34 C.F.R. § 104.35

Evaluation and placement

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(a) Preplacement evaluation. A recipient that operates a public elementary or secondary education program or activity shall conduct an evaluation in accordance with the requirements of paragraph (b) of this section of any person who, because of handicap, needs or is belived to need special education or related services before taking any action with respect to the initial placement of the person in regular or special education and any subsequent significant change in placement.

(b) Evaluation procedures. A recipient to which this subpart applies shall establish standards and procedures for the evaluation and placement of persons who, because of handicap, need or are believed to need special education or related services which ensure that:

(1) Tests and other evaluation materials have been validated for the specific purpose for which they are used and are administered by trained personnel in conformance with the instructions provided by their producer;

(2) Tests and other evaluation materials include those tailored to assess specific areas of educational need and not merely those which are designed to provide a single general intelligence quotient; and

(3) Tests are selected and administered so as best to ensure that, when a test is administered to a student with impaired sensory, manual, or speaking skills, the test results accurately reflect the student's aptitude or achievement level or whatever other factor the test purports to measure, rather than reflecting the student's impaired sensory, manual, or speaking skills (except where those skills are the factors that the test purports to measure).

(c) Placement procedures. In interpreting evaluation data and in making placement decisions, a recipient shall (1) draw upon information from a variety of sources, including aptitude and achievement tests, teacher recommendations, physical condition, social or cultural background, and adaptive behavior, (2) establish procedures to ensure that information obtained from all such sources is documented and carefully considered, (3) ensure that the placement decision is made by a group of persons, including persons knowledgeable about the child, the meaning of the evaluation data, and the placement options, and (4) ensure that the placement decision is made in conformity with § 104.34.

(d) Reevaluation. A recipient to which this section applies shall establish procedures, in accordance with paragraph (b) of this section, for periodic reevaluation of students who have been provided special education and related services. A reevaluation procedure consistent with the Education for the Handicapped Act is one means of meeting this requirement.

[45 FR 30936, May 9, 1980, as amended at 65 FR 68055, Nov. 13, 2000]

Notes of Decisions

Cited in 52 cases (9 in the last 5 years), 1983–2026 · leading case: Georgia State Conf. of Branches of Naacp, Mary Alice Covin, Mary Laurant, Sylvia Dennis, & Naomi Tucker v. State of Georgia, 775 F.2d 1403 (11th Cir. 1985).

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Georgia State Conf. of Branches of Naacp, Mary Alice Covin, Mary Laurant, Sylvia Dennis, & Naomi Tucker v. State of Georgia, 775 F.2d 1403 (11th Cir. 1985). · cites it 6× “See 34 C.F.R. § 104.35 (a). The evaluation team must be composed of persons knowledgeable about the child, the meaning of the evaluation data and the placement options.”

Mark H. Ex Rel. Michelle H. v. Lemahieu, 513 F.3d 922 (9th Cir. 2008). · cites it 2× “The remaining cross-referenced regulations, 34 C.F.R. §§ 104.35 and 104.36, require evaluation and testing of all those who need or are believed to need special education, as well as the development of procedural safeguards to ensure that guardians of disabled children receive…”

Doe v. Maher, 793 F.2d 1470 (9th Cir. 1986). · cites it 11× “§ 1415(b)(1)(A) (1982); 34 C.F.R. § 104.35 (1985); (4) informing the parents of their right to demand both impartial administrative review of any IEP team decisions and judicial review of the state’s final administrative determination, see 20 U.”

Parents of Student W, Individually & as Guardians Student W, a Minor v. Puyallup Sch. Dist., No. 3, 31 F.3d 1489 (9th Cir. 1994). · cites it 2× “The OCR concluded that the Akron discipline policy which allowed for suspensions up to ten days per semester (twenty days per year) without considering whether a change in placement was created was in violation of 34 C.F.R. § 104.35 . 4 The solution agreed to by the OCR was not…”

Don Powers v. Northside Indep. Sch Dis, 951 F.3d 298 (5th Cir. 2020). “” 34 C.F.R. § 104.35 ; see also 29 U.S.C. § 794 (a).”

H. Ex Rel. T.H. v. Montgomery Cnty. Bd. of Educ., 784 F. Supp. 2d 1247 (M.D. Ala. 2011). · cites it 3× “34 C.F.R. § 104.35 (a). To make this placement decision, recipients must (1) consider information from a variety of sources, “including aptitude and achievement tests, teacher recommendations, physical condition, social or cultural background, and adaptive behavior;” (2)…”

D.A. v. Meridian Jt. Sch. Dist. No. 2, 289 F.R.D. 614 (D. Idaho 2013). · cites it 3× “Specifically, 34 C.F.R. § 104.35 requires school districts who receive federal funding to evaluate and establish an initial “placement” for disabled students.”

Daniel R.R. v. State Bd. of Educ., El Paso Indep. Sch. Dist., 874 F.2d 1036 (5th Cir. 1989). “See 34 C.F.R. § 104.35 (a). 3 EP-ISD’s failure to evaluate Daniel does not constitute a reason to reverse this case.”

Pace v. Bogalusa City Sch. Bd., 403 F.3d 272 (5th Cir. 2005). · cites it 2× “Congress required in a 1997 amendment to the IDEA that any 93 Subpart D in the regulations to § 504 includes general regulations for preschool, elementary, and secondary education regarding placement ( 34 C.F.R. § 104.35 ), procedural requirements ( 34 C.”

P.N. v. Greco, 282 F. Supp. 2d 221 (D.N.J. 2003). “34 C.F.R. § 104.35 . See also, 34 C.F.R. § 104.”

Kimble v. Douglas Cnty. Sch. Dist. Re-1, 925 F. Supp. 2d 1176 (D. Colo. 2013). · cites it 2× “See 34 C.F.R. § 104.35 (to comply with Section 504, a public entity “shall establish standards and procedures for the evaluation and placement of’ qualified individuals with disabilities, including “drawing] upon information from a variety of sources,” and “ensuring] that the…”

Indep. Sch. Dist. No. 12 v. Minnesota Dep't of Educ., 788 N.W.2d 907 (Minn. 2010). · cites it 2× “" 34 C.F.R. § 104.35 (c)(3) (2010). Individual school districts determine which parties must be included in their policy for implementing Section 504.”

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— 34 C.F.R. § 104.35(a) — 1 case

John Doe v. Bd. Of Educ. Of Oak Park & River Forest High Sch. Dist. 200, 115 F.3d 1273 (7th Cir. 1997).

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