(a) Evaluations 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) Procedures.--Such initial evaluation shall consist of procedures--(i) to determine whether a child is a child with a disability (as defined in section 602(3)); and (ii) to determine the educational needs of such child.

  (C) Parental consent.--

  • (i) In general.--The agency proposing to conduct an initial evaluation to determine if the child qualifies as a child with a disability as defined in section 602(3)(A) or 602(3)(B) shall obtain an informed consent from the parent of such child before the evaluation is conducted. Parental consent for evaluation shall not be construed as consent for placement for receipt of special education and related services.

    (ii) Refusal.--If the parents of such child refuse consent for the evaluation, the agency may continue to pursue an evaluation by utilizing the mediation and due process procedures under section 615, except to the extent inconsistent with State law relating to parental consent.

(2) Reevaluations.--A local educational agency shall ensure that a reevaluation of each child with a disability is conducted--

• (A) if conditions warrant a reevaluation or if the child’s parent or teacher requests a reevaluation, but at least once every 3 years; and

  (B) in accordance with subsections (b) and (c).

(b) Evaluation Procedures.--

(1) Notice.--The local educational agency shall provide notice to the parents of a child with a disability, in accordance with subsections (b)(3), (b)(4), and (c) of section 615, that describes any evaluation procedures such agency proposes to conduct.

(2) Conduct of evaluation.--In conducting the evaluation, the local educational agency shall—

• (A) use a variety of assessment tools and strategies to gather relevant functional and developmental information, including information provided by the parent, that may assist in determining whether the child is a child with a disability and the content of the child’s individualized education program, including information related to enabling the child to be involved in and progress in the general curriculum or, for preschool children, to participate in appropriate activities;

  (B) not use any single procedure as the sole criterion for determining whether a child is a child with a disability or determining an appropriate educational program for the child; and

  (C) use technically sound instruments that may assess the relative contribution of cognitive and behavioral factors, in addition to physical or developmental factors.

(3) Additional requirements.--Each local educational agency shall ensure that-

• (A) tests and other evaluation materials used to assess a child under this section--
   
  • (i) are selected and administered so as not to be discriminatory on a racial or cultural basis; and

    (ii) are provided and administered in the child’s native language or other mode of communication, unless it is clearly not feasible to do so; and

    • •  

  (B) any standardized tests that are given to the child--
   

  • (i) have been validated for the specific purpose for which they are used;
    • •  

    (ii) are administered by trained and knowledgeable personnel; and

    (iii) are administered in accordance with any instructions provided by the producer of such tests;

    • •  

  (C) the child is assessed in all areas of suspected disability; and

  (D) assessment tools and strategies that provide relevant information that directly assists persons in determining the educational needs of the child are provided.

(4) Determination of eligibility.--Upon completion of administration of tests and other evaluation materials-

• • (A) the determination of whether the child is a child with a disability as defined in section 602(3) shall be made by a team of qualified professionals and the parent of the child in accordance with paragraph (5); and

    (B) a copy of the evaluation report and the documentation of determination of eligibility will be given to the parent.
     

    • (PWDW Note: Section 1414(b)(4) establishes that the determination of eligibility for services is to be made by a team that includes the parent. Before IDEA 97, parents could be and often were excluded from eligibility meetings. Clearly, parents now are a part of the team and are entitled to the evaluation reports and all documentation of the determination of eligibility.)

(5) Special rule for eligibility determination.--In making a determination of eligibility under paragraph (4)(A), a child shall not be determined to be a child with a disability if the determinant factor for such determination is lack of instruction in reading or math or limited English proficiency.

