Evaluation when there is a suspected disability

Discussion in 'Special Ed 101' started by Jules71, Oct 31, 2007.

  1. Jules71

    Jules71 Warrior Mom since 2007

    I need to find the exact verbiage under IDEA about when a school district is REQUIRED to evaluate if a "disability is suspected".

    If the school psychiatric suspects ADHD, Obsessive Compulsive Disorder (OCD), Anxiety - is that enough cause to REQUIRE them to evaluate?

    If difficult child has an actual diagnosis now (ADHD and ODD) - does that REQUIRE them to evaluate?

  2. Sheila

    Sheila Moderator

    <div class="ubbcode-block"><div class="ubbcode-header">Quote:</div><div class="ubbcode-body">If the school psychiatric suspects ADHD, Obsessive Compulsive Disorder (OCD), Anxiety - is that enough cause to REQUIRE them to evaluate?

    If difficult child has an actual diagnosis now (ADHD and ODD) - does that REQUIRE them to evaluate? </div></div>

    I'd think it should.


    Statute: TITLE I / B / 614

    (a) Evaluations, Parental Consent, and Reevaluations.--
    (1) Initial evaluations.--
    (A) In general.--A State educational agency, other State agency, or local educational agency shall conduct a full and individual initial evaluation in accordance with this paragraph and subsection (b), 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 subparagraph (D), either a parent of a child, or a State educational agency, other State agency, or local educational agency may initiate a request for an initial evaluation to determine if the child is a child with a disability.

    (3) Additional requirements.--Each local educational agency shall ensure that—
    (B) the child is assessed in all areas of suspected disability;

    Other info that may be beneficial for you:

    Regulations: Part 300 / B / 300.111

    Sec. 300.111 Child find.
    (a) General.
    (1) The State must have in effect policies and procedures to ensure that--
    (i) All children with disabilities residing in the State, including children with disabilities who are homeless children or are wards of the State, and children with disabilities attending private schools, regardless of the severity of their disability, and who are in need of special education and related services, are identified, located, and evaluated; and

    OSEP Policy Letters

    Dated March 30, 2001

    Dr. Lorrie Harkness
    Special Education Services Unit
    Colorado Department of Education
    201 East Colfax Avenue
    Denver, Colorado 80203

    Dear Dr. Harkness:

    This letter is in further response to the request for Secretarial review of the Colorado Department of Education's (CDE) decision regarding a complaint filed by x, on behalf of x, against the School District on May 8, 1998. CDE issued its letter of findings on July 27, 1998, with amendments made on August 4, 1998. We apologize for the delay in issuing a decision on this request.

    When x filed x complaint with CDE, the complaint procedures applicable to Part B of the Individuals with Disabilities Education Act (Part B), at 34 CFR §§300.660-300.662, included a provision that after a complaint had been filed with the State and the State had acted on it, either party to the complaint could request the U.S. Secretary of Education to review the State's final decision. On March 12, 1999, new final regulations were published reflecting revisions to the then existing Part B regulations. These new regulations no longer include a Secretarial review process. However, since x filed x request prior to March 12, 1999, the Office of Special Education Programs (OSEP) has reviewed x request.

    The Secretary has delegated the responsibility for administering Part B to the Assistant Secretary for Special Education and Rehabilitative Services. Included within this delegation is the responsibility for determining whether to grant or to deny requests for Secretarial review of issues involving Part B. Additionally, if the State agency has failed to address or to resolve all of the issues raised by the complaint, the complaint may be remanded to the State for a new decision on these issues.

    OSEP has decided to deny Secretarial review because the issues raised in the request involve State law or because they are largely dependent on resolution of disputed factual issues. Although OSEP affirms the State’s decision, we take this opportunity to correct misstatements of law made by the State in addressing two issues raised by the complainant.

    The first issue involves Child Find requirements under Part B.

