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UNITED STATES D E P A R T M E N T OF E D U C A T I O N
O F F I C E O F T H E DEPUTY S E C R E T A R Y

JUL 2 4 2001

Honorable Patsy Mink
2210 Rayburn Office Building
U. S. House of Representatives
Washington, DC 20515
Dear Ms. Mink:

Thank you for your letter to Secretary Paige requesting information on the Individuals
with Disabilities Education Act (IDEA). I have been asked to respond on his behalf. You
have asked a number of questions regarding this program for which responses are
provided below.

Q. What is the purpose of the IDEA funding and how must those funds be used?
A. The primary purpose of IDEA funding is to help States in carrying out their
responsibilities to educate children with disabilities. Children with disabilities have a right
to a free appropriate public education based on the protections provided in the
Constitution of the United States. The primary vehicle for achieving this purpose is the
Grants to States program authorized under Part B, section 611 of the Act. Specifically,
under the Grants to States program States receive financial support to help meet the
excess cost of providing special education to children with disabilities. For example, in
the area of school personnel, while all children need teachers as part of the basic
education program, school districts may incur additional costs because some children
with disabilities may require instruction in smaller classes or may require an aide to
assist in a classroom. In this case, the costs associated with the provision of the aide
may be considered excess costs.

Q. Does the Individuals with Disabilities Education Act require Congress to
provide each State with an allocation under the Grants to States program of
40 percent of the national average per pupil expenditure in public elementary and
secondary schools (APPE)?
A. No. The IDEA provides that the maximum amount that any State may receive is the
national APPE times the number of children with disabilities ages 3 through 21 that it
serves. (IDEA section 611(a)(2)). The IDEA does not require Congress to appropriate
the maximum amount of funding that States may receive.

Q. Did the Congress otherwise commit itself to providing 40 percent?
A. There is no formal commitment in the IDEA for Congress to provide 40 percent. The
Education for All Handicapped Children Act of 1975 established a 40 percent maximum
allocation for each State.

Q. Why does the law specify 40 percent?
A. At the time that the Education for All Handicapped Children Act was under
discussion, it was believed that the cost of educating a child with a disability was about
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Page 2 - Honorable Patsy Mink
twice that for educating a child without a disability or roughly double the national APPE.
The Senate version of the bill would have provided a maximum authorization of $300
through 1979 for each child with a disability ages 3 through 21 served up to a maximum
of 10 percent of the general population in each State ages 3 through 21. The House
version of the bill would have provided 50 percent of the national APPE for each child
with a disability ages 3 through 21. The House and Senate reached a compromise and
agreed on a maximum level of 40 percent of the national APPE times the number of
children ages 3 through 21 served in each State, except that in determining this figure no
more than 12 percent of the general population ages 5 through 17 in any State could be
included.
Q. How are funds distributed under the Grants to States program? What is the
formula and why was it changed in the 1997 amendments to the IDEA?
A. Subject to several State maximum and State minimum funding requirements, each
State is first allocated an amount equal to the amount that it received in 1999 (Hawaii
received $14,156,512 in 1999). Eighty-five percent of the total appropriation above that
amount is distributed on the basis of the relative numbers of children in the general
population in the age ranges for which States guarantee free appropriate public
education to children with disabilities (Hawaii provides a guarantee to children with
disabilities ages 3 through 19). Fifteen percent of the remaining appropriation is
allocated based on the relative numbers of children living in poverty in the age ranges for
which States guarantee free appropriate public education to children with disabilities.
Prior to 2000 funds were distributed among the States based on the relative numbers of
children ages 3 through 21 with disabilities that they reported serving.
The formula for allocating funds was changed by the Individuals with Disabilities
Education Act Amendments of 1997 in order to remove incentives for children to be
inappropriately identified as disabled and placed in special education when their
educational needs could be met in regular education. These incentives had become a
serious concern as the percentage of children with less severe disabilities identified
increased significantly, driving up the total numbers of children served.
Q. How much would Hawaii receive if it were awarded the maximum allocation
under the Grants to States program? How does this compare to the maximum
allocations for other States of comparable size?
A. Since the maximum funding level that a State may receive is based on the number of
children with disabilities that are served in the State, States of comparable size that
identify and serve higher percentages of their children as children with disabilities would
receive more funds than States that serve lower percentages. Nationally, about
8.5 percent of children ages 3 through 21 were identified as disabled under IDEA for the
December 2000 child count. This is the child count applicable to the distribution of fiscal
year 2001 funds.
Hawaii reported 23,951 children with disabilities in its December 2000 count. This is
about 7.6 percent of Hawaii's 3 through 21 population. This number of children
multiplied by 40 percent of the currently estimated APPE of $6,800 for fiscal year 2001
would have resulted in a maximum funding level of $65.1 million.

Page 3 - Honorable Patsy Mink
Alternatively, in other similarly populated States, Maine reported 35,633 children with
disabilities in its December count, or 11.2 percent of its 3 through 21 population. This
number of children would have resulted in a maximum funding level of $96.9 million.
New Hampshire's count of 29,663, or 9.3 percent of its population, would have
generated a maximum of $80.7 million for fiscal year 2001. Idaho's count of 29,174, or
7.6 percent of its population, would have generated a maximum of $79.4 million for fiscal
year 2001.
Q. Can IDEA funds be used to pay for hearing aids or eyeglasses? What is the
role of insurance in covering the costs of special education?
A. IDEA funds can be used to pay for hearing aids or eyeglasses if the team developing
the child's individualized education program determines that they are necessary to
provide a child with special education. However, IDEA funds would not appropriately be
used to provide one of these devices to a child who would not need special education if
using the device.
Most private insurance providers do not include in their policies funding for special
education or related services. However, if an insurance policy includes a service
required to be provided as a part of free appropriate public education, the school may
access that insurance if the school makes the parents aware that their refusal to permit
the school access to their private insurance does not relieve the school of its
responsibility to ensure that all required services are provided at no cost to the parents,
and if the parents provide informed consent. (34 Code of Federal Regulations section
300.142(f))
Schools may access Medicaid or other public insurance benefits programs in which a
child participates to provide or pay for required services. However, schools may not
require parents to enroll in these programs as a condition for receiving needed special
education or related services. Accessing these public insurance programs must also not
result in costs to the parents, or real or potential reduction in future benefits under those
programs. (34 Code of Federal Regulations section 300.142(e))
Q. How are the Payments for Children with Disabilities under the Impact Aid
program allocated? How must these funds be used?
A. Impact Aid Payments for Children with Disabilities provides assistance to school
districts that are deprived of local revenue due to a Federal presence. These Impact Aid
payments provide a portion of the costs of educating federally connected students with
disabilities that, in other school districts, are met with local funds.
The program provides payments based on the following categories of federally
connected students who are eligible for services under the IDEA:
(A) students who live on Federal property with a parent who is a foreign military
officer accredited by a foreign government;
(B) students who live on Federal property and who have a parent on active duty
in the uniformed services of the United States;
(C) students who live on Indian lands; and

Page 4 - Honorable Patsy Mink

(D) students who do not live on Federal property but who have a parent on active
duty in the uniformed services of the United States, or a parent who is a foreign
military officer accredited by a foreign government.
Available funds are paid to school districts through a formula based on the number of
eligible students with disabilities enrolled in each LEA, except that a student in category
D receives one-half of the weight provided for students in categories A, B, and C. Funds
are ratably distributed based on the weighted student count.
School districts that receive payments under this authority must use the funds to provide
these four types of students with a free appropriate public education in accordance with
the IDEA. These payments are intended to help pay the excess costs of educating
these students. There are no requirements about how these funds are allocated below
the school district level.
I hope that these answers help respond to the interests and concerns that your
constituents have expressed to you.
Sincerely,

