Dated November 21, 2002

Honorable Dennis Moore

House of Representatives

Washington, DC 20515-1603

Dear Congressman Moore:

In a letter concerning X, you raised four questions regarding the
evaluation, transition and other requirements for children with
disabilities in secondary schools. We address each of your questions
separately below as it relates to the Individuals with Disabilities
Education Act (IDEA), which this Office of Special Education Programs
(OSEP) is responsible for administering.

1.  *It seems that X Individual Education Plan \[Program\] (IEP) did not
    lay the groundwork for him to make a seamless transition from high
    school to college. How does the existing IEP structure ensure that
    students are prepared for college?*

> One of the key purposes of the IDEA Amendments of 1997 was to "promote
> improved educational results for children with disabilities through
> early intervention, preschool, and educational experiences that
> prepare them for later educational challenges and employment." (H.
> Rep. No. 105-95, p. 82 (1997); S. Rep. No. 105-17, p. 4 (1997)). Thus,
> throughout preschool, elementary, and secondary education, the IEPs
> for children with disabilities must, to the extent appropriate for
> each individual child, focus on providing instruction and experiences
> that enable the child to prepare himself or herself for later
> educational experiences and for post-school activities, including
> formal education, if appropriate, employment, and independent living.
>
> The regulations under Part B of the IDEA set forth specific
> requirements related to transition planning and transition services
> that must be implemented by no later than ages 14 and 16. These
> requirements focus on preparing students with disabilities for their
> move toward, and life following, completion of high school. The Part B
> regulations at 34 C.F.R. §300.347(b)(1) require that each student's
> IEP, beginning no later than age 14, include specific
> transition-related content that focuses on the student's courses of
> study, and, beginning no later than age 16, include a statement of
> needed transition services. Specifically these regulations state:
>
> *Beginning at age 14* and younger if appropriate, and updated
> annually, each student's IEP must include: "... a statement of the
> transition service needs of the student under the applicable
> components of the student's IEP that focuses on the student's courses
> of study (such as participation in advanced‑placement courses or a
> vocational education program)". 34 C.F.R. §300.347(b)(1)(i) (emphasis
> added).
>
> *Beginning at age 16* (or younger, if determined appropriate by the
> IEP team), each student's IEP must include: "... a statement of needed
> transition services for the student, including, if appropriate, a
> statement of the interagency responsibilities or any needed linkages."
> 34 C.F.R. §300.347(b)(2) (emphasis added).
>
> Congressional Committee Reports on the IDEA Amendments of 1997 make
> clear that the requirement added to the statute in 1997 that beginning
> at age 14, and updated annually, the IEP include "a statement of the
> transition service needs" is "... designed to augment, and not
> replace," the separate, preexisting requirement that the IEP include,
> "... beginning at age 16 (or younger, if determined appropriate by the
> IEP team), a statement of needed transition services. ..." H. Rep. No.
> 105-95, p. 102 (1997); S. Rep. No. 105-17, p. 22 (1997). As clarified
> by these Reports, "The purpose of \[the requirement in
> §300.347(b)(1)(i)\] is to focus attention on how the child's
> educational program can be planned to help the child make a successful
> transition to his or her goals for life after secondary school." H.
> Rep. No. 105-95, pp. 101-102 (1997); S. Rep. No. 105-17, p. 22 (1997).
>
> "Transition services" is defined at 34 C.F.R. §300.29 to mean:
>
> ... a coordinated set of activities for a student with a disability
> that \-- (1) Is designed within an outcome-oriented process, that
> promotes movement from school to post-school activities, including
> post-secondary education, vocational training, integrated employment
> (including supported employment), continuing and adult education,
> adult services, independent living, or community participation; (2) Is
> based on the individual student's needs, taking into account the
> student's preferences and interests; and (3) Includes \-- (i)
> Instruction; (ii) Related services; (iii) Community experiences; (iv)
> The development of employment and other post-school adult living
> objectives; and (v) If appropriate, acquisition of daily living skills
> and functional vocational evaluation.
>
> 34 C.F.R. §300.29.
>
> While §300.347(b)(1) requires that the IEP team begin by age 14 to
> address the student's need for instruction that will assist the
> student to prepare for transition, §300.347(b)(2) requires that by the
> time the student turns 16, the IEP must include a statement of needed
> transition services under §300.347(b)(2) that includes a "coordinated
> set of activities ... designed within an outcome-oriented process,
> that promotes movement from school to post-school activities...." The
> type of activities is broadly defined under §300.29 and must be
> individualized for each student. Thus, beginning by age 14, the IEP
> team, in determining appropriate measurable annual goals (including
> benchmarks or short-term objectives) and services for a student, not
> only must determine what instruction and educational experiences will
> assist the student to prepare for transition from secondary education
> to post-secondary life, but must include under §§300.29(ii)--(v):
> related services, community experiences, employment experiences, other
> post-school adult living objectives, and, if appropriate, acquisition
> of daily living skills and functional vocational evaluations.

