter noted, there may be legitimate reasons for not completing the evaluation within the 60-day timeframe, such as differences in assessment instruments used in the previous and new public agencies, and the length of time between a child leaving one school and enrolling in the next school. Therefore, we believe that whether a new public agency is making sufficient progress to ensure prompt completion of an evaluation is best left to the discretion of State and local officials and parents to determine.

It would be over-regulating to specify the number of days within which a new public agency must request a child's records from the previous public agency or to require the new public agency to document its attempts to obtain the records and keep parents informed of all actions through written communication. We note, however, that Sec. 300.304(c)(5), consistent with section 614(b)(3)(D) of the Act, requires each public agency to ensure that the evaluations of children with disabilities who transfer from one school district to another school district in the same school year are coordinated with the children's prior and subsequent schools, as necessary, and as expeditiously as possible, to ensure prompt completion of full evaluations.

Additionally, new Sec. 300.323(g) (proposed Sec. 300.323(e)(2)), consistent with section 614(d)(2)(C)(ii) of the Act, requires the new school in which the child enrolls to take reasonable steps to promptly obtain the child's records (including the IEP and supporting documents and any other records relating to the provision of special education or related services to the child) from the previous public agency in which the child was enrolled. The previous public agency in which the child was enrolled must also take reasonable steps to promptly respond to the request from the new public agency. We believe that these requirements will help to ensure that a child's records are promptly received by the new public agency.

The Act does not require the evaluation of a child who is transferring to a new school to be completed within 60 days of the enrollment date of the child, as recommended by one commenter, and we do not believe that such a requirement should be included in the regulations. The completion of evaluations for children who transfer to another school are subject to multiple factors and we decline to regulate on a specific timeframe that would apply in all circumstances.

Changes: None.

Comment: One commenter recommended sanctions against a new public agency that fails to make an effort to complete an evaluation of a child who transfers to another school that was begun by a previous public agency. The commenter stated that the previous public agency should also be sanctioned for failure to cooperate with a new public agency or for otherwise impeding the ability of the new public agency to complete the evaluation promptly.

Discussion: As part of its general supervisory responsibilities in Sec. 300.149 and section 612(a)(11) of the Act, each SEA is responsible for ensuring that the requirements of Part B of the Act are followed, including the requirements for children who transfer from one public agency to another public agency within the school year. Whether sanctions against a particular LEA are appropriate should be determined by the SEA in the first instance, as they are in the best position to determine what sanctions, technical assistance, or combination of the two are likely to lead to future compliance. For that reason, we decline to regulate with more specificity in this area.

Changes: None.