Thomas P. Skelly
Director, Budget Service


@

UNITED STATES DEPARTMENT OF EDUCATION
" OFFICE

OF SPECIAL EDUCATION

AND REHABILITATIVE

SERVICES

Q

JUL

-

5 2001

Mr. R. David Cousineau, President, and
Mr. David L. Halbett, Manager, Therapeutic Services
Seattle Children's Home
2142 Tenth Avenue West
Seattle, Washington 98119
Dear Mr. Cousineau and Mr. Halbett:
This is a response to the four inquiries set forth in your November 8, 2000 letter and
during subsequent telephone discussions between Mr. Halbett and Troy Justesen of our
office. You asked for clarification of the child-find, educational and financial
responsibilities under the Individuals with Disabilities Education Act (IDEA) for children
with disabilities who are Washington residents and placed in the Seattle Children's Home
School, a private in-patient/residential psychiatric treatment program. You specifically
asked if these responsibilities vary based on (1) whether the placement was made by an
agency, a court or the child's parent and (2) the fact that the State is the guardian of a
child. Our responses are based on the information provided in your letter and during your
follow-up telephone conversations with our staff.
By way of background, Part B of the IDEA requires each State educational agency (SEA)
to ensure that all children with disabilities in the State have the right to a free appropriate
public education (FAPE). 20 U.S.C. §§ 1402(8) and 1412(a)(1)(A); 34 CFR §§300.300
and 300.600. The only exception to this rule are children whose parents have placed
them in a private school or facility even though FAPE was available. (This point is
explained in more detail below). If a public agency determines in an individual situation
that the student cannot receive an appropriate education from the programs that the public
agency conducts and therefore placement in a public or private residential program is
necessary to provide special education and related services to the child, the program,
including non-medical care and room and board, must be at no cost to the parents of the
child. 34 CFR §300.302.
Furthermore, each SEA shall ensure that a child with a disability who is placed in or
referred to a private school or facility by a public agency is provided special education
and related services in conformance with the child's individualized education program
(IEP) and with the standards that apply to education provided by the SEA and local
educational agencies (LEAs) at no cost to the parents. A child placed by a public agency
with responsibility for providing education to children with disabilities in a private school
or facility has all of the fights of a child with a disability who is served by a public
agency. 20 U.S.C. §§1402(8) and 1412(a)(10)(B) and 34 CFR §300.401. See, e.g., Kerr
Center Parents Assn. v. Charles. 897 F.2d 1463 (9 th Cir. 1990k

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WASHINGTON, D.C. 2 0 2 0 2

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 promote 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 the Nation.

Mr. R. David Cousineau
Mr. David L. Halbett
Page 2
In situations where a student's educational needs are inseparable from the child's
emotional needs and the student is determined on an individualized basis to require the
therapeutic and habilitation services of a residential program in order to "benefit from
special education", these therapeutic and habilitation services may be "related services"
under the IDEA. 34 CFR §300.24. In such a case, the SEA is responsible for ensuring
the entire cost of that placement, including the therapeutic care as well as room and
board, is without cost to the parents. However, the SEA is not responsible for providing
medical care and, thus, visits to a doctor for treatment of medical conditions are not
covered as services under Part B. As stated earlier, parents are not required to bear the
costs of residential placement where such placement is determined essential to provide
FAPE. However, the SEA can and should look to other sources for financial
contributions needed to cover such costs. 34 CFR §300.600. Under Part B, the SEA is
responsible for identifying methods of ensuring services including clarifying the
responsibilities of various State agencies, including both financial responsibility and
coordination of services. 34 CFR §300.142. If it is necessary, for example, to place a
child with a disability in a residential facility, a State may utilize interagency agreements
with other State agencies in order to determine how to share the cost of that placement.
See, 34 CFR §§300.142 and 300.301. If, on the other hand, the child's emotional
disturbance is distinct from the student's academic learning and the habilitation and
treatment components of the residential placement are not required in order for the child
to benefit from special education, the SEA's responsibility is limited to the educational
portion of the residential placement.
The determination of whether the treatment and habilitation components of a residential
treatment program are "related services" under the IDEA is made on an individualized
basis by the child's IEP team. Your comment that some of the students are placed in
your facility based on their having met medical necessity criteria for a State program does
not negate the independent requirement under the IDEA that the child's IEP team (or a
hearing officer or court decision issued under the IDEA) identify the FAPE requirements
for a child. Either before or immediately after a public agency places a child with a
disability in, or refers a child to, a private school or facility, an IEP team meeting would
need to be convened to develop an IEP for the child (or review and, if necessary, revise
an existing IEP). The public agency must ensure that a representative of the private
school or facility attends the meeting. 34 CFR §300.344(a). If the representative cannot
attend, the agency shall use other methods to ensure participation by the private school or
facility, including individual or conference telephone calls. Even if a private school or
facility implements a child's IEP, the responsibility for compliance remains with the
public agency and the SEA. See, 34 CFR §300.349.
An issue underlying the questions stated earlier is which school district in the State is
responsible for the cost of these residential placements. This is a matter of State law and,
generally, States allocate responsibility for the provision of FAPE based on the school
district in which the child's parents reside. Although Part B of the IDEA does not
address which school district in a State is responsible for the cost of a placement, under
Part B, the SEA must exercise general supervision over all educational programs for

Mr. R. David Cousineau
Mr. David L.'Halbett
Page 3
children with disabilities residing in the State, and has the ultimate responsibility for
ensuring the availability of FAPE to these children. 34 CFR §300.600. Therefore, if
there is a question regarding which school district is responsible for the cost of a
placement, the State is responsible for ensuring that the issue is resolved.
However, when FAPE has been offered that meets the special education and related
services needs of a child with a disability, and the parent chooses not to accept the
program offered to their child by the LEA, and instead elects to enroll their child in a
private school or facility, then the district is not required to pay for that child's private
education. See, 20 U.S.C. § 1412(a)(10)(A) with exceptions set forth at 1412(a)(10)(C);
34 CFR §300.403. Parentally-placed private school children with disabilities have no
individual right to special education and related services under Part B of the IDEA and
thus, a school district is not required to serve every parentally-placed private school child
with a disability. See, 34 CFR §§300.403 and 300.450. I f a school district elects to serve
a particular parentally-placed private school child with a disability, it is not required to
provide that child with the full range of services under Part B.
With respect to the identification and evaluation of children suspected of having a
disability as defined under the IDEA, such requirements also apply to parentally-placed
private school children, including children in private psychiatric treatment programs. This
requirement is termed "child find" and applies to all children with disabilities residing in
the State. 20 U.S.C. § 1412(a)(3)(A) and 34 CFR §300.125. Child find refers to ongoing
activities undertaken by SEAs and, as appropriate, to LEAs to locate, identify, and
evaluate all children residing in the State who are suspected of having disabilities under
the IDEA. Under Part B, each LEA must conduct child find for all children in public and
private schools, including religious schools and other private facilities, residing in the
jurisdiction of the LEA, regardless of the severity of their disability, who are in need of
special education and related services. See, 34 CFR §300.451. Once children are
identified who are suspected of having disabilities under Part B, LEAs must have
procedures for conducting, at no cost to parents, evaluations to determine eligibility for
services under the IDEA of such children residing in their jurisdiction within a reasonable
period of time.
Regarding your inquiry as to whether the fact that the State is a guardian of the child does
not change our discussion above as to the SEA's responsibility to ensure that FAPE is
provided at no cost to a child with a disability. Under the IDEA, separate provisions
apply when a child is a ward of the State but these provisions are designed to ensure that
an impartial person acts on behalf of a child with a disability in, among other things,
providing consent, attending IEP meetings, and determining educational placements.
See, 20 U.S.C. §1415(b)(2) and 34 CFR §§300.20(a)(4) and 300.515.

Mr. R. David Cousineau
Mr. David L. Halbett
Page 4
We hope that this information is helpful. If you need further information regarding this
matter, you may contact Troy Justesen at 202-205-9053, or JoLeta Reynolds at 202-2055507.
Sincerely,

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

CC"

Dr. Douglas Gill

Washington Department of Public Instruction '


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

JUN 14 2001
Honorable Ike Skelton
House of Representatives
2206 Rayburn Building
Washington, DC 20510
Dear Congressman Skelton:
This is in response to a facsimile message of April 23, 2001 to Heidi Bonner from Mindy
Ruff asking for a written response to the issues raised by your constituent,
in a letter to you dated February 7, 2001.
expressed concerns about the
provision of early intervention services in natural environments under Part C of the
Individuals with Disabilities Education Act. The letter was referred to the Office of
Special Education Programs (OSEP) because OSEP has responsibility for the
administration of Part C. '
s
letter stated that the "natural environment is not
always the best for the child and parent."
The requirement to provide early intervention services in natural environments is not a
new requirement. The Department's 1989 regulations initially implementing the early
intervention program required that, to the extent appropriate for a child, early intervention
services take place in settings in which children without disabilities participate. In the
1991 Amendments to the IDEA, Congress added the requirement of "natural
environments" as part of the definition of early intervention services, as well as making it
a required part of the individualized family service plan (IFSP).
The 1997 Amendments to the IDEA further strengthened requirements related to the
provision of early intervention services in natural environments. Each State must have
policies and procedures to ensure that: (1) to the maximum extent appropriate, early
intervention services are provided in natural environments, including the home, and
community settings in which children without disabilities participate; and (2) the
provision of early intervention services for any infant or toddlers occurs in a setting other
than a natural environment only if early intervention cannot be achieved satisfactorily for
the infant or toddler in a natural environment. (IDEA w167
632(4)(G) and 635(a)(16)). In
addition, an IFSP must contain a justification of the extent, if any, to which the services
will not be provided in a natural environment. (IDEA w
"Natural
environments" means settings that are natural or normal for the child's age peers who
have no disability. (34 CFR w

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Page 2 - Honorable Ike Skelton