(c) Additional Requirements For Evaluation and Reevaluations.--

(1) Review of existing evaluation data.--As part of an initial evaluation (if appropriate) and as part of any reevaluation under this section, the IEP Team described in subsection (d)(1)(B) and other qualified professionals, as appropriate, shall-

• (A) review existing evaluation data on the child, including evaluations and information provided by the parents of the child, current classroom-based assessments and observations, and teacher and related services providers observation; and

  (B) on the basis of that review, and input from the child’s parents, identify what additional data, if any, are needed to determine--

  • (i) whether the child has a particular category of disability, as described in section 602(3), or, in case of a reevaluation of a child, whether the child continues to have such a disability;

    (ii) the present levels of performance and educational needs of the child;
     

    • (PWDW Note: The term "present levels of performance" refers to the child’s skills now, i.e., the present. In many cases, the IEP relies on data from the child's scores on educational achievement tests years earlier, then makes decisions for the present based on outdated data. When IEP teams rely on old test data, they often make educational decisions that are inappropriate.)
      • • •  

    (iii) whether the child needs special education and related services, or in the case of a reevaluation of a child, whether the child continues to need special education and related services; and

    (iv) whether any additions or modifications to the special education and related services are needed to enable the child to meet the measurable annual goals set out in the individualized education program of the child and to participate, as appropriate, in the general curriculum.

    • •  

      (PWDW Note: The statute emphasizes that parents can provide private sector reports and schools must consider these reports. The statute emphasizes that the IEP team must first review the existing data to determine what the child needs to meet the measurable annual goals. This means that all IEPs should contain measurable annual goals.

      The goals should be measurable, using objective tests. Subjective opinions about success or progress are not objectives. Is the child learning to type, with the progress measured by a "teacher observation" with an "80%" success rate? Has the child’s typing improved from a rate of five words per minute to a speed of fifteen words a minute on a five minute timed test, with less than five errors? Which of these goals is measurable objectively and observable, independent of the evaluator?

      Goal: - the child’s reading skills will improve by 80% according to teacher made tests and observations? Or, the child’s reading comprehension skill will increase from the 5.4 to the 5.8 reading grade level as measured by the Woodcock Reading Mastery Test? (Note: This last goal was one of the goals in Shannon Carter’s IEP - an IEP that was ruled "wholly inadequate" because four tenths of a year of gain in reading after one full year of remediation was not sufficient and meant that Shannon would continue to fall behind her peer group rather than catch up. End of PWDW Note)

(2) Source of data.--The local educational agency shall administer such tests and other evaluation materials as may be needed to produce the data identified by the IEP Team under paragraph (1)(B).

(3) Parental consent.--Each local educational agency shall obtain informed parental consent, in accordance with subsection (a)(1)(C), prior to conducting any reevaluation of a child with a disability, except that such informed parent consent need not be obtained if the local educational agency can demonstrate that it had taken reasonable measures to obtain such consent and the child’s parent has failed to respond.

(4) Requirements if additional data are not needed.--If the IEP Team and other qualified professionals, as appropriate, determine that no additional data are needed to determine whether the child continues to be a child with a disability, the local educational agency--

• (A) shall notify the child’s parents of--

• • (i) that determination and the reasons for it; and

    (ii) the right of such parents to request an assessment to determine whether the child continues to be a child with a disability; and

    • •  

  (B) shall not be required to conduct such an assessment unless requested to by the child’s parents.

(5) Evaluations before change in eligibility.--A local educational agency shall evaluate a child with a disability in accordance with this section before determining that the child is no longer a child with a disability.

(d) Individualized Education Programs.--

(1) Definitions.--As used in this title:

• (A) Individualized education program.--The term ‘individualized education program’ or ‘IEP’ means a written statement for each child with a disability that is developed, reviewed, and revised in accordance with this section and that includes--
   
  • (i) a statement of the child’s present levels of educational performance, including--
    • •  

      (I) how the child’s disability affects the child’s involvement and progress in the general curriculum;

      or

      (II) for preschool children, as appropriate, how the disability affects the child’s participation in appropriate activities;

      • • •  

    (ii) a statement of measurable annual goals, including benchmarks or short-term objectives, related to--

    • •  

      (I) meeting the child’s needs that result from the child’s disability to enable the child to be involved in and progress in the general curriculum; and

