Initial Evaluations and Eligibility

If the IEP team determines that assessments or other information are required to assist the team in conducting the evaluation for the purpose of determining eligibility for special education and related services under IDEA, these evaluations must be conducted prior to the next IEP team meeting. Once an IEP team determines that they suspect that a student may have an educational disability, an IEP team must confirm the existence of the disability, and if so, determine whether the student requires special education and possibly, related services. The IEP team should include professionals qualified to make eligibility decisions regarding the suspected disability.

MCPS shall provide the parent/guardian with prior written notice of any decisions made to evaluate a student to determine whether the student has a disability under IDEA and shall obtain informed parental consent in writing before conducting any evaluations. For more information on and a definition of informed consent, please see the Parental Consent section of this handbook. Parental consent for an initial evaluation shall not be construed as consent for the initial provision of special education and related services if the student is found eligible. 34. C.F.R. 300.300.

Evaluation means procedures used to determine whether a child has a disability and the nature and extent of the special education and related services that the child needs. 34 C.F.R. 300.15.

As part of an initial evaluation, the IEP team and other qualified professionals, as appropriate, must

• Review existing evaluation data on the child, including the following:

  • • Evaluations and information provided by the parents/guardians of the child;

    • Current classroom-based, local or state assessments, and classroom-based observations; and

    • Observations by teachers and related services providers; and

• On the basis of that review and input from the child's parents/guardians identify what additional data, if any, is needed to determine:

  • • Whether the child is a child with a disability and the educational needs of the child;

    • The present levels of academic achievement and related developmental needs of the child; or

    • Whether the child needs special education and related services. 34 C.F.R. 300.305.

In conducting the evaluation, the IEP team and individual assessors must use a variety of assessment tools and strategies to gather relevant functional, developmental, and academic information including information provided by the parents/guardians, which may assist in determining:

• the student is a child with a disability;

• the student’s educational needs; and

• the content of the student’s IEP including information related to enabling the student to be involved in and make progress in the general education curriculum or, for prekindergarten children, to participate in appropriate activities.

The IEP team and individual assessors must ensure that:

• the child is assessed in all areas of suspected disability;

• no single measure or assessment is used as the sole criterion for determining whether the student is a child with a disability or for determining an appropriate educational program;

• only technically sound instruments are used that may assess the relative contribution of cognitive and behavioral factors in addition to physical or developmental factors;

• assessments and other evaluation materials:

  • • are selected and administered so as not to be discriminatory on a racial or cultural basis and are provided and administered in the child’s native language or another mode of communication and in the form most likely to yield accurate information on what the child knows and can do academically, developmentally, and functionally, unless it is clearly not feasible to so provide or administer;

    • are used for the purposes for which the assessments or measures are valid and reliable;

    • are administered by trained and knowledgeable personnel;

    • are administered in accordance with any instructions provided by the producer of such assessments;

    • provide relevant information that directly assists persons in determining the educational needs of the child;

    • include those tailored to assess specific areas of educational need and not merely those that are designed to provide a single general intelligence quotient; and

    • are selected and administered so as to best ensure that if an assessment is administered to a student with impaired sensory, manual, or speaking skills the assessment results accurately reflect the student’s aptitude or achievement level, or whatever other factors the test purports to measure, rather than reflecting the student’s impaired sensory, manual, or speaking skills unless those skills are the factors that the test purports to measure. 34 C.F.R. 300.304.

The timeline for completion of the initial evaluation does not apply if:

• The parents/guardians of the student repeatedly fail to or refuse to make the student available for assessments; or

• A student enrolls in MCPS from another Maryland LEA that was in the process of conducting an initial evaluation at the time the student withdrew and enrolled in MCPS.

For either circumstance, MCPS must demonstrate that:

• It has made sufficient attempts to ensure prompt completion of the evaluation; and

• The parents/guardians and MCPS agree to a specific time for the completion of the evaluation.

In these instances, the case manager must keep an accurate written record of the parents’/guardians’ and school’s agreement and/or of the parents'/guardians' failure or refusal to produce the child for the evaluation.

