THE SECRETARY OF EDUCATION
WASHINGTON, D.C. 20202

February 13, 2002

Honorable Judy Biggert
House of Representatives
Washington, D.C. 20515
Dear Congresswoman Biggert:
Thank you for your letter of December 7, 2001, concerning the September 5, 2000,
Notice of Proposed Rulemaking (NPRM) to amend the regulations for the Early
Intervention Program for Infants and Toddlers with Disabilities under Part C of the
Individuals with Disabilities Education Act (IDEA). I am sending an identical response
to the cosigners of your letter.
I noted your concern that the NPRM's proposed language regarding State access to
public and private insurance for early intervention services is inconsistent with Part C of
the Act. The Department received many comments in response to the NPRM on a
number of provisions, including those related to the provision of early intervention
services in "natural environments," State financing of early intervention services, and
proposed new provisions to address the use of public and private insurance by States.
The number and quality of comments received on the NPRM demonstrated an intense
interest in these and other provisions in the proposed regulations.
Because Part C of IDEA expires on.September 30, 2002, I have determined that it would
be counterproductive to make any changes to the existing regulations before the statute is
reauthorized, since those regulatory changes would remain in effect for a relatively brief
period of time. I believe that it will be more efficient and effective to delay the issuance
of any new regulations for the Part C program until after IDEA is reauthorized. This
delay will add stability tO the implementation of Part C. Therefore, on January 10, 2002,
we published a Federal Register notice withdrawing the September 5, 2001, NPRM. A
copy of the January 10 notice is enclosed.
In developing the Administration's proposal regarding the reauthorization of IDEA, we
will consider all relevant comments we received in response to the September 5, 2000,
NPRM, including the comments you provided in your letter. You may be interested to
know that we have also requested public comment on all provisions of the Individuals
with Disabilities Education Act in a second January 10 notice (enclosed). In that notice,
we specifically invited public comment on the use of insurance under Part C.

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Page 2
I appreciate knowing of your interest in the Early Intervention Program for Infants and
Toddlers with Disabilities, and look forward to working with you as we proceed on
reauthorization. If I may be of further assistance, please do not hesitate to contact me.
Sincerely,

Rod Paige
Enclosures


UNITED STATES DEPARTMENT OF EDUCATION
OFFICE OF SPECIAL EDUCATION AND REHABILITATIVE SERVICES

FEB I 2 2002

Thank you for your letter concerning the educational program for
and your
comments about the President's "No Child Left Behind goals. According to your e-mail, you
believe that
and other children with autism in your school district are not receiving an
"adequate" public education because they are not getting the amount of special education
services they need. You refer to recommendations for services for children with autism in the
report "Educating Children with Autism", developed by the National Research Council and
expressed concern about its application under the IDEA.
When the President speaks of leaving no child behind, his commitment refers to all children,
including those with disabilities. The passage of the Education for All Handicapped Children
Act (now the Individuals with Disabilities Education Act (IDEA)) has helped millions of
students with disabilities achieve high academic standards and participate fully in American
society. Yet, notwithstanding this progress, the U.S. Department of Education recognizes the
challenges States and localities face in carrying out the responsibility to provide appropriate
educational services for children with disabilities. The Department has already begun to prepare
for the reauthorization of IDEA with the goal of improving services to children with disabilities.
We will consider your remarks along with comments received from other individuals during the
upcoming reauthorization activities.
However, with respect to your immediate concerns about
and other young children with
autism in your school district, the IDEA statute and Part B regulations (copy enclosed) both
make clear that services for a child must be identified and provided based on the unique needs of
the child. One of the goals of the IDEA 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 .... " 20 U.S.C.
§ 1400(d)(1)(A); 34 CFR §300.300.1(a) (emphasis added). Special education under the IDEA is
"specially designed instruction, at no cost to the parents, to meet the unique needs of a child with
a disability..." 20 U.S.C. §1402(25); 34 CFR §300.26(a)(1) (emphasis added). In addition,
under 34 CFR 300.300(a)(3)(ii), "the services and placement needed by each child with a
disability to receive a free appropriate public education must be based on the child's unique
needs, and not on the child's disability." Thus, decisions regarding the provision of services that
are appropriate for an individual child must be based on the child's unique needs and not on the
disability category in which the child is classified.

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It is through the individualized education program (IEP) that the child's special education and
related services are identified. In determining a child's IEP content, the Part B regulation at 34
CFR §300.347 (a)(3) requires that a child's IEP include "a statement of special education and
related services and supplementary aids and services to be provided to the child or on behalf of
the child, and a statement of the program modifications or supports for school personnel that will
be provided to the child." Parents are members of the IEP team and through the IEP process, a
parent can also discuss with school officials different approaches that would appropriately meet
their child's unique needs.
As you know, if the parent and the local school district staff cannot agree on the content of the
IEP, the parent can ask for a due process hearing, and an impartial hearing officer can make an
independent decision in order to resolve any disagreements. See 20 U.S.C. § 1415(0; 34 CFR
§§300.507-300.514. A mediation process must also be available to assist parties in resolving
disputes when a due process hearing is requested. 20 U.S.C. §1415(e); 34 CFR §300.506. A
parent also has the option of filing a complaint with the State if they believe that a public agency
has violated a requirement of Part B. The complaint procedures applicable to Part B are
described in the enclosed regulations at 34 CFR §§300.660-300.662. Copies of two OSEP
Memoranda, which discuss the mediation and complaint processes, are enclosed for your
information.
Thank you for sharing your experiences and expressing your concerns with us. If we can be of
further assistance, please contact Dr. Ken Kienas (OSEP's State Contact for Colorado) at
(202) 205-9057.
Sincerely,

Patricia J. Guard
Acting Director
Office of Special Education Programs
Enclosures


UNITED STATES DEPARTMENT OF EDUCATION
O F F I C E OF SPECIAL EDUCATION AND REHABILITATIVE S E R V I C E S

FEB
12

2002

Honorable George Coleman
Associate Commissioner
Special Education and Pupil Services
Connecticut State Department of Education
25 Industrial Park Road
Middletown, Connecticut 06457-1543
Dear Commissioner Coleman:
An e-mail communication dated January 7, 2001 from George Dowaliby of the
Connecticut State Department of Education (CSDE) asked the Office of Special
Education (OSEP) to respond to your question regarding the eligibility of charter schools
in Connecticut to compete for competitive grants under section 611 (0(4) of the Part B
Grants to States program of the Individuals with Disabilities Education Act (IDEA).
Under that provision, in any fiscal year in which the percentage increase in the State's
allocation of Federal funds under section 611 (f) of IDEA exceeds the rate of inflation, the
State must make subgrants to local educational agencies (LEAs) to assist them in
providing direct services and in making systemic change to improve results for children
with disabilities. These subgrants are generally referred to as "sliver grants." The e-mail
from Mr. Dowaliby states that "Connecticut charter schools are not LEAs, are not
responsible for FAPE, and are not eligible for IDEA entitlement funds," but that State
policy requires the CSDE to "treat charter schools as LEAs for the purposes of federal
competitive grants." It is our understanding that this is also the position taken in the
State's charter school law.
Part B of IDEA and its implementing regulations clarify the status of charter schools and
the obligations of States and LEAs with respect to charter schools. See generally, 34 CFR
§§300.2, 300.18, 300.22,300.241 and 300.312. The IDEA contemplates a charter school
as falling into three possible categories: 1) an LEA that is eligible for subgrants, if
established as an LEA under State law and as meeting the definition of an LEA at 34
CFR §300.18; 2) a public school within an LEA; and 3) an entity that is not an LEA or a
public school within an LEA. See 34 CFR §§300.22 and 300.312(b). Whether, under
State and Federal law, a charter school is considered an LEA, a public school within an
LEA or some other entity is extremely important because it helps determine both its
eligibility for Federal funds and the Part B responsibilities of the charter school.
Where the charter school is an LEA, the Part B regulations specify that the charter school
LEA is responsible for ensuring that the requirements of Part B are met, unless State law
assigns that responsibility to some other entity. 34 CFR §300.312(b). Where the charter
school is a public school within an LEA, the regulations provide that the LEA of which
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Page 2 - Honorable George Coleman

