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

JUL 30 2002

Thank you for taking the time to meet with Mr. Thomas Irvin, Ms. Judith Gregorian, and
Ms. Angela Herring on Wednesday, April 10, 2002. During your visit my staff had the
opportunity to meet
who
had received Part C Early Intervention
Services through the Washington State Early Intervention System and the Children's Therapy
Center. It is our understanding that your experience with early intervention program was a
positive one, and you are seeking written clarification on the natural environments provision in
Part C of the Individuals with Disabilities Education Act (IDEA).
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 a 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 the 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 toddler 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 (20 USC §§1432(4)(G) and 1435(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 (20 USC §1436(d)(5)). "Natural environments" means settings that are natural or
normal for the child's age peers who have no disability (34 CFR §303.18).
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
needs of the young child and his or her family. After careful evaluation of the young 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 the
services are to be provided, and who will pay for these services. The discussion of, and decision
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Page 2
about, the location of any service takes place in the context of the IFSP meeting. In all instances,
supports and services are to be determined based on the individual needs of the child.
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 the 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 statement 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.
My staff works closely with Ms. Sandy Loerch, the early intervention coordinator in the
Washington State Department of Social and Health Services, who is responsible for the
implementation of early intervention, to provide guidance on the Federal requirements governing
Part C of IDEA. We are available to continue to provide technical assistance in support of
Washington State's early intervention efforts.
Thank you for bringing your concerns to our attention. Please feel free to contact Ms. Angela
Herring, the OSEP early intervention contact for Washington State at (202) 260-8640, if you
have further concerns.
Sincerely,

Stephanie S. Lee
Director
Office of Special Education Programs
cc: Ms. Sandy Loerch
Part C Coordinator


UNITED STATES DEPARTMENT OF EDUCATION
OFFICE OF MANAGEMENT

JUL 29 2002
Honorable C. L. "Butch" Otter
Member, House of Representatives
802 W. Bannock, Suite 101
Boise, Idaho 83702
Dear Mr. Otter:
This is in response to your July 11, 2002, letter to former Assistant Secretary Rebecca
Campoverde, on behalf of your
constituent.
In
his July 10, 2002, letter to
you,
raises several questions about the Family Educational Rights and Privacy Act
(FERPA) and the Individuals With Disabilities in Education Act (IDEA), particularly with
regard to limitations on "the right of parents to obtain a copy of records concerning [a child] and
his parents from a public school." I have been asked to respond to the portion
of
letter regarding FERPA because this Office administers FERPA. Because IDEA has some
requirements that are not found in FERPA, which in some cases may afford rights to special
education parents that are not afforded by FERPA, the Department's Office of Special Education
Program (OSEP) will respond to his IDEA questions by separate letter.
Specifically,
asked if FERPA and IDEA require schools to provide parents with
copies of education records, if schools must provide parents with "subsets" of records upon
request, if schools must provide parents an "attestation/affidavit" regarding the records, if "sole
possession records" become "education records" once released, if records concerning parents
must be made available to them upon request, and if FERPA prohibits a representative with
consent from the parent from inspecting and reviewing education records without the parent
accompanying him or her. The applicability of FERPA to these issues is explained below.
FERPA protects the privacy rights of parents in their children's "education records." It applies
to educational agencies or institutions that receive federal funds under any program administered
by the Secretary of Education, including IDEA. In particular, FERPA gives parents the right to
inspect and review their children's education records, the right to seek to have the records
amended, and the right to have some control over the disclosure of information from the records.
20 U.S.C. § 1232g; 34 CFR Part 99. FERPA provides that a parent must provide a signed and
dated written consent before an educational agency or institution may disclose personally
identifiable information from a student's education records, except under conditions specified by
statute. 34 CFR § 99.31.

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Page 2 - Honorable C. L. "Butch" Otter

The term "education records" means those records that are:
1. Directly related to a student; and
2. Maintained by an educational agency or institution or by a person acting for the
agency or institution.
34 CFR § 99.3 "Education records." Clearly, records on a student receiving services under
IDEA are "education records" under FERPA.
FERPA requires that educational agencies and institutions provide parents the opportunity to
inspect and review the student's education records within 45 days after receipt of a request. 34
CFR § 99.10(b). A school is required by FERPA to provide copies of education records if a
failure to do so would effectively prevent the parent from exercising the right to inspect and
review the records. 34 CFR § 99.10(d). For example, a school could be required to provide
copies if the parent does not live within commuting distance of the school. In such a case, the
school must provide a copy of the education records or make other arrangements in accordance
with FERPA. An example of a permissible arrangement would be for the school to send the
records to a school near to the parent. The parent could then go to that school to inspect and
review the records. Further, FERPA does not contain any provision that prohibits an educational
agency or institution from providing copies of education records to a parent.
FERPA does not require schools to create or maintain education records, or to re-create lost or
destroyed education records. However, an institution may not destroy education records if there
is an outstanding request to inspect and review the records. 34 CFR § 99.10(e). FERPA does
not otherwise address the destruction of education records by an institution.
described a situation where an institution provides a parent with access to or copies
of a large number of education records, and the parent then requests that the school arrange the
records in "subsets" consisting of some criteria described by the parent. He asked whether
FERPA requires the school to organize the records into the "subsets." Additionally,
asked
whether FERPA requires an institution to provide to a parent various
attestations concerning the records it provides. He cited examples such as attesting that no
records have been destroyed as of a given date, that the records were received from specific,
named locations, or that the institution certifies that it provided the records in full compliance
with FERPA.
Generally, an institution is required to conduct a reasonable search for the education records
requested. If a parent makes a "blanket" request for a large portion of a child's education records
and the parent believes that he or she has not been provided certain records that were
encompassed by that request, the person should submit a follow-up request clarifying the
additional records that are needed. While an institution is obligated to make a reasonable effort

Page 3 - Honorable C. L. "Butch" Otter

to provide the records requested, FERPA does not require the institution to organize the records
it provides in a manner specified by the parent. In addition, FERPA does not require an
institution to provide any attestations regarding education records.
asked
about "sole possession records" under FERPA. Exempted from the
definition of "education records" and, thus, from the protection of FERPA, are records that are
kept in the sole possession of the maker of the record and are not accessible or revealed to any
other person except a temporary substitute for the maker of the record. 34 CFR § 99.3(b)(l)
"Education records." Once the contents or information recorded in a sole possession record is
disclosed to any party other than a temporary substitute for the maker of the record, that record
becomes an "education record" under FERPA. Generally sole possession records are of the
nature of informal "memory jogger" notes.
asked
whether a record held by a school that concerned a parent would be an
"education record" covered by FERPA. FERPA prohibits the disclosure of "personally
identifiable information" from a student's education records. Section 99.3 of the FERPA
regulations defines "personally identifiable information" as information that includes but is not
limited to:
(a)
(b)
(c)
(d)
(e)
(f)

the student's name;
the name of the student's parent or other family member;
the address of the student or the student's family;
a personal identifier, such as the student's social security number or student
number;
a list of personal characteristics that would make the student's identity easily
traceable; or
other information that would make the student's identity easily traceable.

Thus, records maintained by a school that contain information regarding a student's parent or
other family members would be considered "education records" protected by FERPA.
Finally,
asked whether FERPA prohibits a person who has written authorization
from a parent from inspecting and reviewing education records. Under FERPA, an educational
agency or institution may permit a representative of a parent, or any other person, with written
consent from the parent to inspect and review the child's education records, but such a disclosure
is not required. Under FERPA, the only individual a school is required to provide an opportunity
to inspect and review information is a parent. Therefore, a school may, under FERPA, refuse to
allow a third party, even with consent, access to a student's education records. There may be
different requirements under IDEA regarding this issue, which will be addressed in the letter
from OSEP.

