20 U.S.C. § 1414 — Evaluations, eligibility determinations, individualized education programs, and educational placements

(a) Evaluations, parental consent, and reevaluations

(1) Initial evaluations

(A) In general. Before a child with a disability^* first receives special education^* and related services^* under this subchapter, a State educational agency^*, another State^* agency, or a local educational agency^* must give the child a full and individual initial evaluation under this paragraph and subsection (b).

(B) Request for initial evaluation. Subject to (D), a parent^*, a State educational agency, another State agency, or a local educational agency may ask for an initial evaluation to decide whether the child is a child with a disability.

(C) Procedures. (i) The evaluation must use procedures to decide, within 60 days after parental consent, or within a different period set by the State, whether the child is a child with a disability as defined in section 1401, and to decide the child’s educational needs. (ii) That time limit does not apply to a local educational agency if (I) the child enrolls in its school after the period has started but before the previous agency decides whether the child has a disability, and the new agency is making enough progress to finish promptly and the parent and new agency agree on a specific completion date; or (II) the parent repeatedly fails or refuses to bring the child for evaluation.

(D) Parental consent. (i)(I) The agency proposing an initial evaluation must obtain the parent’s informed consent first. Consent to an evaluation is not consent to placing the child to receive services. (II) An agency responsible for making a free appropriate public education^* available must seek the parent’s informed consent before providing special education and related services. (ii)(I) If a parent does not consent to an initial evaluation or does not answer the request, the local agency may pursue the evaluation through section 1415 procedures, unless State consent law prevents that. (II) If the parent refuses consent to services, the local agency may not provide the services by using section 1415 procedures. (III) If the parent refuses or does not answer, the local agency is not considered to violate its duty to make a free appropriate public education available by not providing the services for which consent was requested, and it need not hold an IEP meeting or develop an IEP for those services. (iii)(I) If a child is a ward of the State^* and does not live with the parent, the agency must make reasonable efforts to obtain the parent’s informed consent for an initial evaluation. (II) Consent is not required if, despite reasonable efforts, the parent’s location cannot be found; the parent’s rights have ended under State law; or a judge has transferred the parent’s educational-decision rights under State law and a judge-appointed representative has consented.

(E) Rule of construction. A teacher’s or specialist’s screening of a student to choose instructional strategies is not an eligibility evaluation for special education and related services.

(2) Reevaluations

(A) A local educational agency must ensure that a reevaluation is conducted under (b) and (c) when the agency decides the child’s educational or related-service needs warrant one, including because of improved academic or functional performance, or when the child’s parent or teacher asks for one. (B) A reevaluation may occur no more than once a year unless the parent and agency agree otherwise. It must occur at least once every 3 years unless they agree it is unnecessary.

(b) Evaluation procedures

(1) Notice. The local educational agency must notify the parents, as required by section 1415(b)(3), (b)(4), and (c), about the evaluation procedures it proposes.

(2) Conduct of evaluation. The agency must (A) use several assessment tools and strategies, including parent information, to gather relevant functional, developmental, and academic information for deciding whether the child has a disability and what the IEP should contain, including information needed for participation and progress in the general curriculum or, for a preschool child, appropriate activities; (B) not use one measure or assessment as the only basis for deciding disability or an educational program; and (C) use technically sound instruments that can assess cognitive and behavioral factors as well as physical and developmental factors.

(3) Additional requirements. The agency must ensure that evaluation materials (A) are chosen and administered without racial or cultural discrimination; (B) are given in the language and form most likely to give accurate information about what the child knows and can do academically, developmentally, and functionally, unless that is not feasible; (C) are used only for valid and reliable purposes; (D) are administered by trained, knowledgeable people; and (E) follow the producer’s instructions. The child must be assessed in every suspected disability area. The agency must provide tools and strategies that directly help determine educational needs. If a child with a disability transfers between districts in the same school year, the prior and new schools must coordinate assessments as needed and as quickly as possible to finish the full evaluation promptly.

(4) Determining eligibility and educational need. After assessments are completed, a team of qualified professionals and the parent must decide, under paragraph (5), whether the child has a disability as defined in section 1401(3) and what educational needs the child has. The parent must receive the evaluation report and the eligibility documentation.

(5) Special eligibility rule. A child may not be found to have a disability when the deciding factor is lack of appropriate reading instruction, including the essential components of reading instruction as defined in section 6368(3) as that section existed on December 9, 2015; lack of math instruction; or limited English proficiency.

(6) Specific learning disabilities. (A) When deciding whether a child has a specific learning disability^* as defined in section 1401, the local agency does not have to consider whether there is a severe difference between achievement and intellectual ability in oral expression, listening comprehension, written expression, basic reading, reading comprehension, mathematical calculation, or mathematical reasoning. (B) The agency may use a process that asks whether the child responds to scientific, research-based intervention as part of the procedures in paragraphs (2) and (3).