the charter school is a part is responsible for ensuring that the requirements of Part B are
met, unless State law assigns that responsibility to some other entity. 34 CFR
§300.312(c). Further, the LEA of which the charter school is a part, must serve children
with disabilities attending the charter school in the same manner as it serves children with
disabilities in its other schools and provide funds under Part B to those schools in the
same. manner as it provides those funds to its other schools. 34 CFR §300.241. Where
the charter school is neither an LEA nor a school of an LEA, then the State is responsible
for ensuring that the requirements of Part B are met. While, in such instances, the State
may assign initial responsibility to some other entity, the ultimate responsibility for
compliance remains with the State. 34 CFR §300.312(d).
As long as the entity meets the definition of LEA, the Department generally defers to
States on the question of whether a charter school is constituted as an LEA, a public
school within an LEA, or some other entity. The Part B regulations at 34 CFR §300.18
define LEA to include a public institution or agency having administrative control and
direction of a public elementary or secondary school, including a public charter school
that is established as an LEA under State law. The regulations governing Stateadministered programs, including the Part B Grants to States program, define a charter
school LEA as "a charter school that is treated as a local educational agency for purposes
of the applicable covered program." 34 CFR §76.787. However, because the State of
Connecticut has chosen to treat its charter schools, not as LEAs, but as public schools
within LEAs for purposes of meeting its obligations under the Part B Grants to States
program, the question raised here is whether the State can treat charter schools as fitting
into more than one o f these three categories under the same Part B program.
In nonregulatory guidance issued in December 2000 (enclosed), the Department stated
that, as a general rule, a charter school cannot be both an LEA and a public school within
an LEA under the same Federal definition of LEA. For example, the guidance states that
a charter school would have to be treated consistently under the Grants to States and
Preschool Grants program since both of these programs are authorized under Part B of
IDEA and contain the same definition of LEA. The guidance does allow an exception to
the general rule, where State law specifically authorizes charter schools to elect to be
treated as an LEA or a public school within an LEA for purposes of a particular program.
In order for charter schools in Connecticut to be eligible for "sliver grants," the charter
schools would have to be considered both LEAs and public schools within LEAs under
the same definition of LEA and for purposes of the same Federal program. It is the
Department's position that where a State determines that its charter schools do not meet
the LEA definition at 34 CFR §300.18 for purposes of receiving a subgrant under the Part
B Grants to States program, the charter schools also do not meet the same definition of
LEA for purposes of receiving a "sliver grant" under the same Part B Grants to States
program.
In addition to the importance of treating entities that fit under the same Federal definition
consistently for purposes of the same Federal program, there are important policy reasons
that support this interpretation. The purpose of the "sliver grant" is to provide LEAs with
additional funds for "local systemic improvement activities or for specific direct

Page 3 Honorable George Coleman

services." S. Rep. No. 105-17 at 10. One of the specific activities that can be funded
with "sliver grants" is providing direct services to children in charter schools. 34 CFR
§300.622(a). As noted above, LEA status is significant because it comes with both rights
and responsibilities. Generally, unless State law assigns responsibility to another entity,
LEAs that have a charter school within their jurisdiction have specific responsibilities
with regard to the charter school and the students with disabilities attending that charter
school. Therefore, it is appropriate that the responsible entity, in this case, the LEA of
which the charter school is a part, also be the entity that is eligible for "sliver grants"
under Part B.
I hope this information is helpful to you. If you or your staff need further information
regarding this matter, you may contact JoLeta Reynolds at 202-205-5507.

Sincerely,

Patricia J. Guard
Acting Director
Office of Special Education Programs
cc: George Dowaliby, Chief
Bureau of Special Education and Pupil Services


UNITED STATES DEPARTMENT OF EDUCATION
O F F I C E OF SPECIAL EDUCATION AND REHABILITATIVE S E R V I C E S

FEB 12 2002
Kelly C. Wilson, Esq.
Grippo & Elden
227 West Monroe Street
Suite 3600
Chicago, Illinois 60606
Dear Ms. Wilson:
This letter is in response to your letter requesting clarification under Part C of the Individuals
with Disabilities Education Act on issues concerning the content of individualized family service
plans (IFSPs). I apologize for the delayed response. I had thought that no further response was
necessary after the extensive telephone discussions regarding your inquiry. However, you have
indicated that you would like our advice confirmed in writing. You asked whether an IFSP team
is "allowed to determine that an individual child needs a specific therapy or specific
methodology, e.g., neurodevelopmental therapy ("NDT"), Applied Behavioral Analysis
("ABA") or cued speech, in order for that child to benefit from early intervention services?"
You further asked: "if an IFSP team determines that a child's unique needs require that a
specific therapy or specific methodology be used in order for that child to benefit from early
intervention service, should the IFSP team include that therapy or methodology on the child's
IFSP?" In your final question you asked whether, if the answer to either of the first two
questions is yes, the State is then required to provide the identified therapy or methodology:
The Part C regulations provide that an IFSP must include a statement of the specific early
intervention services necessary to meet the unique n eeds of the child and the family to achieve
the outcomes identified for each child and family. 34 CFR ยง303.344(d). The term "early
intervention services" is defined in part as services that are "designed to meet the developmental
needs of each child eligible under this part and the needs of the family related to enhancing the
child's development.... " 34 CFR ยง303.12(a). The regulations do not contain an exhaustive list
of the types of services included under "early intervention services." See ยง303.12(d). A State
cannot exclude from the IFSP team's consideration services that meet the needs of the child,
based on his or her assessment, and that meet this Federal definition.
The statement of services in the IFSP must include the frequency, intensity, and method of
delivering the service, the natural environments in which early intervention services will be
provided, the location of the services, and the payments arrangements, if any. The term
"method" means how a service is provided. 34 CFR ยง303.344(d). There are many different
"methods" of providing services, such as one-on-one vs. group therapy, or consultative vs. direct
services. The term "method" could also include a "methodology" such as cued speech.

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Kelly C. Wilson, Esq. - Page 2
Whether a specific methodology should be addressed in an IFSP is an IFSP team decision, and
depends on the needs of the individual child. For many children, the IFSP may not need to
address a specific approach, because the general description of the service, e.g., "physical
therapy," suffices to address the child's need.
In some cases, under the current regulations, in order to meet the child's unique needs the IFSP
team may consider a particular methodology or instructional approach to be integral to the design
of an "individualized" program of sere'ices for the child. In such cases it would be appropriate
for the IFSP team to list that specific methodology on the IFSP.
After an IFSP has been completed and the parents consent to the provision of the identified
services, the State is required to provide all services identified on the child's IFSP and to ensure
that those services are implemented according to the IFSP. Thus, if the IFSP includes a specific
methodology or approach, the State would need to ensure that services are provided as stated in
the child's IFSP.
We hope that this information provides helpful clarification on these issues. If you need further
information, please contact Mary Louise Dirrig: at 202-260-9490.
Sincerely,

Patricia J. Guard
Acting Director,
Office of Special Education Programs
cc: Janet Gully, Acting Bureau Chief
Part C Coordinator


UNITED STATES DEPARTMENT OF EDUCATION
O F F I C E OF S P E C I A L E D U C A T I O N AND REHABILITATIVE S E R V I C E S

Ms. Shan Goff
Bureau of Instructional Support and
Community Services
Florida Department of Education
Florida Education Center
325 West Gaines Street
Tallahassee, Florida 32399-0400

JAN 30 2002

Dear Ms. Goff:
The purpose of this letter is to address an issue regarding the provision of speech and
language pathology as a related service to children with disabilities in Florida. This issue
was brought to our attention as a result of allegations made in a complaint to the Office
for Civil Rights.
The complainant, ~
also raised these concerns in a letter to your
office dated April 30, 2001. Specifically, the complainant alleged that the Miami-Dade
County School District failed to follow district criteria in determining whether students
with disabilities are eligible for speech and language services. The conclusion reached in
the Florida Department of Education's (FDE) September 11,2001 Report of Inquiry for
this complaint states that "the State of Florida has determined that speech and language
service is an Exceptional Student Education program rather than a related service. Thus, a
student must be determined eligible under the criteria for the special programs for
students who are speech and language impaired in order to receive direct services from a
speech and language pathologist."
As you are aware, the Office of Special Education Programs' (OSEP) monitoring report
(April 2001) of FDE contains a finding of noncompliance that school districts do not
ensure that all children who need related services to benefit from special education
receive that service. This finding was based on the fact that Part B of the Individuals with
Disabilities Education Act (IDEA) requires public agencies to provide speech and
language pathology as a related service to children with disabilities who need that service
to benefit from special education. 34 CFR§§300.24(b)(14) and 300.300. As set forth in
34 CFR §300.26(a)(2)(i) the term "special education" includes speech-language
pathology services, if the service consists of specially designed instruction, at no cost to
the parents, to meet the unique needs of a child with a disability, and is considered special
education, rather than a related service under State standards. Each State must ensure,
however, that any child with a disability who needs speech-language pathology services
to benefit from special education receives that service, even if he or she does not meet the
State's criteria to receive speech-language pathology services as a special education
service.

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Page 2 - Ms. Shan Goff

OSEP believes that the standard that FDE applies as stated in the September 11,200l
Report of Inquiry referenced above for the provision of speech and language services for
children with disabilities continues to violate IDEA. On December 19, 2001, a
conference call was held with members of our staff and FDE staff to discuss this matter.
As a result of this conversation, we understand that the following actions will take place.

l) The Improvement Plan under development in response to the OSEP Monitoring
Report will contain a plan that FDE will undertake to ensure that children with
disabilities who need speech and language pathology as a related service receive
such services in order to benefit from special education.

2) Because the actions to be outlined in the Improvement Plan may require
long-term solutions that may require legislative actions, FDE will develop more
immediate steps to resolve this issue. These steps will ensure that all public
agencies within the State correct their practices and procedures in order to comply
with this requirement so that all children with disabilities who need speech and
language pathology as a related service will be able to receive that service as a
direct service from a speech and language pathologist. OSEP is requesting that
FDE notify us of the steps that FDE will take in this regard within 30 days of
receipt of this letter.
We appreciate your cooperation and look forward to working together with you in
resolving this matter. Please let us know if you need further assistance.

