Sec. 13a.05.01.06. Evaluation, Reevaluation, and Eligibility

A. Initial Evaluation.

(1) An IEP team shall complete an initial evaluation of a student, consistent with 34 CFR §300.301(c)(1), within:

(a) 60 days of parental consent for assessments in accordance with Regulation.13A of this chapter; and

(b) 90 days of the public agency receiving a written referral in accordance with Regulation .04A of this chapter.

(2) Exception to the Time Line for Completion of Initial Evaluation.

(a) The time line for completion of the initial evaluation described in §A(1) of this regulation does not apply, in accordance with 20 U.S.C. §1414(a)(1)(C)(ii), if:

(i) The parent of the student repeatedly fails or refuses to produce the student for assessments; or

(ii) A student enrolls in a different public agency before the completion of the initial evaluation started in the student's former public agency of enrollment.

(3) The exceptions to the time line described in §A(2) of this regulation apply only if:

(a) The subsequent public agency is making sufficient progress to ensure a prompt completion of the evaluation; and

(b) The parent and subsequent public agency agree to a specific time for completion of the evaluation.

B. A public agency shall convene an IEP team meeting to determine if a child in transition from a local infants and toddlers program has a disability or developmental delay that requires the provision of special education and related services, in accordance with COMAR 13A.13.01.09B(10).

C. Review of Assessment Information.

(1) To conduct an evaluation, the IEP team shall:

(a) Draw on information from a variety of sources, including:

(i) Existing data;

(ii) Current classroom-based, local, and Statewide assessments;

(iii) Parent input; and

(iv) Observations by teachers and related service providers; and

(b) Carefully consider and document information used as a basis of the team's decision.

(2) Evaluation Report.

(a) The IEP team shall document its decision.

(b) The written decision shall include:

(i) Information provided by the parent;

(ii) Results of assessment procedures used as a basis for determination;

(iii) A statement as to whether the assessment procedures were valid for the purposes intended and valid for the student; and

(iv) Whether the student is a student with a disability.

(3) The IEP team may not determine that a student is a student with a disability if:

(a) The determinant factor for the determination is:

(i) The lack of appropriate instruction in reading, defined in §1208(3) of the Elementary and Secondary Education Act of 1965, including explicit and systematic instruction in phonemic awareness, phonics, vocabulary development, reading fluency and oral reading skill, and reading comprehension strategies;

(ii) A lack of instruction in math; or

(iii) Limited English proficiency; and

(b) The student does not otherwise meet the criteria specified in 34 CFR §300.8.

(4) The IEP team shall provide the parent with a copy of the IEP team decision.

D. Determination of an SLD.

(1) In determining whether a student has an SLD, consistent with 20 U.S.C. §1414(b)(6) and 34 CFR §300.307, a public agency:

(a) May use a process that determines whether a student responds to scientific research-based interventions as part of assessment procedures, as described in 20 U.S.C. §1414(b)(2) and (3) and in accordance with Regulation .05 of this chapter;

(b) May use alternative research-based procedures for determining whether a student has a specific learning disability; and

(c) May not be required to use a severe discrepancy between intellectual ability and achievement.

(2) The IEP team shall determine that a student has an SLD if:

(a) The student does not achieve adequately for the student's age or meet State-approved grade level standards when provided with learning experiences appropriate for the student's age and ability levels in one or more of the following areas:

(i) Oral expression;

(ii) Listening comprehension;

(iii) Basic reading skills;

(iv) Reading fluency skills;

(v) Reading comprehension;

(vi) Written expression;

(vii) Mathematics calculation; or

(viii) Mathematics problem solving; and

(b) The student's lack of achievement described in §D(2) of this regulation is not primarily the result of:

(i) A visual, hearing, or motor impairment;

(ii) Intellectual disability;

(iii) Emotional disability;

(iv) Cultural factors;

(v) Environmental, cultural, or economic disadvantage; or

(vi) Limited English proficiency.

(3) The IEP team may consider evaluative data and appropriate assessments, consistent with 34 CFR §§300.304 and 300.305, if the team determines that data to be relevant to the identification of an SLD if the student:

(i) Does not make sufficient progress to meet age or State-approved grade-level standards in one or more of the areas identified in §D(2) of this regulation, when using a process based on the student's response to scientific research-based intervention; or

(ii) Exhibits a pattern of strengths and weaknesses in performance, achievement, or both, relative to age, State-approved grade-level standards, or intellectual development.

(4) To ensure that underachievement in a student suspected of having a specific learning disability is not due to lack of appropriate instruction in reading or math, the IEP team shall consider, as part of the evaluation:

(a) Data that demonstrate that prior to, or as a part of, the referral process, the child was provided appropriate instruction in regular education settings, delivered by qualified personnel; and

(b) Data-based documentation of repeated assessments of achievement at reasonable intervals, reflecting formal assessment of student progress during instruction, that was provided to the student's parent.