2.  *Upon entering college, X did not have the testing required to prove
    his need for accommodations or additional services in college. How
    often are secondary schools required to provide testing? Are they
    required to provide testing at the request of the parents?*

> Your inquiry asks about the requirements for evaluations and
> reevaluations of children with disabilities under the IDEA when
> children are in high school. An "evaluation" under the IDEA is defined
> as "procedures used ... to determine whether a child has a disability
> and the nature and extent of the special education and related
> services that the child needs." 34 C.F.R. §300.500(b)(2). An
> evaluation conducted by a high school under the IDEA is not intended
> to determine whether a child is eligible for academic adjustments in
> college under either Section 504 of the Rehabilitation Act or Title II
> of the Americans with Disabilities Act.
>
> Evaluations and reevaluations under the IDEA are conducted to
> determine whether a child is eligible for services under Part B of the
> IDEA. 34 C.F.R. §300.500(b)(2). Once a child is receiving services
> under the IDEA, under §300.536, each school district must ensure that
> the IEP of each child with a disability is reviewed periodically, but
> no less than annually. In addition, the school district must ensure
> under this regulation that a reevaluation is conducted "if conditions
> warrant a reevaluation, or if the child's parent or teacher requests a
> reevaluation, but at least once every three years." 34 C.F.R.
> §300.536(b). The information obtained in an evaluation or reevaluation
> is integral to the determination of the special education and related
> services (including transition services) a child needs under §300.346
> and the child's educational placement under §300.552. If the child's
> parent requests a reevaluation, the school must either: (1) conduct
> the reevaluation in conformance with 34 C.F.R. §§300.532 through
> 300.535; or (2) provide parents with written notice of the school's
> refusal to conduct a reevaluation. 34 C.F.R. §300.503(a)(1)(ii).
> However, as you may know, graduation with a regular high school
> diploma ends a student's eligibility for services under Part B of the
> IDEA.
>
> If a parent requests that a reevaluation or additional assessments be
> performed on his or her child (for purposes other than determining
> continued eligibility of the child) and the public agency refuses, the
> agency must provide notice to the parent under §300.503 that includes
> an explanation of why the agency is refusing to conduct the
> reevaluation. The parent may challenge the public agency's refusal to
> conduct the reevaluation by requesting a due process hearing under
> §300.507(a) and may also attempt to resolve the issue with the agency
> through mediation under §300.506(a). If the parent initiates a due
> process hearing, the parent or the attorney representing the child
> also must provide notice to the public agency that describes the
> nature of the problem. The parent may also file a State complaint
> under the procedures described at §§300.660-300.662 if the parent
> believes that the action taken by the agency violates a provision of
> IDEA or its implementing regulations.

*3. Do high schools have the responsibility under the IDEA law to
prepare students for college by arranging testing required by the
college?*

