Dated July 19, 2007

This is in response to your July 2, 2007 email to Dr. Al Jones in the
Office of Special Education Programs (OSEP) regarding questions about
the Michigan Department of Education's (MDE's) proposed State Special
Education Rules. We have included your questions (and our responses) in
the order in which you raised them.

**[Q-1. Regarding Short term Objectives]{.underline}.**

Isn't it true that one difference between IDEA 97 and IDEA 2004 is that
States are no longer "required" to have "short-term objectives for
students taking the standardized assessments"...and isn't it also true
that again this is the "minimum" required and that States "can still
exceed this minimum" and "can still include short-term objectives for
students taking standardized assessments?" Isn't it true that States
will not be found out of compliance or risk loss of Federal funds "if
they require short-term objectives for all students with disabilities?"

**[Response]{.underline}.**

The IDEA Amendments of 2004 specifically removed a provision from prior
law (IDEA-97) that required each child's IEP to include "a statement of
measurable annual goals [including benchmarks or short term
objectives]{.underline}." (Emphasis added.) However, the 2004 Amendments
also added a new provision that, "for children with disabilities who
take alternate assessments aligned to alternate achievement standards,"
the IEP \[individualized education program\] must include "a description
of benchmarks or short-term objectives." 20 U.S.C.
1414(d)(1)(A)(i)(I)(cc) and 34 CFR 300.320(a)(2)(ii).

In response to specific comments on the June 21, 2005 NPRM that opposed
the removal of benchmarks and short-term objectives, the Department's
Analysis of Comments and Changes in the Preamble to the Part B final
regulations includes the following discussion:

Benchmarks and short-term objectives were specifically removed from
section 614(d)(1)(A)(i)(II) of the Act. However, because benchmarks and
short-term objectives were originally intended to assist parents in
monitoring their child's progress toward meeting the child's annual
goals, we believe a State could, if it chose to do so, determine the
extent to which short-term objectives and benchmarks would be used.
However, consistent with §300.199(a)(2) and sections 608(a)(2) and
614(d)(1)(A)(ii)(I) of the Act, a State that chooses to require
benchmarks or short-term objectives in IEPs in that State would have to
identify in writing to the LEAs located in the State and to the
Secretary that such rule, regulation, or policy is a State-imposed
requirement, which is not required by Part B of the Act or the Federal
regulations. 71 [Fed. Reg]{.underline}. at 46663 (August 14, 2006)

In accordance with the preceding discussion, if a State meets the
conditions in that discussion regarding benchmarks or short-term
objectives and is otherwise in compliance with Part B of the Act and
regulations, the State should not risk loss of Federal funds.

**[Q-2. Regarding "Severe Discrepancy]{.underline}."**

Isn't it true that one difference between IDEA 97 and IDEA 2004 is that
States are no longer "required" to use "severe discrepancy as a tool to
identify a student with a Specific Learning Disability"...and isn't it
also true that again this is the "minimum" required and that States "can
still exceed this minimum" and "can still use severe discrepancy as a
tool to identify a student with a Specific Learning Disability?"

**[Response]{.underline}:**

Section 614(b)(6) of the Act provides that, when determining whether a
child has a specific learning disability, (SLD) a local educational
agency (LEA) "(A)...[shall not]{.underline} be required to take into
consideration whether a child has a severe discrepancy between
achievement and intellectual ability in oral expression, listening
comprehension, written expression, basic reading skill, reading
comprehension, mathmatical calculation, or mathematical reasoning" and
"(B)...[may use]{.underline} a process that determines if the child
responds to scientific, research-based intervention as a part of the
evaluation procedures described in (paragraphs (b)(2) and (3) of section
614)." (Emphasis added).

The statutory provision is reflected in §300.307(a) of the final Part B
regulations, as follows:

> [§300.307 Specific learning disabilities]{.underline}.
>
> \(a\) [General]{.underline}. A State must adopt, consistent with
> §300.309, criteria for determining whether a child has a specific
> learning disability as defined in §300.8(c)(10). In addition, the
> criteria adopted by the State\--
>
> \(1\) [Must not require the use of a severe discrepancy]{.underline}
> between intellectual ability and achievement for determining whether a
> child has a specific learning disability, as defined in §300.8(c)(10);
>
> \(2\) [Must permit the use of a process]{.underline} based on the
> child's response to scientific, research-based intervention; and
>
> \(3\) [May permit]{.underline} the use of other alternative
> research-based procedures for determining whether a child has a
> specific learning disability, as defined in §300.8(c)(10). (Emphasis
> added.)

In response to specific comments on the June 21, 2005 Notice of Proposed
Rulemaking (NPRM) regarding the use of discrepancy models, the
Department's Analysis of Comments and Changes in the Preamble to the
Part B final regulations includes the following discussion:

With respect to permitting LEAs to use discrepancy models...States are
responsible for developing criteria to determine whether a child is a
child with a disability, as defined in §300.8 and section 602(3) of the
Act, including whether a particular child meets the criteria for having
an SLD. Under section 614(b)(6) of the Act, States are free to prohibit
the use of a discrepancy model. States, including States that did not
use a discrepancy model prior to the Act, are not required to develop
criteria that permit the use of a discrepancy model. 71 Fed. Reg. at
46646 (August 14, 2006)

In accordance with the preceding requirements in the Act and regulations
and the discussion from the Analysis of Comments and Changes, a State is
prohibited from requiring LEAs to use a discrepancy model. However, a
State could permit (but is not required to permit) LEAs to use other
alternative research-based procedures as a part of the process for
determining the existence of a specific learning disability, which might
include determining whether there is a discrepancy between a child's
aptitude and achievement.