Sincerely,

Patricia J. Guard
Acting Director
Office of Special Education
Programs

Cc: Mai Cavalli
office for Civil Rights, Atlanta Office


UNITED STATES DEPARTMENT OF EDUCATION
O F F I C E OF S P E C I A L E D U C A T I O N AND REHABILITATIVE S E R V I C E S

JAN
2002
18 1 8

Dear
This letter is in response to your letter dated May 13,2001, to Dr. JoLeta Reynolds of the
Office of Special Education Programs (OSEP) regarding media attendance at
individualized education program (IEP) meetings. Your letter also requests that OSEP
investigate the Fresno Unified School District (FUSD) for violations of the Individuals
with Disabilities Education Act (IDEA). I apologize for the delay in responding.
With respect to your concerns as to whether members of the news media may attend IEP
meetings, neither the IDEA statute nor its implementing regulations specifically address
this matter. However, OSEP provided guidance on this matter to the FUSD in a letter to
Dr. Marilyn Shepherd, of the FUSD Department of Special Education dated July 2, 2001.
A copy of our response is attached to this letter for your review.
As a general matter, OSEP does not perform investigations of local educational agencies
(LEAs). Under the IDEA, each State that accepts IDEA funds is required to develop
policies and procedures, through the State educational agency (SEA), to resolve signed
written complaints filed by individual parents of children with disabilities, other
individuals, or organizations. As part of its general supervisory responsibility under the
IDEA, an SEA must implement complaint resolution procedures in a manner that meets
the requirements of {}{}300.660-300.662. Section 300.661 of the IDEA implementing
regulations specifies the minimum complaint procedures that each SEA is required tO
implement. OSEP, in turn, monitors each State's compliance with these requirements in
its continuous improvement monitoring process. An SEA is required to resolve any
complaint that meets the requirements of ยง300.662.
Thus, your complaint against the FUSD is more appropriately addressed by filing a
signed written complaint with the California State Department of Education, Special
Education Office at this address:
Dr. Alice Parker
Director of Special Education
California Department of Education
428 J Street
P.O. Box 1379
Sacramento, California 95812

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Page 2
You may access the IDEA statute and regulations via our website at
http://www.ed.gov/offices/OSERS/OSEP/. We hope that this information is helpful. If
you need further assistance, you may contact Dr. JoLeta Reynolds or Troy Justesen at
202-205-5507 at OSEP.
Sincerely,

Patricia J. Guard
Acting Director
Office of Special Education Programs
Enclosure
CC"

Dr. Alice D. Parker
California Department of Education
Marilyn Shepherd, Ed. D.
FUSD Department Of Special Education


UNITED STATES DEPARTMENT OF EDUCATION
OFFICE

OF SPECIAL EDUCATION

,AND R E H A B I L I T A T I V E S E R V I C E S

JAN 1 8 2002
Honorable Patsy T. Mink
House of Representatives
5105 Prince Kuhio Federal Building
PO Box 50124
Honolulu, Hawaii 96850-4977
Dear Representative Mink:
This letter is in response to your inquiry regarding the cost of special education in the
State of Hawaii. In your letter, you request our response to several questions. In a recent
telephone conversation, you informed the Office of Special Education Programs' (OSEP)
Hawaii State Contact, that you would like responses to only four of the questions raised
in your letter. Your questions, and our responses, appear below.
1. How many states currently have or have had court ordered decrees?

OSEP does not track this information on suits filed by private plaintiffs in State and
Federal courts. Specific information regarding the number of court orders to which a
State is a party may be obtained through each State Education Agency.
2. Does the US-DOE monitor court ordered decrees?

The U.S. Department of Education (Department) is not responsible for monitoring court
ordered decrees. Procedures and actions for monitoring decrees rest with the court.
3. Do these Court Orders exceed the requirements of IDEA or mimic it?

The State and Federal courts interpret and apply Federal law to particular situations as the
judicial branch under Federal and State constitutions and laws.
. Are there additional grants provided by application? Does Hawaii receive any?
Which ones? How much do we receive from this source? If we are not
participating, but could, please send me a list of all available grant programs.

• OSEP provides discretionary grants to institutions of higher education and other nonprofit organizations to support research, demonstrations, technical assistance and
dissemination, technology, personnel development and parent-training and information
centers. Unlike a formula grant, a discretionary grant awards funds on the basis of a
competitive process. The Department of Education reviews applications through a
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Honorable Patsy Mink - Page 2
formal review process in light of the legislative and regulatory requirements and
published selection criteria established for a program. The review process gives the
Department discretion to determine which applications best address the program
requirements, and are therefore most worthy of funding.
There are two discretionary grant programs designed especially for State Education
Agencies (SEA), the State Improvement Grant Program and the General Supervision
Enhancement Grant. The Hawaii Department of Education (HDE) receives funds under
both of these grant programs. (State Improvement Grant in the amount of $600,000 for
five years beginning in 1999 and General Supervision Enhancement Grant for one year
beginning in 2001 in the amount of $252,194.) HDE also receives formula grant funds
for fiscal year 2001 as follows: $1,036,577 for Preschool, $21,338,561 for Part B, and
$1,878,520 for Part C. Hawaii has a long history of participating in OSEP's discretionary
grant program. In addition to the .SEA grants, other institutions in the State receive
discretionary grants that include awards for 12 programs that equal approximately
$4,100,000. The focus areas of the grants are research and innovation, personnel
preparation, technology, and technical assistance.
The available grant programs, grant application packages, as well as grant and contract
award information can be accessed online at the following website:
www.ed.gov/offices/OSERS/OSEP
We hope that you find this explanation helpful. If you need further assistance, please call
Debra Jennings, of my staff, at 202-260-5250.
Sincerely,

Patricia J. Guard
Acting Director
Office of Special Education Programs


UNITED STATES DEPARTMENT OF EDUCATION
O F F I C E O F SPECIAL EDUCATION AND REHABILITATIVE S E R V I C E S

JAN - 7 2002

I am writing in response to your December 11, 2002 letter and your conversation of
December 18, 2001 with Mr. Martin Benton of my staff concerning issues involving the
Kentucky Department of Education's (KDE) Eligibility Documentation Requirements
pursuant to Part B of the Individuals With Disabilities Education Act (IDEA). See: 20
U.S.C. ยง 1400 er seq. You asked that the Office of Special Programs (OSEP) provide
you with a written account of the decisions that were described to you by OSEP staff
concerning the December 5, 2001 meeting with KDE about the Eligibility
Documentation.
As we discussed with you in our December 7, 2001 conversation and also explained to
representatives from KDE in the December 5th meeting, KDE must address the issue of
enforceability under Kentucky State'law of certain provisions that are contained in
KDE's Special Education Procedures Manual. OSEP cannot dictate the methodology
that KDE may select to demonstrate that the provisions are enforceable under Kentucky
State law. However, it must be clear to OSEP that KDE has the authority to ensure that
all IDEA requirements will be enforced.
Although KDE's Eligibility Documentation has not been approved by OSEP, KDE has
submitted a written assurance that while it is working toward full approval, all IDEA
requirements will be met by public agencies in the State.
With respect to our discussion of KDE's definition of "adverse effect," you will recall
that OSEP has no authority to preclude KDE from adopting such a definition. At the
same time, KDE cannot implement "adverse effect" in a manner that excludes otherwise
eligible children. As explained in our December 7, 2001 conversation, if you or other
parents believe that public agencies are implementing this definition in a manner
inconsistent with IDEA, a complaint may be filed with KDE.

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Our m i s s i o n is to e n s u r e e q u a l a c c e s s to e d u c a t i o n a n d to p r o m o t e e d u c a t i o n a l excellence throughout the Nation.

Page 2
Thank you for your continuous work to secure appropriate educational services for
children with disabilities in Kentucky. I hope that I have responded to your concerns that
you expressed to Mr. Benton. If I may provide further assistance, please let me know.