      (II) meeting each of the child’s other educational needs that result from the child’s disability;

      • • •  

        (PWDW Note: Annual goals should be measurable and should be related to the child’s unique needs to enable to the child to participate in the general curriculum. Although children are often placed in the general curriculum, they cannot read, write, spell, or do arithmetic. The child continues to fall behind and develop "emotional problems" due to frustration and failure. In these cases, the parent should insist that the school provide intensive remediation, using a one to one tutorial, to teach the child how to read, write, spell, and do arithmetic. The goal should be to increase the child’s skills so the child can really "be involved in and progress in the general curriculum."

        Too often, special educators bring in scribes or note takers, instead of teaching the child to write. Or, the special educator will provide talking books instead of teaching the child how to read. Or, special educators will give calculators to children instead of teaching them to do math. In these cases, relying on "modifications" and "accommodations" causes the school to fail in their responsibility to teach children the acquisition of basic skills. Adults in the workplace do not have scribes or talking books. As an adult, the individual will not always be able to use a calculator to determine how much change they should give or receive to purchase an item. In the intense private special education schools, students do acquire these basic skills. That is the expectation of those educators. Too often, that is not the expectation of the public school educators. Instead, there is an over reliance on compensation and accommodation, rather than the acquisition of basic skills.

        After the Carter case, many school districts stopped using standardized measures to evaluate progress and regression, objectively. Instead they began to use subjective teacher observations and teacher made tests. Some schools use criterion referenced material, instead of standardized, norm referenced test data. Reading may not be the actual reading score, reported as a grade equivalent, standard score, or percentile rank. Instead, the skill will be "described" with other criteria that measure gain over time, such as a specific level or series of books. The phrase "benchmarks" was included to clarify the expectation that there must be clear measures of progress or regression.

        The emphasis in IDEA 97 is on measurable outcomes. Many IEPs state that "the child will have 80% success," with success "measured" by teacher observation and classwork. These goals are meaningless. Goals and objectives must be linked to the child’s present levels of performance.

        You may see considerable litigation about the term "benchmarks or short term objectives." End of PWDW Note)

        • • • •  

    (iii) a statement of the special education and related services and supplementary aids and services to be provided to the child, or on behalf of the child, and a statement of the program modifications or supports for school personnel that will be provided for the child--

    • •  

      (PWDW Note: Program modifications and supports for the school personnel will also be written into the IEP. Not just modifications and supports for the child!)

      • • • • •  

      (I) to advance appropriately toward attaining the annual goals;

      • • •  

      (II) to be involved and progress in the general curriculum in accordance with clause (i) and to participate in extracurricular and other nonacademic activities; and

      (III) to be educated and participate with other children with disabilities and nondisabled children in the activities described in this paragraph;

      • • •  

    (iv) an explanation of the extent, if any, to which the child will not participate with nondisabled children in the regular class and in the activities described in clause (iii);

    • •  

      (PWDW Note: The IEP must actually explain the extent that the child will not participate in regular classes.)

    (v)

    • (I) a statement of any individual modifications in the administration of State or districtwide assessments of student achievement that are needed in order for the child to participate in such assessment; and
      • • •  

      (II) if the IEP Team determines that the child will not participate in a particular State or districtwide assessment of student achievement (or part of such an assessment), a statement of

      • • •  

        (aa) why that assessment is not appropriate for the child; and

        (bb) how the child will be assessed;

        • • • •  

    (vi) the projected date for the beginning of the services and modifications described in clause (iii), and the anticipated frequency, location, and duration of those services and modifications;

    • •  

    (vii)

    • (I) beginning at age 14, and updated annually, a statement of the transition service needs of the child under the applicable components of the child’s IEP that focuses on the child’s courses of study (such as participation in advanced-placement courses or a vocational education program);
      • • •  

      (II) beginning at age 16 (or younger, if determined appropriate by the IEP Team), a statement of needed transition services for the child, including, when appropriate, a statement of the interagency responsibilities or any needed linkages; and

