§ 1414. — Evaluations, eligibility determinations, individualized education programs, and educational placements.
[Laws in effect as of January 24, 2002]
[Document not affected by Public Laws enacted between
January 24, 2002 and December 19, 2002]
[CITE: 20USC1414]
TITLE 20--EDUCATION
CHAPTER 33--EDUCATION OF INDIVIDUALS WITH DISABILITIES
SUBCHAPTER II--ASSISTANCE FOR EDUCATION OF ALL CHILDREN WITH
DISABILITIES
Sec. 1414. Evaluations, eligibility determinations,
individualized education programs, and educational placements
(a) Evaluations and reevaluations
(1) Initial evaluations
(A) In general
A State educational agency, other State agency, or local
educational agency shall conduct a full and individual initial
evaluation, in accordance with this paragraph and subsection (b)
of this section, before the initial provision of special
education and related services to a child with a disability
under this subchapter.
(B) Procedures
Such initial evaluation shall consist of procedures--
(i) to determine whether a child is a child with a
disability (as defined in section 1401(3) of this title);
and
(ii) to determine the educational needs of such child.
(C) Parental consent
(i) In general
The agency proposing to conduct an initial evaluation to
determine if the child qualifies as a child with a
disability as defined in section 1401(3)(A) or 1401(3)(B) of
this title shall obtain an informed consent from the parent
of such child before the evaluation is conducted. Parental
consent for evaluation shall not be construed as consent for
placement for receipt of special education and related
services.
(ii) Refusal
If the parents of such child refuse consent for the
evaluation, the agency may continue to pursue an evaluation
by utilizing the mediation and due process procedures under
section 1415 of this title, except to the extent
inconsistent with State law relating to parental consent.
(2) Reevaluations
A local educational agency shall ensure that a reevaluation of
each child with a disability is conducted--
(A) if conditions warrant a reevaluation or if the child's
parent or teacher requests a reevaluation, but at least once
every 3 years; and
(B) in accordance with subsections (b) and (c) of this
section.
(b) Evaluation procedures
(1) Notice
The local educational agency shall provide notice to the parents
of a child with a disability, in accordance with subsections (b)(3),
(b)(4), and (c) of section 1415 of this title, that describes any
evaluation procedures such agency proposes to conduct.
(2) Conduct of evaluation
In conducting the evaluation, the local educational agency
shall--
(A) use a variety of assessment tools and strategies to
gather relevant functional and developmental information,
including information provided by the parent, that may assist in
determining whether the child is a child with a disability and
the content of the child's individualized education program,
including information related to enabling the child to be
involved in and progress in the general curriculum or, for
preschool children, to participate in appropriate activities;
(B) not use any single procedure as the sole criterion for
determining whether a child is a child with a disability or
determining an appropriate educational program for the child;
and
(C) use technically sound instruments that may assess the
relative contribution of cognitive and behavioral factors, in
addition to physical or developmental factors.
(3) Additional requirements
Each local educational agency shall ensure that--
(A) tests and other evaluation materials used to assess a
child under this section--
(i) are selected and administered so as not to be
discriminatory on a racial or cultural basis; and
(ii) are provided and administered in the child's native
language or other mode of communication, unless it is
clearly not feasible to do so; and
(B) any standardized tests that are given to the child--
(i) have been validated for the specific purpose for
which they are used;
(ii) are administered by trained and knowledgeable
personnel; and
(iii) are administered in accordance with any
instructions provided by the producer of such tests;
(C) the child is assessed in all areas of suspected
disability; and
(D) assessment tools and strategies that provide relevant
information that directly assists persons in determining the
educational needs of the child are provided.
(4) Determination of eligibility
Upon completion of administration of tests and other evaluation
materials--
(A) the determination of whether the child is a child with a
disability as defined in section 1401(3) of this title shall be
made by a team of qualified professionals and the parent of the
child in accordance with paragraph (5); and
(B) a copy of the evaluation report and the documentation of
determination of eligibility will be given to the parent.
(5) Special rule for eligibility determination
In making a determination of eligibility under paragraph (4)(A),
a child shall not be determined to be a child with a disability if
the determinant factor for such determination is lack of instruction
in reading or math or limited English proficiency.
