EHBAA(LEGAL) - SPECIAL EDUCATION: IDENTIFICATION, EVALUATION, AND ELIGIBILITY
A district shall ensure that all children residing within the district who have disabilities, regardless of the severity of their disabilities, and who are in need of special education and related services are identified, located, and evaluated. This requirement applies to:
- Homeless children;
- Children who are wards of the state;
- Children attending private schools;
- Highly mobile children (including migrant children); and
- Children who are suspected of being in need of special education but who are advancing from grade to grade.
20 U.S.C. 1412(a)(3)(A); 34 C.F.R. 300.111(a)(1)(i), (c)
Private School Students
A district shall conduct a timely and meaningful consultation with private school representatives regarding the child find process and the provision of special education and related services to children enrolled in private schools in the district.
A district shall undertake activities similar to those undertaken for public school children and shall complete the child find process for children enrolled in private schools in a time period comparable to that for other students attending public schools in the district.
20 U.S.C. 1412(a)(10)(A)(ii)–(iv) [See EHBAC regarding students in nondistrict placement.]
A district shall develop a system to notify district residents with children who are at least three and younger than six and who are eligible for enrollment in a special education program of the availability of the program. Education Code 29.009
Requests and Referrals for Evaluation
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. 20 U.S.C. 1414(a)(1)(E)
Referral of students for a full individual and initial evaluation for possible special education services shall be a part of a district's overall general education referral or screening system. Either a parent, TEA, another state agency, or the district may initiate a request for an initial evaluation.
District Obligation to Refer
Students experiencing difficulty in the general classroom should be considered for all support services available to all students, such as tutorial; remedial; compensatory; response to evidence-based intervention; and other academic or behavior support services. A student is not required to be provided with interventions for any specific length of time prior to a referral being made or a full individual and initial evaluation being conducted. If the student continues to experience difficulty in the general classroom with the provision of interventions, district personnel must refer the student for a full individual and initial evaluation. A referral for a full individual and initial evaluation may be initiated at any time by school personnel, the student's parents or legal guardian, or another person involved in the education or care of the student. 19 TAC 89.1011(a)
If a parent submits a written request to a district's director of special education services or to a district administrative employee for a full individual and initial evaluation of a student, the district shall, not later than the 15th school day after the date the district receives the request:
- Provide the parent with prior written notice of its proposal to conduct an evaluation consistent with 34 C.F.R. 300.503, a copy of the procedural safeguards notice required by 34 C.F.R. 300.504, and an opportunity to give written consent for the evaluation; or
- Provide the parent with prior written notice of its refusal to conduct an evaluation consistent with 34 C.F.R. 300.503, and a copy of the procedural safeguards notice required by 34 C.F.R. 300.504.
19 TAC 89.1011(b); Education Code 29.004(c); 20 U.S.C. 1414(a)(1); 34 C.F.R. 300.301
Notice of Rights
A reasonable time before a district proposes or refuses to initiate the identification, evaluation, or educational placement of a student or the provision of a free appropriate public education (FAPE) to a student, the district shall provide written notice to the student's parent or guardian. 20 U.S.C. 1415(b)(3); 34 C.F.R. 300.503(a) [See EHBAE]
Initial Evaluation Required
A district shall conduct a full individual and initial evaluation before the initial provision of special education and related services. 20 U.S.C. 1414(a)(1)(A)
Consent for Initial Evaluation
Before a district conducts an initial evaluation, it shall make reasonable efforts to obtain informed parental consent.
If the parent does not provide consent for an initial evaluation, or if the parent fails to respond to a request to provide consent, a district may, but is not required to, pursue the initial evaluation by utilizing due process procedures [see EHBAE], except to the extent inconsistent with state law relating to such parental consent.
Parental consent to initial evaluation shall not be construed as consent for placement for special education and related services.
20 U.S.C. 1414(a)(1)(D)(i)(I); 34 C.F.R. 300.300(b)
Wards of the State
If the child is a ward of the state and is not residing with the child's parent, a district shall make reasonable efforts to obtain the informed consent from the parent for an initial evaluation, unless:
- Despite reasonable efforts to do so, the district cannot discover the whereabouts of the parent;
- The rights of the parent have been terminated; or
- The rights of the parent to make educational decisions have been subrogated and an individual appointed by a judge to represent the student has given consent for an initial evaluation.