Page 4 - Honorable C.L. "Butch" Otter

I trust that the above information is helpful in explaining the scope and limitations of FERPA it
relates to
concerns. Should you or your constituent have further questions about
FERPA, please do not hesitate to contact this Office directly. The address is as follows:
Family Policy Compliance Office
U. S. Department of Education
400 Maryland Avenue, SW
Washington, D.C. 20202-4605
Sincerely,

LeRoy
S. Rooker
Director
Family Policy Compliance Office
Stephanie Lee
Director, OSEP


UNITED STATES DEPARTMENT OF EDUCATION

OFFICE OF MANAGEMENT

JUL 18 2002

This is in response to your November 30, 2001, correspondence to this Office in which you
allege that rights afforded you under the Family Educational Rights and Privacy Act (FERPA)
were violated by the
(District). You allege that the District:
(1) improperly destroyed a portion of
(Student)
education records without
your consent; (2) did not provide you the exact date of destruction of those records in response to
your request; (3) improperly requested and received information from the Student's primary care
physician and/or a non-District counselor; (4) improperly refused your request to remove
information from the Student's education records concerning the Student's physical and mental
health, and (5) misled you concerning education records maintained by the Special Programs
Office. This Office administers FERPA, which addresses issues pertaining to education
records. Other issues as you raise them, including the "privacy and confidentiality rights of
other family members" and possible violations of the Washington Administrative Code (WAC)
or Revised Washington Code (RWC) by the District, are not addressed by FERPA and will
not be discussed in this letter.
FERPA is a Federal law which gives parents the right to have access to their children's
education records, the right to seek to have the records amended, and the right to have some
control over the disclosure of information from the records. When a student turns 18 years of
age or attends an institution of postsecondary education, the student becomes an "eligible
student" and all FERPA rights transfer to the student. 34 CFR ยง 99.3. FERPA defines
"education records" as "those records, files, documents, and other materials which (i)
(ii)

contain information directly related to a student; and
are maintained by an educational agency or institution or by a person acting for
such agency or institution.

20 U.S.C. 1232g(a)(4)(i) and (ii).

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Page 2This Office investigates those timely complaints containing specific allegations of fact giving
reasonable cause to believe that a violation of FERPA has occurred. A timely complaint is one
that is submitted to this Office within 180 days of the alleged violation or of the date that the
complainant knew or reasonably should have known of the alleged violation. As such, any
allegations that your rights under FERPA were violated under circumstances about which you
were aware over 180 days prior to the date you contacted this Office do not meet the threshold
requirement on timeliness.
Your allegations pertain to several general areas and are discussed below in those categories.
Destruction of records
You allege that the District violated FERPA (1) when it improperly destroyed a portion of the
Student's education records, and (2) when it did not inform you of the date on which those
records were destroyed.
FERPA does not require schools to create or maintain education records, or to re-create lost or
destroyed education records. FERPA would not require a school district to honor a request
that education records not be destroyed, although the Individuals with Disabilities Education
Act (IDEA) or the state laws of Washington may contain such a requirement. However, a
school may not destroy education records while there is an outstanding request to inspect and
review the records. A school or district is permitted to destroy records at any other time, and
FERPA does not require that a parent be notified prior to record destruction. FERPA does
not otherwise address the destruction of education records by a school. There is no FERPA
requirement that a parent be informed of the destruction date of education records.
Based on the information you provided, it appears that the District destroyed the test protocols
and other parts of the school psychologist's file prior to your October 2001 request for access
to those records. As stated above, neither the prior destruction of education records nor a
failure to provide you an exact destruction date of the disputed records represents a FERPA
violation. Accordingly, there is no basis at this time for this Office to initiate an investigation
of these allegations.
If you wish us to further consider an allegation that these education records were destroyed
while your October 2001 access request was pending, you need to provide us with evidence to
support your belief that the education records existed at the time you made your request. Such
evidence might be a signed statement of an independent third party verifying his or her
personal knowledge of destruction of the records at a time later than your access request.

Page 3 -

Improper Creation and Retention of Records
You allege that the District violated FERPA (3) when it improperly received information from
the Student's primary care physician and other third parties to create education records, and
(4) when it refused to remove information concerning the Student's physical and mental health
from the Student's education records at your request.
FERPA applies to educational agencies and institutions that receive funding under a program
administered by the U.S. Department of Education. Personal medical agencies or providers are
not subject to FERPA, and FERPA does not apply to records maintained by those agencies or
providers. FERPA does not prohibit a school or district from gathering information and records
from any source and including such information in a student's education records.
FERPA does not prohibit a school from creating education records, or from modifying those
records that it maintains. FERPA is not intended to be a vehicle for appeals of decisions about a
student or a student's status, nor is it intended to interfere with decisions made by a school
regarding what types of records or information it believes it should maintain. FERPA does not
generally require a district to remove information or documents from a student's education
records in response to a parent's request.
Based on the information you provided, it appears that the practices you describe comply with
FERPA's requirements. Accordingly, there is no basis for this Office to initiate an investigation
of these allegations. Allegations that the District violated State law are best made to the
appropriate office of your State government.
Misleading Information Concerning Records Handling and Storage
You allege that the District violated FERPA (5) when it misinformed you concerning the records
handling and storage practices of the Special Programs Office. You state that you were unaware
that psychologist files were maintained in various school buildings throughout the District and
kept separately from other education records in the Special Programs Office.
FERPA does not require that education records be kept in a particular file or location so long as
the records are treated in accordance with FERPA without regard to the location of the records.
FERPA also does not require that a District provide you with a list of personally identifiable
information maintained on the Student, or that the District notify you of the locations in which
education records are stored, although IDEA may contain such requirements. Although IDEA is

Page 4
a Federal statute, the States administer it. Thus, you may want to contact the division that
administers IDEA in your State. The address is as follows:
Dr. Douglas Gill, Director
Special Education
Office of Superintendent of Public Instruction
Old Capitol Building
PO Box 47200
Olympia, Washington 98504-7200
Based on the information you provided, it does not appear that the District failed to comply with
FERPA's requirements when the Student's education records were maintained outside the
Special Programs Office. Accordingly, there is no basis for this Office to initiate an investigation
of this allegation. Allegations that the District violated State law are best made to the appropriate
office of your State government.
I trust that the above information is helpful in explaining the scope and limitations of FERPA as โข
it relates to your concerns. Also, we are returning your letter of November 30, 2001, and
enclosures as they may be useful to you in the future.
Sincerely,

LeRoyS.Rooker
Director
Family Policy Compliance Office

Enclosures
cc:

Stephanie S. Lee, Director
Office of Special Education Programs


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

JUN 2 7 2002
Dr. Anthony E. Sims
Director of Special Education
Specialized Support Programs
Illinois State Board of Education
100 N First Street, Room N243
Springfield, Illinois 62777-0001
Dear Dr. Sims:
a letter to Senator Peter G. Fitzgerald, in which she raised issues
regarding the Illinois State Board of Education's (ISBE's) response to a complaint that she had
filed regarding extended school year services for her child. Senator Fitzgerald forwarded that :
letter to Assistant Secretary Rebecca O. Campoverde, Office of Legislation and Congressional
Affairs, and asked that the Department of Education respond directly to
He r letter
has been referred to the Office of Special Education Programs for a response.
In reviewing documentation relevant to
letter, we reviewed a letter dated July 10,
2001 (copy enclosed) from ISBE's Special Education Compliance Division setting forth ISBE's
decision on c o m p l a i n t .
In that letter, ISBE concludes that it was not inconsistent
with the requirements of Part B of the Individuals with Disabilities Education Act (Part B) for
the school district to charge parents a $15 materials fee for students receiving extended school
year services. ISBE's letter indicates that it based its decision on the provisions of 34 CFR
ยง300.26(b)(1), which provides that, "At no cost means that all specially-designed instruction is
provided without charge, but does not preclude incidental fees that are normally charged to
nondisabled students or their parents as a part of the regular education program." ISBE noted
that the district charged a $15 materials fee to nondisabled students attending summer school.
As required by Part B at 34 CFR ยง300.309, if extended school year services are necessary in
order to ensure that a child with a disability receives a free appropriate public education, the
public agency must include such extended school year services in the child's individualized
education program (IEP) and must provide them at no cost to the parents. Although, as provided
at 34 CFR ยง300.26(b)(1), the Part B "at no cost" requirement does not "preclude incidental fees
that are normally charged to nondisabled students or their parents as a part of the regular
education program, " i t would be inconsistent with the requirements of 34 CFR ยง300.309 for a
public agency to charge parents a fee for extended school year services if summer school
services, for which incidental fees are charged, are not a part of the extended school year services
provided to the student.

