3.01 Evaluation Notice, Consent, and Timelines

3.01.01 Notice Before Evaluation or Reevaluation

Legal Citations

The public agency must provide notice to the parents of a child with a disability, in accordance with §300.503, that describes any evaluation procedures the agency proposes to conduct. 34 C.F.R. § 300.304(a).

A. Written Notice Requirement

A copy of the procedural safeguards available to the parents of a child with a disability must be given to the parents only one time a school year, except that a copy also must be given to the parents -

(1) Upon initial referral or parent request for evaluation;

(2) Upon receipt of the first State complaint under §§ 300.151 through 300.153 and upon receipt of the first due process complaint under § 300.507 in a school year;

(3) In accordance with the discipline procedures in § 300.530(h); and

(4) Upon request by a parent. 34 C.F.R. § 300.504(a).

A parent must receive prior written notice a reasonable time before the district proposes or refuses to initiate or change the identification, evaluation, educational placement, or the provision of a free appropriate public education to a child with a disability. Minn. Stat. § 125A.091, subd. 2.

B. Contents of Written Notice

The notice required under paragraph (a) of this section must include -

(1) A description of the action proposed or refused by the agency;

(2) An explanation of why the agency proposes or refuses to take the action;

(3) A description of each evaluation procedure, assessment, record, or report the agency used as a basis for the proposed or refused action;

(4) A statement that the parents of a child with a disability have protection under the procedural safeguards of this part and, if this notice is not an initial referral for evaluation, the means by which a copy of a description of the procedural safeguards can be obtained;

(5) Sources for parents to contact to obtain assistance in understanding the provisions of this part;

(6) A description of other options that the IEP team considered and the reasons why those options were rejected; and

(7) A description of other factors that are relevant to the agency's proposal or refusal.

34 C.F.R. § 300.503(b).

C. Contents of Procedural Safeguards Notice

The procedural safeguards notice must include a full explanation of all of the procedural safeguards available under §§ 300.148, 300.151 through 300.153, § 300.300, §§ 300.502 through 300.503, §§ 300.505 through 300.518, § 300.520, §§ 300.530 through 300.536, and §§ 300.610 through 300.625 relating to -

(1) Independent educational evaluations;

(2) Prior written notice;

(3) Parental consent;

(4) Access to educational records;

(5) Opportunity to present and resolve complaints through the due process complaint and State complaint procedures, including -

(i) The time period in which to file a complaint;

(ii) The opportunity for the agency to resolve the complaint; and

(iii) The difference between the due process complaint and the State complaint procedures, including the jurisdiction of each procedure, what issues may be raised, filing and decisional timelines, and relevant procedures;

(6) The availability of mediation;

(7) The child's placement during pendency of any due process complaint;

(8) Procedures for students who are subject to placement in an interim alternative educational setting;

(9) Requirements for unilateral placement by parents of children in private schools at public expense;

(10) Hearings or due process complaints, including requirements for disclosure of evaluation results and recommendations;

(11) State-level appeals (if applicable in that State);

(12) Civil actions, including the time period in which to file those actions; and

(13) Attorneys' fees.

34 C.F.R. § 300.504(c).

3.01.02 Notice of Refusal to Evaluate or reevaluate

Legal Citations

A. Written Notice Requirement

A parent must receive prior written notice a reasonable time before the district proposes or refuses to initiate or change the identification, evaluation, educational placement, or the provision of a free appropriate public education to a child with a disability. Minn. Stat. § 125A.091, subd. 2.

B. Contents of Written Notice

The notice required under paragraph (a) of this section must include -

(1) A description of the action proposed or refused by the agency;

(2) An explanation of why the agency proposes or refuses to take the action;

(3) A description of each evaluation procedure, assessment, record, or report the agency used as a basis for the proposed or refused action;

(4) A statement that the parents of a child with a disability have protection under the procedural safeguards of this part and, if this notice is not an initial referral for evaluation, the means by which a copy of a description of the procedural safeguards can be obtained;

(5) Sources for parents to contact to obtain assistance in understanding the provisions of this part;

(6) A description of other options that the IEP team considered and the reasons why those options were rejected; and

(7) A description of other factors that are relevant to the agency's proposal or refusal. 34 C.F.R. § 300.503(b).

3.01.03 Parental Consent for Evaluation or Reevaluation

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A. When Required

The public agency proposing to conduct an initial evaluation to determine if a child qualifies as a child with a disability under § 300.8 must, after providing notice consistent with §§ 300.503 through 300.504, obtain informed consent, consistent with § 300.9, from the parent of the child before conducting the evaluation. 34 C.F.R. § 300.300(a)(1)(i).

The public agency 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 C.F.R. § 300.300(a)(1)(iii).

To meet the reasonable efforts requirement in paragraphs (a)(1)(iii), (a)(2)(i), (b)(2), and (c)(2)(i) of this section, the public agency must document its attempts to obtain parental consent using the procedures in § 300.322(d). 34 C.F.R. § 300.300(d)(5).

(1) Subject to paragraphs (c)(2) of this section, each public agency -

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

(2) The informed parental consent described in paragraph (c)(1) of this section need not be obtained if the public agency can demonstrate that -

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

(ii) The child's parent has failed to respond. 34 C.F.R. § 300.300(c)(1)(i) and (c)(2).