      • • •  

      (III) beginning at least one year before the child reaches the age of majority under State law, a statement that the child has been informed of his or her rights under this title, if any, that will transfer to the child on reaching the age of majority under section 615(m); and

      • • •  

    (viii) a statement of--

    • •  

      (I) how the child’s progress toward the annual goals described in clause (ii) will be measured; and

      (II) how the child’s parents will be regularly informed (by such means as periodic report cards), at least as often as parents are informed of their nondisabled children’s progress, of--

      • • •  

        (aa) their child’s progress toward the annual goals described in clause (ii); and

        (bb) the extent to which that progress is sufficient to enable the child to achieve the goals by the end of the year.

  (B) Individualized education program team.--The term ‘individualized education program team’ or ‘IEP Team’ means a group of individuals composed of--
   

  • (i) the parents of a child with a disability;
    • •  

      (PWDW Note: Parents are not simply members of the team, but are listed first, not last.)

      • • •  

    (ii) at least one regular education teacher of such child (if the child is, or may be, participating in the regular education environment);

    • •  

    (iii) at least one special education teacher, or where appropriate, at least one special education provider of such child;

    • •  

    (iv) a representative of the local educational agency who--

    • •  

      (I) is qualified to provide, or supervise the provision of, specially designed instruction to meet the unique needs of children with disabilities;

      (II) is knowledgeable about the general curriculum; and

      (III) is knowledgeable about the availability of resources of the local educational agency;

      • • •  

    (v) an individual who can interpret the instructional implications of evaluation results, who may be a member of the team described in clauses (ii) through (vi);

    • •  

    (vi) at the discretion of the parent or the agency, other individuals who have knowledge or special expertise regarding the child, including related services personnel as appropriate; and

    • •  

    (vii) whenever appropriate, the child with a disability.

    • •  

      (PWDW Note: IDEA 97 includes significant changes to IEPs. The IEP must be linked to the child’s present levels of performance. The IEP must include benchmarks and short term objectives - measurable outcomes. The IEP team must include the individuals who are listed above. If the IEP team does not include these individuals, this may be a significant procedural breach that triggers other remedies and sanctions. Parents ask about why these staff members are absent and may want to write on the IEP document that the specific individuals did not attend the IEP meeting. Schools will assert that the absence of one or more of these individuals is not material but is a "harmless error" that did not adversely affect the outcome of the IEP meeting.)

(2) Requirement that program be in effect.--

• (A) In general.--At the beginning of each school year, each local educational agency, State educational agency, or other State agency, as the case may be, shall have in effect, for each child with a disability in its jurisdiction, an individualized education program, as defined in paragraph (1)(A).

  (B) Program for child aged 3 through 5.--In the case of a child with a disability aged 3 through 5 (or, at the discretion of the State educational agency, a 2 year-old child with a disability who will turn age 3 during the school year), an individualized family service plan that contains the material described in section 636, and that is developed in accordance with this section, may serve as the IEP of the child if using that plan as the IEP is--

  • (i) consistent with State policy; and

    (ii) agreed to by the agency and the child’s parents.

(3) Development of IEP.--

• (A) In general.--In developing each child’s IEP, the IEP Team, subject to subparagraph (C), shall consider--
  • (i) the strengths of the child and the concerns of the parents for enhancing the education of their child; and

    (ii) the results of the initial evaluation or most recent evaluation of the child.
     

    • (PWDW Note: It is mandatory. The IEP must consider the parents concerns and the results of the most recent evaluation.)
      • • •  

  (B) Consideration of special factors.--The IEP Team shall--

  • (i) in the case of a child whose behavior impedes his or her learning or that of others, consider, when appropriate, strategies, including positive behavioral interventions, strategies, and supports to address that behavior;
    • •  

      (PWDW Note: It is mandatory that the IEP team must consider positive behavioral interventions to address the child’s behavior. If this is not documented or considered by the school district, it can cause the district significant legal problems. The interventions, strategies and supports that are discussed and attempted should be logged in. Parents should document the school’s failure to consider and use such positive strategies and interventions. Parents can accomplish this by using courteous thank you letters or by developing a "Parent’s Attachment" to a proposed IEP that they prepare and distribute at the IEP meeting.)