Sincerely,

Patricia Guard
Acting Director
Office of Special Education
Programs

CC:

Mike Armstrong
State Director


UNITED STATES DEPARTMENT OF EDUCATION
OFFICE OF SPECIAL EDUCATION AND REHABILITATIVE SERVICES

DEC 18 2001

Honorable Charles F. Bass
House of Representatives
Washington, D.C. 20515-2901
Dear Representative Bass:
This letter is in response to your inquiry, on behalf of your constituent,
contacted
you with questions regarding the funding formulas under
sections 611 (Assistance to States) and 619 (Preschool Grants) of Part B of the
Individuals with Disabilities Education Act (IDEA). i
s
concerned that the
formulas do not take into consideration growth in the number of children provided a free
appropriate public education by the S c h o o l
District.
points out that funding for the Preschool
rant program is based on their December 1,
1996 child count and funding for the Assistance to States program is based on their
December 1, 1998 child count. As a result, awards under both programs do not increase
proportionately as the number of preschool and school-aged students with disabilities
served in the S c h o o l
District increases.
inquires if it
would be possible to use updated child counts to calculate award amounts to
School District.
Before we respond to q u e s t i o n s
, it is important to note that in the third
paragraph of her April 10, 2001 letter to you, she refers to "federal Part C money for
preschoolers". Funds under Part C of IDEA are provided to States to maintain and
implement an early intervention program for infants and toddlers with disabilities. We
assume t h a t
referring to funds provided under section 619 of Part B of
IDEA to assist States in providing special education and related services to preschool
children with disabilities.
The IDEA Arnendrnents of 1997 (IDEA 97) made significant changes in how funds
under both the Assistance to States and Preschool Grants program are distributed to
States and local educational agencies (LEAs) in order to address the overidentification of
children with disabilities. Prior to the enactment of IDEA 97, the formula for distributing
funds to States and LEAs was based on a count of the number of children with disabilities
receiving special education and related services on December 1 of the previous fiscal
year. The new formula is based on the amount of program funds received in a prior year
(the base year), population, and poverty. The new formula for distributing Assistance to
States funds to LEAs went into effect with funds that became available on July 1,2000,

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Page 2 - Honorable Charles F. Bass

and the new forrnula for distributing Preschool Grant funds to LEAs ,,vent into effect with
funds that becarne available on July 1, 1998.
Under the Assistance to States program, each LEA receives a base allocation consisting
of the amount of section 611 funds that the LEA would have received in Federal fiscal
year (FFY) 1999 if the State educational agency (SEA) had distributed 75% of its funds
to LEAs. 20 U.S.C. 91411 (g)(2)(B)(i). The amount the LEA would have received in
FFY 1999 is based on the number of children with disabilities receiving special education
as of December 1, 1998, or at the State's discretion, the last Friday in October 1998.
Under the Preschool Grant program, each LEA receives a base allocation consisting of
the amount of section 619 funds the LEA would have received in FFY 1997 if the SEA
had distributed 75% of its funds to LEAs. 20 U.S.C. 1419(g)(1)(A). The amount the
LEA would have received in FFY 1997 is based on the number of children ages three
through 5 with disabilities receiving special education as of December 1, 1996. The
regulations for both programs specify the limited circumstances when adjustments may
be made to base payments such as if a new LEA is created or if one or more LEAs are
combined. 34 CFR 9300.712(b)(2) and 34 CFR 9301.31(b). Unless one of these
circumstances occurs, the base payment remains the same. Under both programs, 85% of
any remaining funds are distributed based on the relative numbers of children enrolled in
public and private elementary and secondary schools within the agency's jurisdiction. 20
U.S.C. 9 ยง 1411 (g)(2)(B)(ii)(I) and 1419(g)( 1)(B)(i). Fifteen percent of any remaining
funds are distributed based on the relative numbers of children living in poverty, as
determined by the SEA. 20 U.S.C. 99141 (g)(2)(B)(ii)(II) and 1419(g)(1)(B)(ii).
As you know, because the new formula is based on the statute, it cannot be changed
through regulations. We understand c o n c e r n
that previous child counts do
not reflect the current numbers of children with disabilities being served by her school
district. As the appropriations for sections 611 and 619 increase, a larger portion of
section 611 and section 619 funds will be distributed based on population and poverty,
rather than the base payment which is calculated based on a prior year's child count.
Finally, the State is permitted to retain certain amounts of its Assistance to States and
Preschool Grant funds for administration and other State-level activities. 20 U.S.C.
{}91411 (f)(1) and 1419(d). The State may choose to distribute funds it has set aside for
other State-level activities to LEAs for direct services or other allowable activities
specified at 20 U.S.C. 91411(0(3) and 1419(f'). The State may use these funds directly or
distribute them to LEAs on a cornpetitive, targeted, or formula basis. 34 CFR
9300.370(c). This is a way in which an SEA may provide additional funds to LEAs
experiencing the difficulties described in
letter.

Page 3 - Honorable Charles F. Bass

The information in this letter should be of assistance 1o w i t h
regard to her
inquiry about the funding formulas for the Assistance to States and Preschool Grant
programs in the IDEA. Please contact my staff member Ms. Nancy Treusch at (202)
205-9097 if you need further assistance with this issue.
Sincerely,

Patricia J. Guard
Acting Director
Office of Special Education Programs
cc: Dr. Mary J. Ford, State Director of Special Education
Mrs. Ruth Littlefield, 619 Coordinator


UNITED STATES DEPARTMENT OF EDUCATION
OFFICE OF MANAGEMENT

Honorable Roscoe E. Bartlett
Member, House of Representatives
5831 Buckeystown Pike, Suite E
Frederick, Maryland 21704

DEC 4 2001

Dear Mr. Bartlett:
This is in response to your letter dated March 29, 2001, on behalf of your constituent,
In a letter
addressed to you dated March 23,
2001, she expressed concerns over the misuse and possible violation of the Family Educational
Rights and Privacy Act (FERPA), by the C o u n t y
Public Schools(District). Your letter
was initially referred to the Office of Special Education Programs (OSEP) because
c o n c e r n
involved education records of special education students. However,
after consultation with OSEP, it was determined that this Office, the Family Policy Compliance
Office (FPCO), is the appropriate office to respond to the issues raised by your constituent
because we are responsible for administering FERPA.
OSEP informed this Office that, in an attempt to assist you and your constituent, OSEP's contact
for the State of Maryland, Michael F. Slade, contacted your office and spoke with Micki
Hamilton requesting authorization to contact
directly. Although authorized to
do so, Mr. Slade was unable to contact b e c a u s e
the telephone number of record
was no longer a working number.
Nonetheless, based on the information provided, it appears that the District employed the
services of the George Washington University's Center for Excellence and Equity in Education
(Center) to investigate statistical findings that implied that minority children were being
disproportionately referred to the District's special education programs. The District provided
the Center with a limited number of student files for its review and analysis.
Briefly, FERPA gives parents certain rights with respect to their children's education records.
See 20 U.S.C. ยง 1232g and 34 CFR Part 99. In particular, FERPA generally prohibits the
disclosure of a student's education records without the prior written consent of the parent.
FERPA defines the term "education records" as:
except as may be provided otherwise in subparagraph (B), those records, files,
documents, and other materials which-(i) contain information directly related to a student; and

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www.ed.gov
Our mission is to e n s u r e

e q u a l a c c e s s to e d u c a t i o n a n d to p r o m o t e e d u c a t i o n a l e x c e l l e n c e throughout the Nation.

Page 2 - Mr.

Roscoe G. Bartlett

(ii) are maintained by an educational agency or institution or by a person acting for such
agency or institution.
20 U.S.C. ยง 1232g(a)(4)(A); 34 CFR ยง 99.3 "Education records."
While FERPA generally prohibits the disclosure of education records without prior written
consent, there are several statutory exceptions to this rule. One exception allows for the
disclosure of education records to school officials with a legitimate educational interest in the
records. School officials are broadly defined to include contractors and other third parties
carrying out activities for the school that the school would otherwise do itself. Here, the District
hired the Center to perform a service on its behalf. The disclosures to the Center, as a contractor
acting for the district, are permitted under the school officials' exception. See 34 CFR
99.31(a)(1). Under this exception, the District must list the Center as a "school official" with a
"legitimate educational interest" in the annual notification, or an amendment to such notification,
required under 34 CFR 99.7.
Another potentially applicable statutory exception provides that the educational agency or
institution may disclose personally identifiable information from an education record of a student
without parental consent if the disclosure is to organizations conducting studies for, or on behalf
of, educational agencies or institutions to improve instruction. See 34 CFR 99.3 1(a)(6)(i)(C).
We do not have enough information about the particulars of the study to conclude that the
purpose of the study is to improve instruction.
It is also worth noting additional requirements under this exception. Specific.ally, under its
provisions, the organization must "conduct the study in a manner that does not permit personal
identification of parents and students by individuals other than representatives of the
organization" and must destroy the information "when no longer needed for the purposes for
which the study was conducted." .See 34 CFR 99.3 1(a)(6)(ii)(A) and 03). Based on the
information provided to us, it appears that no personally identifiable information on a student
was disclosed by the Center in its final report or its presentation of the report and that all
information was disclosed in aggregate form. Thus, it appears that the District, and the Center
acting on behalf of the District, complied with its requirement not to redisclose personally
identifiable information from an education record.
FERPA also requires that if a school hires an organization to conduct a study, as the District did
here, the school must maintain a record of each request for access to and each disclosure of
personally identifiable information from the education records of each student with that student's
education records. See 34 CFR 99.32(a). In sum, from the information provided to us from your
office, including documents provided by
we have determined that the
disclosures made by the District to the Center without parental consent appear to be consistent
with FERPA.