20 U.S.C. 1414(a)(1)(D)(iii); 34 C.F.R. 300.300(a)(2)
Time Frame for Completion of Written Report
A district must complete the written report of a full individual and initial evaluation:
- Not later than the 45th school day following the date on which the district receives written consent for the evaluation from the student's parent. If a student has been absent from school during that period on three or more school days, the period must be extended by a number of school days equal to the number of school days during that period on which the student has been absent; or
- For students under five years of age by September 1 of the school year and not enrolled in public school and for students enrolled in a private or homeschool setting, not later than the 45th school day following the date on which the district receives written consent for the evaluation from the student's parent.
If a district receives written consent for the evaluation from the student's parent at least 35 but less than 45 school days before the last instructional day of the school year, the written report of a full individual and initial evaluation of a student must be provided to the student's parent not later than June 30 of that year.
If a district receives written consent signed by a student's parent less than 35 school days before the last instructional day of the school year or if the district receives the written consent at least 35 but less than 45 school days before the last instructional day of the school year but the student is absent from school during that period on three or more days, the report must be completed not later than the 45th school day following the date the district received written consent, except that the period must be extended by a number of school days equal to the number of school days during that period on which the student has been absent.
A student is considered absent for the school day if the student is not in attendance at the school's official attendance taking time or at the alternate attendance taking time set for that student. A student is considered in attendance if the student is off campus participating in an activity that is approved by the school board and is under the direction of a professional staff member of the school district or an adjunct staff member who has a minimum of a bachelor's degree and is eligible for participation in the Teacher Retirement System of Texas.
"School day" does not include a day that falls after the last instructional day of the spring school term and before the first instructional day of the subsequent fall school term.
These time frames shall not apply if the parent repeatedly fails or refuses to produce the child for the evaluation.
A district shall ensure that evaluations of children who transfer from one district to another in the same academic year are coordinated with the children's prior and subsequent schools, as necessary and as expeditiously as possible, to ensure prompt completion of evaluations.
If a student was in the process of being evaluated for special education eligibility by a district and enrolls in another school district before the previous district completed the full individual and initial evaluation, the new district must coordinate with the previous district as necessary and as expeditiously as possible to ensure a prompt completion of the evaluation in accordance with 34 C.F.R., 300.301(d)(2) and (e) and 300.304(c)(5).
The timelines above do not apply in such a situation if:
- The new school district is making sufficient progress to ensure a prompt completion of the evaluation; and
- The parent and the new school district agree to a specific time when the evaluation will be completed.
20 U.S.C. 1414(a)(1)(C), (b)(3)(D); 34 C.F.R. 300.301(c)–(e); Education Code 29.004; 19 TAC 89.1011
If a district determines that an additional examination or test is required for the initial and individual evaluation, the district shall provide the information required by Education Code 29.0041(a) and shall obtain additional parental consent. If a parent does not give consent within 20 calendar days after the district provided the information, the parent's consent is considered denied.
The time required for a district to provide information and seek consent may not be counted toward the time frame for completion of an evaluation. [See Time Frame for Completion of Written Report, above]
Education Code 29.0041
Eligibility and Reevaluations
A student is eligible to participate in a district's special education program if:
- The student is between the ages of 3 and 21, inclusive;
- The student has one or more of the disabilities listed in federal regulations, state law, or both; and
- The student's disability(ies) prevents the student from being adequately or safely educated in the public schools without the provision of special services.
20 U.S.C. 1401(3); Education Code 29.003(b); 19 TAC 89.1035
To be eligible to receive special education services, a student must be a "child with a disability," as defined in 34 C.F.R. 300.8(a), subject to the provisions of 34 C.F.R. 300.8(c), Education Code 29.003, and 19 Administrative Code 89.1040. The provisions in 19 Administrative Code 89.1040 specify criteria to be used in determining whether a student's condition meets one or more of the definitions in federal regulations or in state law. 19 TAC 89.1040
Visual and Auditory Impairments
A student with a visual or auditory impairment shall be eligible to participate in a district's special education program from birth. 19 TAC 89.1035(b); Education Code 30.002(e), .081
Determination of Initial Eligibility
Upon completion of the administration of assessments and other evaluation measures, a team of qualified professionals and the parent shall make the determination of whether the child has a disability and of the educational needs of the child.
A district shall provide a copy of the evaluation report and the documentation of determination of eligibility at no cost to the parent.
20 U.S.C. 1414(b)(4); 34 C.F.R. 300.306(a)
The admission, review, and dismissal (ARD) committee must make its decisions regarding a student's initial eligibility determination and, if appropriate, individualized education program (IEP) and placement within 30 calendar days from the date of the completion of the written full individual and initial evaluation report. If the 30th day falls during the summer and school is not in session, the student's ARD committee has until the first day of classes in the fall to finalize decisions concerning the student's initial eligibility determination, IEP, and placement, unless the full individual and initial evaluation indicates that the student will need extended school year (ESY) services during that summer.
