05-071-101 Me. Code R. § V

Current through 2024-43, October 23, 2024

Section 071-101-V - EVALUATION AND REEVALUATIONS FOR CHILFREN 3 - 22

1.Evaluations, Parental Consent, and Reevaluations [20 USC 1414(a-c) and 34 CFR 300.300- 306 ]

A. Initial evaluations

(1) In general.-The Department, other State agency, or SAU shall conduct a full and individual initial evaluation in accordance with this paragraph and 34 CFR 300.305[Section V.3] through 306 [Section VIII.2], before the initial provision of special education and related services to a child with a disability under this part.

(2) Request for initial evaluation.--Consistent with subparagraph (d), either a parent of a child, or the Department, other State agency, or SAU may initiate a request for an initial evaluation to determine if the child is a child with a disability.

(3) Procedures.

(a) In general.

(i) The initial evaluation must be conducted within 60 calendar days of receiving parental consent for the evaluation for children in the Child Development Services System, or within 45 school days of receiving parental consent for the evaluation for children 5-22 years of age under the responsibility of the public school system, and must consist of procedures to determine if the child is a child with a disability and to determine the educational needs of the child; and

(ii)Following the completion of the initial evaluation, and within the above timeframe, the agency or SAU shall proceed to determine if the child is a child with a disability under 34 CFR 300.8[Section VII] .

(b) Exception.--The relevant timeframe in clause (a)(i) shall not apply to a SAU if:

(i) A child enrolls in a school served by the SAU after the relevant timeframe in clause (a)(i) has begun and prior to a determination by the child's previous SAU as to whether the child is a child with a disability (as defined in 20 USC 1402), but only if the subsequent SAU is making sufficient progress to ensure a prompt completion of the evaluation, and the parent and subsequent SAU agree to a specific time when the evaluation will be completed; or

(ii) The parent of a child repeatedly fails or refuses to produce the child for the evaluation.

(4) Parental consent

(a) In general

(i) Consent for initial evaluation.--The SAU proposing to conduct an initial evaluation to determine if the child qualifies as a child with a disability under 34 CFR 300.8[Section VII] after providing notice consistent with 34 CFR 300.503 and 504 [Section XV] , obtain informed consent consistent with 34 CFR 300.9[Section II.6], from the parent of such child before conducting the evaluation. Parental consent for initial evaluation must not be construed as consent for placement for receipt of special education and related services. The SAU must make reasonable efforts to obtain the informed consent from the parent for an initial evaluation to determine whether the child is a child with a disability. [34 CFR 300.300(a)]

(ii) Consent for services.-- An SAU that is responsible for making a free appropriate public education available to a child with a disability under this part must obtain informed consent from the parent of such child before providing special education and related services to the child. The SAU must make reasonable efforts to obtain informed consent from the parent for the initial provision of special education and related services to the child. [34 CFR 300.300(b) (1,2)]

(b) Absence of consent

(i) For initial evaluation.--If the parent of a child, enrolled in public school or seeking to be enrolled in public school does not provide consent for an initial evaluation under clause (a)(i), or the parent fails to respond to a request to provide the consent, the SAU may, but is not required to pursue the initial evaluation of the child by utilizing the procedures described in 20 USC 1415, if appropriate, . The SAU does not violate its obligation under 300.111 and 300.301 through 300.311 if it declines to pursue the evaluation. [34 CFR 300.300(a)(3) (i, iii)]

(ii) For services.--If the parent of such child fails to respond to a request for, or refuses to consent, to the initial provision of special education and related the SAU may not use the due process procedures in order to obtain agreement or a ruling that services may be provided to the child. The SAU will not be considered to be in violation of the requirement to make FAPE available to the child because of the failure to provide the child with the special education and related services for which the parent refuses to or fails to provide consent and is not required to convene and IEP Team meeting under §300.320 and 300.324 for the child. [34 CFR 300.300(b)(3)]

(iii) If, at any time subsequent to the initial provision of special education and related services, the parent of a child revokes consent in writing for the continued provision of special education and related services, the SAU:

(I) May not continue to provide special education and related services to the child, but must provide prior written notice in accordance with §300.503 before ceasing the provision of special education and related services;

(II) May not use the procedure in subpart E of IDEA (including the mediation procedures under §300.506 or the due process procedures under §§300.507 through 300.516) in order to obtain agreement or a ruling that the services may be provided to the child:

(III) Will not be considered to be in violation of the requirement to make available a free appropriate public education available to the child because of the failure to provide child with further special education and related services; and

(IV) Is not required to convene an IEP meeting or develop an IEP §§300.320 and 300.324 for the child for further special education and related services. [34 CFR 300.300(b)(4)]

(c) Consent for wards of the State

(i) In general.- If the child is a ward of the State and is not residing with the child's parents, the SAU shall make reasonable efforts to obtain the informed consent from the parent (as defined in 20 USC 1402) of the child for an initial evaluation to determine whether the child is a child with a disability.