Page 3 - Mr. Roscoe G. Bartlett
OSEP informs us that o t h e r
concerns regarding the interpretation of the
Center's study and the subsequent use of the data, issues not related to FERPA, should be
addressed directly with the Maryland State Department of Education (MSDE). Included below
is the name and address of the Assistant State Superintendent for the MSDE charged with
overseeing special education in the State of Maryland:
Dr. Carol Ann Baglin
Assistant State Superintendent
Maryland State Department of Education
Division of Special Education/Early
Intervention Services
200 West Baltimore Street
Baltimore, Maryland 21201-2595
I hope this information is helpful. If this Office can be of further assistance regarding this
matter, please feel free to contact me at (202) 260-3887.
Sincerely,

LeRoy Rooker
Director
Family Policy Compliance Office


UNITED STATES DEPARTMENT OF EDUCATION
O F F I C E OF SPECIAL EDUCATION AND REHABILITATIVE SERVICES

Mr. Paul Veazey, Esq.
Stockwell, Sievert, Viccellio,
Clements & Shaddock, L.L.P.
One Lakeside Plaza
Post Office Box 2900
Lake Charles, Louisiana 70602-2900

NOV 2 6 2001

Dear Mr. Veazey:
This is a response to your letter transmitted via telefacsimile to the Office of Special Education
Programs (OSEP) addressed to Ms. Nancy Jenkins. Although your letter does not clearly state a
specific inquiry for OSEP to provide a response, we believe the central question of your letter to
be whether a public school board has the unilateral discretion under the Individuals with
Disabilities Education Act (IDEA) to choose the educational placement of a child with a
disability as an administrative matter to the exclusion of any input from that child's parents. Set
forth below is our response to this question that provides clarification about the involvement of
parents in individualized education program (IEP) process and educational placement decisions
of their child with a disability.
Only the child's IEP team may determine the content of the child's IEP, and only the group of
individuals specified in §300.552 may determine the educational placement of a child with a
disability based on that child's IEP. Thus, a school board may not unilaterally make decisions
about the content of a child's IEP or the educational placement of the child. The educational
placement of each child with a disability must be based on the individual needs of that child that
are written in his or her IEP.
It is important to point out that the parents of a child with a disability n-rest be invited to
participate as active members of the IEP team and as members of the group of individuals that
determines the educational placement of their child. Specifically, §300.344(a)(1) requires that
the parents of the child with a disability are included as members of the IEP team, and
§300.552(a)(1) requires that the parents are included as members of the group of persons that
determines the child's educational placement. In some states, the IEP team serves as the group
making the placement decision, In other states, another group of people may make this decision.
In all cases, the parents have the right to be members of the group that decides the educational
placement of their child. Either practice does not violate the IDEA so long as the required
members of the IEP team and the group that determines the educational placement meet the
requirements of the IDEA as set forth in §§300.344 and 300.552.
Further, educational placement decisions must be made according to the IDEA's least restrictive
environment requirements. These requirements state that, to the maximum extent appropriate,
children with disabilities, including children in public or private institutions or other care
facilities, are educated with children who are nondisabled. See §300.550(b)(1). The IDEA

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Our m i s s i o n is to erasure e q u a l a c c e s s to e d u c a t i o n a n d to p r o m o t e e d u c a t i o n a l e x c e l l e n c e t h r o u g h o u t t h e Nation.

Page 2 - Mr. Paul Veazey, Esquire
clearly states that special classes, separate schools, or other removal of children with disabilities
from the regular educational environment occurs only if the nature or severity of the child's
disability is such that education in regular classes with the use of supplementary aids and
services cannot be achieved satisfactorily. See §300.550(b)(2).
With respect to State or local educational agency policies regarding placement decisions, a
policy establishing educational placement based on a particular disability category is inconsistent
with the IDEA. Each child's educational placement must be determined on an individual caseby-case basis depending on each child's unique educational needs and circumstances rather than
by the child's type of disability. The IEP forms the basis for the placement decision that is made
by the group that decides the educational placement of the child. See §300.552(b)(2).
Part B of the IDEA requires that a public agency make available a continuum of alternative
placements, or a range of placement options, to meet the needs of children with disabilities. The
options on this continuum include instruction in regular classes, special classes, special schools,
home instruction, and instruction in hospitals and institutions. See {}300.551. However, the
placement of an individual student with a disability in a separate school can occur only if an
individual placement determination is made that the student's IEP cannot be implemented
satisfactorily in a less restrictive placement, and that placement of the student in a separate
school is needed to implement the student's IEP.
It is important to point out that if the public agency, for example, has two or more equally
appropriate locations that meet the child's special education and related services needs, the
assignment of a particular school or classroom may be an administrative determination, provided
that determination is consistent with the placement tearn's decision. The public agency should
exercise caution in making such a determination so that the placement of a child with a disability
is not based on factors such as the category of disability, configuration of the service delivery
system and the availability of staff and instead is based on the factors stated in §300.552.
We hope that this information is helpful, If you need further assistance, you may contact
Cynthia Bryant, the OSEP State contact for Louisiana, at (202) 401-4583.
Sincerely,

Patricia J. Guard
Acting Director
Office of Special Education Programs
cc:

Ms. Virginia Beridon
Louisiana Department of Education


UNITED STATES DEPARTMENT OF EDUCATION
OFFICE OF SPECIAL EDUCATION AND REHABILITATIVE SERVICES
THE ASSISTANT

NOV

-

SECRETARY

5 2001

Honorable Vito A. Gagliardi, St.
Commissioner of Education
New Jersey Department of Education
100 River View Plaza
P.O. Box 500
Trenton, New Jersey 08625-0500
Dear Dr. Gagliardi:
Secretary Paige has asked that I respond to your letter dated September 17, 2001,
regarding the need to amend New Jersey's State special education policy that permits
school districts to initiate a due process hearing if a parent refuses to consent to the initial
provision of special education and related services. You state that elimination of this
policy will jeopardize the education of students who are eligible for special education and
related services and do a disservice to students in need of services. Specifically, you ask
that the Department rethink its decision and allow the due process system to "remain
available in those instances where the districts believe that the child's best interest is
served by receiving programs and services that they are entitled to by law."
Your letter raises an important issue under the Individuals with Disabilities Education
Act (IDEA). The upcoming reauthorization of the IDEA will offer an opportunity for us
to review the issue of overriding a parent's lack of consent to initial special education and
related services, along with other aspects of this important legislation. The issue you
raise concerning appropriate education for children with disabilities whose parents do not
consent to initiation of services is important and deserves careful attention.
I would, however, like to make sure you understand the Department's current position.
Based on the IDEA Amendments of 1997, Part B regulations require parental consent for
the initial provision of special education and related services and do not permit public
agencies to override a parental refusal to consent. Part B specifically requires at 34 CFR
ยง300.505(a)(1) that informed parental consent must be obtained before initial evaluation,
reevaluation, or the initial provision of special education and related services to a child
with a disability. The IDEA regulations permit override only if a parent refuses consent
for an initial evaluation and reevaluation and State law does not otherwise prohibit such
an override. The IDEA regulations do not permit an override for initial provision of
special education and related services.
The IDEA does not permit public agencies to initiate a due process hearing if a parent
refuses to consent to the initial provision of special education and related services.
Consent means that the parent has been fully informed of all information relevant to the
activity for which consent is sought, in his or her native language, or other mode of

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Page 2 - Honorable Vito A. Gagliardi, St.
communication (see 34 CFR ยง300.500(b)(1)). However, a public agency may offer
mediation and informally attempt to explain the potential consequences to their child's
education if parents choose not to provide consent for the initial provision of special
education and related services for their child.
If there are State statutes, regulations, and policies that are inconsistent with the IDEA
regarding these issues, then the Slate must change these State-level rules so that there is
no conflict with the IDEA requirements.
We hope that you find this explanation helpful. If you need further assistance, please call
Dr. JoLeta Reynolds at 202-205-5507 or Mr. Troy Justesen at 202-205-9053.
Sincerely,

Robert H. Pasternack, Ph.D.


UNITED STATES DEPARTMENT OF EDUCATION
O F F I C E OF SPECIAL EDUCATION AND REHABILITATIVE S E R V I C E S

NOV

-

6 2001

Mr. Ed Kapel
Interim Director
Office for Exceptional Children
Ohio Department of Education
25 Front Street
Columbus, Ohio 43215-4183
Dear Mr. Kapel:
The Office of Special Education Programs (OSEP) received a letter of complaint from
dated December 28, 2000 concerning formal complaints she
filed with the Ohio Department of Education, Office for Exceptional Children (ODE)
against the S c h o o l
District and S
c
h
o
o
l
District. In her l e t t e r ,
alleges that ODE did not follow the complaint
procedures under the Individual with Disabilities Education Act, Part B at 34 CFR
§300.661. f i l e d
her complaint against the
School District
on May 10, 2000, and ODE completed its investigation and issued its written decision on
February 6, 2001, 203 days beyond the 60-day timeline. On September 5, 2000,
S c h o o l filed a complaint with ODE against the
District (enclosed). To date, this complaint has not been resolved.
Since February 6, 2001, OSEP has had frequent communications with ODE, including an
onsite meeting with ODE staff, concerning ODE's resolution o
f
complaint against the
School District. Throughout
this period, ODE informed OSEP that it was working with t
o
resolve
her complaint and assured us that a written decision would be issued pending guidance
from ODE's legal division, in our most recent communications with your Office, and in
correspondence from the complainant, OSEP was informed that h
a
s
never received a written decision on her complaint against the
S c h o o l
District for refusing to conduct an initial evaluation of
under
34 CFR §300.320.
While OSEP acknowledges ODE's work with the parties to the complaint on behalf of
ODE is still responsible to resolve this complaint in
accordance with the complaint requirements in the regulations applicable to Part B at 34
CFR §§300.660-300.662. Consistent with these regulations, your agency, among other
duties, should have done all of the following within 60 calendar days of receiving this
complaint:

