Video Summary: Code of Federal Regulations for Initial Evaluations

This video explains the federal and state rules and regulations on the evaluation process for children who may need special education. Here we lay out some of the legal documentation regarding special education for your child. Some of these sections have already been covered in a more simplified fashion, but for those who’d like more detail, we’ve provided a more thorough version of the Code of Federal Regulations (CFR) here. [Note: The symbol “§” stands for section].

Title 34 Education

§ 300.301. Initial evaluations

(a)General.Each public agency must conduct a full and individual initial evaluation, in accordance with §§ 300.304 through 300.306, before the initial provision of special education and related services to a child with a disability under this part.

(b)Request for initial evaluation.Consistent with the consent requirements in § 300.300, either a parent of a child or a public agency may indicate a request for an initial evaluation to determine if the child is a child with a disability.

Part (b) also applies to Child Find activities, should the activity reveal a delay in vision, hearing, or development.

(c)Procedures for initial evaluation.The initial evaluation –

     (1)  (i) Must be conducted within 60 days of receiving parental consent for the evaluation; or

            (ii) If the State establishes a timeframe within which the evaluation must be conducted, within                         that timeframe; and

As we mentioned in the simplified version of our CFR outline, most states (including Nebraska) set their timeframes to under 60 days, but for legal reasons, the federal deadline is 60 days.

     (2)  Must consist of procedures-

            (i) To determine if the child is a child with a disability under § 300.8 and

            (ii)To determine the educational needs of the child.

(d)Exception. The timeframe described in paragraph (c)(1) of this section does not apply to a public agency if-

     (1) The parent of a child repeatedly fails or refuses to produce thee child for the evaluation; or

     (2) A child enrolls in a school of another public agency after the relevant timeframe in paragraph       (c)(1) of this section has begun, and prior to a determination by the child’s previous public           agency as to whether the child is a child with a disability under § 300.8.

(e) The exception in paragraph (d)(2) of this section applies only if the subsequent public agency is making sufficient progress to ensure a prompt completion of the evaluation,

Section (d)(1) establishes that if a parent can’t or won’t bring a child in for an evaluation, then the school isn’t responsible for conducting the evaluation. Sections (d)(2) and (e) establish that if a child transfers schools, then the child’s evaluation becomes the responsibility of the new school district, with help from the previous school district.

§ 300.302. Screening for instruction purposes is not 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.

This section differentiates a screening from an evaluation; a screening cannot be used as an evaluation, since the screening is far less comprehensive and formal than an evaluation.

§ 300.304. Evaluation procedures

(a)Notice.The public agency must provide notice to the parents of a child with a disability, in accordance with § 300.353, that describes any evaluation procedures the agency proposes to conduct.

(b)Conduct of evaluation.In conducting the evaluation, the public agency must-

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

            (i) Whether the child is a child with a disability under § 300.8; and

            (ii)The content of the child’s IEP, including information related to enabling the child to be                    involved in and progress in the general education curriculum (or for a preschool child, 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 and for 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.

Parts (a) and (b) of Section 300.304 outline how the evaluation should be conducted. The school must provide the parents with notice when, how, and where the evaluation will take place. The schools must also not use any one kind of test to determine whether the child has a disability, or in determining the child’s Individualized Education Program (IEP). The tests the school does use must reliably test the child’s mental, behavioral, physical, and developmental abilities to check for any and all possible disabilities.

(c)Other evaluation procedures.Each public agency must ensure that-

      (1) Assessments and other evaluation materials used to asses a child under this part-

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

            (ii) Are provided and administered in the child’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 academically, developmentally, and functionally, unless it is clearly not                     feasible to so provide or administer;

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

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

            (v) Are administered in accordance with any instructions provided by the producer of the                     assessments.

Part (c) of Section 300.304 outlines how each test must not discriminate against the child on the basis of language or culture barriers; if the child’s first language is Spanish, for example, the testing must be conducted in Spanish so that the child’s lack of English doesn’t come into play – only their possible cognitive disabilities. Here the phrase “other mode of communication” also includes sign language. Additionally, the test must be conducted using reliable methods by trained experts under the direction of the person who produced the tests. Continuing on from part (c):

      (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 the test purports to measure).

      (4) The child is assessed in all areas related to the 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 public agency to another public            agency in the same school year are coordinated with those children’s prior and subsequent schools, as necessary and as expeditiously as possible, consistent with § 300.301(d)(2) and (e),             to ensure prompt completion of full evaluations.

Part (c)(2) furthers the point that the evaluation should not focus on one specific area of learning (like an IQ test). The evaluation should test as many areas as possible for multiple kinds of disabilities. Part (c)(3) asks that each test evaluate the specific criteria they’re meant to, and not other areas; for example, if a test of reading comprehension is given to a child with impaired eyesight, the child’s sight should not factor into the test’s results, unless the test also is supposed to evaluate the child’s eyesight as well.

Part (c)(4) says that a child should be evaluated in each and every area they may have a suspected disability in. Part (c)(5) simply says that if a child transfers from one school to another, the schools (and the public agencies giving the tests) should share information so that a child completes every test they need to, and so that they repeat as few tests as possible.

These rules and regulations are what you (the parent) should keep in mind when your child is being evaluated, so that you can ask the right questions, and, if necessary, file the right complaints when these regulations are not being followed.



Legal Aid of Nebraska