Early intervention services provided to infants and toddlers with disabilities and their
families are designed to meet the unique needs of the child, taking into consideration the
strengths and challenges of the child and the child's family. After careful evaluation of
the child and significant input from the family as to their typical routines and dreams for
the future of their child, a team that includes qualified professionals and the parents,
meets to determine the types of early intervention services needed, how often the services
will be provided, by whom, where services are to be provided, and who will pay for these
services. The discussion of, and decision about, the location of any service takes place in
the context of an IFSP meeting. In all instances, supports and services are to be
determined based on the individual needs of the child.
In her l e t t e r ,
stated that "center-based programs provide a more concentrated
emphasis on the appropriate therapies needed and where the developmental delays are
addressed." We would be concerned if early intervention services were provided to any
young child in a setting that did not support the child's needs. It is critical that
appropriate services and supports, designed to maximize the child's potential
development, be provided regardless of the setting in which the child receives early
intervention services.
In general, providing services in a setting limited exclusively to infants and toddlers with
disabilities would not constitute a natural environment. However, if a determination is
made by the IFSP team that, based on a review of all relevant information regarding the
unique needs of the child, the child cannot satisfactorily achieve the identified early
intervention outcomes in natural environments, then services could be provided in
another environment. In such cases, a justification must be included on the child's IFSP.
Many center-based programs that formerly served only children with disabilities have
now integrated children without disabilities, creating a childcare or preschool program
constituting a natural environment. If services were provided to an eligible child in such
an integrated environment, the child's IFSP would not require a justification for services
in that integrated setting.
In addition,
stated that "center-based programs also provide parental support
and encourage parental involvement." We agree that networking and training needs of
parents are important and should be addressed by the IFSP team as a part of the
development of the child's IFSP. Parent support, training or counseling identified by the
IFSP team as a needed early intervention service can be provided either through the First
Steps Early Intervention Program, by referral to an organization that offers these services
(e.g., a Parent Training and Information Center, a Parent-to-Parent program, or other
family support or advocacy organizations), or through some other appropriate
arrangement.

Page 3 - Honorable Ike Skelton

Because a parent's need for time with other parents of young children with disabilities
can be successfully accommodated in natural environments where the child receives
services, or in separate meetings, this parent need can not be used as a justification to
deny the child the appropriate services in natural environments. The location of these
meetings or trainings should be part of the overall discussion in the development of the
IFSP. A variety of locations for parent support activities should be considered, such as a
public library, another family's home, etc.
My staff works closely with Ms. Paula Goff, the early intervention coordinator in the
Missouri Department of Elementary and Secondary Education (DESE), who is
responsible for implementation of early intervention, to ensure that DESE is correctly
interpreting the Federal requirements governing Part C of the Individuals with
Disabilities Education Act (IDEA). We are available to continue to provide technical
assistance in support of Missouri's early intervention efforts. Thank you for bringing
your constituent's concerns to our attention. Please feel free to contact Ms. Jacquelyn
Twining-Martin, the OSEP early intervention contact for Missouri at (202) 205-8258, if
you have further concerns.
Sincerely,

Patricia J. Guard
Acting Director
Office of Special Education Programs

CC:

Ms. Paula Goff
Part C Coordinator


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

Contact Person:

JUN - 6 200i

Name:
Telephone:

JoLeta Reynolds
(202) 205-55.07

[ OSEP01-14

[

MEMORANDUM
TO:

State Directors of Special Education

FROM:

Patricia J. G u a r d
Acting Director
Office of Special Education Programs

SUBJECT:

Information Regarding Amendments to the 20 Percent Rule under section
300.323 of Part B of IDEA

On May 10, 2000, the Department published a notice of proposed rulemaking (NPRM) in the
Federal Register (65 FR 30314) to amend the regulations governing the Assistance to States for
the Education of Children with Disabilities program (34 CFR part 300). The NPRM proposed to
implement a statutory provision regarding the permissive treatment of a portion of Part B funds
by local educational agencies (LEAs) in certain fiscal years, as added by the IDEA Amendments
of 1997 (see section 613(a)(2)(C) of the Act and w
of the regulations).
The final regulations were published January 8, 2001 (66 FR 1474) and a notice delaying the
effective date of the new regulations was published February 2, 2001 (66 FR 8770). These
regulations took effect April 10, 2001 and are intended to ensure effective implementation of the
20 percent rule by clarifying which funds under Part B of IDEA can be included in the 20
percent calculation, and, as a result, to reduce the potential for audit exceptions.
Under the new statutory provision, for any fiscal year (FY) for which the appropriation for
section 611 of the IDEA exceeds $4.1 billion, an LEA may treat as local funds up to 20 percent
of the amount it receives that exceeds the amount it received under Part B during the prior year.
By treating certain Federal funds as local funds, an LEA will be able to meet the maintenance of
effort requirement of w
even though it reduces the amount of other local or local and
State funds, as the case may be, by an amount equal to the amount of Federal funds that may be
treated as local funds. The fiscal year ending September 30, 1999 was the first year that the Part
B appropriation exceeded $4.1 billion.

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Page 2

Appendix C to the final rule provides background information about the 20 percent rule and its
intended effect, including specifying which funds under Part B of the Act are covered by the
provision (as described in w
and the basis for the Department's decision regarding those
funds. It also includes examples showing how the 20 percent rule would apply in several
situations.
Attachments
CC:

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
OFFICE OF SPECIAL EDUCATION AND REHABILITATIVE SERVICES

MAY 2

2001

Dear

I am writing in response to your correspondence to the Office of Special Education
Programs (OSEP) within the U.S, Department of Education. On numerous occasions you
have contacted us concerning your allegations of discrimination by the I
County
Public Schools in Jacksonville, Florida against you and minority students with disabilities
within this school district. You allege that the C o u n t y
Public Schools have
violated State and federal laws and you believe your termination from the C o u n t y
School District was in retaliation for your filing of a complaint against the C o u n t y
School Board. I apologize for the delay in this response.
In response to your request for Secretarial review of the Florida State Department of
Education's (FLDE) decision on the complaint you filed against the ~ l l f Z o u n t y Public
Schools, OSEP issued a letter on April 3, 2000 (copy enclosed) granting your request for
Secretarial review. The request for Secretarial review was granted for two of the issues
that were the subject of your complaint. Specifically, OSEP required FLDE to exercise
its general supervisory responsibility to ensure that the policies, procedures and practices
within the C o u n t y
Public Schools regarding referral and placement of students into
exceptional education programs are in accordance with federal and State requirements
under the Individuals with Disabilities Education Act (IDEA). FLDE responded to you
on July 26, 2000 (copy enclosed) indicating that FLDE will include these issues in the
activities conducted during the next monitoring cycle of the
County Public
Schools. Based on the monitoring report (copy enclosed) that OSEP issued on April 23,
2001, FLDE is in the process of revising its monitoring system. We have requested that
FLDE notify OSEP when
County Public Schools is scheduled to be monitored by
FLDE. We will follow-up on this matter with FLDE by reviewing its monitoring reports
of the C o u n t y
Public Schools to ensure that FLDE has satisfactorily addressed the
issues concerning the appropriate referral and placement of student with disabilities.
OSEP has determined that the actions taken by FLDE are appropriate and provide a
sufficient response under the IDEA. As FLDE also advised you, if you feel that your
termination from the C o u n t y
School District was in retaliation for your filing of a
complaint against the
County School Board, the U.S. Department of Education's
Office for Civil Rights is an avenue for resolving this matter. It is our understanding that
you have had prior communications with that office.

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Page 2 We sincerely appreciate your desire to ensure that all students, including minority
students with disabilities, receive appropriate services in accordance with federal and
State law. If this Office can assist you on other matters related to students with
disabilities, please do not hesitate to contact Sheila Friedman, the Florida State contact at
(202) 205-9055.
Sincerely,

Patricia J. Guard
Acting Director
Office of Special Education
Programs
Enclosures
cc: Ms. Shah Goff
Florida Department of Education


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

MAY 18 2001

Dear

Your e-mail to Secretary Rod Paige has been forwarded to the Office of Special Education
Programs (OSEP) for response. In your e-mail you request assistance for the placement of your
child in a private school.
Part B of the Individuals with Disabilities Education Act (Part B) is a Federal program
administered by OSEP. A copy of the Part B regulations is enclosed for your review. Part B
authorizes the Federal government to provide funds to States, and through States to local school
districts, to help meet the unique educational needs of eligible children with one or more of the
specified disabilities. Also enclosed is OSEP Memorandum 00-14, which discusses the
obligations of public agencies to children with disabilities placed by their parents in private
schools.
Parents often contact OSEP for information about funding sources to pay for placement of their
child with a disability in a private school. We are not aware of a Federal program that provides
funds directly to parents to pay the costs of educating their child in a private school. You may
wish to explore the possibility of obtaining financial assistance for placing your child in a private
school from State, local and/or private sources. If you, as a parent, feel that a private placement
is the most appropriate educational placement for your child, you may also find the following
information about the Part B program helpful.
Part B requires States and local school districts to make a flee appropriate public education
(FAPE) available to all children who are eligible to receive services under Part B. To receive
services under Part B, a child must be evaluated to determine whether the child is eligible for
services under Part B. The initial evaluation must be a full and individual evaluation, which
assesses all areas related to the suspected disability and uses a variety of assessment tools and
strategies. If your child qualifies for services under Part B, the school district must offer to
conduct a meeting to develop an individualized education program (IEP) for your child.
Under Part B, your child's educational placement must be based upon your child's IEP. When
the local school district conducts an IEP meeting, you, as a parent, are a member of the IEP team
and must be invited to participate. Parents play a key role, along with school personnel in: (1)
developing, reviewing or, if necessary, revising a child's IEP; (2) determining the nature and
extent of the child's special education and related service needs; and (3) the placement decision.