(ii) Exception.- For initial evaluations only, if the child is a ward of the State and is not residing with the child's parent, the SAU shall not be required to obtain informed consent from the parent of a child for an initial evaluation to determine whether the child is a child with a disability if:

(I) Despite reasonable efforts to do so, the agency cannot discover the whereabouts of the parent of the child;

(II) The rights of the parents of the child have been terminated in accordance with State law; or

(III) The rights of the parent to make educational decisions have been subrogated by a judge in accordance with State law and consent for an initial evaluation has been given by an individual appointed by the judge to represent the child. [34 CFR 300.300(a)(2)]

(5) Rule of construction.-- The screening of a student by a teacher or specialist to determine appropriate instructional strategies for curriculum implementation shall not be considered to be an evaluation for eligibility for special education and related services. [34 CFR 300.302]

B. Reevaluations

(1) In general --An SAU must ensure that a reevaluation of each child with a disability is conducted in accordance with subsections (1) and (2):

(a) If the SAU determines that the educational or related services needs, including improved academic achievement and functional performance, of the child warrant a reevaluation; or

(b) If the child's parent or teacher requests a reevaluation.

(2) Limitation.-- A reevaluation conducted under subparagraph (1) shall occur:

(a) Not more frequently than once a year, unless the parent and the local educational agency agree otherwise; and

(b) At least once every 3 years, unless the parent and the local educational agency agree that a reevaluation is unnecessary. [34 CFR 300.303]

(3) Parent consent for reevaluation

(a) Subject to paragraph (3)(b) of this section, each SAU:

(i) Must obtain informed parental consent, in accordance with 34 CFR 300.300(a)(1), prior to conducting any reevaluation of a child with a disability.

(ii) If the parent refuses to consent to the reevaluation, the SAU may, but is not required to, pursue the reevaluation by using the consent override procedures described in (1)(A)(4)(b).

(iii) Does not violate its obligation under 34 CFR 300.111 and 300.301 through 300.311 if it declines to pursue the evaluation or reevaluation.

(b) The informed parental consent described in paragraph (3) (a) of this section need not be obtained if the SAU can demonstrate that

(i) It made reasonable efforts to obtain such consent; and

(ii) The child's parent has failed to respond. [34 CFR 300.300(c)]

2.Evaluation Procedures. [20 USC 1414(b) and 34 CFR 300.304]

A. Notice.--The SAU shall provide notice to the parents of a child with a disability, in accordance with 34 CFR 300.503[Section XV], that describes any evaluation procedures such SAU proposes to conduct.

B. Conduct of evaluation.--In conducting the evaluation, the SAU shall:

(1) Use a variety of assessment tools and strategies to gather relevant functional, developmental, and academic information, including information provided by the parent, that may assist in determining:

(a) Whether the child is a child with a disability under 34 CFR 300.8[Section VII] ; and

(b) The content of the child's individualized education program, including information related to enabling the child to be involved in and progress in the general education curriculum, or, for preschool children, to participate in appropriate activities;

(2) Not use any single measure or assessment as the sole criterion for determining whether a child is a child with a disability or determining an appropriate educational program for the child; and

(3) Use technically sound instruments that may assess the relative contribution of cognitive and behavioral factors, in addition to physical or developmental factors.

C. Other Evaluation Procedures [34 CFR 300.304(c)] --Each SAU shall ensure that:

(1) Assessments and other evaluation materials used to assess a child under this section:

(a) Are selected and administered so as not to be discriminatory on a racial or cultural basis;

(b) Are provided and administered in the child's native language or other mode of communication and form most likely to yield accurate information on what the child knows and can do academically, developmentally, and functionally, unless it is not feasible to so provide or administer;

(c) Are used for purposes for which the assessments or measures are valid and reliable;

(d) Are administered by trained and knowledgeable personnel; and

(e) Are administered in accordance with any instructions provided by the producer of such assessments;

(2) Assessments and other evaluation materials include those tailored to assess specific areas of educational need and not merely those that are designed to provide a single general intelligence quotient.

