Dated May 10, 2007

Doris O. Matsui

Member of Congress

Congress of the United States

House of Representatives

[2310 Rayburn House Office Building ]{.underline}

[Washington, DC 20515]{.underline}

[Dear Congresswoman Matsui:]{.underline}

[Your September 26, 2006 letter requested the Office of Special
Education Programs (OSEP) to respond to the questions posed by
Christopher Slaton, Executive Director of Save Our Youth in California.
Your constituent's inquiry expresses concern about the education
provided to poor, minority, high-need, and special-need children in the
Elk Grove Unified School District. We share his concern that all
children receive an education that enables them to learn effectively and
become contributing members of society. Our response will address the
four questions you pose based primarily on the Individuals with
Disabilities Education Act (IDEA), the Federal program administered by
this Office, as well as some of the requirements of the Vocational
Rehabilitation (VR) Act. The VR Act is administered by the
Rehabilitation Services Administration, another component of the Office
of Special Education And Rehabilitative Services (OSERS). Before
responding to the specific questions your inquiry poses, we thought it
might be helpful to provide a brief description of Part B of IDEA
(Grants to States program) authorized wider 20 U.S.C. 1401, and
1411-1420 and the VR program, funded under Title I of the Rehabilitation
Act of 1973, as amended (Rehabilitation Act).]{.underline}

[One of the purposes of Part B of IDEA (Part B) is to ensure that all
children with disabilities have available to them a free appropriate
public education (FAPE) that emphasizes special education and related
services designed to meet their unique needs and prepare them for
further education, employment and independent living. 34 CFR §300.1.
Part B of IDEA (Under Part B, the Department provides assistance to
States, and through them to local school districts, to assist in
providing FAPE to children with disabilities in preschool, elementary
school, and secondary school programs beginning at age 3 and possibly
lasting to the student's 22]{.underline}^[nd]{.underline}^[ birthday,
depending on State law or practice. 34 CFR §§300.101 and 300.17.
Beginning at age 16, or younger if determined appropriate, and updated
annually thereafter, appropriate measurable postsecondary goals must be
developed for children with disabilities based on age appropriate
transition assessments related to training, education, and employment
and, where appropriate, independent living skills, and transition
services (including courses of study) needed to assist the child in
reaching those goals. 34 CFR §§300.320(b) and 300.43. The purpose of the
VR program is to assist individuals with disabilities to prepare for and
engage in gainful employment that is consistent with the individual's
strengths, resources, priorities, concerns, abilities, capabilities,
interests, and informed choice. Once an individual is determined
eligible for VR services, the VR agency provides services, pursuant to a
written and agreed-upon Individualized Plan for Employment (IPE), that
are required by the individual to achieve an employment outcome. As
such, the VR program serves primarily adults with disabilities. However,
the Rehabilitation Act Amendments of 1998 put greater emphasis on the
need for the VR program to serve students with disabilities who were in
transition from school to post-school activities, including
post-secondary education, vocational training, and integrated
employment.]{.underline}

[Your specific questions and the Department's responses
follow.]{.underline}

1.  **[What criterion is established for determining eligibility status
    for special education classes and vocational rehabilitation
    services?]{.underline}**

[It is not clear whether your question is referring to how
determinations are made regarding a child's eligibility for special
education and related services under Part B or how determinations are
made as to where eligible children receive required services. Therefore,
our response will address both aspects of this question. In order for a
child to be eligible for special education and related services under
Part B, a child must meet the definition of "child with a disability"
under 34 CFR §300.8. To meet this definition, a child must be evaluated
in accordance with 34 CFR §§300.304 through 300.311 as having mental
retardation, a hearing impairment (including deafness), a speech or
language impairment, a visual impairment (including blindness),\...
"emotional disturbance," an orthopedic impairment, autism, traumatic
brain injury, an other health impairment, a specific learning
disability, deaf-blindness or multiple disabilities, and who, by reason
thereof, needs special education and related services." 34 CFR
§300.8(a). The public agency proposing to conduct an initial evaluation
to determine if a child qualifies as a child with a disability under 34
CFR §300.8, must, after providing appropriate notice to the parents in
accordance with 34 CFR §§300.503 and 300.504, obtain informed consent,
consistent with 34 CFR §300.9, from the parent of the child before
conducting the evaluation. 34 CFR §300.300(a). Upon completion of the
administration of assessments and other evaluation measures, a group of
qualified professionals and the parent of the child draw upon
information from a variety of sources, including aptitude and
achievement tests, parent input, and teacher recommendations, as well as
information about the child's physical condition, social or cultural
background, and adaptive behavior, to determine whether the child is a
child with a disability, as defined in 34 CFR §300.8, and the
educational needs of the child. 34 CFR §300.306(a) and
(c)(i).]{.underline}