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Page 2 -

Through the IEP process, you can discuss with school officials different approaches that would
appropriately meet your child's unique needs. This would include discussing the provision of
needed services in a private school, if the local school district is unable to provide the needed
services in the public school setting.
If the public school does not provide FAPE to your child in a timely manner and, you, as a result,
enroll your child in a private school, a court or hearing officer may require the public agency to
reimburse you. That reimbursement may be reduced or denied if: (1) you did not inform the IEP
team at the most recent IEP meeting that you were rejecting the proposed placement, stating your
concerns and intentions to enroll your child in private school at public expense; OR (2) you did
not give written notice to the public school I0 business days, including any holidays that occur
on a business day, prior to the removal of your child, stating that you were rejecting the proposed
placement and stating your concerns and intent to enroll your child in a private school at public
expense.
In addition, the cost of reimbursement may be reduced or denied if, prior to your removal of the
child, you were informed by the public agency of its intent to evaluate your child and you made
your child unavailable for evaluation OR upon a judicial finding of unreasonableness with
respect to actions taken by you.
If you and the local school district staff cannot agree on the content of the IEP, you can ask for a
due process hearing and an impartial hearing officer can make an independent decision in order
to resolve any disagreements. A mediation process must be made available to you when a due
process hearing is requested. You also have the option of filing a complaint with the State if you
and the local school district staffcannot agree on the content of the IEP. The Part B complaint
procedures are described at 34 CFR w167
300.662. Two memoranda issued by OSEP that
contain additional information about the mediation and complaints processes are enclosed for
your information.
Under Part B, your child's education must be in the least restrictive environment in which your
child's IEP can be implemented. The least restrictive environment provisions contained in Part B
require that all eligible children, regardless of the nature or severity of their disabilities, be
educated to the maximum extent appropriate with children who are not disabled, and that special
classes, separate schooling, or other removal of children with disabilities from the regular
educational environment occurs only when the nature or severity of the disability is such that
education in regular classes with the use of supplementary aids and services cannot be achieved
satisfactorily. An explanation of the extent, if any, to which the child will not participate with
nondisabled children in the regular class and other activities consistent with Part B must be
included in your child's IEP. If the local school district is unable to provide the needed services
to your child in the public school setting, the agency can place your child in a program operated
by another public agency or in a private school or facility, at public expense.

Page 3 -

If you have any questions about how the requirements of Part B are implemented in South
Carolina, you may contact the State Educational Agency at the address and telephone number
below:
Susan Durant, Director
State Department of Education
Office of Exceptional Children
1429 Senate Street, Room 808
Columbia, SC 29201
(803) 734-8806
E-mail: sdurant@sde.state.sc.us

Some parents unilaterally place their children in a private school or facility. If a public agency
makes FAPE available to a child and the parents elect to unilaterally place the child in a private
school or facility, Part B does not require the public agency to pay for the cost of the child's
education, including special education and related services, under those circumstances. Although
the public agency is required by the provisions of 34 CFR w167
to provide some
services to children who are unilaterally placed in private schools by their parents, no child
placed unilaterally in a private school or facility by his or her parents has the right to receive all
or some of the special education and related services that the child would receive if enrolled in a
public school.
The provisions regarding services for parentally-placed private school children with disabilities
are found at 34 CFR w167
I hope this information is helpful. If you need further assistance, please feel free to contact
Debra Jennings of my staff at (202) 205-5250.

Sincerely,

Patricia J. Guard
Acting Director
Office of Special Education Programs
Enclosures
cc: Susan Durant, Director, SCSDE


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

MAY 18 2001

Your letter, dated March I, 2001, addressed to Secretary Paige, U.S. Department of
Education, was referred to the Office of Special Education Programs (OSEP) for a reply.
In your letter, you indicated that you filed a formal complaint with former
Secretary Riley on April 24, 2000, stating your disagreement with decisions rendered by
the Utah State Office of Education, and you are requesting a response to that complaint.
As we told you in our letter to you dated March 4, 1997, in response to your same
complaints regarding the provision of a free appropriate public education to ~
we
believe that OSEP has exhausted all avenues that are available under our authority to
assist you. In view of the fact that i s
well over the age limit to receive special
education services under the Individuals with Disabilities Education Act (Part B), there
are no longer any means under Part B to assist
in obtaining appropriate services.
We sincerely regret that the issues raised when w a s
receiving services under Part
B were not resolved to your satisfaction. However, we strongly urge you to pursue the
postsecondary contacts that we have previously provided to you and that are able to
provide w i t h
the services she needs at this time in her life.
Sincerely,

Patricia J. Guard
Acting Director
Office of Special Education
Programs
cc: Dr. Mae Taylor
Utah State Office of Education

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arid to promote educational e x c e l l e n c e throughout the Natron.


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

MAY 17 2001

Deborah Barnett, Director
Office of Special Education
Department of Education and Cultural Affairs
700 Governors Drive
Pierre, South Dakota 57501-2291
Joanne Wounded Head
South Dakota Interagency
Coordinating Council
Department of Education and Cultural Affairs
Office of Special Education
700 Governors Drive
Pierre, South Dakota 57501-2291
Dear Ms. Barnett and Ms. Wounded Head:
This is in response to your letter, dated February 4, 2000, regarding South Dakota's Federal
monitoring report. We apologize for the delay. This letter supercedes any previous
communications to you on this issue. In your letter, you ask for clarification on the following
four items:
1) Under General Supervision, suggestions for improved results (top of page 5 of the report)
it states, "The State may want to consider procedures to ensure adequately trained staff to
provide appropriate services for infants, toddlers and their families, such as, mandating
requirements for early intervention service providers, providing incentives and including
requirements for certification in its Comprehensive System of Personnel Development."
South Dakota currently requires an early childhood special education endorsement which
includes fifteen semester hours in seven competency areas. Please further explain the
specific areas where you believe certification, incentives, or further regulation is
recommended. We would appreciate information on any [S]tates that could be consulted as a
model.
Response
The State is not required to address this particular item, as it is a suggestion for improvement, not
a finding of noncompliance. However, this suggestion is provided based on findings in Sections
III and V of the Report in the areas of early intervention services, family supports and services,
and transition. Many of the findings are related to a need for staff training. It is further stated in

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Page 2 - Ms. Barnett and Ms. Wounded Head
this suggestion (I, B, 1) that "Local administrators, service coordinators and providers in four of
the five areas visited by OSEP identified as an area of need, training on: writing IFSPs,
developing outcomes and strategies, family centered services, family supports and services, and
transition, as well as effective child find strategies." The report further identifies that training
sessions were offered, but State administrators reported that local service providers "do not take
advantage of training offered," and "providers are not required to attend training activities." As
the State has a number of findings that may be resolved with appropriate training for early
intervention providers, the State needs to identify appropriate methods to ensure needed changes
occur to address noncompliance issues throughout the report, and effective training could be one
method. OSEP is not in the position of suggesting specific standards and certification
requirements; however, DECA may want to consult NEC*TAS about requirements and
standards in other States.
2) Under Child Find/Public Awareness #2 - Failure to use clinical opinion (pages 9 and 10
of the report) 34 CFR w
is cited. This citation addresses nondiscriminatory
procedures and that no single procedure is used as the sole criterion for determining a child's
eligibility under Part C. The final sentence of this area of non-compliance states, "None of
the providers interviewed had ever determined a child eligible using only their clinical
judgement when the child was not eligible according to the protocol." South Dakota's
policies and procedures state, "Informed clinical opinion is used in determining a child's
eligibility. Informed clinical opinion is especially important if there are no standardized
measures, or the standardized procedures are not appropriate for a given age or
developmental area." South Dakota has always interpreted informed clinical opinion to be a
"collection" of all information available, including evaluation and assessment results that
each evaluator and team uses to determine the needs of the child and that it is not a "sole
procedure" to determine eligibility. Could you please define informed clinical opinion?
Response
Each Statewide system of early intervention services must include the eligibility criteria and
procedures, consistent with 34 CFR w
that will be used by the State in carrying out
programs under Part C. The State must define developmental delay by describing procedures,
including the use of informed clinical opinion, that will be used to measure a child's
development. See 34 CFR w
The evaluation and assessment of each child must be
conducted by appropriate qualified personnel trained to utilize appropriate methods and
procedures and be based on informed clinical opinion. See 34 CFR w167
(b)(1) and (c).
The State must permit the use of informed clinical opinion as a separate basis in an evaluation to
establish the eligibility of a child for early intervention services. While using informed clinical
opinion to establish eligibility for Part C services is especially important if there are no
standardized measures or if the standardized procedures are not appropriate for a given age or
developmental area, it must also be allowed as an independent basis to determine eligibility.