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Page 2 - Dr. Anthony Sims

Please review ISBE's decision and, to the extent that it is not consistent with this letter, please
revise the decision and take appropriate action to ensure that the district corrects any
noncompliance.
If you have any questions regarding this letter, please contact Lawrence Ringer or Cynthia
Bryant of my staff.
Sincerely,

Stephanie S. Lee
Director
Office of Special Education Programs


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

JUN 2 7 2002
By Overnight Delivery
Dina O. Harris, Esq.
John F. Walsh, Esq.
Best Best & Krieger LLP
402 West Broadway, 13th Floor
San Diego, California 92101-3542
Kacey Gregson
Assistant Attorney General
1275 West Washington, ACD/EHS
Phoenix, Arizona 85007

Re:

In the Matter of ABC Alternative Learning Center d/b/a Central City
Academy v. State of Arizona, Arizona State Superintendent of Public
Instruction, and Arizona Department of Education (IDEA-B Appeal)

Dear Counsel:
Enclosed please find a copy of the decision of the Assistant Secretary of Special
Education and Rehabilitative Services in the above-referenced matter.
Sincerely,

Stephanie S. Lee
Director
Office of Special Education Programs

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***************************************

IN RE APPEAL OF

*

ABC Alternative
Learning
Center

*
*

d/b/a

*

Central

City

Academy

DECISION

I.

*

OF THE A S S I S T A N T

SECRETARY

INTRODUCTION.
The A B C A l t e r n a t i v e

charter

school

educational
States

agency

Department

(SEA's)

Learning

operating

§ 76.401(d) (5),

the

IDEA-B Appeal

decision

Individuals

(LEA)

in the

State

-- has

appealed

of E d u c a t i o n

the A r i z o n a

(ED),

from ABC

Disabilities

20 U.S.C.

§ 1411

- 1420. 1

decision

in this m a t t e r

We have

(ABC)

-- a p u b l i c

of A r i z o n a
to the

pursuant

Department

to w i t h h o l d
with

Center

as a local
United

to

of E d u c a t i o n ' s
funds

under

Education

Act

concluded

that

is s u p p o r t e d

34 C.F.R.

by

Part

B of

(IDEA-B),
the

SEA's

substantial

1 R e s p o n s i b i l i t y for appeals under 34 C.F.R. § 76.401(d) (5) that involve
IDEA-B has been d e l e g a t e d to the Assistant S e c r e t a r y for Special
Education and R e h a b i l i t a t i v e Services (Assistant Secretary).

evidence

and c o n s i s t e n t

with

implementing

regulations.

was n e c e s s a r y

to e n s u r e

public

education

compliance

with

(FAPE)
the

to a c o m p l a i n t

therefore,

is a f f i r m e d .

II.

PROCEDURAL
This

education
with

AND

appeal

disabilities

under

IDEA-B

the

however,

is r e s p o n s i b l e

children
their

with

parents,

34 C.F.R.
The
education

retain

under

at ABC. 2

chiidren

and

34 C.F.R.

all

The

appropriate
and

issued
SEA's

decision,

As

to a s t u d e n t

a charter

to r e c e i v e

school
funding

disabilities

related
that

all

charter

rights

under

it

services.

ABC,

requirements

§ 300.312(b).

attending
their

of s p e c i a l

IDEA-B

with

for e n s u r i n g

disabilities

decision

disabilities

Findings

the p r o v i s i o n

education

are met.

SEA's

BACKGROUND.

is e l i g i b l e

for the

special

of

investigation.

ABC

with

IDEA-B

Letter

services

provides

of the

the

with

enrolled

as an LEA,

Specifically,

its

to a s t u d e n t

concerns

operating

and

of a free

FACTUAL

and r e l a t e d

IDEA-B

the p r o v i s i o n

SEA's

pursuant

the

Similarly,

schools,
the

and

IDEA-B.

§ 300.312(a).
Student
due

was

determined

to a s p e e c h

and

to be e l i g i b l e

language

for s p e c i a l

impairment

coupled

2 During the administrative proceedings conducted by the SEA, the
parties agreed that, because the student is a minor, the student's
identity would be protected.
To accomplish that purpose, the student
was referred to as "Student" and the father of the Student was referred
to as "Father." That practice will be followed in this Decision.

with a s p e c i f i c learning d i s a b i l i t y in reading,
language.
A.R.]

Exhibit

1 to the A d m i n i s t r a t i v e

at page I, p a r a g r a p h 3.

Hearing D e c i s i o n and Order
issued on July 26,

math,

Record

An Impartial

and

[Ex. 1 to

Due Process

(Due Process H e a r i n g

Decision)

1999 r e q u i r e d ABC to p r o v i d e

the Student

with a c o m p e n s a t o r y c o m m u n i c a t i o n s p r o g r a m and o c c u p a t i o n a l
therapy and enroll the Student

in a c o m m u n i c a t i o n s p r o g r a m

c o n s i s t e n t with the Student's

individualized education

program

(IEP) on or before A u g u s t

13,

1999.

This

c o m m u n i c a t i o n s p r o g r a m was to be p r o v i d e d at a site other
than ABC b e c a u s e of ABC's i n a b i l i t y to d e v e l o p
p r o g r a m in a timely manner.

Id. at pages

The A r i z o n a Office of A d m i n i s t r a t i v e

such a

1-2, p a r a g r a p h

Hearings

and Appeals

a f f i r m e d this Due Process h e a r i n g d e c i s i o n o n N o v e m b e r
1999.

Exhibit 2 to AR at page

13.

ABC,

4.

however,

comply with the Due Process H e a r i n g D e c i s i o n ' s

29,

did not

order to

place the student in a c o m m u n i c a t i o n s p r o g r a m at a site
other than ABC.
Subsequently,

Exhibit

1 to AR at page 2, p a r a g r a p h

in M a r c h 2000,

the Student was p l a c e d at

Summit E l e m e n t a r y Charter School
his parents.
On M a r c h
pursuant

Id. and Exhibit
17,

2000,

to 34 C.F.R.

6.

(Summit)

at the request of

3 to AR at page

the S t u d e n t ' s parents

§ § 300.660 - 300.662,

6.
filed,
a formal

c o m p l a i n t with the SEA that a l l e g e d that ABC had failed to

comply with the Due Process decision.
page 2, p a r a g r a p h

7.

Exhibit

Based on that complaint,

i n v e s t i g a t e d the parent's a l l e g a t i o n s
2000,

and,

issued a Letter of Findings to ABC.

The SEA concluded,

among other things,

complied with the Due Process H e a r i n g

1 to AR at
the SEA

on N o v e m b e r
Exhibit

30,

3 to AR.

that ABC had not
Decision's

order to

place the Student at a c o m m u n i c a t i o n s p r o g r a m at a site
other than ABC.
a contractual

Id. at 2-7.

ABC was r e q u i r e d to w o r k out

a r r a n g e m e n t with Summit

compensatory educational

for p r o v i d i n g

services to the Student.

and Summit could not agree on the a m o u n t of payment
services to the Student,

services p r o v i d e d to the Student

On June 20,
Withhold

Funding

2001,

from March

school year.

from ABC because,

Exhibit

Summit for
8, 2000 until

Id. at 12.

the SEA issued a N o t i c e of Intent to

not p r o v i d e d any payment to Summit
the Student.

for those services.

ABC was r e q u i r e d to c o m p e n s a t e

the end of the 2000-2001

for

ABC was o r d e r e d to r e i m b u r s e

Summit at a rate of $2,500 per m o n t h
In addition,

If ABC

1 to AR.

as of that date,

ABC had

for services p r o v i d e d to

A B C ' s appeal of this N o t i c e

was heard by a three m e m b e r - h e a r i n g panel a p p o i n t e d by the
Arizona

S u p e r i n t e n d e n t of Public Instruction.