(1) Parental consent is not required before -

(i) Reviewing existing data as part of an evaluation or a reevaluation; or

(ii) Administering a test or other evaluation that is administered to all children unless, before administration of that test or evaluation, consent is required of parents of all children. 34 C.F.R. § 300.300(d)(1).

B. Consent Overrides

(i) If the parent of a child enrolled in public school or seeking to be enrolled in public school does not provide consent for initial evaluation under paragraph (a)(1) of this section, or the parent fails to respond to a request to provide consent, the public agency may, but is not required to, pursue the initial evaluation of the child by utilizing the procedural safeguards in subpart E of this part (including the mediation procedures under § 300.506 or the due process procedures under §§300.507 through 300.516), if appropriate, except to the extent inconsistent with State law relating to such parental consent.

(ii) The public agency does not violate its obligation under § 300.111 and §§ 300.301 through 300.311 if it declines to pursue the evaluation.

34 C.F.R. § 300.300(a)(3). [Note conflict with Minnesota law, below.]

(ii) If the parent refuses to consent to the reevaluation, the public agency may, but is not required to, pursue the reevaluation by using the consent override procedures described in paragraph (a)(3) of this section.

(iii) The public agency does not violate its obligation under § 300.111 and §§ 300.301 through 300.311 if it declines to pursue the evaluation or reevaluation. 34 C.F.R. § 300.300(c)(ii)-(iii).

If a parent of a child who is home schooled or placed in a private school by the parents at their own expense does not provide consent for the initial evaluation or the reevaluation, or the parent fails to respond to a request to provide consent, the public agency may not use the consent override procedures (described in paragraphs (a)(3) and (c)(1) of this section; and

(ii) The public agency is not required to consider the child as eligible for services under §§300.132 through 300.144. 34 C.F.R. § 300.300(d)(4).

The district must not proceed with the initial evaluation of a child, the initial placement of a child in a special education program, or the initial provision of special education services for a child without the prior written consent of the child's parent. A district may not override the written refusal of a parent to consent to an initial evaluation or reevaluation. Minn. Stat. § 125A.091, subd. 5.

C. Consent to Evaluate for Specific Learning Disability

The public agency must promptly request parental consent to evaluate the child to determine if the child needs special education and related services, and must adhere to the time frames described in §§ 300.301 and 300.303, unless extended by mutual written agreement of the child's parents and a group of qualified professionals, as described in § 300.306(a)(1) -

(1) If, prior to a referral, a child has not made adequate progress after an appropriate period of time when provided instruction, as described in paragraphs (b)(1) and (b)(2) of this section; and

(2) Whenever a child is referred for an evaluation. 34 C.F.R. § 300.309(c).

D. Ward of the State

For initial evaluations only, if the child is a ward of the State and is not residing with the child's parent, the public agency is not required to obtain informed consent from the parent for an initial evaluation to determine whether the child is a child wit ha disability if -

(i) Despite reasonable efforts to do so, the public 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 C.F.R. § 300.300(a)(2).

3.01.04 Infant and Toddler

Legal Citations

(a) Written parental consent must be obtained before -

(1) Conducting the initial evaluation and assessment of a child under § 303.322 and

(2) Initiating the provision of early intervention services.

(b) If consent is not given, the public agency shall make reasonable efforts to ensure that the parent

(1) Is fully aware of the nature of the evaluation and assessment or the services that would be available and

(2) Understands that the child will not be able to receive the evaluation and assessment or services unless consent is given. 34 C.F.R. § 303.404.

3.01.05 Evaluation Timelines

Legal Citations

The team shall conduct an evaluation for special education purposes within a reasonable time not to exceed 30 school days from the date the district receives parental permission to conduct the evaluation or the expiration of the 14-calendar day parental response time in cases other than initial evaluation, unless a conciliation conference or hearing is requested. Minn. R. 3525.2550, subp.2.

A. Infant and Toddler Evaluation

(1) Once the public agency receives a referral, it shall appoint a service coordinator as soon as possible.

(2) Within 45 days after it receives a referral, the public agency shall -

(i) Complete the evaluation and assessment activities in § 303.322; and

(ii) Hold an IFSP meeting, in accordance with § 303.342. 34 C.F.R. § 303.321(e).

(2) The lead agency shall develop procedures to ensure that in the event of exceptional circumstances that make it impossible to complete the evaluation and assessment within 45 days (e.g., if a child is ill) public agencies will document those circumstances and develop and implement an interim IFSP, to the extent appropriate and consistent with § 303.345(b) (1) and (b)(2). 34 C.F.R. § 303.322(e)(2).

As used in this part, days means calendar days. 34 C.F.R. § 303.9.

3.01.06 Independent Educational Evaluation

(3) For the purposes of this subpart -

(1) 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. 34 C.F.R. § 300.502(a)(3)(i).

A. Right to an Independent Educational Evaluation

(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 (e) of this section. 34 C.F.R. § 300.502(a)(1)-(2).

B. Independent Educational Evaluation at Private Expense

If the parent obtains an independent educational evaluation at private 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 or a due process complaint under subpart E of this part regarding that child. 34 C.F.R. § 300.502(c).

C. Independent Educational 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 paragraph (b)(2) 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 -

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

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

(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.

(e)(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 (e)(1) of this section, a public agency may not impose conditions or timelines related to obtaining an independent educational evaluation at public expense. 34 C.F.R. § 300.502(b)(1)(2)(4) & (e).

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. 34 C.F.R. § 300.502(d).