(c) Additional requirements for evaluation and reevaluations
(1) Review of existing evaluation data
As part of an initial evaluation (if appropriate) and as part of
any reevaluation under this section, the IEP Team described in
subsection (d)(1)(B) of this section and other qualified
professionals, as appropriate, shall--
(A) review existing evaluation data on the child, including
evaluations and information provided by the parents of the
child, current classroom-based assessments and observations, and
teacher and related services providers observation; and
(B) on the basis of that review, and input from the child's
parents, identify what additional data, if any, are needed to
determine--
(i) whether the child has a particular category of
disability, as described in section 1401(3) of this title,
or, in case of a reevaluation of a child, whether the child
continues to have such a disability;
(ii) the present levels of performance and educational
needs of the child;
(iii) whether the child needs special education and
related services, or in the case of a reevaluation of a
child, whether the child continues to need special education
and related services; and
(iv) 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
individualized education program of the child and to
participate, as appropriate, in the general curriculum.
(2) Source of data
The local educational agency shall administer such tests and
other evaluation materials as may be needed to produce the data
identified by the IEP Team under paragraph (1)(B).
(3) Parental consent
Each local educational agency shall obtain informed parental
consent, in accordance with subsection (a)(1)(C) of this section,
prior to conducting any reevaluation of a child with a disability,
except that such informed parent consent need not be obtained if the
local educational agency can demonstrate that it had taken
reasonable measures to obtain such consent and the child's parent
has failed to respond.
(4) Requirements if additional data are not needed
If the IEP Team and other qualified professionals, as
appropriate, determine that no additional data are needed to
determine whether the child continues to be a child with a
disability, the local educational agency--
(A) shall notify the child's parents of--
(i) that determination and the reasons for it; and
(ii) the right of such parents to request an assessment
to determine whether the child continues to be a child with
a disability; and
(B) shall not be required to conduct such an assessment
unless requested to by the child's parents.
(5) Evaluations before change in eligibility
A local educational agency shall evaluate a child with a
disability in accordance with this section before determining that
the child is no longer a child with a disability.
(d) Individualized education programs
(1) Definitions
As used in this chapter:
(A) Individualized education program
The term ``individualized education program'' or ``IEP''
means a written statement for each child with a disability that
is developed, reviewed, and revised in accordance with this
section and that includes--
(i) a statement of the child's present levels of
educational performance, including--
(I) how the child's disability affects the child's
involvement and progress in the general curriculum; or
(II) for preschool children, as appropriate, how the
disability affects the child's participation in
appropriate activities;
(ii) a statement of measurable annual goals, including
benchmarks or short-term objectives, related to--
(I) meeting the child's needs that result from the
child's disability to enable the child to be involved in
and progress in the general curriculum; and
(II) meeting each of the child's other educational
needs that result from the child's disability;
(iii) a statement of the special education and related
services and supplementary aids and services to be provided
to the child, or on behalf of the child, and a statement of
the program modifications or supports for school personnel
that will be provided for the child--
(I) to advance appropriately toward attaining the
annual goals;
(II) to be involved and progress in the general
curriculum in accordance with clause (i) and to
participate in extracurricular and other nonacademic
activities; and
(III) to be educated and participate with other
children with disabilities and nondisabled children in
the activities described in this paragraph;
(iv) an explanation of the extent, if any, to which the
child will not participate with nondisabled children in the
regular class and in the activities described in clause
(iii);
(v)(I) a statement of any individual modifications in
the administration of State or districtwide assessments of
student achievement that are needed in order for the child
to participate in such assessment; and
(II) if the IEP Team determines that the child will not
participate in a particular State or districtwide assessment
of student achievement (or part of such an assessment), a
statement of--
(aa) why that assessment is not appropriate for the
child; and
(bb) how the child will be assessed;
(vi) the projected date for the beginning of the
services and modifications described in clause (iii), and
the anticipated frequency, location, and duration of those
services and modifications;
(vii)(I) beginning at age 14, and updated annually, a
statement of the transition service needs of the child under
the applicable components of the child's IEP that focuses on
the child's courses of study (such as participation in
advanced-placement courses or a vocational education
program);
(II) beginning at age 16 (or younger, if determined
appropriate by the IEP Team), a statement of needed
transition services for the child, including, when
appropriate, a statement of the interagency responsibilities
or any needed linkages; and
(III) beginning at least one year before the child
reaches the age of majority under State law, a statement
that the child has been informed of his or her rights under
this chapter, if any, that will transfer to the child on
reaching the age of majority under section 1415(m) of this
title; and
(viii) a statement of--
(I) how the child's progress toward the annual goals
described in clause (ii) will be measured; and
(II) how the child's parents will be regularly
informed (by such means as periodic report cards), at
least as often as parents are informed of their
nondisabled children's progress, of--
(aa) their child's progress toward the annual
goals described in clause (ii); and
(bb) the extent to which that progress is
sufficient to enable the child to achieve the goals
by the end of the year.