Department

of E d u c a t i o n H e a r i n g A p p e a l

Decision at 1 (August 21,

2001).

Panel

On August

Arizona
Proposed

21,

2001,

the

hearing panel

issued a proposed decision

Notice

of Intent to W i t h h o l d

at 14.

The Arizona

Instruction
24,

2001.

Arizona

State

has appealed

Funding

State Superintendent

accepted
August

IDEA-B

that recommended

24,

2001 Letter

Superintendent
this decision

that upheld the
from ABC.

Id.

of Public

decision

on August

of Jaime A. Molera,

for Public

Instruction.

ABC

to ED.

III. ANALYSIS
The Education
Regulations

Department

(EDGAR)

fact in a decision

provide

that the State's

to withhold

by substantial

evidence.

order to meet

the substantial

such relevant

evidence

adequate

to support

Camera Corp.
(citations
State's

omitted).

to Federal

the applicable

this case.
education
Exhibit

See,

340 U.S.

test,

statutes

e.g.,

474,

477

services

A Due Process

accept

as

(1951)
the

only if it is

or regulations

34 C.F.R.

In

Universal

under EDGAR,

that govern

§ 75.401(d) (6) (ii).

are in basic agreement

and related

of

there must be

mind might

is to be o v e r t u r n e d

ABC is responsible

8 to AR.

§ 76.401(d) (5).

evidence

Additionally,

program."

The parties

34 C.F.R.

as a reasonable

v. N.L.R.B.,

findings

funds are final if supported

a conclusion

final action

"contrary

General A d m i n i s t r a t i v e

on the facts of

for p r o v i d i n g
under the
Hearing

special

IDEA-B to Student.
Decision

that was

affirmed by the State required ABC,

among other things,

to

place the Student at a site other than ABC for a
communications

program.

for that program.

The Student was placed at Summit

The dispute

in this case,

therefore,

not factual but legal

in nature.

Specifically,

raised in this appeal

is whether

the SEA acted properly

withholding
Summit

ABC's

IDEA-B

improper because

that the SEA withholding
there are no IDEA-B issues

is receiving

according

to ABC,

in

tO the Student.

due to the fact that the Student,
Summit,

the issue

funds because ABC had not paid

for services p r o v i d e d

ABC contends

is

FAPE.

is

in this case

since being p l a c e d at

The actual

involves

decision

issue in this case,

a contractual

dispute between

ABC and Summit on payment

for services

that Summit has

provided

ABC contends

that it would pay

Summit

to the Student.

$2,500

a month

for services

to the Student

provided

documentation

supporting

that amount.

In the

absence

of such supporting

documentation, A B C

contends

that

with its o b l i g a t i o n

to

it cannot pay the $2,500
ensure that public
Student

funds are used properly

is receiving

services.

consistent

proper

special

ABC's Opening B r i e f

5, 2001).

6

and that the

education

at 1-2,

if Summit

and related

and 15-17

(December

this

The

SEA c o n t e n d s

case

is a b o u t

required
failed
site

by the

Decision,

where

the present,
provided

responsible

the

program

at a

Process

Hearing

the

required

ABC,

however,

was p l a c e d

Student

even

though

has b e e n

that

Student

the

to w i t h h o l d
dispute

with

set

and

ABC

receives

was not

Summit

to m e e t

FAPE

out

funds

between

Student

was

its r e s p o n s i b i l i t y

to

comply

a n d ABC,

with

the

of F i n d i n g

investigation.

Opening

Brief

at

We c o n c l u d e

that

the

SEA's

withholding

is c o n s i s t e n t

with

the

ABC's

effort

to

but

in a L e t t e r

IDEA-B

FAPE.

designed

to a c o m p l a i n t

regulations. 3

at Summit,

to the

failure

to A B C ' s

from

for the

of A B C ' s

action

Student

has

anything

for e n s u r i n g

SEA p u r s u a n t

Response

ABC

the

ABC

as

Summit

a contract

result

provided.

Due

Student

has not p a i d

decision

corrective
the

time

to the

a communications

was

assertions,

because

at Summit,

until

provide

Student,

was p l a c e d

the

the

FAPE

by the

8, 2000,

resolve

of

as r e q u i r e d

March

SEA's

to A B C ' s

than ABC,

program

The

The

him with

communications

services

contrary

the p r o v i s i o n

IDEA-B.

to p r o v i d e

other

that,

1

(January

and

to c o n s t r u e

its

issued
SEA's

4,

of

by

2002).

funds

from

implementing

this

case

as a

3 ABC, in contesting the SEA's withholding decision, also argues that
the required payment of $2,500 to Summit per month for services to
Student, in the absence of appropriate documentation, could result in
ABC violating a provision of Arizona's State Constitution, the antigift clause, and possible liability under audits required by State law.

7

contractual dispute that is unrelated to the IDEA-B is
unpersuasive because

it attempts to separate ABC's

o b l i g a t i o n to ensure FAPE for the Student

from ABC's

o b l i g a t i o n to pay for the services n e c e s s a r y to p r o v i d e
FAPE.

This separation,

however,

is u n t e n a b l e b e c a u s e the

Student will not receive the special e d u c a t i o n and related
services r e q u i r e d by the IDEA-B unless ABC p r o v i d e s

the

services or pays a third party service p r o v i d e r to do so.
Under A B C ' s
withhold

i n t e r p r e t a t i o n of an SEA's a u t h o r i t y t o

IDEA-B funds,

an L E A that failed to p r o v i d e or pay

for r e q u i r e d services to a student with d i s a b i l i t i e s
continue to receive

IDEA-B funds as long as a t h i r d party

was willing to p r o v i d e t h e r e q u i r e d
payment.

could

This outcome,

services w i t h o u t

if a c c e p t e d by the Department,

would render the IDEA-B's entire system of e n f o r c e m e n t
untenable b e c a u s e that system u l t i m a t e l y depends on an
SEA's a u t h o r i t y to w i t h h o l d
is not m e e t i n g

IDEA-B funds

its o b l i g a t i o n to ensure the p r o v i s i o n of

r e q u i r e d s e r v i c e s to a student.
that ABC failed to p r o v i d e
finding of a Due P r o c e s s
pursuant

from an LEA that

M o r e o v e r the c o n c l u s i o n

FAPE to the Student was the

Hearing Decision.

to its a u t h o r i t y under 34 C.F.R.

The SEA,
§ § 300.660-662,

Appellant's Opening Brief at 15-17. These issues involve matters of
State law, not the IDEA-B, and will not, as a consequence, be addressed
in this Decision.

found that ABC failed to comply with the Due Process
Hearing

Decision

and specifically

Summit to provide

services

ensure that the Student

to the Student

received

disregard

the SEA's

undermine

the State compliance

findings

process

for resolving

and public agencies

regarding

issues

FAPE.

IDEA-B

with the applicable
ABC can receive

between

of FAPE.

assessment

For

of the

on the SEA's

in this matter

funds,

statutory

and its decision

by contrast,

students

with disabilities

34 C.F.R.

§ § 300.312(b),

instance,

ABC did not,

and regulatory provisions.

it is responsible
300.220(a),

after being

Decision,

to

are consistent

IDEA-B funds but must provide

Due Process Hearing

parents

funds.

The SEA's position
withhold ABC's

would

required by the

the provision

we do not accept ABC's

to withhold

To allow ABC to

disputes

in this case or its conclusions

authority

in order to

and requirements

IDEA-B regulations

these reason,

required ABC to pay

FAPE for all
for serving.

and 300.121.

In this

required to do so by a

provide

the Student

with a

communications

p r o g r a m at a site other than ABC.