[Children determined eligible for services under Part B must receive a
program of special education and related services in accordance with an
individualized education program (IEP) developed at a meeting of the
child's IEP Team, including school officials and the child's parents. 34
CFR §§300.320-300.324. The IEP, which addresses the child's unique
educational needs arising from the child's disability also forms the
basis for the child's placement decision. 34 CFR §300.116(b)(2). Part B
expresses a preference for placing children with disabilities in regular
classes with nondisabled children if the child with a disability can be
educated satisfactorily in the regular educational environment with the
use of supplementary aids and services. 34 CFR §300.114. Although
experience has demonstrated that many children with disabilities can be
educated satisfactorily in the regular classroom along with children
without disabilities, unless their IEP calls for some other arrangement,
IDEA also recognizes that the regular classroom may not be the
appropriate placement for some disabled children. Therefore, each public
agency must make available a continuum of alternative placements, or a
range of placement options, to meet the needs of children with
disabilities for special education and related services. The options on
this continuum include instruction in regular classes, special classes,
special schools, home instruction, and instruction in hospitals and
institutions. 34 CFR §300.115 (a) and (b)(1). Thus, the group
responsible for making the placement decision, which includes persons
knowledgeable about the child and the child's parent, selects the option
on the continuum in which the child's IEP can be appropriately
implemented. 34 CFR §300.116(a)-(b).]{.underline}

[The regulations for the State VR program at 34 CFR §361.42(a)(1)
require that an applicant's eligibility for VR services be based on the
following requirements: (1) a determination by qualified personnel that
the applicant has a physical or mental impairment; (2) a determination
by qualified personnel that the applicant's physical or mental
impairment constitutes or results in a substantial impediment to
employment; and (3) a determination by a qualified VR counselor,
employed by the designated State unit, that the applicant requires VR
services to prepare for, secure, retain, or regain employment consistent
with the applicant's unique strengths, resources, priorities, concerns,
abilities, capabilities, interests, and informed choice. The designated
State unit for the State of California is the Department of
Rehabilitation Services (DORS). In addition, it is important to note
that individuals who have been determined eligible for Supplemental
Security Income (SSI) or Social Security Disability Insurance (SSDI)
benefits are presumed eligible for VR services (see 34 CFR
361.42(a)(3)). Federal regulations at 34 CFR 361.22 provide more
detailed information about the provision of VR services to students in
transition.]{.underline}

1.  **[What entities are accountable for determining the assessment and
    methodology for special education cases?]{.underline}**

[Under Part B, the State educational agency (SEA) must ensure that
evaluations are conducted that meet the requirements of 34 CFR §§300.300
through 300.311. These evaluation requirements are applicable to public
agencies in the State, including local school districts. As part of the
initial evaluation and any reevaluation, under 34 CFR §300.305, the IEP
Team and other qualified professionals, as appropriate, must review
existing evaluation data on the child, including evaluations and
information provided by the parents of the child; current
classroom-based, local or State assessments and classroom-based
observations; and observations by teachers and related service
providers. On the basis of that review, and input from the child's
parents, the IEP Team and other qualified professionals, as appropriate,
identify what additional data, if any, area needed to determine whether
the child is a child with a disability, as defined in 34 CFR §300.8, and
the educational needs of the child, the present levels of academic
achievement and related developmental needs of the child and whether the
child needs special education and related services.]{.underline}

[If assessments are administered as part of any evaluation or
reevaluation, the public agency must use a variety of assessment tools
and strategies to gather relevant functional, developmental, and
academic information about the child, including information provided by
the parent, that may assist in determining whether the child is a child
with a disability under Part B and the content of the child's IEP. 34
CFR §300.306(b)(1). Further, no single measure can ]{.underline}\
[be used as the sole criterion for determining whether the child has a
disability and for determining an appropriate educational program for
the child. 34 CFR §300.306(b)(2). While Part B does not specify what
evaluation tools and assessment measures must be used, public agencies
must select technically sound instruments that may assess the relative
contribution of cognitive and behavioral factors, in addition to
physical or developmental factors. 34 CFR §300.304(b)(3). Once a child
is determined eligible for services under Part B, if a decision needs to
be made about whether a child with a disability should be provided a
particular instructional methodology in order for that child to receive
an appropriate education, such matters are the responsibility of the
child's IEP Team.]{.underline}

[For individuals in California seeking VR services, the California DOR
is required to conduct an assessment for determining eligibility for the
VR program. The eligibility determination is based on a review and
assessment of existing data, including counselor observations, education
records, information provided by the individual or the individual's
family, particularly information used by education officials and
determinations made by officials of other agencies. In the event that
existing data are insufficient to make this determination, another
assessment of additional data, resulting from the provision of VR
services, is conducted, including trial work experiences, assistive
technology devices and services, personal assistance services, and any
other support services that are necessary to determine eligibility. (See
34 CFR §361.42(d))]{.underline}

1.  **[Is there a current standard for addressing children who come from
    a family suffering from substance abuse?]{.underline}**