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Page 2 - Mr. Ed Kapel

Conducted an independent on-site investigation if your agency determined such
an investigation was necessary;
Given the complainant the opportunity to submit additional information, either
orally or in writing, about the allegations in the complaint;
Reviewed all relevant information and made an independent determination as to
whether the public agency was violating a requirement of Part B; and
Issued a written decision to the complainant that addresses each allegation in the
complaint and contains findings of fact, conclusions, and the reasons for your
agency's final decision.
We are extremely concerned that over a year after the complaint was filed, your Office
has not issued a decision as required under Federal law. Therefore, we are requesting
that you resolve this on an expedited basis and that you send a copy of your agency's final
decision within 30 days of your receipt of this letter to a
n
d
Ms. Margaret Romer of my staff at:
Ms. Margaret Romer
U.S. Department of Education
Office of Special Education Programs
Room 3614, Switzer Building
330 C Street S.W.
Washington, D.C. 20202-2640
Thank you for your prompt attention to this matter.
Sincerely,

Patricia J. Guard
Acting Director
Office of Special Education Programs
Enclosure


UNITED STATES DEPARTMENT OF EDUCATION
OFFICE OF SPECIAL EDUCATION AND REHABILITATIVE SERVICES

OCT 10 2001
Honorable Curt Weldon
U.S. House of Representatives
2452 Rayburn HOB
Washington, DC 20515-3807
Dear Congressman Weldon:
Your letter to Secretary of Education Roderick R. Paige has been referred to the Office of
Special Education Programs (OSEP) for response. OSEP administers the Individuals
with Disabilities Education Act (IDEA), as amended by the IDEA Amendments of 1997.
This response concerns your constituent, Dr. Terry Mancini, who is Superintendent of
Schools of the Upper Merion Area School District in King of Prussia, Pennsylvania. Dr.
Mancini requests clarification of whether recent changes to the procedures and guidelines
of administering the Pennsylvania System of School Assessment (PSSA) test to students
receiving special education in grades 5, 8, and 11 is a change in procedures resulting
"from the federal government's request to test all students or risk loss of funding."
Further, Dr. Mancini states that in Pennsylvania there is no range of assessment options
available that may be more appropriate for students with disabilities, which is
individually determined by each student's Individualized Education Program (IEP) team.
The only allowable alternate assessment to the PSSA, Dr. Mancini states, is a single
alternate assessment that may be used solely for those students with significant cognitive
disabilities.
The requirements for including children with disabilities in assessments are based on a
number of federal laws, including Title II of the Americans with Disabilities Act of 1990,
Section 504 of the Rehabilitation Act of 1973, and most notably the IDEA and Title I of
the Elementary and Secondary Education Act. These laws recognize that an assessment
is often connected to student benefits such as moving to the next grade or graduating.
Assessment is also an important factor in school accountability as well as individual
benefits provided to children. Excluding children with disabilities from assessments may
violate these Federal laws. To ensure equal participation of students with disabilities in
such assessments, appropriate accommodations and modifications in the administration
of assessments, on a case-by-case basis, may be necessary.
Alternate assessments are designed for those students with disabilities who are unable to
participate in State or district-wide assessments even when accommodations or
modifications are provided. Alternate assessments need to be aligned with the general
curriculum standards set for all students and should not be assumed appropriate only for
those students with significant cognitive impairments. Under the IDEA, States and local
education agencies must develop guidelines for the participation of students with

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Page 2 - Honorable Curt Weldon

disabilities in alternate assessments, and must provide alternate assessments for all State
and district-wide assessments conducted beginning no later than July 1,2000.
IDEA defines a key role for the IEP team. This team determines if any individual
modifications in administration are needed in order for the student to participate in a State
or district-wide assessment. And, if it determines that the child will not participate in a
particular State or district-wide assessment of student achievement (or part of an
assessment), the IEP team states why the assessment is not appropriate for the child and
how the child will be assessed.
Under the IDEA, States must report on the number of students with disabilities
participating in regular and alternate assessments, and on the performance of these
students on both types of assessment. In addition, under Title 1, students with disabilities
must be included in State assessment systems, and their scores must be included in these
systems for purposes of public reporting and school and district accountability. Under
Title I, States must explain how scores from alternate assessments are integrated into
their accountability systems.
Neither the IDEA nor Title l specifies or limits the number of alternate assessments a
State or local school district must or can provide. Alternate assessment(s) should, at a
minimum, assess the broad content areas assessed in State or district-wide assessments
and should match in purpose the assessments for which they are intended to serve as
alternates. But the number of alternate assessments is a State or local decision.
A number of important considerations apply as States develop their guidelines for
participation in alternate assessments, provide those assessments, and use the results of
alternate assessments in reports and accountability. One is that the authority of the IEP
team should be preserved, and steps should be taken to provide those teams with the
resources and training they need to implement these provisions in a meaningful way.
Another is that the assessment options available to IEP teams should be compatible, to
the greatest possible degree, with systems of reporting and accountability so that all
students with disabilities are represented in these systems.
We realize that States are faced with a number of challenges in implementing the IDEA
provisions related to alternate assessments, and we have tried to support states in several
ways. For example, we fund the National Center on Educational Outcomes (NCEO) at
the University of Minnesota that conducts research and analyzes policy on assessment
issues, and provides information and technical assistance to States. NCEO has a website
at http://www.coled.umn.edu/nceo which offers a number of resources related to alternate
assessment and other topics. NCEO, our Federal and Regional Resource Centers, the
Council of Chief State School Officers (CCSSO), and the National Association of State
Directors of Special Education (NASDSE) have conducted a series of annual conferences
for State teams focusing on alternate assessments. Pennsylvania was represented at the
conferences. NCEO and CCSSO have organized a State Collaborative on Assessment
and Student Standards (SCASS) focusing on the assessment of students with disabilities,
including alternate assessments. This SCASS provides an_opportunity for ongoing
communication and collaboration between states, and alternate assessment has been one

Page 2 - Honorable Curt Weldon

of the ongoing topics. Finally, under our research and model demonstration programs,
we have funded a number of projects on the participation of students with disabilities in
assessments, including some on alternate assessments.
We hope this information is helpful to you and your constituent.
Sincerely,

Patricia J. Guard
Acting Director
Office of Special Education Programs


UNITED STATES DEPARTMENT OF EDUCATION
OFFICE OF SPECIAL EDUCATION AND REHABILITATIVE SERVICES

Dear
This is in response to your e-mail to Secretary Paige on September 19, 2001, requesting
clarification concerning an apparent conflict between the Individuals with Disabilities Education
Act (IDEA) and the regulations promulgated by the US Department of Education to implement
the IDEA. Secretary Paige forwarded your e-mail to me because I am the Assistant Secretary for
Special Education and Rehabilitative Services within the Department of Education. The Office
of Special Education and Rehabilitative Services oversees the Office of Special Education
Programs (OSEP), which is the office that administers the IDEA.
Specifically, you ask whether §300.4571 of the IDEA regulations is inconsistent with section
607(b) of the IDEA statute. We understand from your e-mail that you ask for this clarification
because you have placed your son who has a disability in a private school and believe that he is
not receiving appropriate speech therapy services.
Our response is that there is no inconsistency between the statute and the regulations
implementing the IDEA issued by the Department of Education with respect to section 607(b)
and the regulation at §300.457. Set forth below is our explanation oft.he statutory and regulatory
requirements of the IDEA with respect to the obligations of public agencies to children with
disabilities enrolled by their parents in private schools.
As you know, Congress amended the IDEA in 1997. Section 607(b) of IDEA '97 states that
"[T]he Secretary may not implement, or publish in final form, any regulation prescribed pursuant
to this Act that would procedurally or substantively lessen the protections provided to children
with disabilities under the Act, as embodied in regulations in effect on July 20, 1983...except to
the extent that such regulation reflects the clear and unequivocal intent of the Congress in
legislation [emphasis added]."
With respect to §300.457(a), this provision is consistent with Congressional intent to clarify the
extent of rights available to parentally-placed private school children with disabilities and their
parents. Congress, in the reauthorization of the IDEA in 1997, clearly intends that a local
educational agency (LEA) is not required to pay for the cost of education, including special
education and related services, of a child with a disability at a private school or facility if that

OSEP uses the word "section" when providing citations to the IDEA statue, but we generally use the symbol ("§")
for the word when providing citations to the IDEA's regulation. The word and the symbol have the same meaning,
but this citation method helps make clear when one citation references the statute and the other references the
regulation. We use the word at the beginning of a sentence in either citation.