SUbsequently,

after the Student

communications

p r o g r a m at Summit on March

8, 2000,

ABC did

as required by part of the corrective

action

in a

not,

Letter of Findings

was finally placed

issued by the SEA,

in a

either work out an

agreement

for c o m p e n s a t i n g Summit for services p r o v i d e d to

the Student or pay Summit

$2,500 a month for those

services.
Under the IDEA-B,

the SEA,

supervisory responsibility
State,

as part of its general

for special e d u c a t i o n in the

must ensure that all IDEA-B requirements,

including

the p r o v i s i o n of FAPE to all students w i t h d i s a b i l i t i e s ,
are met.

34 C.F.R.

§ 300.600(a) (i).

If the SEA determines

that an LEA is not m e e t i n g its o b l i g a t i o n to p r o v i d e
to all the students with d i s a b i l i t i e s
serving,

the SEA shall,

opportunity

FAPE

it is r e s p o n s i b l e

after a r e a s o n a b l e notice and

for a hearing "reduce or not p r o v i d e any

further p a y m e n t s

to the LEA."

IDEA-B r e g u l a t i o n s

34 C.F.R.

§ 300.197.

s p e c i f i c a l l y p r o v i d e that:

An SEA shall use the payments that w o u l d
o t h e r w i s e have been a v a i l a b l e to an LEA or to a
State a g e n c y to provide special e d u c a t i o n and
related services d i r e c t l y to c h i l d r e n with
d i s a b i l i t i e s r e s i d i n g in the area s e r v e d by that
local agency, or for w h o m that State a g e n c y i s
responsible, if the SEA d e t e r m i n e s that the L E A
or State a g e n c y (I)
Has not p r o v i d e d the i n f o r m a t i o n
n e e d e d to e s t a b l i s h the e l i g i b i l i t y of
the a g e n c y under Part B of the Act;
(2)
Is unable to e s t a b l i s h and
m a i n t a i n p r o g r a m s of FAPE that meet the
r e q u i r e m e n t s of this part;
(3)
Is unable or u n w i l l i n g to be
c o n s o l i d a t e d with one or more LEAs

I0

in

The

for

order to establish and m a i n t a i n the
programs; or
(4)
Has one or more children with
d i s a b i l i t i e s who can best be served by
a regional or State p r o g r a m or
s e r v i c e - d e l i v e r y system d e s i g n e d to
meet the needs of these children.
34 C.F.R.

§ 300.360(a)

(emphasis supplied).

Finally,

the

SEA is r e q u i r e d to adopt w r i t t e n p r o c e d u r e s to resolve
complaints
34 C.F.R.

that a public agency has v i o l a t e d the IDEA-B.
§ § 300.660-300.662.

The SEA's w i t h h o l d i n g a c t i o n fits s e c u r e l y within this
regulatory
month

scheme.

ABC,

by not p a y i n g Summit $2,500 a

for services p r o v i d e d to the Student,

both its o b l i g a t i o n to provide

d e f a u l t e d on

FAPE and to c o m p l y with the

c o r r e c t i v e action required by a L e t t e r of Finding issued by
the SEA on N o v e m b e r

30,

2000 p u r s u a n t

to a c o m p l a i n t

i n v e s t i g a t i o n carried out under 34 C.F.R.
300.662.

The SEA,

therefore,

§ 300.660-

was a u t h o r i z e d by the IDEA-B

to w i t h h o l d funds from ABC to ensure

FAPE for the Student

and c o m p l i a n c e with its N o v e m b e r

2000 L e t t e r of

Findings.

Moreover,

30,

the IDEA-B r e g u l a t i o n s

provide for an SEA using the funds w i t h h e l d

specifically
from ABC to pay

Summit for the special e d u c a t i o n and r e l a t e d services
p r o v i d e d to the Student.
SEA's d e c i s i o n to w i t h h o l d

We t h e r e f o r e c o n c l u d e
IDEA-B

ii

funds

that the

is b a s e d on

substantial

evidence

implementing

regulations.

IV.

and consistent

with the IDEA-B and its

CONCLUSION.
The SEA's decision

is hereby

to withhold

IDEA-B

funds

from ABC

affirmed.

Robert
Pasternack, Ph. D.
Assistant Secretary for
Special Education and
R e h a b i l i t a t i v e Services.

DATED:

JUN 2 7 2002

12


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

JUN 2 6 2002
By Fax and Overnight Delivery_
Mr. George P. Dowaliby
Bureau Chief
State of Connecticut
Department of Education
25 Industrial Park Road
Middletown, Connecticut 06457
Dear Mr. Dowaliby:
Connecticut submitted as part of its eligibility documents Ct. Stat. Ann. § 10-76h-30(h) and
§J (page 318) of its original Procedural Safeguards, which provide that "[n]o issue may
be raised at a hearing unless it was raise d at a planning and placement team [PPT]
meeting held for the child." Section VII, E of the revised Procedural Safeguards
document submitted on May 20, 2002 also provides that "[e]ither party requesting a due
process hearing is required to have raised their issues at a planning and placement team
[PPT] meeting before proceeding to a hearing." The requirement that issues be raised at
a PPT meeting before they can be addressed at a due process hearing establishes
impermissible notice and exhaustion burdens inconsistent with the Individuals with
Disabilities Education Act (IDEA) and its implementing regulations.
In the Fall of 2000, the Office of Special Education Programs (OSEP) informed
Connecticut in writing (in the initial issues chart) that its PPT requirement is inconsistent
with the IDEA, including the IDEA's explicit notice requirements and due process
hearing rights. In a conference call on April 23, 2001, OSEP further explained that
Connecticut's PPT requirement is inconsistent with three provisions of the IDEA: (1) the
right of a party to have a hearing held on "any matter relating to the identification,
evaluation, or educational placement of the child, or the provision of a free appropriate
public education to the child" as set forth in §615(b)(6) of the IDEA and 34 C.F.R.
§300.507(a)(1); (2) the very express and limited notice requirements of the IDEA (for
parents and school districts); and (3) the specific statutory provision of 9615(1) of the
IDEA which only requires that prior to proceeding to a civil action that parties first have
exhausted the due process and appeal procedures under §9615(f) and (g).
We understand Connecticut in its May 20, 2002 submission responded to these concerns
by stating that parties are not prohibited from raising any issue at a due process heating as
long as it was raised first at a PPT meeting. Connecticut also indicated that the PPT
requirement was intended to promote early resolution of disputes. However, these
arguments do not address the primary concern, which is that Connecticut is barring
400 MARYLANDAVE., S.W., WASHINGTON, D.C.'20202
www.ed.gov
Our mission is to e n s u r e equal a c c e s s to education a n d to promote educational excellence throughout the Nation.

Mr. George P. Dowaliby - Page 2
parents and school districts from raising at a due process hearing any issue not previously
raised at a PPT meeting. We find no support in the IDEA statute or regulations for
imposing this requirement on a party's access to a due process hearing.
Regarding Connecticut's imposition of additional notice burdens through its PPT
requirement, IDEA contains very express notice requirements for both parents and school
districts. For school districts, these notice requirements are contained at § 9615(b)(3), (c)
and (d) of the IDEA. 20 U.S.C. §§1415(b)(3), (c) and (d). Parents are obligated to
provide advance notice to school districts in certain instances to maximize their ability to
receive reimbursement for placing their child in a private school. See, 20 U.S.C.
§ 1412(a)(10)(C)(iii). However, this notice requirement for parents does not preclude
parents from proceeding with a due process hearing for failing to provide the requisite
notice. Connecticut's concern that parents provide school districts notice of their claims
to enable informal resolution prior to hearing is more than adequately addressed through
the IDEA requirement that parents provide school districts with notice of the child's
name and other pertinent information including "a description of the nature of the
problem" and "a proposed resolution of the problem." 20 U.S.C. § 1415(b)(7).
Connecticut indicated during the April 23, 2001 conference call that the lack of notice by
parents occurs only with parents represented by attorneys. During the call, we suggested
alternate remedies available to address attorneys' failure to provide the notice under
9615(b)(7). We also noted during the call that Connecticut's PPT requirement unduly
penalizes unrepresented parents and may result in the unintended (and undesirable)
consequence of parents needing to have attorneys present at PPT meetings.
Regarding the exhaustion issue, the U.S. Court of Appeals for the Second Circuit in Mrs.
W. v. Tirozzi, 832 F.2d 748 (2 nd Cir. 1987), has clearly noted that IDEA §615(f) (the
precursor to the current §615(1)), does not require exhaustion except specifically of the
due process hearing and appeal procedures. Indeed, the Mrs. W. Court noted that
exhaustion of due process hearing procedures is not even required under certain
circumstances (citing case law and legislative history of the Act). Connecticut's PPT
requirement goes well beyond IDEA's express exhaustion requirements contained at
9615(1).
Connecticut's PPT requirement must be deleted from: (1) Ct. Stat. Ann. 10-76h-30(h),
(2) Connecticut's Procedural Safeguards documents (page 318, section J of the original
and Section VILE. of the May 20, 2002 submission), and (3) any other eligibility
documents that contain this requirement. These documents must be resubmitted to OSEP
for approval. With regard to the statutory change, please submit by no later than 3:00
p.m. on Friday, June 28, 2002 your proposal including the proposed revised statute and a
timeline by which the PPT requirement will be deleted. Kindly also confirm in writing to
OSEP by the same time on Friday, June 28, 2002 the methods that Connecticut will use
to provide notice of deletion of the PPT requirement to school districts and parents.