When a report is provided to a parent not later than June 30 as described at Time Frame for Completion of Written Report, above, the ARD committee must meet not later than the 15th school day of the following school year to consider the evaluation. If, however, an evaluation indicates that a student will need ESY services, the ARD committee must meet as expeditiously as possible.
19 TAC 89.1011(d), (e)
Consent for Services
Initial Provision of Services
A district must obtain informed consent from the parent for the initial provision of special education and related services. If the parent of a child fails to respond to a request for, or refuses to consent to, the initial provision of services, the district:
- May not use the procedures in 34 C.F.R. part 300 subpart E (including the mediation and due process procedures) in order to obtain agreement or a ruling that the services may be provided to the child;
- Will not be considered to be in violation of the requirement to make FAPE available to the child for the failure to provide the services for which the district requests consent; and
- Is not required to convene an ARD meeting or develop an IEP for the child for the services.
If, at any time after the provision of initial services, the parent of a child revokes consent in writing for the continued provision of services, the district:
- May not continue to provide services to the child, but must provide prior written notice before ceasing services;
- May not use the procedures in 34 C.F.R. part 300 subpart E in order to obtain agreement or a ruling that the services may be provided to the child;
- 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 further services; and
- Is not required to convene an ARD meeting or develop an IEP for further provision of services.
34 C.F.R. 300.300(b)
A district shall ensure that each child with a disability is reevaluated if the district determines that the educational or related services needs of the child, including improved academic achievement and functional performance, warrant a reevaluation, or if the child's parent or teacher requests a reevaluation.
Reevaluation shall occur:
- No more than once a year, unless the parent and the district agree otherwise; and
- At least once every three years, unless the parent and district agree that a reevaluation is unnecessary.
A district shall obtain informed parental consent before conducting a reevaluation, except that informed parental consent is not needed if the district can demonstrate that it has taken reasonable measures to obtain consent and the child's parent has failed to respond.
20 U.S.C. 1414(a)(2), (c)(3); 34 C.F.R. 300.303
Evaluation for Change in Eligibility
A district must evaluate a child with a disability before determining that the child is no longer a child with a disability. However, an evaluation is not required before the termination of eligibility due to graduation from secondary school with a regular diploma or due to exceeding the age eligibility for FAPE under state law. If a child's eligibility terminates under the aforementioned circumstances, a district must provide a summary of academic achievement and functional performance, which shall include recommendations on how to assist the child in meeting the child's postsecondary goals. 34 C.F.R. 300.305(e); 20 U.S.C. 1414(c)(5)
All students graduating under 19 Administrative Code 89.170 [see EIF] must be provided with a summary of academic achievement and functional performance as described above. This summary must consider, as appropriate, the views of the parent and student and written recommendations from adult service agencies on how to assist the student in meeting postsecondary goals. An evaluation as required by 34 C.F.R. 300.305(e)(1), must be included as part of the summary for a student graduating under 19 Administrative Code 89.1070(b)(3)(A), (B), or (C) or (f)(4)(A), (B), or (C).19 TAC 89.1070(g)
The parents have a right to obtain an independent educational evaluation of their child. If a parent requests an independent evaluation, a district shall provide the parents with information regarding where one can be obtained and the district's criteria for independent evaluations.
The results of a parent-initiated independent educational evaluation, whether at public or private expense, must be considered by the district if it meets the district's criteria, in any decision made with respect to providing FAPE to the child.
At Public Expense
If a parent requests an independent evaluation at public expense, the district shall, without unnecessary delay, either:
- File a due process complaint to request a hearing to show that its evaluation is appropriate; or
- Ensure that an independent evaluation is provided at public expense, unless the district demonstrates that the evaluation obtained by the parent did not meet district criteria.
At Private Expense
If a district initiates a hearing, and the final decision is that the district's evaluation is appropriate, the parent still has a right to an independent evaluation, but not at public expense.
34 C.F.R. 300.502
An employee of a district is prohibited from requiring a child to obtain a prescription for a substance covered under the federal Controlled Substances Act (21 U.S.C. 801 et seq.) as a condition of attending school, receiving an evaluation for special education, or receiving special education and related services.
An employee is not prohibited from consulting or sharing classroom-based observations with parents regarding a student's academic and functional performance, behavior in the classroom or school, or the need for evaluation for special education or related services.
20 U.S.C. 1412(a)(25)