POLICY LETTER: May 6, 2008 to New York Attorney Edward J. Sarzynski.

Summary

Letter further clarify the position stated in the Office of Special Education Programs' (OSEP's) September 5, 2007 letter, which addressed whether, under Part B of the Individuals with Disabilities Education Act (IDEA), a parent's written consent is required for all evaluations that are not standardized tests administered to all students.

SECTION OF IDEA: Part B—Assistance for Education of All Children with Disabilities; Section 614—Evaluations, Eligibility Determinations, Individualized Education Programs, and Educational Placements

Letter

May 6, 2008

Edward J. Sarzynski, Esq.
Hogan, Sarzynski, Lynch, Surowka and DeWind, LLP
P.O. Box 660
Binghamton, NY 13902-0660

Dear Mr. Sarzynski:

This is in response to your January 2, 2008 letter, in which you request further clarification of the position stated in the Office of Special Education Programs' (OSEP's) September 5, 2007 letter, which addressed whether, under Part B of the Individuals with Disabilities Education Act (IDEA), a parent's written consent is required for all evaluations that are not standardized tests administered to all students. OSEP did not take the position that every evaluation and functional behavioral assessment of a child with a disability requires written consent. Section 614(a)(1)(D) and (c)(3) of IDEA and its implementing regulation at 34 CFR §300.300, require a public agency to obtain parental consent prior to conducting an initial evaluation or reevaluation. An "evaluation" is defined at 34 CFR §300.15 as procedures used in accordance with 34 CFR §§300.304 through 300.311 to determine whether a child has a disability and the nature and extent of the special education and related services that the child needs.

Based on the definition of evaluation in 34 CFR §300.15, you conclude that parental consent is not required under IDEA if an evaluation is not conducted for the purpose of determining "whether the child has a disability AND the nature and extent of special education and related services that the child needs." That is incorrect. The regulations regarding reevaluations at 34 CFR §300.303 clarify that a public agency is sometimes required to conduct a reevaluation even if there is no dispute regarding the child's eligibility. Under 34 CFR §300.303(a)(1), a public agency must conduct a reevaluation of a child with a disability "if the public agency determines that the educational or related services needs, including improved academic achievement and functional performance, of the child warrants a reevaluation." As part of any reevaluation, the individualized education program (IEP) team and other qualified professionals, as appropriate, must review existing evaluation data. On the basis of that review, and input from the child's parents, the IEP team and other qualified professionals must identify what additional data, if any, are needed to determine whether the child continues to be a child with a disability, and the educational needs of the child; the present levels of academic achievement and related developmental needs of the child; whether the child continues to need special education and related services; and 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 IEP of the child and to participate, as appropriate, in the general education curriculum. See 34 CFR §300.305(a). In some instances, additional data are not needed to determine whether the child continues to be a child with a disability, but are needed to determine whether any modifications to the child's special education and related services are needed. However, that does not mean that the evaluation does not meet the definition of an "evaluation" at 34 CFR §300.15.

You state that "if an evaluation is conducted after an initial evaluation and is NOT done to determine whether the child is still eligible as a child with a disability but rather to determine the extent of the student's progress, e.g., an evaluation by an occupational therapist, physical therapist, or speech language pathologist whose intent is not to determine whether the student still has a disability but rather to determine whether services should be increased or decreased, such an evaluation by definition should not be considered an evaluation requiring written consent." Not every evaluation to determine the extent of a student's progress is considered an "evaluation" under 34 CFR §300.15, requiring written parental consent. As we noted in the September 7, 2007 letter, evaluations of student progress occur as a regular part of instruction for all students in all schools. If such evaluations are designed to assess whether the child has mastered the information in, for example, chapter 10 of the social studies text, and are the same or similar to such evaluations for all children studying chapter 10 of the social studies text, parental consent would not be required for such an evaluation. However, an evaluation to determine whether "services should be increased or decreased" is generally considered an "evaluation" under 34 CFR §300.15; and therefore, written parental consent is required. As we noted in the September 7, 2007 letter, if the evaluation is specific to an individual child and is, "...crucial to determining a child's continuing eligibility for services or changes in those services," OSEP believes such evaluations fall under the provisions of 34 CFR §300.15 and require parental consent under the provisions of 34 CFR §300.300(a) and (c).

You also ask the following question:

If written consent has been given by a parent to an initial evaluation which included a functional behavioral assessment and consent has not been revoked, and if a school district wishes to do a subsequent evaluation or functional behavioral assessment which by definition is not an evaluation because it is not being done to determine the student's continuing eligibility for special education services, is written consent necessary for such subsequent testing?

As noted above, your conclusion that a subsequent evaluation or functional behavioral assessment, conducted after written consent has been given by a parent to an initial evaluation, is not an "evaluation" because it is not being done to determine the student's continuing eligibility for special education services" is incorrect. Typically, ongoing assessment of a child's progress with respect to behavioral goals and the effectiveness of behavioral interventions is provided through progress monitoring, including documented observations, and through interviews with staff members involved with the child on a daily basis. It would be atypical, we believe, for progress to be assessed through conducting a complete functional behavioral assessment. However, as noted in the February 9, 2007 letter to Dr. Kris Christiansen, if the public agency believes it is necessary to conduct a functional behavioral assessment for the purpose of determining whether the positive behavioral interventions and supports set out in the current IEP for a particular child with a disability would be effective in enabling the child to make progress toward the child's IEP goals/objectives, or to determine whether the behavioral component of the child's IEP would need to be revised, we believe the functional behavioral assessment would be considered a reevaluation under Part B for which parental consent would be required under 34 CFR §300.300(c).

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.

We hope this provides the clarification you requested. If you have further questions on this matter, please contact Dr. Deborah Morrow, of my staff, at 202-245-7456.

Sincerely,

/s/
William W. Knudsen
Acting Director
Office of Special Education Programs

cc: Dr. Rebecca Cort