Mr. George P. Dowaliby - Page 3"
If you have any questions, please contact Dr. JoLeta Reynolds at 202-205-5507 or me.
Sincerely,

Stephanie S. Lee
Director
Office of Special Education Programs
cc: Theresa C. DeFrancis


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

By Fax and U.S. Mail
Dr. Norena A. Hale
Director, Division of Special Education
Minnesota Department of Children, Families
and Learning
1500 Highway 36 West
Roseville, Minnesota 55113-4266

JUN 25 2002

Dear Dr. Hale:

Thank you for your e-mail letter dated June 7, 2002 responding to OSEP's June 4, 2002
letter, which requested that Minnesota revise its 30-day limit for appealing due process
hearing decisions to state court under Minnesota Statute 125A.09 (which cross-references
Minnesota's administrative procedures act (APA) in Minnesota Chapter 14). OSEP's
request is based on applicable law in the U.S. Court of Appeals for the Eighth Circuit,
which specifically rejected a 30-day limit because it conflicted with the policies and
purposes of the Individuals with Disabilities Education ACt (IDEA). Birmingham v.
Omaha SchoolDist. et al, 220 F.3d 850 (8 th Cir. 2000).
Minnesota distinguished the 30-day limit of Minn. Stat. 125A.09 as applying to appeals
of due process heating decisions and not IEP decisions. However, the Eighth Circuit in
Birmingham specifically rejected as too short 30 days to file in court and made no
distinction between an appeal of a due process hearing decision and a school district's
decision.

In Birmingham, the Eighth Circuit specifically reviewed the Arkansas APA and rejected
it not only because its 30-day limit was too short and undermined the IDEA but also
because the nature of the review provided for under the Arkansas APA was not analogous
to the judicial review rights of parties under the IDEA. The Arkansas APA differed from
judicial review under the IDEA because (1) it did not provide for independent review but
rather for affirmance, reversal or modification; (2) the scope of review was more limited
(reversal only for one of Six stated conditions) and not "an independent decision of the
issues based on a preponderance of the evidence"; and (3) the standard for admitting
additional evidence was different under the Arkansas APA and the IDEA.
Similarly, as we noted on the original issues chart, judicial review under Minnesota's
APA is also narrower than judicial review under the IDEA as required under §615 of
IDEA and 34 CFR §300.512Co). Specifically, MN Chapter 14.67 and 14.68 limit whether
and when additional evidence can be admissible. MN Chapter 14.69 limits the scope of

400 MARYLANDAVE., S.W. WASHINGTON, D.C. 20202

review by neither allowing for independent review (by requiring affirmance or reversal or
modification based on seven enumerated conditions similar to the Arkansas APA), nor
allowing Minnesota courts to base their decisions on the preponderance of the evidence.
Thus, the judicial review provided for by Minnesota is inconsistent with the federal
judicial review rights under §615 of the IDEA.
We take no position on what other Minnesota statute might be considered analogous to
the appeal of a due process hearing under the IDEA. Rather, we are requiring'that you
conform your time period to the holding of the Eighth Circuit that a 30-day limit for
filing a civil action in court under the IDEA is too short.
Thus, please provide to us by no later than close of business June 27, 2002:
(i) confirmation that (a) Minnesota will either revise or delete its 30-day limit
from Minn. Star. §125A.09 (which cross-references Minn. Chapter 14) and
from any Part B eligibility documents and (b) the scope of judicial review for
IDEA cases will be consistent with §615 of the IDEA and 34 CFR
§300.512(b) and not Minn. Chapter 14;
(2) the timeline by which (l)(a) above will be accomplished no later than June 30,
2003;and
(3) the methods Minnesota will use to provide notice of its 30-day time limit
"change and judicial review to school districts and parents.
Kindly fax a courtesy copy of your response to Dr. Joleta Reynolds at 202-260-0416. If
you have any questions, please contact Dr. Reynolds at 202-205-5507.
Sincerely,

Stephanie Lee,
Director,
Office of Special Education Programs

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

By Fax and U.S. Mail
Dr. Melody Bounds
Bureau Director
Program Improvement and Outreach
Mississippi State Department of Education
P.O. Box 771
Jackson, Mississippi 39205-0771

JUN 25 2002

Dear Dr. Bounds:
This responds to Mississippi Special Assistant Attorney General Avery Lee's June 12,
2002 letter responding to OSEP's June 4, 2002 letter, which requested that Mississippi
revise its 30-day limit for appealing due process hearing decisions to federal or state
court. As you know, OSEP's request is based on current law in the U.S. Court of
Appeals for the Fifth Circuit, which specifically rejected a 30-day limit because it is
"inconsistent with the purposes of the [Individuals with Disabilities Education Act
(IDEA)]." Skokin v. Texas, 723 F.2d 432, 438 (5 th Cir. 1984).
Mississippi responded that Skokin was "inapplicable" because in Skokin, the Fifth Circuit
was borrowing an analogous state statute to apply to IDEA appeals whereas Mississippi
has enacted a state statute specifically addressing IDEA appeals. We have reviewed your
explanation and applicable law including the Skokin decision and we reiterate our request
that Mississippi revise or delete Mississippi's 30-day limit from page VII-16 of its
policies and procedures and from any other Mississippi eligibility documents under'Part
B of the IDEA containing such a requirement.
The enactment of a State statute specific to IDEA appeals cannot usurp the review
required by the U.S. Supreme Court, which has set forth a specific standard of review.
Wilson v. Garcia, 471 U.S. 261 (1985), DelCostello v. Int'l Bd of Teamsters, 462 U.S.
151, 158-159 & n. 13 (1983), Tokarcik, 665 F.2d. 443,454 (3 rd Cir. 1981) ("in dealing
with a cause of action arising under federal law, the state statute which is to be borrowed
and how it is to be applied are federal law questions, and are determined by federal
statutory policy"). Where a federal statute (such as the IDEA) does not provide for a
specific limitation period, courts may borrow from federal or state limitation periods by
(1) identifying the most analogous statute of limitations based on the type of case and (2)
determining whether the time limit set forth in that statute is consistent with the
underlying purposes and policies of the federal statutory right, here the IDEA. Wilson,
471 U.S. at --, DelCostello, 462 U.S. at 158-159. Mississippi cannot through its
legislature avoid the Fifth Circuit's determination that 30 days is too short a time period