    CDE's response includes the following statements: "The law does not require identification of Attention Deficit Hyperactivity Disorder (ADHD) because it is not one of the identified disabilities," and “It cannot be assumed that schools have responsibility for the identification of ADHD.” CDE goes on to conclude that, “It is not the responsibility of the District to refer or evaluate for ADHD” (CDE Decision at page 24). While it is true that ADD/ADHD is not one of the specified disabilities in and of itself, children with ADD/ADHD may have a disability under one or more of the specified disabilities such as Other Health Impaired, Specific Learning Disability or Serious Emotional Disturbance. Children with ADD/ADHD may be considered disabled under Part B solely on the basis of this disorder within the “other health impaired” category in situations where special education and related services are needed because of the ADD/ADHD. An OSEP Memorandum dated September 16, 1991, entitled “Policy to Address the Needs of Children with Attention Deficit Disorders within General and/or Special Education” and in effect at the time of this investigation, explains the local education agency's (LEA) responsibilities to children with ADD/ADHD. This memo clearly provides that local education agencies (school districts) have an affirmative obligation to locate, identify and evaluate a child who is suspected of having a disability to determine eligibility for special education and related services. Since ADD/ADHD can adversely effect a child’s educational performance in a variety of ways, such an evaluation must be conducted that meets the requirements of 34 CFR §§300.530-300.534. In this case, however, it was not the District that asserted it had no obligation to identify and evaluate children who may have ADD/ADHD, rather it was the CDE investigator who formed that erroneous legal conclusion. There is a factual dispute over whether the District should have identified the child’s disability earlier, with the District contending that the behaviors exhibited by the child did not warrant a referral to special education, but the District does not claim that it had no legal obligation to identify and evaluate a child with ADD/ADHD. Therefore, OSEP clarifies its legal interpretation of the District’s Child Find responsibilities under Part B, but affirms the CDE’s ultimate decision that the District did not violate the Child Find requirements of Part B since that decision is largely dependent upon the facts of the case.

    The second finding to which the CDE appears to have applied the incorrect legal standard is related to the parents’ access to the educational records of x.

    The LOF indicated that the delay of the LEA in providing access to copies of the child’s discipline records did not violate the IDEA. The investigator found that discipline files are not part of “special education records” unless they are “…specifically related to goals and objectives in an IEP….” This legal conclusion is not consistent with Part B, in light of the definition of educational records found in the Family Educational Rights and Privacy Act and incorporated by reference in 34 CFR §300.560, which states that educational records are records that are directly related to a student and are maintained by an educational agency or institution or by a party acting for the agency or institution. No exception for disciplinary records or medical logs is listed and there is no distinction between “special education” records and general education records. See the regulations implementing FERPA at 34 CFR §99.3. The CDE must communicate to the District its obligations under FERPA when providing parents access to educational records. Because the records sought by the parent, in this case, were ultimately obtained, no corrective action specific to this complaint is necessary.

    OSEP would also like to point out to CDE that this LOF failed to meet the requirements of the “State Complaint Procedures” of Part B at 34 CFR §§300.660-300.662. Several allegations raised in the complainant’s letters were paraphrased by the State investigator leading to concern, on the part of the complainant, that allegations were mischaracterized and some allegations were not addressed with the appropriate specificity. In addition, findings of facts and conclusions and the reasons for the SEA’s final decision were not provided for each allegation in the LOF as required by 34 CFR §300.661(a)(4)(i) and (ii). In this LOF, most of the allegations had only a general discussion of each party's views and a few sentences recitation of the investigator’s interpretation of the law, instead of findings of fact. The LOF’s “Conclusions” section at the end of the document also did not provide conclusions for each allegation. The CDE should follow-up on the corrective action required of the District in order to ensure that it was appropriately implemented.

    Thank you in advance for you attention to this matter.


    /signed Patricia J. Guard/

    Patricia J. Guard
    Acting Director
    Office of Special Education Programs


    cc: x

    Dated March 6, 2007

    Dr. Perry A. Zirkel
    Lehigh University
    Department of Education and Human Services
    College of Education
    Mountaintop Campus
    111 Research Drive
    Bethlehem, Pennsylvania 18015-4794

    Dear Dr. Zirkel:

    Thank you for your recent correspondence to Mr. John Hager, Assistant Secretary for the Office of Special Education and Rehabilitative Services, U. S. Department of Education regarding issues related to identifying children and youth with specific learning disabilities. Your letter was referred to the Office of Special Education Programs (OSEP), for response.