(B) Individualized education program team
The term ``individualized education program team'' or ``IEP
Team'' means a group of individuals composed of--
(i) the parents of a child with a disability;
(ii) at least one regular education teacher of such
child (if the child is, or may be, participating in the
regular education environment);
(iii) at least one special education teacher, or where
appropriate, at least one special education provider of such
child;
(iv) a representative of the local educational agency
who--
(I) is qualified to provide, or supervise the
provision of, specially designed instruction to meet the
unique needs of children with disabilities;
(II) is knowledgeable about the general curriculum;
and
(III) is knowledgeable about the availability of
resources of the local educational agency;
(v) an individual who can interpret the instructional
implications of evaluation results, who may be a member of
the team described in clauses (ii) through (vi);
(vi) at the discretion of the parent or the agency,
other individuals who have knowledge or special expertise
regarding the child, including related services personnel as
appropriate; and
(vii) whenever appropriate, the child with a disability.
(2) Requirement that program be in effect
(A) In general
At the beginning of each school year, each local educational
agency, State educational agency, or other State agency, as the
case may be, shall have in effect, for each child with a
disability in its jurisdiction, an individualized education
program, as defined in paragraph (1)(A).
(B) Program for child aged 3 through 5
In the case of a child with a disability aged 3 through 5
(or, at the discretion of the State educational agency, a 2
year-old \1\ child with a disability who will turn age 3 during
the school year), an individualized family service plan that
contains the material described in section 1436 of this title,
and that is developed in accordance with this section, may serve
as the IEP of the child if using that plan as the IEP is--
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\1\ So in original. Probably should be ``2-year-old''.
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(i) consistent with State policy; and
(ii) agreed to by the agency and the child's parents.
(3) Development of IEP
(A) In general
In developing each child's IEP, the IEP Team, subject to
subparagraph (C), shall consider--
(i) the strengths of the child and the concerns of the
parents for enhancing the education of their child; and
(ii) the results of the initial evaluation or most
recent evaluation of the child.
(B) Consideration of special factors
The IEP Team shall--
(i) in the case of a child whose behavior impedes his or
her learning or that of others, consider, when appropriate,
strategies, including positive behavioral interventions,
strategies, and supports to address that behavior;
(ii) in the case of a child with limited English
proficiency, consider the language needs of the child as
such needs relate to the child's IEP;
(iii) in the case of a child who is blind or visually
impaired, provide for instruction in Braille and the use of
Braille unless the IEP Team determines, after an evaluation
of the child's reading and writing skills, needs, and
appropriate reading and writing media (including an
evaluation of the child's future needs for instruction in
Braille or the use of Braille), that instruction in Braille
or the use of Braille is not appropriate for the child;
(iv) consider the communication needs of the child, and
in the case of a child who is deaf or hard of hearing,
consider the child's language and communication needs,
opportunities for direct communications with peers and
professional personnel in the child's language and
communication mode, academic level, and full range of needs,
including opportunities for direct instruction in the
child's language and communication mode; and
(v) consider whether the child requires assistive
technology devices and services.
(C) Requirement with respect to regular education teacher
The regular education teacher of the child, as a member of
the IEP Team, shall, to the extent appropriate, participate in
the development of the IEP of the child, including the
determination of appropriate positive behavioral interventions
and strategies and the determination of supplementary aids and
services, program modifications, and support for school
personnel consistent with paragraph (1)(A)(iii).