(c) Additional requirements for evaluations and reevaluations

(1) Review of existing data. For an initial evaluation, when appropriate, and for any reevaluation, the IEP Team and other qualified professionals must (A) review existing data, including parent evaluations and information, current classroom, local, or State assessments and classroom observations, and teacher and related-service-provider observations; and (B), using that review and parent input, identify any additional data needed to decide (i) whether the child has or continues to have a disability under section 1401(3) and what educational needs the child has; (ii) the child’s current academic achievement and related developmental needs; (iii) whether the child needs or continues to need special education and related services; and (iv) whether additions or changes to those services are needed for the child to meet measurable annual IEP goals and participate as appropriate in the general curriculum.

(2) Source of data. The agency must administer the assessments needed to produce the data identified by the IEP Team.

(3) Parental consent. Before a reevaluation, the agency must obtain informed parental consent under (a)(1)(D), unless it can show that it took reasonable steps to obtain consent and the parent did not respond.

(4) If no additional data are needed. If the IEP Team and other qualified professionals decide no additional data are needed to decide whether the child continues to have a disability and to determine educational needs, the agency must tell the parents that decision and its reasons, and tell them they may request an assessment. The agency need not conduct that assessment unless the parents request it.

(5) Evaluation before ending eligibility. (A) Before deciding that a child no longer has a disability, the agency must evaluate the child under this section. (B)(i) An evaluation is not required before eligibility ends because the child graduates from secondary school^* with a regular diploma or exceeds the State’s age eligibility for a free appropriate public education. (ii) In those cases, the agency must give the child a summary of academic achievement and functional performance, including recommendations for helping the child meet postsecondary goals.

(d) Individualized education programs

(1) Definitions

(A) Individualized education program. (i) An “individualized education program” or “IEP” is a written statement for each child with a disability, developed, reviewed, and revised under this section. It must include: (I) the child’s current academic achievement and functional performance, including how the disability affects participation and progress in the general curriculum; for a preschool child, how it affects participation in appropriate activities; and, for a child taking an alternate assessment aligned to alternate achievement standards, benchmarks or short-term objectives. (II) Measurable annual academic and functional goals designed to meet disability-related needs so the child can participate and progress in the general curriculum and to meet the child’s other disability-related educational needs. (III) How progress toward those goals will be measured and when periodic progress reports will be given, such as with quarterly reports or report cards. (IV) The special education, related, supplementary, and other services to be provided, based on peer-reviewed research to the extent practicable, and program changes or supports for school staff, so the child can advance toward the goals, participate and progress in the general curriculum and extracurricular and nonacademic activities, and be educated and participate with children with and without disabilities. (V) An explanation of any extent to which the child will not be in the regular class or activities with children without disabilities. (VI)(aa) Needed individual accommodations for State and districtwide assessments, consistent with section 1412(a)(16)(A). (bb) If the Team chooses an alternate assessment, why the child cannot take the regular assessment and why the chosen alternate assessment is appropriate. (VII) The expected starting date and expected frequency, location, and duration of the services and changes. (VIII), beginning no later than the first IEP effective when the child is 16 and updated each year: (aa) measurable postsecondary goals based on age-appropriate transition assessments concerning training, education, employment, and, when appropriate, independent living; (bb) transition services^*, including courses of study, needed to reach those goals; and (cc), beginning no later than 1 year before the child reaches adulthood under State law, a statement that the child was told about any rights under this chapter that will transfer to the child at adulthood under section 1415(m). (ii) This section does not require extra IEP information beyond what it expressly requires, or require the Team to repeat information already included in another IEP component.

(B) IEP Team. The Team consists of the child’s parents; at least one regular-education teacher if the child participates or may participate in regular education; at least one special-education teacher or, when appropriate, special-education provider; a local-agency representative qualified to provide or supervise specially designed instruction, knowledgeable about the general curriculum, and knowledgeable about agency resources; a person who can interpret the instructional meaning of evaluation results, who may also be one of the listed members; other people with knowledge or special expertise about the child, including related-service staff, if the parent or agency invites them; and, when appropriate, the child.

(C) Attendance. (i) A Team member need not attend all or part of a meeting if the parent and agency agree in writing that the member is unnecessary because the member’s curriculum or related-service area will not be changed or discussed. (ii) A member whose area will be changed or discussed may be excused if the parent and agency consent in writing and the member gives the parent and Team written input before the meeting. (iii) The agreement or consent must be in writing.

(D) Transition to an IEP. For a child previously served under subchapter III, the parent may ask that the subchapter III service coordinator or another representative be invited to the initial IEP meeting to help services transition smoothly.

