Dated April 16, 2001

Honorable Wayne T. Gilchrest

Member, House of Representatives

44 Calvert Street, Suite 320

Annapolis, Maryland 21401

Dear Congressman Gilchrest:

I am writing in response to your letter that was forwarded to the former
Assistant Secretary for the Office of Special Education and
Rehabilitative Services, Judith E. Heumann, from the former Assistant
Secretary for Legislation and Congressional Affairs, Scott Fleming, on
behalf of your constituent. X expressed concern in her February 21, 2000
letter to you regarding the provision of special education and related
services by the Maryland State Department of Education (MSDE) under Part
B of the Individuals with Disabilities Education Act (Part B). We
apologize for the delay in our response.

In her letter to your office, X noted concern for what she believes to
be the MSDE's non-compliance with federal law regarding the provision of
a free appropriate public education (FAPE) for the unique needs of x. In
particular, she contends that Maryland's enforcement of Maryland
Education Article §8-413(i) concerning reimbursement for private school
tuition is contrary to the provisions in Part B addressing the same
issue. Additional concern was referenced in x's letter regarding the
National Council of Disabilities report to Congress regarding State
compliance with Part B. Former Assistant Secretary Heumann responded to
the report, and that response is enclosed for your information. The
following information is for your consideration in responding to x.

OSEP received a letter from x on October 11, 1999, after a United States
District Court Judge had reversed a December 17, 1997 decision of a
Maryland hearing officer, in which the hearing officer had denied the
parents' request for a due process hearing. The basis for the denial was
the parents' alleged failure to comply with the requirements of Maryland
Education Article §8- 413(i). X was waiting for the hearing officer to
schedule the remanded due process hearing in order to review the
identification, evaluation and placement of her child and her request
for reimbursement for tuition associated with her child's placement in a
private school. On December 15, 1999, the Administrative Law Judge
rendered a decision on the merits of the case, finding that the school
district had offered FAPE to x and denying the parents' request for
reimbursement for tuition and related costs for the parents' unilateral
placement of their child in a private school for the 1997 - 1998 school
year (see decision attached).

After consulting with x's legal counsel, Mr. Michael F. Slade of my
staff telephoned x on January 27, 2000, and explained to her that the
implementing regulations under Part B, 34 CFR §300.510, provide that a
decision made in an impartial due process hearing is final, leaving the
United States Department of Education with no authority to intervene in
her individual case. Rather, as indicated in §300.512, we informed x
that she had the right to bring a civil action to appeal the hearing
officer's December 1999 decision in any State court of competent
jurisdiction or in a district court of the United States without regard
to the amount in controversy.

X also contends in her letter to you that Maryland Education Article
§8-413(i) denies parents a timely due process hearing, contrary to the
requirements of Part B. Section 8-413(i) addresses reimbursement for
private school tuition and costs. It provides:

> If the parent or guardian of a student with disabilities, eligible to
> receive special education and related services from a county board,
> enrolls the child in a nonpublic school, the county board is not
> required to reimburse the parent or guardian for tuition or related
> costs associated with the enrollment if:

(1) The parent or guardian does not provide to the county board prior
    written notice rejecting the program proposed by the county board,
    including the reason for the rejection, and stating an intention to
    enroll the student in a nonpublic school;

(2) The nonpublic school placement of the student is found
    inappropriate; or

(3) The proposed county board program is found appropriate.

Part B of the IDEA addresses limitations on the reimbursement for
private school tuition and costs at 34 CFR § 300.403(d), which provides:

> \(d\) The cost of reimbursement described in paragraph (c) of this
> section may be reduced or denied\--

(1) If\--

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(i) At the most recent IEP meeting that the parents attended prior to
    removal of the child from the public school, the parents did not
    inform the IEP team that they were rejecting the placement proposed
    by the public agency to provide FAPE to their child, including
    stating their concerns and their intent to enroll their child in a
    private school at public expense; or

(ii) At least ten (10) business days (including any holidays that occur
     on a business day) prior to the removal of the child from the
     public school, the parents did not give written notice to the
     public agency of the information described in paragraph (d)(1)(i)
     of this section;

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(2) If, prior to the parents' removal of the child from the public
    school, the public agency informed the parents, through the notice
    requirements described in §300.503(a)(1), of its intent to evaluate
    the child (including a statement of the purpose of the evaluation
    that was appropriate and reasonable), but the parents did not make
    the child available for evaluation; or

(3) Upon a judicial finding of unreasonableness with respect to actions
    taken by the parents.

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(e) Exception. Notwithstanding the notice requirement in paragraph
    (d)(1) of this section, the cost of reimbursement may not be reduced
    or denied for failure to provide notice if\--

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(1) The parent is illiterate and cannot write English;

(2) Compliance with paragraph (d)(1) of this section would likely result
    in physical or serious emotional harm to the child;

(3) The school prevented the parent from providing the notice; or

(4) The parents had not received notice, pursuant to section 615 of the
    Act, of the notice requirement in paragraph (d)(1) of this section.

OSEP is aware of Maryland's Education Article §8-413(i) and shares x's
concern that the statute may not use language concerning limitations to
reimbursement for private school tuition and the exceptions to those
limitations consistent with 34 CFR §300.403(d) and (e). OSEP has raised
this issue with the Maryland State Department of Education in the course
of OSEP's review of the State's statutes, regulations, policies and
procedures to determine Maryland's eligibility to receive a grant under
Part B of the IDEA. [See]{.underline} 34 CFR §§ 300.110 and 300.133.
OSEP will continue to work with the MSDE to ensure that Maryland's
statutes, regulations, policies and procedures meet all requirements of
the IDEA in order for the State to receive its Part B funding.

In your March 8, 2000 letter, you also inquired after a complaint x had
filed with the U.S. Department of Education's Office for Civil Rights
(OCR). OSEP has contacted OCR to ascertain the status of x's complaint.
Subsequent to an April 27, 2000, letter from OCR informing you that the
complaint had yet to be resolved, OCR issued a decision on July 27,
2000, closing its file on the complaint with a finding of no Section 504
violation. On September 29, 2000, OCR issued another letter to x,
denying her request for reconsideration of OCR's decision and finding no
evidence to cause OCR to alter its original determination. OCR noted, as
we confirm herein, that the issue to be resolved is the compliance of
Maryland Education Article §8-413(i) with IDEA, not Section 504. Copies
of the two OCR letters referenced above are enclosed. If you have any
questions related to OCR's decision on x's complaint, please feel free
to contact Wendella P. Fox, Director in the Philadelphia Office of the
Office for Civil Rights, at (215) 656-8541.

I hope this information is helpful to you in responding to X. If this
Office can be of any further assistance regarding this matter please
feel free to contact me or Michael F. Slade at (202) 205-8969.

> Sincerely,
>
> /signed Patricia J. Guard/
>
> Patricia J. Guard
>
> Acting Director
>
> Office of Special Education
>
> Programs

cc: Nancy Grasmick, Superintendent of Schools, MSDE

Enclosures: Part B regulations published March 12, 1999

> Statement on NCD Report by Assistant Secretary of Education
>
> Maryland Office of Administrative Hearings Decision
>
> Letter from OCR to x, July 27, 2000
>
> Letter from OCR to x, September 29, 2000