South Dakota's policies and procedures state that, "Informed clinical opinion is used in
determining a child's eligibility." However, as stated in OSEP's monitoring report, "... providers
and service coordinators told OSEP that informed clinical opinion is not considered in

Page 3 - Ms. Barnett and Ms. Wounded Head
determining eligibility for Part C. If a child is not eligible according to the scores from an
evaluation protocol, the child would not be eligible for the early intervention program even if the
evaluator believed the child was in need of services." Early intervention staff determining
eligibility told OSEP that a child must be eligible according to the criteria of a test protocol, and
if the child did not demonstrate eligibility on the test, evaluators told OSEP the child would not
be eligible based on their clinical opinion. The evaluation protocol is the sole determiner of
eligibility in South Dakota according to the evaluators and, as they further stated, they did not
use informed clinical opinion in the determination of eligibility.
Informed clinical opinion is one of the separate criteria identified in the regulations as being
required to be used in an evaluation to determine eligibility, as well as the use of other
procedures as stated in w
The note following this regulation discusses the concern that
tests and protocols may not always be applicable. Many tests and protocols were not
standardized on the population of premature babies, and may not be appropriate to determine
levels of development and eligibility for these children. Therefore, other procedures, including
informed clinical opinion, are essential in determining eligibility for such a child. Another
example of a sub-population for whom standardized tests and protocols are insufficient
diagnostic criteria is the identification of young children with autism. Many children with
autism pass a standardized instrument at age two to three; however, unless evaluators used their
informed clinical opinion along with a standardized test, many of these children would not be
identified until more severe developmental problems were identifiable.
While the Part C regulations do not expand on the definition of informed clinical opinion, DECA
may want to contact NEC*TAS to obtain technical assistance on this topic. NEC*TAS
maintains a file of definitions and procedures other States have developed for the use of
informed clinical opinion in determination of eligibility for early intervention services. Several
States have also submitted to NEC*TAS procedures for the use of informed clinical opinion by
appropriately qualified personnel in their states.
3) Under Section III, Part C: Early Intervention Services in Natural Environments #2,
Failure to include all needed early intervention services on the IFSP (page 16), the report
states, "Early intervention services may include such services as the provision of respite and
other family support services." Section 303.12 of IDEA, Part C states that early intervention
services means 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." Please provide guidance on how the IFSP team would document that the
need for respite care was based on the developmental needs of the child and/or on the needs
of the family related to enhancing the child's development including how the team would
determine frequency and intensity.
Response
"Failure to include all needed Early Intervention Services on the IFSP," in Section III, B, 2 of
the Report includes the IFSP process in identifying and including early intervention services.
The determination of early intervention services needed by a child and family is an IFSP team
decision based on the multidisciplinary evaluation of each child, and the family-directed

Page 4 - Ms. Barnett and Ms. Wounded Head
identification of the needs of each child's family to appropriately assist in the development of the
child. The family assessment is not only family-directed, but must be designed to determine the
resources, priorities, and concerns of the family and the identification of the supports and
services necessary to enhance the family's capacity to meet the developmental needs of the child.
For example, the family assessment could show a need that the parents may be unable to assist in
the child's early intervention program due to overwhelming family demands, and may be in need
of respite services. In another example, the parent may have three children under the age of
three, and although services are provided in the home, the parent cannot participate in the early
intervention due to demands of the other children. Providing an in-home caretaker for the other
two children during provision of services to the eligible child allows the parent to participate in
early intervention services, receiving the information and training that can be used to enhance the
development of the child. With information from the family assessment, the IFSP team would
convene to determine services necessary to meet the needs of the child and the family to enhance
the child's development. However, respite is not intended to serve as child-care assistance in
ordinary circumstances. States and IFSP team members are expected to continue to exercise
judgement in identifying appropriate circumstances under which respite care is truly needed.
DECA may want to contact NEC*TAS for further assistance in the area of respite and other
family support services.
4) Under Section III. Part C: Early Intervention Services in Natural Environment, #5
Failure to include transportation as an early intervention service (page 19) the report states,
"Transportation as a service was found in only two of the 27 IFSPs reviewed by OSEP, and
this transportation was not for ongoing early intervention, but for a specialized evaluation
event." Earlier in the report South Dakota was commended on [its] effective training
program on natural environments and also encouraged to address additional training that the
home and child care settings are only two of the multitude of community settings that are
natural or normal for children birth to three. These statements and the regulations indicate
that the majority of early intervention services are provided in the home or other natural
settings. The service providers are traveling to these locations therefore, the parents are not
transporting the children to a location to receive the early intervention service. The need for
transportation as an early intervention service would be rare. We request clarification as to
what change is requested in this area.
Response
"Failure to Include Transportation as an Early Intervention Service" is a noncompliance finding
found under Section III, B, 5. Transportation was identified by parents and providers
interviewed as a need, and parents stated, "that neither the need for transportation nor
reimbursement costs were discussed during IFSP meetings." All of the needs of the family
related to obtaining early intervention services should be part of the discussion and decisionmaking process for development of an IFSP that would enable an eligible child and family to
obtain needed services. Information from OSEP's IFSP reviews and interviews with parents,
service coordinators and providers indicates that South Dakota will fund transportation for a
specialized event, but not ongoing provision of early intervention services, unless the parent
knows to request transportation for a service in a non-home location chosen by the IFSP team.

Page 5 - Ms. Barnett and Ms. Wounded Head

Even though a majority of services may be provided in the home or a child care setting, parents
and providers stated that, in general, as stated in the Report, "all of the parents interviewed in the
five areas OSEP visited stated that neither the need for transportation nor reimbursement costs
were discussed during IFSP meetings." The Report further states, "service coordinators in all
five areas visited stated that transportation was not addressed with every family, and in two areas
it is not addressed at all. In four of the areas visited service coordinators stated there is a need
for transportation, but it is not available, especially on reservations. Provision of services in the
home or child care settings could be a concern if the determination of natural environments for
each particular family has not been part of an IFSP team discussion or if these two locations are
the only two locations considered to be "natural environments."
We hope this response to your questions provides the necessary clarification.
Sincerely,

Patricia J. Guard
Acting Director
Office of Special Education Programs


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

MAY

3 2001

Honorable Kurt Knickrehm
Director, Arkansas Department of Human Services
P.O. Box 1437
Little Rock, Arkansas 72203-1437
Dear Mr. Knickrehrn,
Thank you for your letter of December 15, 2000 providing clarification as to some, and
requesting clarification of two, issues identified in the Office of Special Education Programs
(OSEP) Monitoring Report for Arkansas. We write to provide clarification on the two issues
requested under Part C of the Individuals with Disabilities Education Act (IDEA). You also
requested copies of certain documents (monitoring checklists and interview data documentation)
developed by OSEP during its monitoring to assist you in your improvement planning. These
documents have been sent to you under separate cover.
. You requested clarification regarding OSEP's concern about child find for the Hispanic
population in Arkansas. OSEP noted this issue as a suggestion for improvement in its
monitoring report because local staff in three areas of the State, Fayetteville, Hope, and
Helena expressed concerns to OSEP about identification of this population. In one area,
Fayetteville, local staff indicated it was a serious problem. Staff in all three areas told OSEP
that not all children in the Hispanic population were being identified. In Helena, staff told
OSEP they were unaware of materials or activities to reach the growing Hispanic
population, and in both Fayetteville and Hope, staff stated that there were not sufficient
materials or child find activities to reach families that speak another language or do not read.
OSEP appreciates the clarification you provided in your December 15, 2000 letter that
Arkansas' data indicate that Arkansas serves 3% of the Hispanic population. However we
are also aware that Arkansas' data indicate that there may be a higher percentage of children
eligible for early intervention than the State is currently serving. We commended in the
Monitoring Report the fact that Arkansas is one of the first States to analyze data to
determine the number of children that may be eligible.
Thus, OSEP's suggestion for improvement was intended to encourage Arkansas to review its
public awareness and child find activities to ensure that culturally appropriate materials and
activities are provided to all populations in the State, including the Hispanic population in
Hope.

