I. Child Advocacy
A. School Law
1. Special Education
Evaluations Are Necessary to Determine a Student’s Educational Needs
Before it begins to provide special education and related services to a student, a public agency must conduct a full and individual initial evaluation of the student.
The Individuals with Disabilities in Education Act (“IDEA”) states: “A State educational agency, other state agency, or local educational agency shall conduct a full and individual initial evaluation . . . before the initial provision of special education and related services to a child with a disability . . . .” 20 U.S.C. § 1414(a)(1)(A).
The initial evaluation can be requested either by a parent of a child or by the public agency. Regardless of who requests the evaluation, the public agency must obtain informed consent from a parent of the child before conducting the evaluation. Consenting to an initial evaluation does not mean that the parent consents to the provision of special education and related services; it is just consent for the evaluation.
Once the public agency obtains a parent’s consent, it must conduct the evaluation within 60 days. However, the 60-day time frame does not apply if the parent repeatedly fails or refuses to produce the child for the evaluation or if the child enrolls in a school of another public agency. The public agency, in a reasonable time before conducting the evaluation, must provide notice to the student’s parent that describes any evaluation procedures the agency proposes to conduct.
The purpose of the evaluation is to make two determinations. The evaluators must determine whether or not the student is a “child with a disability” as the Individuals with Disabilities in Education Act (“IDEA”) defines that term. They also must determine the educational needs of the child—that is, for a child with a disability, the content of the child’s Individualized Education Program (“IEP”).
The public agency, the student’s parent, or a teacher of the student can trigger a re-evaluation of a child with a disability. If the public agency determines that the needs of the child warrant a re-evaluation, then the agency must ensure that a re-evaluation occurs. The agency must do the same if the student’s parent or teacher requests a re-evaluation.
The law requires that a re-evaluation must occur at least once every three years, unless the parent and the public agency agree that a re-evaluation is unnecessary. Also, a re-evaluation may not occur more than once a year, unless the parent and the public agency agree otherwise.
Both initial evaluations and re-evaluations are subject to the same requirements, which this article discusses below.
The IDEA imposes several requirements with respect to the conduct of the evaluation. The public agency must use a variety of assessment tools and strategies to gather relevant information; this includes information provided by the parent. The agency may not use any single measure or assessment as the sole criterion for making the two determinations. And the agency must use technically sound instruments that may assess the relative contribution of cognitive and behavioral factors, in addition to physical or developmental factors.
Assessments and other evaluation materials used to assess a child must be selected and administered so as not to be discriminatory on a racial or cultural basis. Further, whenever feasible, they must be provided and administered in the student’s native language or other mode of communication and in the form most likely to yield accurate information on what the child knows and can do. Also, the assessments and measures must be used for the purposes for which they are valid and reliable, administered by trained and knowledgeable personnel, and administered in accordance with any instructions provided by the producer of the assessments.
Additional Requirements for Evaluations and Re-Evaluations
As part of an initial evaluation, if appropriate, and as part of any
re-evaluation, the evaluators must review existing evaluation data on the child. The existing data include evaluations and information provided by the student’s parents; current classroom-based, local, or state assessments and classroom-based observations; and observations by teachers and related services providers. The evaluators may conduct their review
without a meeting.
On the basis of that review and of input from the student’s parents, the evaluators must identify what (if any) additional data are needed to make the following determinations:
-whether or not the student is, or continues to be, a child with a disability;
-the present levels of academic achievement and related developmental needs of the student;
-whether or not the student needs, or continues to need, special education and related services; and
-whether or not any additions or modifications to the services are necessary to enable the student to meet the goals in his/her IEP and to participate, as appropriate, in the general-education curriculum.
Determination of Eligibility
Once the assessments and evaluations are complete, the evaluators determine whether or not the student is eligible for special education and related services. A group of qualified professionals and the parent of the child determine (1) whether or not the student is a child with a disability and (2) the educational needs of the child. Additionally, the public agency will provide a copy of the evaluation report and the documentation of determination of eligibility at no cost to the parent.
If the professionals and parents determine that the student is a child with a disability and needs special education and related services, a group called an IEP team must develop an IEP for the student.
Other Procedures and Requirements
This article does not detail every procedure and requirement to which public agencies are subject with respect to evaluations and re-evaluations. The IDEA regulations contain greater detail than this article; and moreover, individual states and public agencies may have additional procedures and requirements. In order to know the full extent of evaluation procedures and requirements, you should consult the State Educational Agency, the Local Educational Agency, or a special education attorney.