The IEP team should make all efforts to obtain written parental consent for any recommended assessments prior to the adjournment of the IEP team meeting. If the parents/guardians refuse to provide consent, the case manager or IEP chairperson should denote that information on the Notice of Consent for Assessments. Formal assessments may not be conducted without parental consent; however, informal assessments and classroom data can be collected and used to make an initial eligibility determination.

The parent/guardian does have the option of waiting to sign the Notice of Consent for Assessments after the IEP team meeting. Note: COMAR provides that a public agency shall adhere to the timeframes for evaluation “unless the parent/guardian and the IEP team extend the timeframe by mutual written agreement.”

If authorization (written parental consent) was not obtained for any recommended assessments at the initial IEP team meeting, the case manager or designated assessor should obtain written informed consent from the parent/guardian without delay.

Following the Child Find IEP team meeting, all staff members designated to conduct assessments must

• conduct an assessment that meets the assessment criteria listed below; and

• write, date, and sign an assessment report which:

  • • describes the student’s performance in each area of suspected disability;

    • addresses the student’s educational needs;

    • describes the instructional implications of the assessment results to enable the student to participate and make progress in the general education curriculum (or for a prekindergarten child to participate in appropriate activities);

    • provides any other information useful to the team’s decision making; and

    • describes the extent to which assessment procedures were not conducted under standard conditions.

In accordance with 20 U.S.C. §1414(b)(5) a student may not be identified as a student with a disability if an IEP team determines the lack of educational performance is the result of:

• A lack of instruction in reading, including the essential components of reading instruction, including explicit and systematic instruction in:

  • • Phonemic awareness,

    • Phonics,

    • Vocabulary development,

    • Reading fluency and oral reading skill, and

    • Reading comprehension strategies;

• A lack of instruction in mathematics; or

• A lack of English proficiency; and

• The student does not otherwise meet the criteria specified in 34 CFR §300.8.

[20 U.S.C. §1414(b)(5); 34 C.F.R. §300.306(b); Analysis of Comments pg. 46646; COMAR 13A.05.01.06C(3)]

This is referred to as the determinant factor. If one of these factors is the determinant factor, the IEP team may determine that the student is not eligible as a student with a disability. The IEP team is required to consider these factors; however, the IEP team should note that the applicability of any one of these factors to a particular student does not mean that a student is automatically disqualified from eligibility for special education and related services under IDEA.

The initial eligibility determination can be summed up in the four-step process established below:

Step 1: Review of Assessment Results

During the eligibility evaluation IEP team meeting, the team will review the purpose of the meeting and the recommendations for assessments from the previous meeting (if applicable). The IEP team reviews curriculum-based assessment data, intervention data, state assessment information, teacher reports, any evaluation reports recommended as a part of the initial eligibility process, medical information, social or cultural background, adaptive behavioral information, and information provided by the parents/guardians. The IEP team’s discussion should be documented appropriately.

Step 2: Application of IDEA Disability Categories

The team next determines whether the student has one or more of the IDEA's 14 disability categories. The team shall document the student's primary disability based on the criteria set forth by IDEA and Maryland law.

If the student does not meet the criteria for at least one of the 14 categories in IDEA, the student shall be determined not eligible for special education and related services.

Step 3: Consideration of Whether there is a Negative Educational Impact

If the IEP team determines that the student meets one or more of the IDEA disability categories, the team must then determine whether the disability has an educational impact. Neither the IDEA nor Maryland law provides a definition for "educational impact." To determine whether there is a negative educational impact, MCPS will consider factors such as the student's grades, attendance, progress in the general education curriculum, social/emotional/behavioral functioning in academic and nonacademic settings, ability to demonstrate appropriate skills and behaviors as compared to their nondisabled peers and ability to participate in settings with their nondisabled peers. As this is not an exhaustive list, IEP teams will consider any factors that impact the student's ability to function in the general education setting.