(3) Assessments are selected and administered so as best to ensure that if an assessment is administered to a child with impaired sensory, manual, or speaking skills, the assessment results accurately reflect the child's aptitude or achievement level or whatever other factors the test purports to measure, rather than reflecting the child's impaired sensory, manual, or speaking skills (unless those skills are the factors that the test purports to measure).

(4) The child is assessed in all areas of suspected disability; including, if appropriate, health, vision, hearing, social, and emotional status, general intelligence, academic performance, communicative status, and motor abilities.

(5) Assessments of children with disabilities who transfer from one SAU to another SAU in the same school year are coordinated with those children's prior and subsequent schools, as necessary and as expeditiously as possible, consistent with 34 CFR 300.301(d)(2) and (e)[Section V.1.A(3)(b)], to ensure prompt completion of full evaluations.

(6) In evaluating each child with a disability under 34 CFR 300.304 through 300.306[Section V], the evaluation is sufficiently comprehensive to identify all of the child's special education and related services needs, whether or not commonly linked to the category in which the child has been classified.

(7) Assessment tools and strategies that provide relevant information that directly assists persons in determining the educational needs of the child are provided.

D. Determination of eligibility and educational need. [34 CFR 300.306] -- Upon completion of the administration of assessments and other evaluation measures:

(1)The IEP Team, which includes the parent of the child determine whether the child is a child with a disability, as defined in 34 CFR 300.8, in accordance with paragraph E of this section and the educational needs of the child;

(2) The SAU provides a copy of the evaluation report and the documentation of determination of eligibility (prior written notice) at no cost to the parent.

E. Special rule for eligibility determination. [34 CFR 300.306(b)] -A child must not be determined to be a child with a disability if the determinant factor for such determination is a:

(1) Lack of appropriate instruction in reading, including in the essential components of reading instruction (as defined in section 1208(3) of the Elementary and Secondary Education Act of 1965);

(2) Lack of appropriate instruction in math; or

(3) Limited English proficiency and, the child does not otherwise meet the eligibility criteria under 34 CFR 300.8(a).

F. Procedures for determining eligibility and educational need -

(1) In interpreting evaluation data for the purpose of determining if a child is a child with a disability under 34 CFR 300.8[Section VII] and the educational needs of the child, each SAU must

(a) Draw upon information from a variety of sources, including aptitude and achievement tests, parent input, and teacher recommendations, as well as information about the child's physical condition, social or cultural background, and adaptive behavior; and

(b) Ensure that information obtained from all of these sources is documented and carefully considered.

(2) 07If a determination is made that a child has a disability and needs special education and related services, an IEP must be developed for the child in accordance with 34 CFR 300.320 through 300.324. [Section VI and IX]

G. Specific learning disabilities

(1) In general.--Not with standing 20 USC 1407(b), when determining whether a child has a specific learning disability as defined in 20 USC 1402, an SAU shall not be required to take into consideration whether a child has a severe discrepancy between achievement and intellectual ability in oral expression, listening comprehension, written expression, basic reading skill, reading comprehension, mathematical calculation, or mathematical reasoning.

(2) Additional authority.--In determining whether a child has a specific learning disability, an SAU may use a process that determines if the child responds to scientific, research-based intervention as a part of the evaluation procedures described in paragraphs B and C.

3.Additional Requirements for Evaluation and Reevaluations. [20 USC 1414(c) and 34 CFR 300.305(a-c)]

A. Review of existing evaluation data. [34 CFR 300.305(a)] -As part of an initial evaluation (if appropriate) and as part of any reevaluation under this section, the IEP Team and other qualified professionals, as appropriate, shall:

(1) Review existing evaluation data on the child, including:

(a) Evaluations and information provided by the parents of the child;

(b) Current classroom-based, local, or State assessments, and classroom-based observations; and

(c) Observations by teachers and related services providers; and

(2) On the basis of that review, and input from the child's parents, identify what additional data, if any, are needed to determine:

(a) Whether the child is a child with a disability as defined in 34 CFR 300.8[Section VII] , and the educational needs of the child, or, in case of a reevaluation of a child, whether the child continues to have such a disability and such educational needs;

(b) The present levels of academic achievement and related developmental needs of the child;

(c) Whether the child needs special education and related services, or in the case of a reevaluation of a child, whether the child continues to need special education and related services; and

(d) Whether any additions or modifications to the special education and related services are needed to enable the child to meet the measurable annual goals set out in the individualized education program of the child and to participate, as appropriate, in the general education curriculum.

