Administrative Advisory SPED 2001-4

Finding of No Eligibility for Special Education

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Upon occasion, when a Team meets to determine eligibility, the Team may reach the conclusion that the student is not eligible for special education services or, in other words, the Team makes a Finding of No Eligibility. Whether the Finding of No Eligibility for special education is determined at a meeting of the Team to determine initial eligibility or continuing eligibility (following a reevaluation), the school district must comply with certain state and federal regulations. This advisory provides information regarding activities which must take place following a Finding of No Eligibility made by a Team.

Neither former regulations nor current regulations require written consent from a parent when the district makes a Finding of No Eligibility. The district must provide full written notice, however, when informing the parent of such a Finding. The parent, if he or she disagrees with the Finding, has the right to appeal the school district's Finding of No Eligibility to the Bureau of Special Education Appeals (BSEA), or to use other dispute resolution mechanisms such as mediation or the Problem Resolution System (PRS) of the Department of Elementary and Secondary Education. When the Team makes a Finding of No Eligibility for a student who has been receiving special education services, the school district must continue to provide services if the parent disagrees with this Finding and appeals to the BSEA.

Background:

Former state and federal regulations included a requirement that written notice include a statement to the parents of their right to accept or reject a "finding of no special needs." Such requirement continues in current regulations. Former IEP documents were inappropriately used to meet the notice requirements in part and to inform the parent of a "finding of no special needs" — in this way the IEP form was used to provide a space for the parent to "consent" to the finding. Use of an IEP form to make a finding of "no special needs" contributed to parental confusion as to whether the student was or was not being offered an IEP and, despite the Department of Elementary and Secondary Education's advice to the contrary, the former IEP form continued to be used inappropriately for this purpose.

New IEP and parent notice forms have been developed that school districts are required to use. The IEP form is now used only to write an IEP. When making a Finding of No Eligibility (formerly known as "no special needs") written notice is required and the IEP Form cannot be used to meet this requirement, in whole or in part. While written notice requirements do not include a requirement for consent to a Finding of No Eligibility, the parent continues to have the right to appeal such a Finding. Because new forms for providing this written notice do not contain space for parental consent, this represents a change in local practices (although not a change in law or regulation), we recommend you carefully review these procedures and use local training activities to explain this process to staff and parents.

General Practice:

A Finding of No Eligibility may be made following an initial evaluation or following a reevaluation. In any event, the parent's consent must be requested and received for an initial or a reevaluation to take place. Federal law requires that when a student has been previously found eligible and has been receiving special education services, a Finding of No Eligibility for the student must be preceded by a complete evaluation that meets the evaluation requirements of state and federal law.

If, after thoroughly reviewing all evaluation information including the assessments, the Team makes a Finding of No Eligibility, the school district is required to provide written notice to the parent under 603 CMR 28.05(2)(2) within ten (10) days of the Team meeting. The written notice must contain the provisions required in 34 CFR 300.503. This federal regulation requires that the written notice contain statements that:

1. describe the action proposed or refused by the school district;

2. explain why the school district proposes or refuses such action;

3. describe any other options considered by the school district and the reasons why those options were rejected;

4. describe each evaluation procedure, test, record or report the school district used as a basis for the proposed or refused action;

5. describe any other factors relevant to the school district's proposal or refusal to act;

6. explain procedural safeguards; and

7. list sources for parents to contact to obtain assistance in understanding procedural safeguards.

The school district also must include within the written notice an easily understandable statement that the parent has the right to appeal the school district's decision.

The Forms N 1 and N 2 must be mailed with a Parents' Rights Brochure to meet federal requirements. The Parents' Rights Brochure contains contact information for both the BSEA and the PRS.

Practice Following an Initial Evaluation:

When a Team makes a Finding of No Eligibility for a student following an Initial Evaluation, we recommend that the notice letter include written recommendations of possible instructional support services that may be otherwise available to respond to the student's needs. The instructional supports could consist of, for example, remedial services including additional reading and math instruction, services for English Language Learners, positive school-wide behavioral supports, consultation services that could be provided to the student's teacher, and/or other effective educational practices. We further recommend that districts identify how such services may be accessed.

When a Team makes a Finding of No Eligibility for a student following an Initial Evaluation, school districts are advised to use the Form N 2 / School District Refusal to Act. This form is used to state that the district is refusing to provide special education services and will continue to serve the student in the general education program. A sample letter using this Form is attached to assist school districts in complying with regulatory requirements.

Practice Following a Reevaluation:

Federal law requires school districts to conduct a complete evaluation prior to a Team making a Finding of No Eligibility for a student who was previously found eligible. This requirement ensures that the Team has full information related to both current evaluation results and student progress and allows the Team to consider if the student is able to maintain his/her progress in education without special education and related services. The Team meeting following the reevaluation may be held as planned on a three-year anniversary date or may be scheduled sooner if the needs or abilities of the student indicate an earlier review is warranted.

When the Team, following a reevaluation, makes a Finding of No Eligibility, the written notice to the parent should contain the specific date, as agreed to by the Team, for special education services to end. Unless the parent is present at the Team meeting and clearly agrees to an immediate cessation of services, the written notice should specify a service-termination date at least thirty (30) days after the date of the notice, consistent with the parent response period of 603 CMR 28.05(7)(a). In this way, the school district provides the parent with time to respond if the parent should determine that he/she wishes to appeal the Finding of No Eligibility. An indication of intent to file an appeal with the BSEA requires the district to maintain the student's services until the dispute is settled.

School districts should use the Form N 1 / School District Proposal to Act to notify parents that the school district proposes changing the identification status of a student from Eligible to Not Eligible. A sample letter is provided to assist school districts in developing local responses.

Local Flexibility in Requiring Parental Consent for a Finding of No Eligibility:

Although the regulations do not require it, school districts may choose to request a parent's written consent or agreement to a Finding of No Eligibility. If written parental response is optional, the notice sent to the parent must clearly indicate that their written response is not required. If a district chooses to require written confirmation of the parent's agreement, however, then the district is also required to continue services until and unless the parent agrees, in writing, to end such services.

In closing, this memorandum provides specific guidance on school district action when a Team makes a Finding of No Eligibility. We hope this information is helpful in ensuring that local practices are consistent with state and federal requirements. Questions regarding these requirements may be addressed to Program Quality Assurance Services at 781-338-3700. Thank you in advance for your careful reading of these requirements and for ensuring that students with disabilities receive appropriate services.

• Sample Notice Letters

Last Updated: March 15, 2001