(2) Program in effect. (A) At the start of each school year, each local or State educational agency, or other State agency, must have an IEP in effect for each child with a disability in its jurisdiction. (B) For a child age 3 through 5, or a 2-year-old who will turn 3 during the school year if the State allows it, the Team must consider the individualized family service plan^* described in section 1436. That plan may serve as the IEP if State policy allows and the agency and parents agree. (C)(i)(I) When a child with a disability transfers districts in the same school year and enrolls in a new school in the same State, the new agency must provide a free appropriate public education and comparable services, in consultation with the parents, until it adopts the old IEP or develops, adopts, and implements a new one consistent with Federal and State law. (II) If the transfer is from another State, the new agency must provide the same kind of education and comparable services until it evaluates the child under (a)(1), if it decides an evaluation is needed, and develops an appropriate new IEP consistent with Federal and State law. (ii) The new school must reasonably and promptly seek the child’s records, including the IEP and supporting and service records, under 34 C.F.R. 99.31(a)(2), and the prior school must reasonably and promptly respond.

(3) Developing an IEP. (A) The Team must consider the child’s strengths, the parents’ concerns about improving the child’s education, initial or most recent evaluation results, and the child’s academic, developmental, and functional needs. (B) The Team must consider positive behavioral supports and other strategies when behavior interferes with learning; language needs related to the IEP for a child with limited English proficiency; Braille instruction and use for a blind or visually impaired child unless evaluation shows it is inappropriate; communication needs, and for a deaf or hard-of-hearing child language, communication mode, direct communication with peers and staff, academic level, full needs, and direct instruction opportunities; and whether assistive-technology devices or services are needed. (C) To the appropriate extent, the regular-education teacher must help develop the IEP, including behavior supports, supplementary aids and services^*, program changes, and staff support. (D) After the annual meeting, the parent and agency may agree in writing to change the IEP without another meeting by creating a written amendment. (E) The agency should, when possible, combine reevaluation and other IEP meetings. (F) The whole Team may change the IEP, or it may be amended as allowed by (D), instead of rewriting the entire document. On request, the parent must receive a revised copy with amendments included.

(4) Review and revision. (A) Subject to (B), the Team must review the IEP periodically, at least annually, to decide whether annual goals are being met, and revise it as appropriate for lack of expected progress toward goals or in the general curriculum, reevaluation results, information from or provided by the parents under (c)(1)(B), anticipated needs, or other matters. (B) The regular-education teacher must participate in review and revision consistent with paragraph (1)(C).

(5) Multi-year IEP demonstration. (A)(i) The purpose is to let States offer parents and agencies optional comprehensive IEPs lasting no more than 3 years and timed to the child’s natural transitions. (ii) The Secretary^* may approve no more than 15 State proposals. (iii) A State must submit a proposal as reasonably required. It must assure that multi-year IEPs are optional and require informed parent consent; list required elements, including measurable disability-related goals tied to natural transitions and measurable annual goals for progress; and describe review and revision. The process must include Team review at each natural transition; annual review in other years of current progress and goal achievement, with amendments when needed; a more thorough paragraph (4) review within 30 calendar days if progress is insufficient; and a review at the parent’s request instead of or after an annual review. (B) Beginning 2 years after December 3, 2004, the Secretary must annually report to the House Education and Workforce Committee and Senate Health, Education, Labor, and Pensions Committee on program effectiveness and recommendations for wider use, including reducing paperwork and teachers’ noninstructional compliance time, improving long-term planning and outcomes, promoting Team collaboration, and ensuring family satisfaction. (C) “Natural transition points” are periods near a child’s move from preschool to elementary school^*, elementary to middle or junior high school, middle or junior high to secondary school, and secondary school to postsecondary activities; no period may be longer than 3 years.

(6) Failure to meet transition objectives. If a participating agency other than the local agency does not provide the IEP’s transition services under (1)(A)(i)(VIII), the local agency must reconvene the Team to identify other strategies for meeting the child’s transition objectives.

(7) Children with disabilities in adult prisons. (A) For children convicted as adults under State law and held in adult prisons, the general-assessment requirements in section 1412(a)(16) and paragraph (1)(A)(i)(VI) do not apply. The transition-planning and transition-service requirements in (1)(A)(i)(VIII)(aa) and (bb) do not apply when the child’s eligibility will end because of age before release. (B) If such a child is in an adult prison, the Team may change the IEP or placement despite section 1412(a)(5)(A) and paragraph (1)(A) if the State has shown a genuine security or compelling prison-management interest that cannot otherwise be accommodated.

(e) Educational placements. The local or State educational agency must ensure that the parents are members of every group that decides the child’s educational placement.

(f) Alternative meeting participation. For IEP and placement meetings under this section and section 1415, and for administrative matters under section 1415 such as scheduling, exchanging witness lists, and status conferences, the parent and local educational agency may agree to participate by alternatives such as videoconferences or conference calls.