      • • •  

    (ii) in the case of a child with limited English proficiency, consider the language needs of the child as such needs relate to the child’s IEP;

    (iii) in the case of a child who is blind or visually impaired, provide for instruction in Braille and the use of Braille unless the IEP Team determines, after an evaluation of the child’s reading and writing skills, needs, and appropriate reading and writing media (including an evaluation of the child’s future needs for instruction in Braille or the use of Braille), that instruction in Braille or the use of Braille is not appropriate for the child;

    (iv) consider the communication needs of the child, and in the case of a child who is deaf or hard of hearing, consider the child’s language and communication needs, opportunities for direct communications with peers and professional personnel in the child’s language and communication mode, academic level, and full range of needs, including opportunities for direct instruction in the child’s language and communication mode; and

    • •  

      (PWDW Note: Two areas of litigation are related to this part of the statute. First, when children are hard of hearing or have cochlear implants, parents and private sector professionals often request of Auditory - Verbal Therapy, not sign language or a "Total Communication" approach that blends sign language and lip reading. The "Auditory Verbal" approach teaches listening and speaking skills. These children often need to be taught how to listen auditorily, instead of learning how to read lips and read sign language. The child needs to learn how to speak, using spoken speech, rather than using sign language and gestures.

      • •  

      The second area of litigation relates to the use of Applied Behavioral Analysis or Lovaas therapy to remediate children who have autism. Without intensive intervention, most of these children become very withdrawn. Until recently, many autistic children were institutionalized. The Lovaas or ABA approach is very intense. It is individualized one-to-one therapy for forty hours a week. It teaches the child how to communicate. Research by Dr. Ivar Lovaas and others shows that many autistic children can eventually enter regular public school classroom programs, with no need for special education. In the Fall of 1997, the National Institutes of Health funded several research projects about educating and remediating children who have autism. As information from these research projects is available, we should see major shifts and improvements in this area. LRP Publications recently reported that parents are prevailing in nearly seventy percent of the Lovaas ABA cases. (End of PWDW Note)

      • • •  

  (v) consider whether the child requires assistive technology devices and services.

  (C) Requirement with respect to regular education teacher.--The regular education teacher of the child, as a member of the IEP Team, shall, to the extent appropriate, participate in the development of the IEP of the child, including the determination of appropriate positive behavioral interventions and strategies and the determination of supplementary aids and services, program modifications, and support for school personnel consistent with paragraph (1)(A)(iii).

  • (PWDW Note: This is mandatory, "to the extent appropriate." The regular ed teacher shall work to develop positive behavioral interventions. Special education is not a service or program that is limited to the special ed classroom at the end or the building, or in the trailer out back, but must include the participation of the regular education teacher. Despite their expected objections, they will have to become involved. Often, after a regular education teacher truly participates in the development of an IEP, they have a personal stake in the success of the IEP and are able to perceive the child in a different, more positive light. Too many regular education teachers are unaware of the child’s intellectual and educational strengths and weaknesses. They are not aware that despite a strength in one area that may be at a 95^th percentile rank, the child’s processing speed may be at the 2^nd percentile rank. )

(4) Review and revision of IEP.--

• (A) In general.--The local educational agency shall ensure that, subject to subparagraph (B), the IEP Team--
  •  
    • (i) reviews the child’s IEP periodically, but not less than annually to determine whether the annual goals for the child are being achieved; and
      •  

      (ii) revises the IEP as appropriate to address--

      • (I) any lack of expected progress toward the annual goals and in the general curriculum, where appropriate;

        (II) the results of any reevaluation conducted under this section;

        (III) information about the child provided to, or by, the parents, as described in subsection (c)(1)(B);

        (IV) the child’s anticipated needs; or

        (V) other matters.

