Dated August 28, 2003

Ms. Rita Byrd

Assistant Superintendent

Fort Thomas Independent Schools

28 North Fort Thomas Avenue

Fort Thomas, Kentucky 41075-1555

Dear Ms. Byrd:

I am writing in response to your letter requesting clarification of the
Part B regulations under the Individuals with Disabilities Education Act
(IDEA) as it relates to the individualized education program's (IEP)
team membership. Specifically, you inquire whether a public agency is
required to ensure attendance at an IEP meeting of an individual who the
parent invites and who is an employee of the public agency, including a
former teacher who has not worked with the student in several years.

Under Part B of the IDEA, 20 U.S.C. §1400 [et]{.underline}.
[seq]{.underline}., and its implementing regulations at 34 C.F.R. Part
300, a public agency must ensure that all individuals who are necessary
to develop an IEP that will meet the child's unique needs and ensure the
provision of a free appropriate public education (FAPE) to the child
participate in the child's IEP meeting. Under the Part B regulations,
the public agency must ensure that the IEP team for each child with a
disability includes-

> "(1) The parents of the child;
>
> \(2\) At least one regular education teacher of the child (if the
> child is, or may be, participating in the regular education
> environment);
>
> \(3\) At least one special education teacher of the child, or if
> appropriate, at least one special education provider of the child;
>
> \(4\) A representative of the public 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
> public agency;
>
> \(5\) An individual who can interpret the instructional implications
> of evaluation results, who may be a member of the team described in
> paragraphs (a)(2) through (6) of this section;
>
> \(6\) 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
>
> \(7\) If appropriate, the child."
>
> 34 CFR §300.344(a).

The regulations now require that if the parents or the public agency
invite other individuals to the IEP meeting, those individuals must have
"knowledge or special expertise regarding the child." 34 C.F.R.
§300.344(a)(6). This is a change from prior law, which provided, without
qualification, that parents or agencies could have other individuals as
members of the IEP team at the discretion of the parents or agency.
[See]{.underline} 34 CFR Part 300, Appendix A, Question 28. The
determination as to whether an individual has knowledge or special
expertise, within the meaning of 34 C.F.R. §300.344(a)(6), shall be made
by the parent or public agency who has invited the individual to be a
member of the IEP team, and that determination must be made on a
case-by-case basis. [See]{.underline} 34 C.F.R. §300.344(c). The Federal
regulations, however, do not address the public agency's responsibility
to make an employee of the agency, including a student's former teacher,
available for IEP meetings. That determination may be addressed by the
State and/or local policy.

If you have any questions about how the requirements of Part B are
implemented in Kentucky, you may contact the State educational agency at
the following address and telephone number:

> Ms. Judy Mallory
>
> Director
>
> Division of Exceptional Children's Services
>
> Kentucky Department of Education
>
> Capital Plaza Tower, 8^th^ Floor
>
> 500 Mero Street, Room 801
>
> Frankfort, Kentucky 40601
>
> Telephone Number: (502) 564-4970

Again, thank you for sharing your concerns with us. If this Office can
be of assistance in the future, please feel free to contact Mr. Martin
Benton, OSEP's Part B contact for Kentucky, at (202) 205-9028.

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

Enclosure

cc: Judy Mallory