[There is nothing in Part B or the Part B regulations that explicitly
addresses services for children who come from a family suffering from
substance abuse. Children from these families would be eligible for
special education and related services under Part B if they meet the
criteria for "child with a disability" in 34 CFR §300.8. See our
response to question #1 above. For example, if a child has experienced
birth defects as a result of the substance abuse in the family, it is
possible that the child could be eligible for services under Part B as a
child with an "other health impairment," as defined at 34 CFR
§300.8(c)(9), a disability category which includes children with chronic
or acute health problems resulting in limited strength, vitality, or
alertness, that adversely affect educational performance. Children found
eligible for services under Part B may be provided an array of related
services if the LEP Team determines that the child requires those
services in order to benefit from special education. Some of the related
services available to children with disabilities under Part B, which may
be appropriate for children from families with substance abuse, could
include counseling services, parent counseling and training,
psychological services, and social work services in schools. See 34 CFR
§300.34(c)(2), (8), (10), and (14).]{.underline}

[Similarly, for the VR program, children who come from families
suffering from substance abuse are not addressed in the Rehabilitation
Act, or in the implementing VR regulations. Therefore, these individuals
must meet the eligibility criteria under 34 CFR §361.42(a)(1), as
described in our response to question #1 above.]{.underline}

1.  **[\[Are\] family history and medical records taken into
    consideration when assessing a child]{.underline}[']{.underline}[s
    eligibility?]{.underline}**

[For children seeking special education and related services, following
the review of existing evaluation data on the child under 34 CFR
§300.305 and the completion of any evaluation or assessment instruments
under 34 CFR §300.304. The eligibility determination is made by a group
of qualified professionals and the parent of the child. 34 CFR
§300.306(a). This group draws upon information from a variety of
sources, including aptitude and achievement tests, parent input and
teacher recommendations, as well as information about the child's
physical condition, social and cultural background and adaptive
behavior. 34 CFR §300.306(a) and (c).]{.underline}

[As part of the review of existing evaluation data on the child, if the
child's parent chooses to provide evaluations and information in
accordance with 34 CFR §300.305(a)(l)(i), these would be included in the
information that is considered in determining whether the child has a
disability and the educational needs of the child.]{.underline}

[For individuals seeking VR services, as stated in our response to
question #2 above, the eligibility determination is based on a review
and assessment of existing data, including information provided by the
individual and the individual's family. In addition, the determination
by qualified personnel that the applicant has a physical or mental
impairment described in our response to question number one above is the
first of the three VR Services Program eligibility
requirements.]{.underline}

[Further information regarding Vocational Rehabilitation can be obtained
from the California Department of Rehabilitation Services at:
]{.underline}

[Gary Kuwabara Acting Director]{.underline}

[Department of Rehabilitation]{.underline}

[2000 Evergreen Street]{.underline}

[Sacramento, CA 95815]{.underline}

[In addition to your request for our responses to the questions above,
the correspondence from Dr. Slaton that you forwarded with your letter
to this Office also requested that the U.S. Department of Education
conduct a formal investigation of the Elk Grove Unified School District.
In general, this Office does not conduct investigations of special
education programs in local school districts. However, under Part B,
each SEA must have procedures for resolving complaints filed by an
individual or organization alleging that a public agency in the State
has violated a requirement of Part B or the Part B regulations. 34 CFR
§§300.151 through 300.153. The SEA must issue a final decision that
addresses each allegation in the complaint within 60 days of the date
that the complaint is filed (34 CFR Section 300.152(a)), unless the
timeline is extended in accordance with 34 CFR §300.152
(b)(1).]{.underline}

[If your constituent would like more information about the Part B
complaint procedures in California, he should contact:]{.underline}

[Ms. Mary Hudler]{.underline}

[Special Education Division]{.underline}

[California State Department of Education]{.underline}

[1430 N Street, 2]{.underline}^[nd]{.underline}^[ Floor]{.underline}

[Sacramento, California 95814]{.underline}

[Your constituent has also expressed concerns about the education
provided to minority, high needs, and special needs children by the Elk
Grove Unified School District. The Department's Office for Civil Rights
(OCR) enforces laws that prohibit discrimination on the basis of race,
color, national origin, age, sex, and disability. OCR also investigates
complaints against local school districts alleging violations of these
laws. For more information about the laws that OCR enforces, your
constituent may wish to contact the OCR field office that has
jurisdiction over school districts in California:]{.underline}

[San Francisco Office]{.underline}

[Office for Civil Rights]{.underline}

[U.S. Department of Education ]{.underline}

[50 Beale Street, Suite 7200 ]{.underline}

[San Francisco, CA 94105]{.underline}

[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.]{.underline}

[If you have further questions, please do not hesitate to contact my
office or the California State contact, Mr. Perry Williams, at
202-245-7575 for special education and Mr. Charles Sadler, at
202-245-7514 for vocational rehabilitation.]{.underline}

[Sincerely,]{.underline}

[/s/ Patricia J. Guard for]{.underline}

[Alexa Posny, Ph.D.]{.underline}

[Director]{.underline}

[Office of Special Education Programs ]{.underline}

[cc: Mary Hudler]{.underline}

[ Gary Kuwabara]{.underline}