B. Conduct of Review. [34 CFR 300.305(b)] The group described in paragraph 3(A) of this section may conduct its review without a meeting.

C. Source of data.-[34 CFR 300.305(c)] -The SAU shall administer such assessments and other evaluation measures as may be needed to produce the data identified by the IEP Team under paragraph (3)(A)(2).

D. Parental consent.-Following prior written notice each SAU shall obtain informed written parental consent, in accordance with subsection (1)(A) (4), prior to conducting any reevaluation of a child with a disability, except that such informed parental consent need not be obtained if the SAU can demonstrate that it had taken reasonable measures to obtain such consent and the child's parent has failed to respond. If the parent refuses to consent to the reevaluation, the SAU may, but is not required to, pursue the reevaluation by using the consent override procedures in 34 CFR 300.300(a)(3)[Section XV I.2]. The SAU does not violate its obligation under child find and evaluation and eligibility determination if it declines to pursue the evaluation or reevaluation. [34 CFR 300.300(c) (ii,iii)]

E. Requirements if additional data are not needed.-[34 CFR 300.305(d)] -If the IEP Team and other qualified professionals, as appropriate, determine that no additional data are needed to determine whether the child continues to be a child with a disability and to determine the child's educational needs, the SAU:

(1) Shall notify the child's parents of:

(a) That determination and the reasons for the determination; and

(b) The right of such parents to request an assessment to determine whether the child continues to be a child with a disability and to determine the child's educational needs; and

(2) Shall not be required to conduct such an assessment unless requested to by the child's parents.

F. Evaluations before change in eligibility. [34 CFR 300.305(e)]

(1) In general.--Except as provided in subparagraph (b, below), an SAU must evaluate a child with a disability in accordance with this section before determining that the child is no longer a child with a disability.

(2) Exception

(a) In general.--The evaluation described in subparagraph (1) shall not be required before the termination of a child's eligibility under this part due to graduation from secondary school with a regular diploma, or due to exceeding the age eligibility for a free appropriate public education under State law.

4.Standardized Reports of Evaluation for Children 3 to 22

A.Referral for Evaluation:

The SAU representative shall indicate to the evaluator when making a referral for evaluation:

(1)The suspected disability of concern;

(2)How the suspected disability is demonstrated within the educational setting;

(3)The information the IEP Team desires from the evaluator in order to plan an appropriate program for the child; and

(4)Any other information deemed relevant by the IEP Team.

B.Evaluation Report. The IEP Team shall require each person or agency completing an evaluation or diagnostic service recommended by the IEP Team to submit a written evaluation report no later than 40 school days, or no later than 50 days for children in the Child Development Services system, from the receipt of parental consent to evaluate, recognizing the requirement that the parents receive the evaluation report at least 3 days prior to the IEP Team Meeting at which the evaluation will be discussed.

C.Each report shall include: Evaluation date(s) Report date Birth date and age at date of evaluation Referral question and by whom Relevant background information Observation in the learning environment (which could be completed by another evaluator or an IEP team member and be considered in the preparation of the report) Clinical observation, if appropriate Results of informal assessment procedures Summary of the evaluation procedures employed Specification of the results of each evaluation with testing interpretation (including standard deviation scores). Summary of the evaluation results and diagnostic impressions; and Specification of the educational recommendations necessary to meet the child's educational needs. If intervention is recommended, the needs that could be addressed in regular education or in special education, if the child is identified by the IEP Team as a child with a disability.

D.Evaluation reports shall not make either eligibility or placement determinations. These determinations are the responsibility of the IEP Team, pursuant to federal and State law and regulation.

E.The evaluation report shall be placed in the child's education record file.

F.The IEP Team shall only accept evaluation reports which the responsible SAU has ordered that conform with the description above. Other applicable reports provided may also be considered.