Page 2 agency made a free appropriate public education (FAPE) available to the child and the parents
elected to place the child in such private school or facility. See section 615(a)(10)(C)(i).
I also want to take this opportunity to provide you with an explanation of the obligation of public
agencies in serving children with disabilities placed by their parents in private schools. Under
the IDEA, services that an LEA is required to provide a child with a disability differ depending
on whether the child attends public school 2 or is placed by his or her parents in private school.
This difference is based on the fundamental principle that children with disabilities attending
public schools are entitled to FAPE, whereas children with disabilities voluntarily attending a
private school are not entitled to FAPE. Consequently , the protections afforded children with
disabilities and their parents do not extend to the private school or the educational services in the
private educational environment.
Section 612(a)(10)(C)(i) of the IDEA states than an LEA is not required to pay for the cost of
education, including special education and related services, of a child with a disability at a
private school or facility if the LEA made FAPE available to the child and the parents elected to
place the child in the private school. As stated above, children with disabilities unilaterally
placed by their parents in private schools and not placed by a public agency as a means of
providing special education and related services, are not entitled to FAPE. Because there is no
requirement to provide FAPE to private school children with disabilities voluntarily placed by
their parents, the right to due process procedures does not apply.
The IDEA statute limits the obligations of public agencies to provide services to parentallyplaced private school children with disabilities, which the regulations further clarify. Section
300.454(a) specifies that no individual private school child with a disability has a right to receive
some or all of the special education and related services the child would receive if enrolled in a
public school. Because parentally-placed private school children have no individual right to
services, LEAs do not have to serve every student with a disability who is voluntarily enrolled in
a private school, including the provision of speech therapy services. Moreover, if the parents
make clear their intention to enroll their child with a disability at a private school and that they
are not interested in a public program or placement for their child, the public agency is not
required to develop an individualized education program (IEP) for their child, which is required
to be developed for children with disabilities attending public schools or for children placed by a
public agency in a private school or facilities as a means of providing special education and
related services.
Each LEA must consult, in a timely and meaningful way, with appropriate representatives of
parentally-placed private school children with disabilities, in light of the minimum amount of
IDEA Part B funds that must be expended for services for this population of children, on the
number of parentally-placed private school children with disabilities, the needs of those children,
and their location. Through this consultation process, decisions are made about which
parentally-placed private school children with disabilities will receive services, what services
2 If a child with a disability is placed in or referred to a private school by a public agency in order to provide that
child with FAPE, then the public agency must provide an education that meets the standards that apply to education
provided by the SEA and LEAs. That child has all of the rights of a child with a disability who is served by a public
agency. See §300.401.

Page 3 will be provided, how and where the services will be provided, including the timing and location
of the services provided, and how the services provided will be evaluated. Each LEA must give
appropriate representatives of parentally-placed private school children with disabilities a
genuine opportunity to express their views regarding each matter that is the subject of the
consultation process. However, the LEA makes the final decision about which eligible children
will receive services, the services to be provided to eligible parentally-placed private school
children with disabilities, and where the services will be provided. See §300.454(b)(1), (2), and
(4). If the LEA determines that it will provide special education and related services to a
particular private school child with a disability, that child must have a services plan that
describes the specific special education and related services that the LEA will make available.
See §300.455.
Since eligible parentally-placed private school children with disabilities do not have an
individual entitlement to services under Pan B of the IDEA, the due process procedures in Part B
of the Act do not apply to complaints that an LEA has failed to meet applicable requirements for
serving those children, including an LEA's alleged failure to provide the services specified on a
child's services plan. However, an organization or individual may file a signed written
complaint under the applicable State complaint procedures at §§300.660-300.662 alleging that a
State educational agency or an LEA has failed to meet the requirements in §§300.451-300.462,
such as a failure to properly conduct the appropriate child find activities of children in private
schools, including religious schools.
We hope this information is helpful to you. Enclosed is a copy of OSEP memorandum 00-14
dated May 4, 2000, which discusses the obligations of public agencies in serving children with
disabilities placed by their parents at private schools. Also, if you have further questions, you
may call Dr. JoLeta Reynolds at 202-205-5507 or Mr. Troy Justesen at 202-205-9053 at OSEP.

Sincerely,

Robert H. Pasternack
Assistant Secretary
Enclosure


UNITED STATES DEPARTMENT OF EDUCATION
O F F I C E O F S P E C I A L E D U C A T I O N AND REHABILITATIVE S E R V I C E S

SEP21 2001

Ms. Holly B. Nann
President
New York State SAFE
P.O. Box 192
Schuylerville, New York 12871
Dear Ms. Nann:

°

This is a response to your letter to former Assistant Secretary Judith E. Heumann, in which you
allege that the State of New York has failed to consider complaints filed by your advocacy
organization, Schools are for Everyone (SAFE), as required by the Individuals with Disabilities
Education Act (IDEA). Specifically, your letter requests clarification of regulations governing
the State complaint process, and whether a complaint that alleges that statistical data show
system-wide failures to provide children with disabilities a free appropriate public education
(FAPE) in the least restrictive environment (LRE) may constitute a basis for filing a complaint.
Set forth below is an explanation of the requirements for filing a complaint with a State
educational agency (SEA) and the obligations the State has in responding to a filed complaint.
With respect to filing a complaint, an SEA must consider a signed written complaint by an
organization or individual that includes a statement that a public agency has violated a
requirement of Part B of the IDEA. The complaint must include the facts on which the statement
is based. In addition, the complaint must allege a violation that occurred not more than one year
prior to the date that the complaint is received in accordance with the State's compliant
procedures unless a longer period is reasonable because the violation is continuing, or the
complainant is requesting compensatory services for a violation that occurred not more than
three years prior to the date the complaint is received. See 34 CFR §300.662. Further, each SEA
shall have a written complaint procedure for resolving any complaint, including a complaint filed
by an organization or individual from another State, including conducting an on-site
investigation if the SEA determines it necessary. See 34 CFR §§300.660-300.661. In other
words, an SEA is required to resolve any [emphasis added] complaint, but not necessarily
investigate, that meets the requirements of §300.662, including a systemic complaint alleging
that a public agency has failed to provide FAPE to a group of children with disabilities. Thus,
the SEA would be required to follow the State complaint procedures outlined in §300.661 as it
would any other case where a violation of Part B of the IDEA is alleged. However, although an
SEA is required to resolve any complaint that meets the requirements of §300.662, it may be that
the SEA's findings of fact and conclusions do not necessarily satisfy the complainant.
The IDEA regulations do not contain a mechanism for review of a State's decision when a
complainant is dissatisfied with the SEA's resolution of a complaint. Although we have no
specific knowledge of New York State law, we note that in a number of final State agency
actions, that action may be appealed under the State's administrative procedures law.

400 MARYLAND AVE., S.W. WASHINGTON, D.C. 20202
Our mission is to erasure equal a c c e s s to education a n d to promote e d u c a t i o n a l excellence t h r o u g h o u t the Nation.

Page 2 - Ms. Holly B. Nann

It is our understanding that the State of New York uses data as a mechanism that may trigger
monitoring activities, including on-site visits, to local educational agencies (LEAs). The use of
data alone as a method of triggering closer scrutiny and monitoring is consistent with the Office
of Special Education Programs' views of State level monitoring triggered by performance or
outcome measures. In this type of monitoring system, local sites for further investigation may be
chosen based on appropriate key performance data indicators used by the State. For example,
one LEA's data that indicate a lower percentage of children with disabilities that receive some or
all of their education in settings other than the regular education classroom as compared to other
LEAs in the same State, may be a consideration for additional monitoring activities. Such data,
however, does not in itself constitute a violation of Part B of the IDEA.
Further, because of the time limits for filing a complaint mentioned above, if data are used as the
basis for a complaint to the SEA, then the results of that data used must be not more than three
years prior to the date the complaint is received by the SEA (see 34 CFR §300.662).
We hope this information is helpful to you. If you have additional questions about this matter,
you may call Dr. JoLeta Reynolds or Mr. Troy Justesen of the OSEP at (202) 205-5507 or
(202) 205-9053, respectively.
Sincerely,

Patricia J. Guard
Acting Director
Office of Special Education Programs

Attachments: Complaint Resolution Procedures Memos
cc:

Mr. Lawrence C. Gloeckler
New York State Education Department


UNITED STATES DEPARTMENT OF EDUCATION
OFFICE OF SPECIAL EDUCATION AND REHABILITATIVE SERVICES

S¿P 12 ¿00l

Contact Persons:
Name:
Telephone:
Name:
Telephone:

JoLeta Reynolds
(202) 205-5507
Melisande Lee
(202) 205-5507

I OSEP01-18 ]

MEMORANDUM
TO:

State Directors of Special Education

FROM:

Patricia J. Guard ¿~~__.¿---q2j
Acting Director
Office of Special Education Programs

SUBJECT:

Availability of Electronic Copies of Letters of Clarification and Selected OSEP
Memoranda on the OSEP Web Page

In an effort to better serve our customers, OSEP is pleased to announce that a link to policy
documents will now be available on the OSEP web site in both Microsoft® Word and PDF
formats. These documents will include selected OSEP memoranda as well as letters of
clarification describing the Department's interpretation of IDEA or the regulations that
implement IDEA. The letters of clarification are those included in the lists of correspondence
published quarterly in the Federal Register pursuant to section,607 of IDEA.
We are beginning with correspondence covering the peñod from July through September of
2000, and will continue the process with subsequent quarters. As time permits, we intend to
include earlier correspondence from January through March and April through June of 2000.