**[Q-3. Regarding ESY Services for the Severely Cognitively and Severely
Multiply Impaired "Programs]{.underline}."**

In your 7-2-07 email, you stated that, in your telephone conversation
with Dr. Jones, you asked if OSEP staff, or other units in the Education
Department had informed MDE that the State would lose funds if it
doesn't remove the 50 additional days for R 340.1738 & R 340.1748
regarding the Severely Cognitively and Severely Multiply Impaired
Programs. And you added the following: "These Programs R 340.1738 & R
340.1748 "don't say that students outside of these Programs can't have
ESY \[extended school year\]...these Programs only determine that
students who "need" to be in these Programs need more school days. The
ESY determination is made when the student is placed into Programs R
340.1738 & R 340.1748. Students who are identified as "Severely Multiply
Impaired R 340.1714" or "Cognitively Impaired R 340.1705" aren't given
ESY or the additional 50 days included in R 340.1738 & R 340.1748
"unless the IEPT determines they need ESY." So the 50 days are not tied
to the eligibility or identification of the student. The 50 days are
attached to Programs that are determined to need more school days, which
"in effect exceeds the minimum guidelines of IDEA 2004."

**[Response]{.underline}:**

With respect to your question on the funding status of Michigan's grant
under Part B of the IDEA, this letter reiterates Dr. Jones' previous
statement to you that neither OSEP nor other units in the Education
Department have informed MDE that the State would lose its funding based
on the additional 50 days included in R 340.1738 & R 340.1748.

The following is the provision on ESY services from §300.106 of the
final regulations:

> [§300.106 Extended school year services.]{.underline}

\(a\) [General]{.underline}. (1) Each public agency must ensure that
extended school year services are available as necessary to provide FAPE
\[free appropriate public education\], consistent with paragraph (a)(2)
of this section.

\(2\) Extended school year services must be provided only if a child's
IEP Team determines, on an individual basis, in accordance with
§§300.320 through 300.324, that the services are necessary for the
provision of FAPE to the child.

\(3\) In implementing the requirements of this section, a public agency
may not\--

\(i\) Limit extended school year services to particular categories of
disability; or

\(ii\) Unilaterally limit the type, amount, or duration of those
services.

\(b\) [Definition]{.underline}. As used in this section, the term
extended school year services means special education and related
services that\--

\(1\) Are provided to a child with a disability\--

\(i\) Beyond the normal school year of the public agency;

\(ii\) In accordance with the child's IEP; and

\(iii\) At no cost to the parents of the child; and

\(2\) Meet the standards of the SEA \[State educational agency\].

In response to specific comments on the June 21, 2005 NPRM regarding ESY
services, the Department's Analysis of Comments and Changes in the
Preamble to the Part B final regulations includes the following
discussion:

> The requirement to provide ESY services to children with disabilities
> who require such services in order to receive FAPE reflects a
> longstanding interpretation of the Act by the courts and the
> Department. The right of an individual child with a disability to
> receive ESY services is based on that child's entitlement to FAPE
> under section 612(a)(1) of the Act. Some children with disabilities
> may not receive FAPE unless they receive necessary services during
> times when other children, both disabled and nondisabled, normally
> would not be served. We believe it is important to retain the
> provisions in §300.106 because it is necessary that public agencies
> understand their obligation to ensure that children with disabilities
> who require ESY services in order to receive FAPE have the necessary
> services available to them, and that individualized determinations
> about each disabled child's need for ESY services are made through the
> IEP process. 71 Fed. Reg. at 46582 (August 14, 2006)

In accordance with the preceding requirements and discussion regarding
ESY services, and subject to the following, the requirements in R
340.1738 & R 340.1748 of MDE's proposed regulations would not be in
conflict with Part B of the IDEA if: (1) the need for placement of each
child with a disability in the R 340.1738 or R 340.1748 program has been
individually determined by the child's IEP Team, and (2) the IEP of each
individual child specifies the kind and amount of services the child is
to receive, including ESY services beyond the normal school year of the
public agency. In addition, MDE 's regulations would need to provide
that ESY services will be made available to any other child with a
disability in the State who needs those services, as determined by the
child's IEP team and in accordance with the child's IEP.

**[Q-4. Regarding Exceeding Minimum Requirements]{.underline}.**

There is much concern on our State Board of Education that neither
Michigan nor any State can "exceed" the minimum guidelines set forth in
IDEA 2004. Can your office clearly state that any State can "exceed the
minimum"...but all States "must meet the minimum."

[Response]{.underline}: Generally, a State can exceed Federal
requirements as long as what the State requires (1) is not inconsistent
with other requirements in the IDEA, and (2) consistent with
§300.199(a)(2) and sections 608(a)(2) and 614(d)(1)(A)(ii)(I) of the
Act, the State identifies in writing to the LEAs located in the State
and to the Secretary that such rule, regulation, or policy is a
State-imposed requirement that is not required by Part B of the Act or
regulations. All States receiving funds under Part B of the IDEA must
meet the requirements of Part B of the IDEA and its regulations.

Based on section 607(e) of the IDEA, we are informing you that our
response is provided as informal guidance and is not legally binding,
but represents an interpretation by the U.S. Department of Education of
the IDEA in the context of the specific facts presented.

We hope our responses to your questions are helpful to you. If you have
other comments or questions, please feel free to contact Laura Duos in
the Office of Policy and Planning at (202) 245-6772.

> Sincerely,
>
> /s/
>
> John H. Hager