(4) Review and revision of IEP
(A) In general
The local educational agency shall ensure that, subject to
subparagraph (B), the IEP Team--
(i) reviews the child's IEP periodically, but not less
than annually to determine whether the annual goals for the
child are being achieved; and
(ii) revises the IEP as appropriate to address--
(I) any lack of expected progress toward the annual
goals and in the general curriculum, where appropriate;
(II) the results of any reevaluation conducted under
this section;
(III) information about the child provided to, or
by, the parents, as described in subsection (c)(1)(B) of
this section;
(IV) the child's anticipated needs; or
(V) other matters.
(B) Requirement with respect to regular education teacher
The regular education teacher of the child, as a member of
the IEP Team, shall, to the extent appropriate, participate in
the review and revision of the IEP of the child.
(5) Failure to meet transition objectives
If a participating agency, other than the local educational
agency, fails to provide the transition services described in the
IEP in accordance with paragraph (1)(A)(vii), the local educational
agency shall reconvene the IEP Team to identify alternative
strategies to meet the transition objectives for the child set out
in that program.
(6) Children with disabilities in adult prisons
(A) In general
The following requirements do not apply to children with
disabilities who are convicted as adults under State law and
incarcerated in adult prisons:
(i) The requirements contained in section 1412(a)(17) of
this title and paragraph (1)(A)(v) of this subsection
(relating to participation of children with disabilities in
general assessments).
(ii) The requirements of subclauses (I) and (II) of
paragraph (1)(A)(vii) of this subsection (relating to
transition planning and transition services), do not apply
with respect to such children whose eligibility under this
subchapter will end, because of their age, before they will
be released from prison.
(B) Additional requirement
If a child with a disability is convicted as an adult under
State law and incarcerated in an adult prison, the child's IEP
Team may modify the child's IEP or placement notwithstanding the
requirements of section 1412(a)(5)(A) of this title and
subsection (d)(1)(A) of this section if the State has
demonstrated a bona fide security or compelling penological
interest that cannot otherwise be accommodated.
(e) Construction
Nothing in this section shall be construed to require the IEP Team
to include information under one component of a child's IEP that is
already contained under another component of such IEP.
(f) Educational placements
Each local educational agency or State educational agency shall
ensure that the parents of each child with a disability are members of
any group that makes decisions on the educational placement of their
child.
(Pub. L. 91-230, title VI, Sec. 614, as added Pub. L. 105-17, title I,
Sec. 101, June 4, 1997, 111 Stat. 81.)
Prior Provisions
A prior section 1414, Pub. L. 91-230, title VI, Sec. 614, Apr. 13,
1970, 84 Stat. 181; Pub. L. 94-142, Sec. 5(a), Nov. 29, 1975, 89 Stat.
784; Pub. L. 98-199, Sec. 3(b), Dec. 2, 1983, 97 Stat. 1358; Pub. L.
100-630, title I, Sec. 102(d), Nov. 7, 1988, 102 Stat. 3293; Pub. L.
101-476, title IX, Sec. 901(b)(59)-(70), Oct. 30, 1990, 104 Stat. 1144,
1145; Pub. L. 102-119, Secs. 6, 25(b), Oct. 7, 1991, 105 Stat. 591, 607,
related to requisite features of an application, approval of application
by State educational agency, consolidated applications of local
educational agencies, and provision of special education and related
services directly to children with disabilities in areas not served by
local educational agency, prior to the general amendment of subchapters
I to IV of this chapter by Pub. L. 105-17.
A prior section 1414a, Pub. L. 91-230, title VI, Sec. 614A, as added
Pub. L. 103-382, title III, Sec. 312, Oct. 20, 1994, 108 Stat. 3934,
which related to treatment of State agencies that received funds for
fiscal year 1994 under subpart 2 of part D of chapter 1 of title I of
the Elementary and Secondary Education Act of 1965 (as in existence on
the day preceding Oct. 20, 1994), was omitted in the general amendment
of subchapters I to IV of this chapter by Pub. L. 105-17.
Effective Date
Section effective June 4, 1997, except subsec. (d)(1) to (5),
effective July 1, 1998, see section 201(a)(1), (2)(A), of Pub. L. 105-
17, set out as a note under section 1400 of this title.
Section Referred to in Other Sections
This section is referred to in sections 1401, 1412, 1415, 1473,
2351, 2415, 6316, 6362 of this title; title 29 section 721.