400 MARYLANDAVE., S.W. WASHINGTON, D.C. 20202
f-)r: m~~~!oe z~ ~o p~.~z~re eouaJ o c c e : s to ¢,dt~cclf~c,r ar~d to p r o m o t : ~,duca~[<mal e x c e l l e n c e t h r o u q h o u t the Nation.

Page 2
To access these documents, please go to the OSEP web site at:
http:l/www.ed.~ovlOFFICES/OSERSlOSEPI and click on the link "Letters of Clarification"
under "What's New." The OSEP web page is in the process ofredesign and when the redesign is
completed, these documents will be available by clicking on the link to Legislation and Policy.
OSEP intends to discontinue the practice of mailing hard copies of the documents referred to in
the Federal Register quarterly lists of correspondence after the most recent quarter becomes
available on line.
ce:

Chief State School Officers
Congressional Staff
Federal Resource Center
Independent Living Centers
National Disability Organizations
Parent Training Centers
Part C Coordinators
Part C Lead Agencies
Protection and Advocacy Agencies
Regional Resource Centers
RSA Regional Commissioners
Section 619 Coordinators


UNITED STATES DEPARTMENT OF EDUCATION
O F F I C E O F S P E C I A L E D U C A T I O N AND REHABILITATIVE S E R V I C E S

SEP I0 2001
Dr. Stephanie J. Petska
Director of Special Education
State of Wisconsin Department of Public Instruction
P.O. Box 7841
Madison, Wisconsin 53707-7841
Dear Dr. Petska:
Thank you for your letter asking the Office of Special Education Programs (OSEP) to clarify
requirements relating to the qualifications that school districts may require of individuals who
conduct an Independent Educational Evaluation (IEE). More specifically, you ask whether the
written policies of four separate Wisconsin school districts t regarding criteria for IEE examiner
qualifications is consistent with the Individuals with Disabilities Education Act (IDEA) and its
implementing regulations. Your inquiry was prompted by a complaint filed by the Wisconsin
Coalition for Advocacy alleging that the policies violate IDEA because the criteria for IEE
examiners are inconsistent with a parent's fight to an IEE.
Your letter asks five specific questions with respect to the qualifications for lEE examiners based
on the written policies of the four school districts. In addition, copies of each school district's
written IEE policies and procedures were enclosed as attachments to your letter.
34 C.F.R. §300.502(e) states that if an independent educational evaluation is at public expense,
the criteria under which the evaluation is obtained, including the location of the evaluation and
the qualifications of the examiner, must be the same as the criteria that the public agency uses
when it initiates an evaluation, to the extent those criteria are consistent with the parent's right
to an independent educational evaluation [emphasis added]. Although your letter states the
same criteria are used for IEE examiners that the public agency uses when it initiates an
evaluation, none of the policies make it clear that the same criteria are used to select the public
agency examiner. A statement to this effect in each policy is important for parents and others to
understand that the same criteria are used for both public and independent examiners.
The four qualifications for IEE examiners that prohibit particular professional associations and
activities are inconsistent with the parent's right to an IEE. Criteria prohibiting an IEE
examiner's association with private schools, organizations that advocate the interests of parents,
organizations that advocate particular instructional approaches in the area of educating children
with disabilities and a history of consistently acting as an expert witness against public schools
are not qualifications necessary to perform an evaluation. These qualifications are unrelated to
an examiner's ability to conduct an educational evaluation and undermine the parent's ability to
obtain an independent evaluation.

1 D.C. Everest School District, Lodi School District, Middleton-Cross Plains Area School District, and the Verona
Area School District.
400 MARYLAND AVE., S.W. WASHINGTON, D.C. 20202
Our m i s s i o n is to e n s u r e equal a c c e s s to education a n d to promote educational e x c e l l e n c e throughout the Nation.

Page 2 - Dr. Stephanie J. Petska
The qualification that lEE examiners have "recent and extensive experience in the public
schools" is also inconsistent with the parent's right to an IEE. This qualification is unrelated to
an examiner's ability to conduct an educational evaluation and may undermine the parent's
ability to obtain an independent evaluation. In addition, this requirement is too narrow and may
prohibit examiners with the expertise necessary for a full and individual evaluation under certain
circumstances. A common instance where this policy may be too restrictive involves assistive
technology evaluations performed by a specialist in, for example, wheelchair seating and
positioning in which recent and extensive experience in the public schools is not reasonably
necessary for such an evaluation.
A public agency may establish a qualification that requires an IEE examiner to either hold or be
eligible to hold a particular license when a.public agency requires the same licensure for its own
staff who conduct evaluations. The policies of the Lodi, Middle-Cross Plains, and D.C. Everest
Area School Districts 2 state that the prospective IEE examiner must be licensed, or eligible for
licensure by the Wisconsin Department of Public Instruction in the appropriate field.
A public agency must evaluate a student in all areas related to the suspected disability, including,
if appropriate, health, vision, hearing, social and emotional status, general intelligence, academic
performance, communicative status and motor abilities. 34 CFR §300.532(g). It may be
impossible for a public agency to assess a student in all areas related to the suspected disability if
the evaluator must be licensed by the State Department of Public Instruction. For example, there
may be instances in which rehabilitation engineers or sensory deprivation therapists are the most
appropriate individuals to conduct an evaluation with respect to a specific aspect of a disability,
but they may not be licensed by any State agency because such licensure does not exist or is not
required by State law at the time. An examiner qualified to assess whether a student's functional
capabilities require the use of assistive technology devices and services may not be licensed by
the State Department of Public Instruction. See 34 C.F.R. §300.346(a)(2)(v). As a further
example, children suspected of a disability may require evaluations performed by clinical
psychologists who would not meet the standards of the enclosed policies, as written, because
these professionals may not receive their licensure from the State Department of Public
Instruction. Therefore, the State must ensure that its State policies with respect to this matter are
not inconsistent with a parent's right to an IEE and take steps to ensure that each local
educational agency's IEE policies are also not inconsistent with a parent's right to an IEE.
In addition to the above issues you specifically asked about, an independent review reveals that
each of the four district policies establish reasonable cost criteria that allow parents the
opportunity to demonstrate other factors that justify an IEE which exceeds the maximum
allowable cost. The policies further state that it is in the school district's sole judgement to
determine whether the cost of an IEE is justifiable if the cost exceeds the maximum allowable
costs of an IEE. This is inconsistent with the process required by 34 CFR §300.502(b)(2). If the
total cost of the IEE exceeds the maximum allowable costs and the school district believes that
there is no justification for the excess cost, the school district cannot in its sole judgment
determine that it will pay only the maximum allowable cost and no further. The public agency
must, without unnecessary delay, initiate a hearing to demonstrate that the evaluation obtained
by the parent did not meet the agency's cost criteria.
2 The School Districts' policies do allow for medical professionals licensed by the State of Wisconsin.

Page 3 - Dr. Stephanie J. Petska

Furthermore, there is an additional problem with three of the four district policies with respect to
reimbursement for travel costs or other related costs incurred by the parents. The Lodi,
Middleton-Cross Plains and Verona Area district policies state that, "The district shall not be
• responsible for reimbursement of travel costs or otherrelated costs incurred by the parents in
connection with their arrangement of, or their attendance at the IEE." If it is necessary for a
child to be evaluated at a location out-of-district, the district may be required to pay for the
expenses incurred by the parent for travel or other related costs. If the public agency believes
that the requested expenses are unreasonable, it must request a due process hearing on this issue.
34 CFR §300.502(b)(2). The IDEA does not address whether funding should be paid as
reimbursement or as a cash advance. If the parent requests advance funding for IEE-related
expenses and the public agency denies that request, the parent could request a due process
hearing under 34 C.F.R. §300.506 if the parent believes that denial of advance funding would
effectively deny the parent the right to a publicly-funded IEE.
In addition, two district policies (i.e., D.C. Everest Area and Lodi) establish criteria that restrict
parents in terms of the geographic area where they may obtain an IEE. Both policies include that
the parent may obtain an IEE that does not meet the district's criteria if unique circumstances
warrant a publicly-funded IEE outside the district's criteria. Under 34 CFR §300.502(b)(2), the
school district must ensure that the IEE is provided at public expense unless it demonstrates in a
due process hearing that the parent's IEE did not meet the district's criteria, including criteria
related to location.
Finally, the Verona Area School District must include in its policy that parents have the
opportunity to demonstrate that unique circumstances justify selection of an IEE examiner who
does not meet the agency's qualification criteria. 34 CFR 300.502(e)(2).
We hope this information provides you with clarification concerning IEE policies. If you would
like further assistance on this matter, please contact Dr. JoLeta Reynolds or Mr. Troy Justesen of
the Office of Special Education Programs at (202) 205-5507 or (202) 205-9053, respectively.
Sincerely,

Patricia J. Guard
Acting Director
Office of Special Education Programs