        • •  

  (B) Requirement with respect to regular education teacher.--The regular education teacher of the child, as a member of the IEP Team, shall, to the extent appropriate, participate in the review and revision of the IEP of the child.

(5) Failure to meet transition objectives.--If a participating agency, other than the local educational agency, fails to provide the transition services described in the IEP in accordance with paragraph (1)(A)(vii), the local educational agency shall reconvene the IEP Team to identify alternative strategies to meet the transition objectives for the child set out in that program.

(6) Children with disabilities in adult prisons.--

• (A) In general.--The following requirements do not apply to children with disabilities who are convicted as adults under State law and incarcerated in adult prisons:
  •  
    • (i) The requirements contained in section 612(a)(17) and paragraph (1)(A)(v) of this subsection (relating to participation of children with disabilities in general assessments).
      •  

      (ii) The requirements of subclauses (I) and (II) of paragraph (1)(A)(vii) of this subsection (relating to transition planning and transition services), do not apply with respect to such children whose eligibility under this part will end, because of their age, before they will be released from prison.

      •  

  (B) Additional requirement.--If a child with a disability is convicted as an adult under State law and incarcerated in an adult prison, the child’s IEP team may modify the child’s IEP or placement notwithstanding the requirements of sections 612(a)(5)(A) and 614(d)(1)(A) if the State has demonstrated a bona fide security or compelling penological interest that cannot otherwise be accommodated.

(e) Construction.--Nothing in this section shall be construed to require the IEP team to include information under one component of a child’s IEP that is already contained under another component of such IEP.

(f) Educational Placements.--Each local educational agency or State educational agency shall ensure that the parents of each child with a disability are members of any group that makes decisions on the educational placement of their child.

•   (PWDW Note about school meetings. As discussed earlier, but repeated here, parents should consider tape recording IEP meetings. If you tape record, be sure that the recorder is in full view, never hidden. Always use fresh batteries, bring extra tapes, operate the recorder in a "continuous record mode" (not voice activated), use an external microphone. Place the recorder on a book or other surface (not the table) to reduce the low frequency hum created by recorders. Practice using the recorder before the meeting. Learn how to adjust its sensitivity. Be sure you are familiar with any warning or lack of warning when the tape ends. At end of the IEP meeting, parents should transcribe the tape. This will help you participate more effectively in the IEP decision making process. You should ask lots of questions during IEP meetings, especially the 5 W’s+H+E. (Who, what, when, where, why, how, and explain.)

  After IEP meetings, it is good practice to write courteous thank you letters. You can express your concerns about your child’s program, progress, etc.

  Parents should assume that if they request a special education due process hearing, testimony from all school staff would be adverse to their child. Parents often hear testimony that they agreed to everything in the IEP and had never expressed any concerns about the program. Of course, the parent’s testimony is usually the opposite. Having a transcript is good protection for the parents and school officials. The process of recording and transcribing can help cause lengthy, time consuming meetings to be much more focused and efficient.

  For purposes of case preparation, parents must assume that they cannot testify. Parents must have independent evidence that supports their position. Parents must also have a "paper trail" of courteous correspondence with school officials.

  Parents must learn to analyze educational progress and educational regression. This means that parents must understand psychological and educational tests. See our articles about IEPs and "Understanding Tests and Measurements" at our website: http://www.wrightslaw.com/. After parents read these articles and evaluate their child’s test scores, most are astounded to learn that their child fell further behind the peer group in the area of the identified deficiency, while the child was receiving special education services! End of PWDW Note)

  •  

This analysis and the formatting of 20 United States Code Section 1414 was prepared by:

• • Peter W.  D. Wright, Esq.
    P. O. Box 1008
    Deltaville, Virginia 23043

    804-776-7008
    email:  pwright@wrightslaw.com
    http://www.wrightslaw.com