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

Determination of eligibility (Sec. 300.306)

Comment: One commenter recommended that the regulations require public agencies to provide parents with copies of all evaluations at no cost. However, another commenter stated that evaluations are often lengthy and requested clarification as to whether public agencies must provide copies of evaluations to parents at no cost.

Discussion: Section 300.306(a)(2), consistent with section 614(b)(4)(B) of the Act, requires that a copy of the evaluation report and the documentation of determination of eligibility be given to the parent. We have added language to Sec. 300.306(a)(2) to clarify that the public agency must provide these copies at no cost to the parent.

With regard to providing parents with copies of all evaluations, Sec. 300.501(a), consistent with section 615(b)(1) of the Act, affords parents an opportunity to inspect and review all education records with respect to the identification, evaluation, and educational placement of the child, and the provision of a FAPE to the child. Specific procedures for access to records are contained in the confidentiality provisions in Sec. Sec. 300.610 through 300.627.

Section 300.613 requires a public agency to permit a parent to inspect and review any education records relating to their child that are collected, maintained, or used by the agency under the Act. The right to inspect and review records includes the right to a response from the agency to reasonable requests for explanations and interpretations of the records; the right to request that the agency provide copies of the records containing the information if failure to provide those copies would effectively prevent the parent from exercising the right to inspect and review the records; and the right to have a representative of the parent inspect and review the records. To the extent that the commenters may have been concerned about free copies of evaluation documents that would not be provided under the above regulations, we decline to regulate further, as we believe that the cited provisions adequately balance the interests of the parents for free copies and the public agencies in controlling costs.

Changes: We have added language to Sec. 300.306(a)(2) to clarify that the evaluation report and the documentation of determination of eligibility must be provided at no cost to the parent.

Comment: One commenter recommended that parents receive evaluation reports prior to an IEP Team meeting because the reports may have information that parents need to participate in making decisions about the IEP. The commenter stated that, if parents receive reports at meetings, rather than before the meetings, they cannot be active participants. Another commenter stated that parents should be provided with copies of documents related to the determination of eligibility at least five days prior to the eligibility determination meeting.

Discussion: The Act does not establish a timeline for providing a copy of the evaluation report or the documentation of determination of eligibility to the parents and we do not believe that a specific timeline should be included in the regulations because this is a matter that is best left to State and local discretion. It is, however, important to ensure that parents have the information they need to participate meaningfully in IEP Team meetings, which may include reviewing their child's records. Section 300.613(a) requires a public agency to comply with a parent request to inspect and review existing education records, including an evaluation report, without unnecessary delay and before any meeting regarding an IEP, and in no case more than 45 days after the request has been made. This includes the right to a response from the public agency to reasonable requests for explanations and interpretations of records, consistent with Sec. 300.613(b)(1).

While it would be appropriate for parents to review documents related to the determination of eligibility prior to the eligibility determination, there is no requirement that eligibility be determined at an IEP Team meeting and it would not be appropriate for a public agency to provide documentation of the determination of eligibility prior to discussing a child's eligibility for special education and related services with the parent. Section 300.306(a)(1) and section 614(b)(4)(A) of the Act require that a group of qualified professionals and the parent determine whether the child is a child with a disability. Therefore, providing documentation of the eligibility determination to a parent prior to a discussion with the parent regarding the child's eligibility would indicate that the public agency made its determination without including the parent and possibly, qualified professionals, in the decision.

Changes: None.