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%

Page 2 - Honorable Kurt Knickrehm
. Your second request is regarding Part's C's eligibility criteria and the process through which
a child with a disability is determined to need specific services. At the risk of being
redundant but with the hope of providing clarification, we repeat below first your inquiry
and then the Part C statutory and regulatory requirements that are relevant to your inquiry.
Your letter stated that "25% [developmental] delay is not designed to be an 'eligibility
criteria,' but to indicate a 'documented need' for a specific instructional service, such as
physical, occupational or speech therapies."
Under Part C of the IDEA, States can establish initial eligibility criteria but do not set
additional criteria for individual services for a child who has already been determined to be
eligible under Part C. Indeed, under w167
and 635(a)(1) of the Federal Part C statute,
States have broad discretion in establishing eligibility definitions for developmentally
delayed children under Part C. However, once a child is determined eligible under Part C,
under w167
and (G), the State must provide all early intervention services necessary
to meet the developmental needs of the child and in conformance with an individualized
family service plan (IFSP).
It appears that Arkansas has exercised its discretion and established a specific percentage
threshold for the developmentally delayed category of children eligible under Part C.
Specifically, on page 12 of Arkansas' State Eligible Criteria and Procedures on file with the
Department, Arkansas' definition of "developmental delay" indicates that it includes
"children who have been diagnosed by a multidisciplinary team as having a significant delay
of 25% in one or more [developmental areas]." Thus, our records reflect that Arkansas has
submitted a definition of eligibility of developmental delay that requires that a child be at
least 25% delayed in order to be eligible. The statement from your December 15, 2000 letter
(repeated above), however, suggests perhaps that this may not have been intended as an
eligibility criterion; if that is the case, kindly update your policies and procedures to reflect
that Arkansas does not have a 25% developmental delay threshold. If Arkansas continues to
apply this eligibility definition, then there is no need to update this paragraph in the policies
and procedures on file with the Department, a copy of which is attached.
However, once a State has established the eligibility definition for developmentally delayed
children, the State cannot establish additional criteria for specific individual services.
Rather, under Part C, once a child is found to be eligible, the child must receive all services
necessary to address the child's developmental needs as identified during the evaluation and
assessment process and as listed in the IFSP. 20 U.S.C. {}w
and 1436(a); see also,
34 CFR w
and 303.344. Under w
of the Federal statute, the IFSP must
include a statement of the specific early intervention services necessary to meet the unique
needs of the child and family. See, also, 34 CFR w
If Arkansas is interpreting
the above paragraph (see attached page 12.2 of Arkansas' policies and procedures on file
with the Department) to require a child to meet a 25% delay in order to receive a specific
instructional service, then this provision must be deleted from its policies and procedures.
Rather, under the current eligibility criteria, a child who does not exhibit a 25% delay in one
or more developmental areas would not be eligible for any Part C services.

Page 3 - Honorable Kurt Knickrehm
Finally, we appreciate your clarification regarding Arkansas' Medicaid Waiver Programs and
your commitment to changing IFSPs to ensure that family outcomes are identified and addressed.
Regarding the Medicaid issue, OSEP's concern was based on comments from families who
expressed concerns that they were not informed about all of the programs that were available to
children and their families. Families may be confusing eligibility for a Medicaid program with
Part C or other State programs that provide assistance to children and their families.
We trust that our letter answers your questions and look forward to working with you and your
staff on your improvement plan to address the delivery of services to infants and toddlers under
Part C of the IDEA in the State of Arkansas. If you.have further questions in this area or would
like additional information, please contact Terese Lilly, OSEP's Part C State contact, at 202-2050151.
Sincerely,

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

STATE

ELIGIBLE

CRITERIA AND PROCEDURES

State Policy Concerning Definition of Developmental
(303.300) (303.161) (Attachment N)

Eligibility
Only infants and toddlers
experience

developmental

physical or.mental

(birth to 36 months)
delays;

a)

b) have a diagnosed

condition which has a high

p r o b a b i l i t y of resulting in a developmental
are eligible

who:

delay.

for Early Intervention Services.

D e f i n i t i o n of children who are experiencing
"Developmental Delays"

includes:

children who have

been diagnosed by a multidisciplinary team as having
a significant delay of 25% in one or more of the
following areas of development:
hearing,

physical

vision and health status),

c o m m u n i c a t i o n development,
tive development.

(including

cognitive,

social/emotional

Appropriate testing,

and adap-

observations,

and informed clinical opinion shall be used by
q u a l i f i e d personnel

to identify that a developmental

delay or disability exists which constitutes
eligibility

for the program and for services to

address the documented area of delay..
D e f i n i t i o n ,of children who have a diagnosed physical
or mental

condition which has a high p r o b a b i l i t y of

resulting in a development delay:
Includes infants and young children who have identifiable
conditions.

These conditions are identified b y d i a g n o s i s

by a licensed physician "who uses i n formed clinical opinion
to determine the existence of a condition h a v i n g a high
p r o b a b i l i t y of resulting in a developmental delay.
Examples of such conditions include, but are not limited
to l) Down's syndrome and other chromosomal abnormalities
associated with mental retardation;

2) congenital

syndromes and conditions associated with delays in
development

such as Fetal Alcohol Syndrome,

drug exposure,
macrocephaly

prenatal rubella,

severe microcephaly and

(3rd percentile or 97th percentile),

metabolic disorders,
subarachnoid,

Intracranial Hemorrhage

intraparenchymal,

syndrome,

malignancy or

anomaly of brain or spinal cord,

seizures disorder,

asphyxia,

neurological

brain infection;

{subdural,

and grade III

or IV intraperiventricular hemorrhages),
congenital

intra-uterine

spina bifida,

respiratory distress

disorder,

including brain trauma or

3) sensory impairments;

A c q u i r e d Immune Deficiency Syndrome

and 4) maternal

(AIDS).

These diagnosed conditions are likely to result in
significant

developmental delays simply by virtue of their

prognosis.

Therefore,

regulations,

children with diagnosed conditions such as

in accordance with federal

these are by diagnosis eligible for the Part C Program.
To receive

instructional

must be a specific

services through the p r o g r a m there

instructional

source area identified in

which a 25% delay has been determined.
Children

(birth to 36 months of age)

are evaluated

and a s s e s s e d for Early Intervention Services by
multidisciplinary

teams.

The composition of these teams

is d e c i d e d by the needs of the child being assessed
and his family,
measures

through non-discriminatory screening

and procedures,

and re-assessed continually.


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

Dear
A letter from Congressman Wayne T. Gilchrest your behalf was forwarded to the former
Assistant Secretary for the Office of Special Education and Rehabilitative Services,
Judith E. Heumann, for a response. In your February 2 I, 2000 letter to Congressman
Gilchrest and in your October 11, 1999, letter to former Assistant Secretary Heumann,
you expressed concern regarding the provision of special education and related services
by the Maryland State Department of Education (MSDE) under Part B of the Individuals
with Disabilities Education Act (Part B).
As you know, Mr. Michael F. Slade of my staff informed you over the telephone on
January 27, 2000, that the Department of Education had no authority to intervene in your
individual case, in which an Administrative Law Judge had issued a decision after a due
process hearing, on December 15, 1999, such a decision being final under the law. The
other concerns raised by you to Congressman Gilchrest, however, regarding the
consistency of Maryland Education Article 8-413(i) with 34 CFR w
and (e),
concerning reimbursement of private school tuition costs, are shared by OSEP.
OSEP has reviewed Maryland's Education Article 98-413(i) in the course of its review of
Maryland's statutes, regulations, policies and procedures to determine the State's
eligibility to receive a grant under Part B of the IDEA. See 34 CFR 99 300.110 and
300.133. OSEP is concerned that the Maryland statute may not use language concerning
limitations to reimbursement for private school tuition and the exceptions to those
limitations consistent with 34 CFR w
and (e). This issue is currently a subject
of discussion between OSEP and the MSDE as OSEP determines Maryland's eligibility
for a grant under Part B of IDEA. OSEP will continue to work with the MSDE to ensure
that Maryland's statutes, regulations, policies and procedures meet all requirements of the
IDEA in order for the State to receive its Part B funding.
We thank you for bringing this issue to our attention.
Sincerely,

Patricia J. Guard
Acting Director
Office of Special Education
Programs

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

APR 19 2001
Judith A. Douglas
Director, Due Process and Complaints
Virginia Department of Education
P.O. Box 2120
Richmond, VA 23218-2120
Dear Ms. Douglas:
This is a response to your letter dated January 5, 2001, requesting clarification of the
requirements to convene a due process hearing under the Individuals with Disabilities
Education Act (IDEA). In addition to your letter, additional documentation, including
copies of the eleven separate complaints referenced in your letter, was provided to the
Office of Special Education Programs. Specifically, you ask whether a State educational
agency (SEA) is required to convene a due process hearing when a parent challenges the
result of a special education State complaint finding that does not concern that parent's
child and when a parent is not representing a specific child with a disability. Your letter
also states that the complainant,
filed these eleven complaints
with the SEA, and now requests a due process hearing as an appeal to the findings of
each complaint.
The parent of a child with a disability or a public agency may initiate a due process
hearing on any matter relating to the identification, evaluation or educational placement
of a child with a disability, or the provision of a free appropriate public education (FAPE)
to the child. See 34 CFR w167
300.507. In other words, only the parent of a
child with a disability or the public agency is entitled to initiate a due process hearing
under the matters in section 300.503(a)(1) with respect to the specific child in question.
For purposes of clarification, however, not only a child's parent, but any organization or
individual, may file a signed written complaint with the SEA. Such a complaint must
include: (1) a statement that a public agency has violated a requirement of Part B of the
IDEA or its implementing regulations; (2) the fact(s) on which the statement is based;
and (3) an allegation of a violation that did not occur more than one year prior to the date
that the complaint is received 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 w
The State compliant procedures must be available for resolving any
complaint that meets the requirements of section 300.662, including: (1) complaints that
raise systemic issues, and (2) individual child complaints.