MCPS also will consider these factors for students who have demonstrated the ability to matriculate from grade to grade, who may have above average academic abilities, or who do not require academic interventions but demonstrate social, emotional, behavioral, or functional weaknesses that negatively impact their ability to access the general education curriculum and/or setting.

If the student meets the criteria for at least one of the 14 categories in IDEA but there is not a negative education impact on the student, the student will not be determined eligible for special education and related services.

Step 4: Determining Whether the Student Requires Specially Designed Instruction

Special education means specially designed instruction, at no cost to the parents, to meet the unique needs of a child with a disability. Specially designed instruction means adapting, as appropriate to the needs of an eligible child, the content methodology or delivery of instruction to address the unique needs of the child and to ensure access of the child to the general education curriculum. 34 C.F.R. 300. 39.

Once the IEP team determines that a student has at least one of the 14 categories of disabilities and that there is a negative educational impact, the IEP team must determine whether the student requires specially designed instruction for the student to access the general education curriculum and program.

The determination of whether a student requires specially designed instruction can be considered by IEP teams by asking and discussing the following questions:

• Content: Does the student need adapted content? Do teachers have the change what the student learns for the student to access the general education curriculum?

• Methodology: Does the student need an adapted methodology? Do teachers have to change how or what teaching strategies are used for the student to access the general education curriculum?

• Delivery: Does the student need adapted delivery? Do teachers have to change where the student learns for the student to access the general education curriculum?

If the answer to any one of these categories is YES, then the student qualifies for special education and related services under IDEA.

When an IEP team determines that a student is eligible for special education and related services, the team has 30 days from the date of eligibility to convene an IEP meeting to develop an IEP. The IEP shall include 34 CFR 300.323 (c)(1).

Parents/guardians must be provided with the PWN of the IEP team’s decisions. If a confidential student file does not already exist, one must be established. Parents/guardians must be provided written notice of the existence of the confidential file and of their right to inspect and review the file. (See MCPS Regulation JOA-RA, Student Records for more information on confidential files).

If a student is found eligible for special education services and the parents/guardians provide consent for the initial provision of special education services, the IEP team has 30-calendar days to develop the IEP. A copy of MCPS Form #336-39: Parent Report or the Preschool Child Find Questionnaire must be sent to the parent/guardian five-business days prior to the IEP team meeting to review and develop the initial IEP.

If the parents/guardians refuse to give informed consent for the initiation of special education and related services or if the student is found not eligible for services, the team should consider a referral to the school’s EMT (link to guidance doc) or a Section 504 educational management team to consider whether the student needs specific strategies and supports through general education or to consider eligibility for protections and/or accommodations under Section 504.

The parents/guardians must be sent prior written notice of the IEP team’s decision along with all completed documents from the meeting within five-business days of the initial evaluation meeting.

While IDEA requires the location, identification, and evaluation of students with disabilities who are eligible for special education and related services, Section 504 of the Rehabilitation Act of 1973 (Section 504) provides reasonable accommodations to general education students who have a disabling condition that substantially limits a major life activity and requires the provision of accommodations to make the school environment and curriculum accessible for the student.

Section 504 is a civil rights law that requires recipients of federal funding to ensure that people with disabilities are not discriminated or retaliated against because of their disabilities. Students eligible under IDEA as students requiring special education and related services also are eligible under Section 504 for protection from discrimination and retaliation on the basis of having or being regarded as a person with a disability.

If during the initial eligibility process, a student is found not to be eligible under IDEA the student may be eligible under Section 504. Because Section 504 imposes an affirmative Child Find obligation on school systems similar to the IDEA, public schools are required to locate, identify, and evaluate students who may be eligible under Section 504. An IEP team shall make a referral to the Section 504 team if the student is determined to be ineligible to receive special education and related services under IDEA.

While many of the required IEP team members also are members of the Section 504 Plan team, IEP and 504 meetings should not be held at the same time. Parents/guardians have separate rights under Section 504, such as notice of a Section 504 meeting and Section 504 procedural safeguards; therefore, the team should not combine these two meetings.