> Under the IDEA, the determination of what evaluations a child needs or
> are appropriate is an individual one made by a group of individuals
> consistent with IDEA §§300.530-300.536. As noted in response to
> question two above, parents of children with disabilities in high
> school have the right to request a specific assessment, as part of a
> reevaluation, if they believe it is necessary to determine whether
> their child continues to have a disability under IDEA or to identify
> the special education and related services (including transition
> services) their child needs. There may be a difference of opinion as
> to whether additional data, assessments or reevaluations are necessary
> particularly if a child's continued eligibility under IDEA is not in
> question. The denial of the parents' request for additional evaluation
> or assessments is subject to the notice provisions and dispute
> resolution procedures are discussed in the response to question two
> above.
>
> Under §300.347(b), the IEP team must begin by age 14 to address the
> student's need for instruction that will assist the student to prepare
> for transition and the IEP must include by age 16 a statement of
> needed transition services under §300.347(b)(2) that includes a
> "coordinated set of activities ... , designed within an
> outcome-oriented process, that promotes movement from school to
> post-school activities \...." (§300.29) Section 300.344(b)(3) further
> requires that, in implementing §300.347(b)(1), public agencies (in
> addition to required participants for all IEP meetings), must also
> invite a representative of any other agency that is likely to be
> responsible for providing or paying for transition services. Thus,
> §300.347(b)(2) requires a broader focus on coordination of services
> across, and linkages between, agencies beyond the SEA and LEA.
>
> Under both the statute and the regulations, parents have the right to
> request an assessment, as part of a reevaluation, to determine whether
> their child continues to have a disability under IDEA. If the group
> reviewing the existing data does not believe additional data are
> needed to determine a child's continued eligibility under IDEA, but
> the parents want additional testing for reasons other than continued
> eligibility under IDEA, such as admission to college, the denial of
> the parent's request would be subject to due process.
>
> As stated earlier, graduation with a regular high school diploma ends
> a student's eligibility for Part B services, and is, therefore, a
> change in placement requiring notice under §300.503 a reasonable time
> before the public agency proposes to graduate the student. The
> requirements for transition planning and for reporting to parents
> regarding the progress of their child, together with the notice to
> them regarding proposed graduation, are sufficient to ensure that
> parents are appropriately informed to protect the rights of their
> child. The parents have the option, as with any public agency proposal
> to change the educational program or placement of a child with a
> disability, to seek to resolve a disagreement with the proposal to
> graduate the student through all appropriate means, including
> mediation and due process hearing proceedings.
>
> While the requirements for transition planning and the availability of
> reevaluations and procedural safeguards under the IDEA are all
> intended to help parents and schools assist an individual child in
> transitioning beyond high school, there is no specific requirement
> under the IDEA that high schools must arrange for all students with
> disabilities to be tested to determine their eligibility to be
> considered students with disabilities in college.

4.  *What rights does X have under the Americans with Disabilities Act
    with regard to his college education?*

> OSEP is responsible for administering the IDEA. We have referred your
> question on the Americans with Disabilities Act (ADA) to the:
>
> U.S. Department of Education
>
> Office for Civil Rights (OCR)
>
> Customer Service Team
>
> Mary E. Switzer Building
>
> 300 C Street, SW
>
> Washington, D.C. 20202
>
> 1-800-421-3481

We enclose a copy of OCR's publication "Students with Disabilities
Preparing for Postsecondary Education: Know Your Rights and
Responsibilities" released July, 2002, which may provide you with basic
information about rights under Section 504 of the Rehabilitation Act of
1983 and Title II of the ADA. The web-site link is
[www.ed.gov/offices/OCR/transition.htm](http://www.ed.gov/about/offices/list/ocr/transition.html)l.
We have asked OCR to respond directly to your question and you will
receive their response under separate cover.

Finally, with regard to your interest in the reauthorization of the
IDEA, the Department of Education (Department) takes the reauthorization
process very seriously. In preparation for IDEA reauthorization, the
Assistant Secretary for Special Education and Rehabilitative Services
hosted many public forums designed to gather input regarding the
reauthorization of the IDEA. In addition, on January 10, 2002, the
Department published in the [Federal]{.underline} [Register]{.underline}
a notice requesting written comments from the public on the IDEA to
assist in preparing for the Act's reauthorization. The President's
Commission on Excellence in Special Education has issued its report
regarding recommendations for the reauthorization of the IDEA. As the
Department moves forward in the reauthorization process, it will take
into consideration the comments received, as well as the recommendations
of the Commission. At this time, no decision has been reached regarding
recommendations that will be made concerning the reauthorization of
IDEA.

We hope your questions about transition and evaluation requirements
under the IDEA have been addressed. Should X have further questions
concerning special education programming in the State of Kansas, the
following individual should be contacted:

> Ms. Zoann Torrey
>
> Team Leader, Student Support Services
>
> Kansas State Department of Education
>
> 120 SE 10^th^ Avenue
>
> Topeka, Kansas 66612-1182
>
> \(785\) 291-3097
>
> <ztorrey@ksde.org>

If you have further questions, please do not hesitate to contact me or
Dr. JoLeta Reynolds at (202) 205-5507.

> Sincerely,
>
> /s/ Patricia J. Guard for
>
> Stephanie S. Lee
>
> Director,
>
> Office of Special Education Programs

cc: Ms. Zoann Torrey