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Judith A. Douglas - Page 2
Parents may use (but are not required to use) the State complaint procedures, in addition
to the due process heating system, to resolve disagreements with public agencies over
any matter concerning the identification, evaluation, or educational placement of their
child, or the provision of FAPE to their child, as well as any other allegation that a public
agency has violated Part B of the IDEA.
Moreover, it is our understanding that i
s
a resident of
County
Virginia, where his child attends public school. However, none of the eleven complaints
filed by Mr. Brown regarding his child nor allege violations of the IDEA by the
County School District where his child attends school. In addition, we find nothing in the
information provided to indicate that
had authorization or parental consent to
advocate or represent individual children with disabilities with respect to the eleven
complaints. Although the IDEA provides the opportunity for anyone to file a written
complaint against a public agency that raises systemic issues, among other issues, under
the complaint provisions of the IDEA consistent with section 300.662, due process is not
available unless it relates to the child's identification, evaluation, or educational
placement or the provision of FAPE to the parent's child. Based on the information
reviewed by this office, it appears that the Virginia Department of Education would have
a basis for denying
request for a due process hearing. However, in
situations where there is any doubt about whether to convene a due process hearing, the
public agency should appoint the hearing officer and the heating officer should make a
determination regarding the disposition of the matter.
We hope that this information is helpful. If you need further information regarding this
matter, you may contact Claudia Brewster at 202-205-5578, Troy Justesen at 202-2059053, or JoLeta Reynolds at 202-205-5507.

Sincerely,

Patricia J. Guard
Acting Director
Office of Special Education Programs

CC:

Douglas Cox
Virginia State Director of Special Education


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

Honorable Rosa L. DeLauro
House of Representatives
Washington, DC 20515-3661

APR 16 2001

Dear Representative DeLauro:
This is in response to your letter on behalf of your constituent, Mayor Frederick L. Lisman of
Milford, Connecticut. In his letter, Mayor Lisman asks you to respond to issues raised in a
letter from John Fowler, Alderman in the City of Milford, regarding the "ramification of using
non-federal dollars" (from the City of Milford, Connecticut ) to help pay for special education
and related services for children with disabilities enrolled in private schools by their parents.
Under Part B of the Individuals with Disabilities Education Act (Part B of the IDEA), each
State and school district must make a free appropriate public education (FAPE) available to all
children with disabilities in the mandatory age ranges who reside in the State. The Office of
Special Education Programs (OSEP) within the Department of Education is responsible for
administering Part B of the IDEA.
If the public agency has made FAPE available to a child with a disability, and the parents
reject the offer of FAPE in favor of placing their child in a private school, Part B does not
require the public agency to pay for the child's education at that private placement. See 20
U.S.C. w1412(a)(10); 34 CFR w
Part B only requires a local educational agency
(LEA) to contribute on a specific proportionate formulaic basis toward the special education
and related services to children with disabilities whose parents place them in a private school.
20 U.S.C. w
In his letter, Alderman John Fowler indicated that "special education services to.private school
children are likely to be cut next year by two-thirds" in Milford due in part to "the belief that
providing services to private school children above the per-capita federal grant allocation may
expose the public school system to liabilities. . . . " The nature of the "liabilities" and the basis
of this belief are unclear from the letter but we read this as suggesting two possible
interpretations.
If the concern by the LEA is that children with disabilities may not be provided special
education and related services such as speech or occupational therapy in parochial private
schools, this is not correct. Under the U.S. Supreme Court decision in Zobrest, there is no
absolute prohibition under the First Amendment religious establishment clause of the U.S.
Constitution on providing such services in a parochial school environment. The attached five
OSEP policy letters also clarify some of the issues raised in the Zobrest decision: (1) 1993
Letter to Moore, 20 IDELR 1213; (2) 1993 OSEP Letter to Schmidt, 20 IDELR 1224; (3)
1994 Letter to McConnell, 22 IDELR 369; (4) 1994 Letter to Anonymous, 21 IDELR 745;
and (5) 1995 Letter to Anonymous, 22 IDELR 889.

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Page 2 - Honorable Rosa L. DcLauro

If the concern by the LEA is that it cannot pay for more than the minimum amount required
under the IDEA, that concern is incorrect. While it is true that effective with the IDEA
Amendments of 1997 and the regulations promulgated under it (which were effective as of
May 11, 1999), an LEA is not required to pay beyond a specific formula for children who are
parentally placed in private or parochial schools, it may choose to do so. Public agencies must
provide for participation in their special education programs for children with disabilities
placed in private schools by their parents in accordance with the requirements of Part B at
section 612(a)(10)(A). However, students with disabilities parentally placed at private schools
do not have an individual entitlement to services under Part B or the right to receive the same
services that they would be provided if educated in a public school program or placement.
Further, the Department's long-standing position is that public agencies are not required to
provide parentally placed students with disabilities with the full range of services under Part B.
However, to the extent consistent with the number and location of such children, special
education and related services must be made available for the children by the State, via the
local school districts, through expenditures that are equal to a proportionate amount of the
available funds under Part B. The formula used to meet this requirement is at 34 CFR
w
In determining the extent of participation of parentally placed private school
children with disabilities in special education programs conducted by the local school districts,
public agencies are obligated to consult with representatives of these students in considering
which private school students with disabilities will receive services, what services will be
provided, and how those services will be provided. See 34 CFR w
In his letter, Alderman Fowler stated that the city of Milford is currently providing more
services to children with disabilities who are placed in private schools by their parents than is
required under Part B. This is not prohibited under Part B, and is allowable at the option of
the State or local school district. There is nothing in Part B that would prohibit a school
system from using non-Federal dollars to provide special education services for children who
are parentally placed in private schools. Alderman Fowler also asked if there are any
additional liabilities to the City of Milford if Milford adds funds to the Federal funds available
under Part B to provide special education and related services to children with disabilities who
are parentally placed in private schools.
If in future years the City of Milford discontinued its funding, then the LEA may be required
to continue this level of non-Federal funding in the future (although it would not be required
to continue to spend the funds on private schools). The Part B "maintenance of effort"
requirement applies to LEAs. See 34 CFR w
To meet the Part B maintenance of
effort requirements, "the total or per capita amount from local funds only or the combination
of State and local funds budgeted by an LEA for expenditures in the current fiscal year for the
education of children with disabilities must be at least equal to the total amount or per capita
amount from local funds only or the combination of State and local funds actually expended
for the education of children with disabilities in the most recent preceding year for which
information is available." See 34 CFR w
l(c)
If the City of Milford were to provide the funds directly instead to parochial schools serving
children with disabilities or their parents rather than to the LEA, there may be other potential

Page 3 - Honorable Rosa L. DeLauro
legal constraints under the First Amendment religious establishment clause of the U.S.
Constitution and provisions under Connecticut's State constitutional or other laws. The U.S.
Supreme Court opinion in Mitchell v. Helms, incorporates the latest analysis on the First
Amendment clause of the U.S. Constitution.
Given the complexity of these issues, the City of Milford and Alderman Fowler should consult
with the city's legal counsel regarding the viability and ramifications of either option as to the
use of City funds to supplement Federal Part B funds for children with disabilities placed by
their parents in parochial schools.
I hope that this information is helpful in responding to Alderman Fowlers' concerns. I have
enclosed a copy of the Part B regulations, the Zobrest and Helms Supreme Court decisions,
and the OSEP policy letters that discuss application of the Zobrest decision for your and
Alderman Fowler's review. Please let me know if I can be of further assistance.
Sincerely,