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because it is inconsistent with the policies underlying the IDEA. Specifically, forcing
parents to decide whether to file an appeal within 30 days would be inconsistent with the
goal of preventing inappropriate placements. Parents who have not previously retained a
lawyer would be particularly disadvantaged by such a short time limit.
We take no position on what other Mississippi statute might be considered analogous to
the appeal of a due process hearing under the IDEA. Rather, we are requiring that you
conform your time period to the holding of the Eighth Circuit that a 30-day limit for
filing a civil action in court under the IDEA is too short.
Thus, please provide to us by no later than close of business June 27, 2002, confirmation
• that Mississippi will either revise or delete its 30-day limit from its Part B eligibility
documents, the timeline by which this will be accomplished no later than June 30, 2003
and the methods Mississippi will use to provide notice of this time limit change to school
districts and parents. Kindly fax a courtesy copy of your response to the attention of Dr.
JoLeta Reynolds at 202-260-0416.
If you have any questions, please contact Dr. JoLeta Reynolds at 202-205-5507.
Sincerely,

Stephanie Lee,
Director,
Office of Special Education Programs
(by fax)
Avery Mounger Lee
Special Assistant Attorney General for the
Mississippi Department of Education

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

By Fax and U.S. Mail
Ms. Melodie Friedebach
JUN 25 2002
Coordinator of Special Education Services
Division of Special Education
Missouri Department of Elementary & Special Education
P.O. Box 480

Jefferson City, Missouri 65 I02-0580
Dear Ms. Friedebach:
Thank you for your June 11, 2002 e-mail responding to OSEP's June 4, 2002 letter,
which requested that Missouri revise its 30-day limit for appealing due process hearing
decisions to state court under Missouri Chapter 536, RSMo. OSEP's request is based on
applicable law in the U.S. Court of Appeals for the Eighth Circuit, which specifically
rejected a 30-day limit because it conflicted with the policies and purposes of the
Individuals with Disabilities Education Act (IDEA). Birmingham v. Omaha School Dist.
et al, 220 F.3d 850 (8 th Cir. 2000).
Missouri responded that it has revised other conflicting time periods in its eligibility
documents and distinguishes the 30-day limit of Chapter 536, RSMo: as applying to
"judicial review of a due process hearing decision" and not to the school district's
decision (as was the case in Birmingham). However, the Eighth Circuit in Birmingham
specifically rejected as too short 30 days to file in court and made no distinction between
an appeal of a due process hearing decision and a school district's decision.

In Birmingham, the Eighth Circuit specifically reviewed the Arkansas APA and rejected
it not only because its 30-day limit was too short and undermined the IDEA but also
because the nature of the review provided for under the Arkansas APA was not analogous
to the judicial review fights of parties under the IDEA. The Arkansas APA differed from
judicial review under the IDEA because (1) it did not provide for independent review b u t
rather for affirmance, reversal or modification; (2) the scope of review was more limited
(reversal only for one of six stated conditions) and not "an independent decision of the
issues based on a preponderance of the evidence"; and (3) the standard for admitting
additional evidence was different under the Arkansas APA and the IDEA.
Similarly, as we noted on the original issues chart, Missouri's APA is limited in that it
limits both the scope of review to one of seven stated conditions (see SMo.536.140.2
(1)-(7)) and when evidence can be admissible (see RSMo.536.140.4 which allows a court
to "hear and consider additional evidence if the court finds that such evidence in the

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exercise of reasonable diligence could not have been produced or was improperly
excluded at the heating before the agency"). It is also unclear if Missouri courts have
authority to make an independent decision given RSMo. 536.140.2 and 5. While We
appreciate that Missouri has in its most recent eligibility document submission added the
language of 34 CFR §300.512('o) to page 54 of its Procedural Safeguards policies and
procedures, it is unclear whether Missouri can through its Procedural Safeguards
document modify the standards set forth in Missouri's APA.
We take no position on what other Missouri statute might be considered analogous to the
appeal of a due process hearing under the IDEA. Rather, we are requiring that you
conform your time period to the holding of the Eighth Circuit that a 30-day limit for
filing a civil action in court under the IDEA is too short.
Thus, please provide to us by no later than close of business June 27, 2002:
(1) confirmation that(a) Missouri will either revise or delete its 30-day limit from
its Part B eligibility documents and (b) p. 54 of the revised Procedural
Safeguards document which contains the language of §615 of the IDEA and
34 CFR §300.512CO) will be followed as a matter of Missouri law by courts
over Subsections 2, 4,and 5 of Missouri's APA at RSMo. 536;
(2) the timeline by which (1)(a) above will be accomplished no later than June 30,
2003;and
(3) the methods Missouri will use to provide notice of its 30-day time limit
change and judicial review to school districts and parents.
Kindly fax a courtesy copy of your response to Dr. Joleta Reynolds at 202-260-0416. If
you have any questions, please contact Dr. Reynolds at 202-205-5507.
Sincerely,

Stephanie Lee,
Director,
Office of Special Education Programs


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

JUN 11 2002

Ms. Trish Howard
Acting Part C Coordinator
Commission for Children with Special
Health Care Needs (CCSHCN)
982 Eastern Parkway
Louisville, KY. 40217
Dear Ms. Howard:
I am writing concerning the First Steps Review Panel used by the Kentucky Early
Intervention Program when an individualized family service plan (IFSP) team
recommends early intervention services that exceed one hour per discipline per week. In
reviewing the focus group comments submitted to the Office of Special Education
Programs (OSEP) by Kentucky, as part of its self-assessment packet, OSEP noted that
comments were made by providers regarding the amount of paperwork involved with
requesting services "beyond the set guidelines". There were further comments made by
providers that the process for requesting a review for services prescribed above the
guideline level resulted in a delay in the provision of services for eligible children and
families.
In response to OSEP's request for further information regarding the guidelines and the
review process, you sent the regulation at 911 KAR 2:130: Kentucky Early Intervention
Program Assessment and Service Planning, and Section VI of your Policy and Procedure
Manual, both o f which describe the process used by the IFSP team to obtain authorization
for early intervention services beyond the State's guidelines. Section 2 (10)(g) 2.a. and b.
of 911 KAR 2:130 states: "Unless prior authorization is granted, based on individual
needs of the child, the frequency and intensity for therapeutic intervention for each child
shall not exceed one (1) hour per discipline per week." The regulation and policy
describe a process to request prior authorization for exceeding the limits whereby a
written request must be sent to the First Steps State office. The State coordinator
forwards the request to the State's Best Practice Review Panel, which completes the
review process within 10 working days of receiving the request. The decision of the
panel may be appealed to the State's First Steps coordinator or directly pursuant to 911
KAR 2:170. The decision of the First Steps coordinator may also be appealed pursuant to
911 KAR 2:170.
A State may establish guidelines to assist teams in developing the IFSP. However, those
guidelines may not be implemented in a manner that restricts the authority and
responsibility of the IFSP team to make individualized determinations for the child and
family and to include in each child's IFSP those services that the team determines are
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Page 2 - Ms. Trish Howard

appropriate to meet the unique needs of the child and family. According to the State
regulation, if an IFSP team recommends services that exceed one hour per discipline per
week, a request with accompanying documentation must be submitted to the Review
Panel. The Panel does not include the parents and other required IFSP meeting
participants. If the Panel does not, after its review, approve the additional services
requested; there is no further IFSP meeting; the parent's only recourse is to appeal the
decision to the First Steps Coordinator or file an appeal with the Cabinet for Health
Services. Thus the Review Panel, and not the IFSP team, makes the final determination
regarding the frequency of the service, subject only to appeal.
Under Part C of the Individuals with Disabilities Education Act (IDEA), the IFSP team,
which includes the parent(s), has the decision-making responsibility to identify early
intervention services that meet the unique developmental needs of the child and the needs
of the child's family related to enhancing the child's development, based on the results of
the evaluation and assessment of the child and the child's family. 34 CFR §303.340.
The IFSP must include a statement of the specific early intervention services necessary to
meet the unique needs of the child and family, including frequency, intensity and method
of delivering services, the natural environments in which the early intervention services
will be provided, the location of the services, and payment arrangements, if any. 34 CFR
§303.344(d)(I). A State can not confer the final determination of the frequency and
intensity of the early intervention services needed by a child on a body that does not meet
these requirements, nor can it require a parent to initiate an appeal process in order to
secure early intervention services determined necessary by the IFSP team.
Kentucky' regulations and procedures concerning the State review panel are on their face
inconsistent with the above requirements for developing IFSPs under Part C of IDEA. In
its current application, Kentucky assures that its procedures for developing, reviewing
and evaluating IFSPs meet the requirements of 34 CFR §§303.340-303.346. Kentucky
must revise its regulation and procedures for the State review panel to ensure that its
process is consistent with Part C requirements or change its practice and submit an
assurance that the revised practice can be implemented under current State regulations.
Kentucky must respond within 10 days of the date of this letter. If you have any
questions or need assistance, please call the Kentucky Part C State contact, Jill Harris, at
(202)-205-9583.
Sincerely,