G.A copy of the evaluation report must be provided to the parent at least 3 days prior to the IEP Team Meeting at which the evaluation will be discussed.

5.Vocational Evaluations

Every child with a disability between 16 and 22 years of age may be provided an opportunity for an interest and aptitude evaluation. Such evaluations may include job sampling and practical experiences if determined to be appropriate. Such vocational evaluations may be provided by qualified evaluators. The purpose of the vocational evaluation is to assist the IEP Team to identify child's vocational interests, his/her vocational strengths, and deficits in work skills and behaviors that would interfere with appropriate educational programs and services that would be reasonably expected to result in the gainful employment of the child.

Based on the results of such an evaluation, a component of the child's Individualized Education Program shall be developed to include special education, supportive services and vocational services necessary to accomplish the identified vocational goals. A representative of the appropriate regional career and technical agency or program shall be invited to participate the development of this component of the child's Individualized Education Program.

6.Independent Educational Evaluation [34 CFR 300.502]

A. General

(1) The parents of a child with a disability have the right under this part to obtain an independent educational evaluation of the child, subject to paragraphs B through E of this section.

(2) Each public agency must provide to parents, upon request for an independent educational evaluation, information about where an independent educational evaluation may be obtained, and the agency criteria applicable for independent educational evaluations as set forth in paragraph 5 of this section.

(3) For the purposes of this subpart:

(a) Independent educational evaluation means an evaluation conducted by a qualified examiner who is not employed by the public agency responsible for the education of the child in question; and

(b) Public expense means that the public agency either pays for the full cost of the evaluation or ensures that the evaluation is otherwise provided at no cost to the parent, consistent with 34 CFR § 300.103.

B. Parent right to evaluation at public expense

(1) A parent has the right to an independent educational evaluation at public expense if the parent disagrees with an evaluation obtained by the public agency, subject to the conditions in paragraphs B.(1) through (4) of this section.

(2) If a parent requests an independent educational evaluation at public expense, the public agency must, without unnecessary delay, either:

(a) File a due process complaint to request a hearing to show that its evaluation is appropriate; or

(b) Ensure that an independent educational evaluation is provided at public expense, unless the agency demonstrates in a hearing pursuant to 34 CFR§§ 300.507 through 300.513 that the evaluation obtained by the parent did not meet agency criteria.

(3) If the public agency files a due process complaint notice to request a hearing and the final decision is that the agency's evaluation is appropriate, the parent still has the right to an independent educational evaluation, but not at public expense.

(4) If a parent requests an independent educational evaluation, the public agency may ask for the parent's reason why he or she objects to the public evaluation. However, the public agency may not require the parent to provide an explanation and may not unreasonably delay either providing the independent educational evaluation at public expense or filing a due process complaint to request a due process hearing to defend the public evaluation.

(5) A parent is entitled to only one independent educational evaluation at public expense each time the public agency conducts an evaluation with which the parent disagrees.

C. Parent-initiated evaluations. If the parent obtains an independent educational evaluation at public expense or shares with the public agency an evaluation obtained at private expense, the results of the evaluation:

(1) Must be considered by the public agency, if it meets agency criteria, in any decision made with respect to the provision of FAPE to the child; and

(2) May be presented by any party as evidence at a hearing on a due process complaint regarding that child.

D. Requests for evaluations by hearing officers. If a hearing officer requests an independent educational evaluation as part of a hearing on a due process complaint, the cost of the evaluation must be at public expense.

E. Agency criteria

(1) If an independent educational evaluation is at public expense, the criteria under which the evaluation is obtained, including the location of the evaluation and the qualifications of the examiner, must be the same as the criteria that the public agency uses when it initiates an evaluation, to the extent those criteria are consistent with the parent's right to an independent educational evaluation.

(2) Except for the criteria described in paragraph C(1) of this section, a public agency may not impose conditions or timelines related to obtaining an independent educational evaluation at public expense. (Authority: 20 U.S.C. 1415(b)(1) and (d)(2)(A))

F.Educational observations by qualified examiners. A qualified examiner is permitted to observe a child at school or at a potential educational placement when the qualified examiner is not employed by the school and is conducting an independent educational evaluation at the request of the parent, at times and durations as the school would permit a qualified examiner that is employed by the school.

05-071 C.M.R. ch. 101, § V