Dated October 19, 2007

Dr. John Copenhaver, Director

Mountain Plains Regional Resource Center Utah State University

1780 North Research Parkway, Suite 1 12 Logan, Utah 84341

Dear Dr. Copenhaver:

This letter is in response to your electronic mail inquiry to the Office
of Special Education Programs (OSEP), transmitted on July 13, 2007,
regarding requirements in Part B of the Individuals with Disabilities
Education Act (Part B) for parental consent to be obtained for initial
evaluations when a response to intervention (RTI) process is used. Your
specific questions and our responses follow.

Are there any circumstances in which a school district could conduct a
full initial evaluation and determine eligibility without obtaining the
parent\'s informed consent?

What starts the 60-day timeline for evaluation if parental consent is
not needed?

A full and initial evaluation must be conducted in accordance with 34
CFR §§300.304-300.305 prior to the initial provision of special
education and related services to a child with a disability under Part
13. 34 CFR §300.301(a). Under 34 CFR §300.300(a)(1)(i), the public
agency proposing to conduct an initial evaluation to determine if the
child qualifies as a child with a disability under 34 CFR §300.8 must
obtain informed consent from the parent of the child before conducting
the evaluation. The regulations also provide that parental consent is
not required for review of existing data on the child as part of an
initial evaluation or reevaluation. 34 CFR §300.300(d)(1)(i).

Requirements for review of existing evaluation data on the child as part
of initial evaluations and reevaluations were added to the IDEA in the
1997 reauthorization. To respond to public comments asserting that
parental consent should be required for all evaluations, not just those
for which new tests were conducted, the Department provided the
following clarification of the new statutory provision:

The statute provides that in some instances, an evaluation team may
determine that additional data are not needed for an evaluation or
reevaluation. In all instances, parents have the opportunity to be part
of the team which makes that determination. Therefore, no parental
consent is necessary if no additional data are needed to conduct the
evaluation or reevaluation. (Assistance to States for the Education of
Children with Disabilities and Early Intervention Program for Infants
and Toddlers with Disabilities, Final Rule, 64 Fed. Reg. 12564, 12610
(Mar. 12, 1999))

You indicate that your inquiry was prompted because many school
districts are obtaining evaluation data as part of a response to
intervention (RTI) process and progress monitoring. The U.S. Department
of Education provided the following pertinent explanation regarding the
use of RTI in its discussion of public comments accompanying publication
of the final Part B regulations in the Federal Register:

An RTI process does not replace the need for a comprehensive evaluation.
A public agency must use a variety of data gathering tools and
strategies even if an RTI process is used. The results of an RTI process
may be one component of the information reviewed as part of the
evaluation procedures required tinder §§ 300.304 and 300.305. As
required in § 300.304(b), consistent with section 614(b)(2) of the Act,
an evaluation 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.

(Assistance to States for the Education of Children with Disabilities
and Preschool Grants for Children With Disabilities, Final Rule, 71 Fed.
Reg. 46540, 46648 (Aug. 14, 2006))

Therefore, we do not believe that an RTI process alone would relieve a
public agency of the obligation to conduct a comprehensive, individual,
initial evaluation of a child, for which parental consent would be
required.

The regulation at 34 CFR §300.305 describes the procedures that apply to
review of existing evaluation data on the child. Under 34 CFR
§300.305(a)(1), the individualized education program (IEP) Team and
other qualified professionals, as appropriate, must review existing
evaluation data on the child, including evaluations and information
provided by the child\'s parent, current classroom-based local or State
assessments, classroom-based observations and observations by teachers
and related services providers. On the basis of that review and input
from the child\'s parents, the group must identify what additional data,
if any, are needed to determine whether the child is 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, and
whether the child needs special education and related services. 34 CFR
§300.305(b)(2)(i)(a), (ii), and (iii)(A). If the IEP Team and other
qualified professionals determine, based on review of existing data,
that those data are sufficient to determine whether the child is a child
with a disability and the child\'s educational needs, and that no
additional data are needed, the determination of whether the child
qualifies as a child with a disability, within the meaning of 34 CFR
§300.8, could be made without conducting further assessments of the
child. In that situation, the public agency would not be required to
obtain parental consent for an initial evaluation. 34 CFR
§300.300(d)(1)(i).

Please note that under this regulation, the parent must always be given
the opportunity to request further assessment even if the public agency
determines that no additional evaluation data are needed. If the public
agency informs the parent that no additional data arc needed to
determine whether the child is a child with a disability and the
child\'s educational needs, but the parent requests that additional
assessment be conducted, the public agency would be required to obtain
parental consent prior to conducting that assessment. The purpose of the
additional assessment would be to determine whether the child has a
disability and the nature and extent of the child\'s educational needs.
34 CFR §§300.300(a)(1)(i) and 300.15.

Under 34 CFR §300.304, any initial evaluation or reevaluation must 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 whether the child is a child with a disability under 34 CFR
§300.8 and the content of the child\'s IEP. In addition, the public
agency may not use any single measure or assessment as the sole
criterion for determining whether the child is a child with a disability
and for determining an appropriate educational program for the child. 34
CFR §300.304(b)(1)-(2).

Based on these evaluation requirements, we believe that only in limited
circumstances could a public agency conduct an initial evaluation only
through review of existing data on the child, and that, in most
instances, review of existing evaluation data on the child generally
would be insufficient for a team to determine whether a child qualifies
as a child with a disability and the nature and extent of the child\'s
educational needs.

Since consent is not required for review of existing data on the child,
you have also asked how the timeline requirement is applied in this
situation. The evaluation timeline requirement at 34 CFR §300.301(c)(1)
begins to run from the date that the public agency received parental
consent to conduct the initial evaluation. The regulations do not
establish a timeline for review of existing data on the child.
Consistent with the public agency\'s obligation under 34 CFR §300.111 to
locate, identify, and evaluate all children who are in need of special
education and related services, public agencies must ensure that the
review of existing evaluation data does not operate to impede the
child\'s right to the timely provision of special education and related
services. The review of existing data is a part of the eligibility
determination process that occurs prior to the initiation of any
evaluation timeline that would apply if additional evaluation data were
needed. Therefore, we would expect that the eligibility determination
would occur promptly if no further evaluation data were needed.

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 information you require. If you have further
questions, please do not hesitate to contact Deborah Morrow at
202-245-7456.

Sincerely,

/s/

Patricia J. Guard

Acting Director

Office of Special Education Programs