(5) When a student is suspected of having an SLD, the IEP team shall prepare a written report that includes:

(a) A statement of whether the student has a specific learning disability;

(b) The basis for making the determination;

(c) The relevant behaviors, if any, noted during the observation of the student;

(d) The relationship of the behaviors to the student's academic functioning;

(e) The educationally relevant medical findings, if any;

(f) The determination of the IEP team concerning the effects of visual, hearing, or motor disability, intellectual disability, emotional disability, cultural factors, environmental or economic disadvantage, or limited English proficiency on the student's achievement level;

(g) If the student participated in a process to assess the student's response to scientific, research-based intervention as described in §D(1) of this regulation, the:

(i) Instructional strategies used and the student-centered data collected;

(ii) Documentation that the student's parents were notified of the Department's policies regarding the amount and nature of student performance data that would be collected and the general education services that would be provided;

(iii) Strategies for increasing the student's rate of learning; and

(iv) Parents' right to request an evaluation; and

(h) The written certification of each IEP team member as to whether the written report reflects the member's conclusion.

(6) If the written report in §D(5) of this regulation does not reflect an IEP team member's conclusion, the team member shall submit a separate statement presenting the team member's conclusion.

(7) The determination of an SLD shall be made by an IEP team as described in Regulation .07A of this chapter and include at least one person qualified to conduct individual diagnostic assessments of students in accordance with 34 CFR §300.308(b) and Regulation.05 of this chapter.

E. Reevaluation.

(1) A public agency shall ensure that a reevaluation of each student with a disability is conducted in accordance with 34 CFR §§300.303 and 300.305 and Regulation .05 of this chapter:

(a) If the public agency determines that the educational and related services needs, including improved academic achievement and functional performance of the student, warrant reevaluation;

(b) If the student's parent or teacher requests a reevaluation; or

(c) Before determining a student is no longer a student with a disability.

(2) In accordance with 34 CFR §300.303(b), a reevaluation shall occur:

(a) Not more frequently than once a year, unless the parent and public agency agree otherwise; and

(b) At least once every 3 years, unless the parent and public agency agree that a reevaluation is not necessary.

(3) The IEP team shall review existing assessment data in accordance with §C of this regulation.

(4) On the basis of the review, and input from the student's parents, the IEP team shall identify what additional data, if any, is needed to determine:

(a) Whether the student continues to be a student with a disability;

(b) The educational needs of the student;

(c) The present levels of academic achievement and related developmental needs of the student;

(d) Whether additions or modifications to special education and related services are needed to enable the student to meet the measurable annual goals in the student's IEP and to participate in the general curriculum; and

(e) Whether the student continues to need special education and related services.

(5) If the IEP team determines the need for additional data, the public agency shall conduct assessment procedures in accordance with Regulation .05B of this chapter.

(6) The results of assessment procedures shall be used by the IEP team in reviewing, and, as appropriate, revising the student's IEP in accordance with Regulation .08B of this chapter within 90 days of the IEP team meeting as described in §E(4) of this regulation.

(7) The IEP team shall notify the parents, in accordance with Regulation .12B of this chapter, if the IEP team determines that no additional data is needed to determine:

(a) Whether the student with a disability continues to be a student with a disability; and

(b) The student's educational needs.

(8) The notification described in §E(7) of this regulation shall include:

(a) The decision of the IEP team and the basis of the determination; and

(b) The right of the parents to request a public agency to conduct assessment procedures to determine:

(i) Whether the child continues to be a student with a disability; and

(ii) Their child's educational needs.

(9) A public agency shall conduct assessment procedures in accordance with Regulation .05 of this chapter before determining that a student is no longer a student with a disability.

(10) A public agency is not required to conduct assessment procedures:

(a) Unless requested to do so by the student's parent; or

(b) Before the termination of a student's eligibility in accordance with this chapter due to:

(i) Graduation from secondary school with a regular high school diploma; or

(ii) Exceeding the age of eligibility for FAPE in accordance with Regulation .01 of this chapter.

(11) On termination of a student's eligibility for services, in accordance with COMAR 13A.03.02 and as described in §E(10)(b) of this regulation, a public agency shall provide the student with a summary of the student's academic achievement and functional performance, including recommendations on how to assist the student in meeting the student's postsecondary goals, in the Exit Document, in accordance with 34 CFR §300.305(e)(3).

(12) A public agency shall consolidate a reevaluation meeting with other IEP team meetings for a student with a disability to the extent possible.