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

o

o


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

APR 16 2001

Joseph Kinney
Kinney & Associates, Inc.
Chaucer Square,
1691 Rt. 9
Clifton Park, New York 12065
Dear Mr. Kinney:
This is in response to your letter written on behalf of Kinney & Associates, Inc. to former
director of the Office of Special Education Programs (OSEP) Dr. Thomas Hehir, regarding use
of Federal Medicaid funds to pay for required services under Part B of the Individuals with
Disabilities Education Act (Part B) for children with disabilities. Please excuse the delay in
issuing this response.
In your letter, you describe situations that you are aware of as a result of the management
services you provide to local educational agencies (LEAs) in accessing Federal health insurance
funds to pay for required services under Part B. You indicate that "States are successfully
shifting their financial responsibilities to LEAs and using Federal health insurance matching
funds to reduce their published financial commitment to special education programs. At the
LEA level this is increasing the demand for the local resources needed to support the special
education program." You indicate that you believe that State practices regarding Medicaid
payments are violating the IDEA prohibition on State-level supplanting (34 CFR w
responsibility of other agencies precede that of LEAs (34 CFR w
and the prohibition
on reducing the assistance available under other programs (34 CFR w
Essentially you
question whether States distributing to LEAs only a portion of the Medicaid reimbursement they
receive from the Federal government for services provided through the LEAs is a violation of the
IDEA.
We agree that public agencies, which are responsible for ensuring that services are provided at
no cost to parents, need the ability to access all available public sources of support to pay for
required services under these regulations. A number of provisions of the IDEA, including those
mentioned in your letter, are aimed at maintaining funding for special education and related
services. However, we do not see any of the provisions you mentioned as controlling in the
circumstances you describe.
Section 300.153 prohibits using IDEA funds to supplant the level of Federal, State and local
funds expended for special education and related services. This provision would only be

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Page 2 - Mr. Joseph Kinney

implicated with regard to those Federal Medicaid reimbursement funds that were spent for
special education and related services. In the situation you describe, the Medicaid funds are not
spent for special education and related services, but are retained at the State for other purposes.
Although w
establishes that the financial responsibility of other agencies precedes that
of LEAs, w
provides that proceeds from public and private insurance, such as
Medicaid reimbursements, will not be treated as program income, that is, are not required to be
spent for IDEA program purposes. Finally, w
stands for the principle that other agencies
may not use the availability of services under IDEA to reduce medical and other assistance to
children with disabilities. That is not our understanding of the practice you write about.
There remains the question whether the practice you describe is consistent with Medicaid
requirements. We note that the General Accounting Office's recent investigation of Medicaid in
schools questioned whether the practice of States retaining Medicaid reimbursements for schoolbased services was consistent with Medicaid requirements. "Medicaid in Schools", April, 2000
GAO/HEHS/0SI-00-69, pp. 31-36. However, you should consult with the Health Care Financing
Administration of the Department of Health and Human Services for assistance with your
questions regarding the Medicaid requirements.
We hope that you find this explanation helpful.
Sincerely,

Patricia J. Guard
Acting Director
Office of Special Education
Programs


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

APR 16 2001

Linda L. Harant
Deputy County Attorney
Office of the Pinal County Attorney
Civil Division
P.O. Box 887
Florence, Arizona 85232
Dear Ms. Harant:
This is in response to your letter to Kenneth R. Warlick, former Director of the Office of Special
Education Programs (OSEP), written on behalf of school districts and schools in the Pinal
County Special Education Consortium and other schools in Pinal County serving Indian children
residing on reservations. Your specific inquiry concerns whether the regulations implementing
Part B of the Individuals with Disabilities Education Act (Part B), at 34 CFR w
governing the appointment of surrogate parents are applicable to public agencies responsible for
ensuring the provision of a free appropriate public education (FAPE) to these children. Under
Part B, a public agency must ensure that the rights of a child with a disability are protected if (1)
no parent, as defined at 34 CFR w
can be identified; (2) the public agency, after
reasonable efforts, cannot discover the whereabouts of a parent; or (3) the child is a ward of the
State under the laws of that State. 34 CFR w
If any of these situations is present, the
"duty" of the public agency includes the assignment of an individual to act as a surrogate for the
parents. The public agency must have a method for determining whether a child needs a
surrogate parent and for assigning a surrogate parent to the child. 34 CFR w
As we understand your specific inquiry, since a tribal government is not included in the
definition of State applicable to Part B of IDEA as defined by the regulation at 34 CFR w
you question whether a surrogate parent would need to be appointed if a child is made a ward of
a tribal court. As you point out, because of the absence of a reference to tribal government in the
definition of the term State in the Part B regulations, a child who is a ward of a tribal court is not
considered a ward of the State under 34 CFR w
However, this is not a sufficient
basis for relieving the public agency of its responsibility of ensuring that the rights of the
children described in your inquiry are protected through the appointment of a surrogate parent if
the appointment is deemed appropriate. As noted above, under 34 CFR w
a public
agency must also ensure that the rights of a child are protected if no parent can be identified or
the public agency, after reasonable efforts, cannot discover the whereabouts of a parent. In cases
where the child is a ward of the tribal court and the parent's right to make educational decisions
has been terminated or transferred by the tribal court to another individual, the public agency
must determine whether a parent as defined at 34 CFR w
can be identified.

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Page 2 - Linda L. Harant
According to your letter, a child's wardship status results in the child's being in the custody, care
and control of a tribal social services agency. Physical custody may be given to an individual,
often a relative of the child. The courts usually give authority to make medical and educational
decisions either to the individual into whose physical care the child is given, or for those students
who are placed in a facility operated by the social services agency, to an identified agency
caseworker. In both these situations, it appears that the parent's right to make educational
decisions has been terminated. If no parent can be identified, it is Pinal County's responsibility
to ensure that the surrogate parent requirements at 34 CFR w
are met. Nothing in Part B
prevents Pinal County from assigning the individual selected by the tribal court to make
educational decisions for the child to act as a surrogate parent assuming that individual meets the
criteria in 34 CFR w
In addition, nothing in Part B prevents the public agency from
appointing an individual who is a member of the child's Indian tribe as a surrogate parent
assuming that person meets the criteria set out in 34 CFR w
For those children in the physical custody of an individual such as a relative, who has authority
to make medical and educational decisions for the child, the public agency may determine that a
surrogate parent is not needed. In determining whether the surrogate provisions of Part B are
applicable, a public agency must ascertain, as a threshold matter, whether a parent, as defined at
34 CFR w
can be identified. Under the Part B definition of parent, parent means:
(1)
(2)
(3)

A natural or adoptive parent of a child;
A guardian but not the State if the child is a ward of the State;
A person acting in the place of a parent (such as a grandparent or stepparent with
whom the child lives, or a person who is legally responsible for the child's welfare); or
(4) A surrogate parent who has been appointed in accordance with w
34 CFR w

Paragraph (b) explains further that a State may allow foster parents to act as parents under Part
B, unless State law prohibits them from doing so, but the following conditions must be satisfied.
The natural parent's authority to make educational decisions on the child's behalf must be
extinguished under State law. 34 CFR w
The foster parent must have an ongoing,
long-term parental relationship with the child, must be willing to make educational decisions
required under Part B, and must have no interest that would conflict with the interests of the
child. 34 CFR w
As explained in the comments and responses on the proposed
regulations in the Analysis of Comments and Changes to the final Part B regulations, published
as Attachment 1, at 64 Fed. Reg. at 12616:
In situations where a child who is a ward of the State has a foster parent who meets the
definition of parent in w
and the foster parent is acting as the parent, the public
agency should determine if there is a need for a surrogate parent, and whether further
steps are necessary to ensure that the rights of the child are protected. In most cases
where the foster parent meets the definition of a parent and is acting as the parent, there
would be no need to appoint a surrogate, unless the agency determined that in the
particular circumstances of the case a surrogate was necessary to ensure that the rights of
the child were protected.

Page 3 - Linda L. Harant
If the child is a ward of the tribal court and the individual with whom the child is living does not
fit within the definition of a "parent", the public agency then would need to appoint a surrogate
parent. If the child is a ward of the tribal court and placed in a facility operated by the social
services agency, the public agency would need to determine whether the child needs a surrogate
parent and to assign an individual to act as a surrogate if one is needed.
Section 300.515(c) of the Part B regulations sets out the criteria for selection of surrogates. In
general, paragraph (c)(2)(i) provides that, except under paragraph (c)(3), the person selected as
surrogate may not be an employee of the SEA, the LEA, or any other agency that is involved in
the education or care of the child. 34 CFR w
However, under paragraph (c)(3),
a public agency may select as surrogate "a person who is an employee of a nonpublic agency that
only provides non-educational care for the child and who meets the standards in paragraphs
(c)(2)(ii) and (c)(2)(iii) of this section." Under these criteria, the person selected as surrogate
must have "no interest that conflicts with the interests of the child he or she represents" and
"knowledge and skills that ensure adequate representation of the child." 34 CFR
w
Therefore, it may be possible for a designated employee at the social
service agency, if that social service agency is a nonpublic agency that only provides noneducational care for the child, to be appointed as the child's surrogate parent if that individual
meets the criteria in 34 CFR w
We hope that you find this explanation helpful. If we can be of further assistance, please contact
Dr. JoLeta Reynolds of OSEP at (202) 205-5507 or Sarah Willis, the BIA Part B State contact in
the Monitoring and State Improvement Planning Division, at (202) 205-8658.
Sincerely,

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

Dr. Angelita Felix, Director
Bureau of Exceptional Education, BIA
Lisa Graham Keegan, Superintendent of Public Instruction
Arizona Department of Education