Dated January 15, 2008

Mr. Allen Brumbaugh, CEO

Coalition of Learning Disabled

4871 Morgan Road

Angels Camp, CA 95222

Dear Mr. Brumbaugh:

This letter is in response to your letter to the Office of Special
Education Programs (OSEP), dated October 18, 2007. Your letter expresses
your concern that \"\[c\]urrent regulations \[for Part B of the
Individuals with Disabilities Education Act (Part B)\] lack
acknowledgement of records of impairment and/or IEPs \[individualized
education programs\] determined by qualified professionals.\"

Under 34 CFR §300.8(a) of the Part B regulations, a child must be
evaluated in accordance with 34 CFR 300.304 through 300.311 and found to
have a specified impairment and to be in need of special education and
related services because of that impairment. There are some
jurisdictions that do not classify children based on a disability
category. There is nothing in Part B of the Act that requires that a
child be classified by his or her disability so long as each child who
has a disability listed in 34 CFR §300.8(c) of the Part B regulations
who needs special education and related services is regarded as a child
with a disability. 34 CFR §300.111(d). Under Part B, a child cannot he
considered an eligible child with a disability solely because the child
has a record of impairment. \"Record of impairment,\" which is used in
Section 504 of the Rehabilitation Act of 1973 (Section 504) and the
Americans with Disabilities Act (ADA), is not a term used in the Part B
regulations. Rather, under Part B, the child\'s current need for special
education and related services is the relevant consideration.

There are a number of provisions in the Part B regulations that
safeguard IEPs for children with disabilities served under Part B. In
order to receive assistance under Part B, each State must ensure that a
free appropriate public education (FAPE) is made available to eligible
children with disabilities. FAPE includes, among other elements, the
provision of special education and related services, in conformity with
an IEP. 34 CFR §300.17. Once a determination is made that a child has a
disability and needs special education and related services, an IEP must
be developed for the child in accordance with 34 CFR §§300.320 through
300.324. 34 CFR §300.306(b)(2). Under 34 CFR §300.323(a), each public
agency must have in effect an IEP that meets the definition in 34 CFR
§300.320 for each child with a disability within its jurisdiction at the
beginning of each school year. The IEP is a written document, developed
at a meeting between parents and school officials, which contains
statements of the child\'s present levels of educational performance,
measurable annual goals designed to meet the child\'s needs that result

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from the child\'s disability, the special education and related services
and supplementary aids and services to enable the child to participate
in the general education curriculum and in nonacademic and
extracurricular services and activities and to participate with children
with and without disabilities in those activities. For children age 16
and older, and for younger children if determined appropriate by the IEP
Team, the child\'s IEP must contain a statement of postsecondary goals
and transition services needed to assist the child in reaching those
goals. Each child\'s IEP Team must review the child\'s IEP periodically,
but not less than annually, to determine whether the annual goals are
being achieved, and must revise its provisions, if appropriate. 34 CFR
§300.324(b). The IEP, which also forms the basis for the child\'s
placement, is integral to each disabled child\'s entitlement to FAPE
under Part B. These provisions underscore that it is the child\'s unique
educational needs, and not the child\'s disability category, that
determine the services to be provided to the child.

Your letter also expresses a concern that Colorado\'s proposed
regulations do not use the same terminology as used in the Federal
regulations. It appears that your concern is that children whose
disabilities would be recognized under the Federal Part B regulations
would not be found eligible for services under Part B under the State\'s
proposed regulatory definitions of disability categories. A State is not
required to use the precise terminology used in Part B in describing
children who meet the criteria for \"child with a disability,\" provided
that all children who are in need of special education and related
services who have impairments listed in the Part B definition of \"child
with a disability\" are identified, located, and evaluated and
appropriate instruction and services are provided to eligible children.

You also believe that there is a need for recognition of IEPs across
States under the ADA guidelines. Part B includes new provisions on IEPs
for children with disabilities who move into a different State and
change school districts. Under 34 CFR §300.323(f), if a child with a
disability (who had an IEP that was in effect in a previous public
agency in another State) transfers to a public agency in a new State,
and enrolls in a new school within the same school year, the new public
agency (in consultation with the parents) must provide the child with
FAPE (including services comparable to those described in the child\'s
IEP from the previous public agency), until the new public agency: (1)
conducts an evaluation pursuant to 34 CFR §§300.304 though 300.306 (if
determined to be necessary by the new public agency); and (2) develops,
adopts, and implements a new IEP, if appropriate, that meets the
applicable requirements in 34 CFR §§300.320 through 300.324.

Within the U.S. Department of Education, the Office for Civil Rights
(OCR) enforces laws that prohibit discrimination on the basis of
disability. Section 504 prohibits discrimination on the basis of
disability by recipients of Federal financial assistance. The Americans
with Disabilities Act (ADA), Title II, prohibits discrimination on the
basis of disability by public entities, regardless of receipt of Federal
funds. If you would like guidance on the requirements of Section 504 and
the ADA. Title H, that are applicable when a child transfers to a new
State and changes school districts, you should contact the OCR Customer
Service Team at the following address and telephone number:

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U.S. Department of Education

Office for Civil Rights

Customer Service Team

400 Maryland Avenue SW

Washington, DC 20202

Telephone: 1-800-421-3481

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

We hope this information is helpful to you. If you have further
questions, please do not hesitate to contact Dr. Perry Williams at
202-245-7575.

Sincerely,

/s/

Patricia J. Guard

Acting Director

Office of Special Education

Programs

cc: Mary Hudler Jo O\'Brien