    You requested guidance from OS EP relating to procedures for identifying children with specific learning disabilities, as required by 34 CFR §300.307(a). Specifically, you inquired if a State may: (1) prohibit local educational agencies (LEAs) from using severe discrepancy and require them to use response to intervention (RTI); (2) permit severe discrepancy, RTI, and a third research-based model, thereby leaving the choice among the three options to each LEA; and (3) prohibit or permit the use of a successive combination of RTI and severe discrepancy (i.e., RTI as the initial steps and severe discrepancy as part of the culminating determination).

    The regulations at 34 CFR §300.307(a) provide that a State must adopt criteria for determining whether a child has a specific learning disability, and LEAs must use the criteria adopted by the State educational agency (SEA). The criteria adopted by the States cannot require LEAs to use a severe discrepancy between intellectual ability and achievement to determine whether a child has a specific learning disability. 34 CFR §300.307(a)(1). Moreover, the Analysis of Comments and Changes section of the final Part B Regulations to the Individuals with Disabilities Education Act of 2004 (IDEA 2004) indicates that States may prohibit the use of a discrepancy model. 71 Fed. Reg. 46646 (August 14, 2006). Accordingly, while a State cannot require the use of a severe discrepancy model, a State may prohibit, or make optional, the use of a severe discrepancy model.

    As required in 34 CFR §300.304(b)(1) and (2), consistent with section 614(b)(2) of the Act, an evaluation of a child suspected of having a disability, including a specific learning disability, must include a variety of assessment tools and strategies and cannot rely on any single procedure as the sole criterion for determining eligibility for special education and related services. With respect to a child suspected of having a specific learning disability, in accordance with 34 CFR §300.307(a)(2) and (3), State criteria must permit the use of a process based on the child's response to scientific, research-based intervention, and may permit the use of other alternative research-based procedures (emphasis added). An RTI process does not replace the need for a comprehensive evaluation, and the results of an RTI process may be one component of the information reviewed as part of the evaluation procedures required under 34 CFR §§300.304 and 330.305. Finally, the manner in which the State chooses to use RTI as one component of a comprehensive evaluation is left up to the States.

    Based on section 607(e) of the IDEA, we are informing you that our response is provided as informal guidance and is not legally binding, but represents an interpretation by the U.S. Department of Education of the IDEA in the context of the specific facts presented.

    If you have any further questions, please do not hesitate to contact us.



    Alexa Posny, Ph.D.
    Office of Special Education

  3. Martie

    Martie Moderator

    Thanks Sheila. I can use Posny's letter in class. It does not make me happy that gestational school psychologists think they can dispense with evaluations required by law if they are doing RtI.

    Thank you

  4. Jules71

    Jules71 Warrior Mom since 2007

    I hate the mumbo jumbo laungage of the law. Can't anything ever be clear and specific?

    Thanks for this information. I was hoping to find something that says "if a disability is suspected by school personnel, an evaluation must be conducted to determine if the student is eligible for special education services".
  5. Martie

    Martie Moderator

    The law says the SD must evaluate in "all areas of suspected disability."

    I think that is pretty clear and why we advise parent NOT to tell the SD what to evaluate....

    I hope you get a prompt response to your CERTIFIED letter.

  6. Sheila

    Sheila Moderator

    If the sd is refusing to evaluate, you can contact an advocate to help you, contact your State Education Agency, contact your regional OSEP office, file a formal complaint with-your SEA or US Department of Ed, and/or file Due Process.


    The Federal regulations at 34 CFR §300.301(b) allow a parent to request an evaluation at any time. If an LEA declines the parent’s request for an evaluation, the LEA must issue a prior written notice as required under 34 CFR §300.503(a)(2) which states, “written notice that meets the requirements of paragraph (b) of this section must be given to the parents of a child with a disability a reasonable time before the public agency refuses to initiate or change the identification, evaluation, or educational placement of the child or the provision of FAPE to the child.” The parent can challenge this decision by requesting a due process hearing to resolve the dispute regarding the child’s need for an evaluation.

    More on “notice” required by 34 CFR §300.503(b)

    (b) Content of 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.