Administrative Advisory SPED 2002-2

Requirement to Review Refusals to Evaluate for Special Education Eligibility

---

This Administrative Advisory provides you with updated requirements regarding initial evaluations. As you know, a school district may not delay or refuse to evaluate a student referred for an evaluation to determine special education eligibility solely because the school district wishes to try an instructional support program or any other type of intervention. (Please refer to Administrative Advisory #2001-5, issued in June 2001.) If the parent or person making a referral has concerns about the student's development or a suspicion that the student may have a disability, school districts must promptly send notice to the parent and seek permission to conduct an initial evaluation to determine if the student is eligible for special education. Therefore, school districts rarely will have occasion to refuse to conduct an initial evaluation for students so referred and may do so only if the parent or other individual making the referral has no suspicion of a disability and is not concerned about the student's development.

Unfortunately, evidence has been provided to us indicating that school districts, in some cases, have refused to conduct an evaluation of a referred student based solely upon some pre-referral practice or an instructional support activity. Therefore, pursuant to a recently negotiated settlement agreement, the Department of Elementary and Secondary Education is requiring the following actions on the part of all school districts:

1. Districts must develop and implement a procedure to immediately review all requests for an initial evaluation that have occurred since April 1, 2000. Districts must identify all cases since that date where an initial evaluation was requested and the student has not yet received an evaluation.

2. Districts must review all such cases identified based upon the procedure in paragraph number 1; immediately notify parents that any previous refusal to evaluate or failure to proceed with an evaluation was inappropriate; and notify parents that the district is, therefore, seeking written consent for an evaluation to determine eligibility for special education. The district must provide full written notice to the parents using form N-1 of the mandated Massachusetts forms. A copy of this memorandum may be enclosed with the request for consent as a partial response to meeting the notice requirements. The only exception to this requirement is for cases where the documentation clearly indicates that the parent or other individual making the referral had no concern about the student's development and no suspicion of a disability.

3. If and when the parent consents to such evaluation, the Department recommends that the school district expedite the evaluation and the initial Team meeting for such students. If an expedited evaluation would plainly compromise the quality of the evaluation, however, the school district should complete the evaluation within the time frame provided in the Department's regulations. The regulations require school districts to complete the evaluation within 30 school working days of the date that consent for the evaluation is received, with the Team meeting to discuss the evaluation results within 45 school working days of that same date. See 603 CMR 28.04(2) and 28.05(1).

4. In every case where the student is evaluated and found to be eligible for special education under the procedures indicated in paragraph numbers 1 and 2, the school district, together with the parent, should consider whether it is appropriate to provide compensatory services for the period of time between the original request for an evaluation and the subsequent finding of eligibility. If the parent requests such compensatory services and the school district declines to provide such services, the school district must provide full written notice using form N-2 of the mandated Massachusetts forms (available as noted above in paragraph number 2). The written notice, in this instance, must include documentation regarding the reasons for not providing compensatory services and must explicitly state that the parents may file a complaint, seek mediation, and/or request a hearing before the Bureau of Special Education Appeals ("BSEA") if the parent so chooses.

The Department will monitor and enforce these activities and compliance with this Administrative Advisory through its monitoring and complaint systems. Questions regarding the contents of this advisory may be addressed to Program Quality Assurance Services at (781)338-3700.

Last Updated: December 10, 2001