Stephanie S. Lee
Director
Office of Special Education Program s


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

JUN - 4 2002

Dr. Norena A. Hale
Director, Division of Special Education
Minnesota Department of Children, Families
and Learning
1500 Highway 36 West
Roseville, Minnesota 55113-4266
Dear Dr. Hale:
Minnesota's 30-day limit for State court review of IDEA claims appears to be
inconsistent with applicable law of the U.S. Court of Appeals for the Eighth Circuit.
Minnesota submitted a 30-day time limit for filing a court action as part of its eligibility
documents for funding under Part B of the Individuals with Disabilities Education Act
(IDEA). Specifically, Minnesota's policies and procedures on file with the Secretary of
Education provide that "State judicial review must be in accordance with chapter 14."
Minn. Stat. 125A.09, subd. 10 and Minnesota's Due Process/Parent Involvement Manual,
page 8-22. Under Minnesota Statute Chapter 14, "[a] petition ... for judicial review ...
must be filed ... not more than 30 days aider the party receives the final decision and
order of the agency." Minn. Stat. § 14.63. Thus, under current Minnesota law, parties
who wish to file an IDEA action in court are subject to a 30-day time limit.
The Eighth Circuit has specifically held that a 30-day limit for judicial review of IDEA
claims is inconsistent with the policies of the IDEA. See, Birmingham v. Omaha School
Dist. et al, 220 F.3d 850 (8 th Cir. 2000). In Birmingham, the Eighth Circuit specifically
rejected application of a 30-day limit under Arkansas' Administrative Procedures Act
(APA) to judicial review of IDEA claims because it would conflict with IDEA's two
primary policies: (1) to provide disabled children with a free appropriate public education
and to encourage parents and school officials to resolve disputes cooperatively "so that
the child is not needlessly deprived of the education mandated by law."
"Thirty days does not allow parents sufficient time to work with school officials to
resolve educational disputes. Useful discourse that may resolve such disputes is
foreclosed because parents are forced to immediately litigate." 220 F.3d at 855.
"[T]hirty days ... is insufficient for an IDEA claim because review is de novo and may
expand beyond the record." Id. The Birmingham court further noted the realities of
parents of a child with a disability. A "truncated limitations period does not take into
account the realities of raising a disabled child ..., which leaves parents limited time to
prepare a lawsuit." In rejecting the Arkansas APA 30-day limit, the Eighth Circuit
applied a three-year statute of limitations applicable to Arkansas general personal injury
claims. "A three year statute of limitations encourages parents to work with school
officials to resolve disputes over the disabled child's education. It also allows parents

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Page 2 - Dr. Norena A. Hale
time to prepare a federal lawsuit, and account for the time constraints faced by parents of
disabled children." 220 F.3d at 856.
I f you believe that BirminghamEighth Circuit decision is not applicable to Minnesota
law, please provide for our review a detailed explanation no later than 10 days from the
date of this letter. Otherwise, please revise the following documents and resubmit them
to OSEP for approval. Specifically, delete from Minn. Stat. 125A.09, subd. 10 and
Minnesota's Due Process/Parent Involvement Manual, page 8-22 any references to Minn.
Chapter 14 and further delete from any other Minnesota Part B eligibility documents any
requirement that would impose a 30-day limit on filing a civil action under the IDEA.
Kindly also confirm in writing to OSEP the methods that Minnesota will use to provide
notice of the change in the time limit to school districts and parents. You should provide
us within 10 days the timeline for accomplishing each of these steps.
If you have any questions, please contact Dr. JoLeta Reynolds at 202-205-5507.

Sincerely,

Stephanie S. Lee
Director
Office of Special Education Programs

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

JUN

-

4 2002

Dr. Melody Bounds
Bureau Director
Program Improvement and Outreach
Mississippi State Department of Education
P.O. Box 771
Jackson, Mississippi 39205-0771
Dear Dr. Bounds:
Mississippi's 30-day limit for filing a civil action under the IDEA in court appears to be
inconsistent with applicable law of the U.S. Court of Appeals for the Fifth Circuit.
Mississippi submitted policies and procedures as part of its eligibility documents for
funding under Part B of the Individuals with Disabilities Education Act (IDEA) that sets
forth on page VII-16 that hearing officer decisions may be appealed "in any state court of
competent jurisdiction or in a district court of the United States without regard to the
amount in controversy within thirty (30) days from the date of the decision of the
impartial due process hearing officer."
The Fifth Circuit has specifically held that a 30-day limit for judicial review of IDEA
claims is inconsistent with the policies of the IDEA. See, Skokin, 723 F.2d 432 (5 th Cir.
1984). In Skokin, the Fifth Circuit specifically rejected application of a 30-day limit
under Texas' Administrative Procedures Act (APA) to judicial review of IDEA claims
because "a thirty day period is inconsistent with the purposes of the [IDEA]." 723 F.2d
at 438. The Skokin court cited among IDEA's primary policies: to provide disabled
children with a free appropriate public education and to encourage parental involvement
in their children's educational decisions.

The Skokin court noted that "[f]orcing parents to decide whether to appeal their complaint
within thirty days of the state agency's determination would be inconsistent with that
goal [of preventing inappropriate placements of children with disabilities due to faulty
assessments of a child's needs]." 723 F.2d at 437. "A short limitations period is contrary
to the Act's goal of parental involvement. Thirty days is not enough time for parents to
determine whether to pursue judicial review of their complaint. A decision to jump from
an administrative process to federal court may involve obtaining or changing counsel, n3
[citing IDEA right to counsel provisions] Parents may want to conduct further testing of
their child to better evalute the agency's decision. . . . In addition, because a child's
welfare is an emotional issue, parents may need time to reflect before choosing a course
of action." Id.

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Page 2 - Dr. Melody Bounds
If you believe that Skokin is not applicable, please provide for our review a detailed.
explanation no later than 10 days from the date of this letter. Otherwise, please delete
from page VII-16 and any other Mississippi's Part B eligibility documents all references
to the applicability of the 30-day limit to all civil actions under the IDEA in Missouri
(whether in Federal or State court). We understand that Mississippi has proposed
legislation pending that may revise the limitation period. If so, please submit the revised
limitation period and confirm in writing to OSEP the methods that Mississippi will use to
provide notice of this time limit change to school districts and parents. You should
provide us within 10 days the timeline for accomplishing each of these steps.
If you have any questions, please contact Dr. JoLeta Reynolds at 202-205-5507.
Sincerely,

Stephanie S. Lee
Director
Office of Special Education Programs

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

JUN - 4 2002

Ms. Melodie Friedebach
Coordinator of Special Education Services
Division of Special Education
Missouri Department of Elementary & Secondary Education
P.O. Box 480
Jefferson City, Missouri 65102-0580
Dear Ms. Friedebach:
Missouri's 30-day limit for filing a civil action under the IDEA in State court appears to
be inconsistent with applicable law of the U.S. Court of Appeals for the Eighth Circuit.
Missouri submitted policies and procedures as part of its eligibility documents for
funding under Part B of the Individuals with Disabilities Education Act (IDEA) that sets
forth on page 30 that hearing officer decisions may be appealed to "the state courts within
thirty (30) days as provided in Chapter 536, RSMo .... ". Missouri Statute §536.110.1
specifically provides for a 30-day time limit for judicial review of IDEA claims.
The Eighth Circuit has specifically held that a 30-day limit for judicial review of IDEA
claims is inconsistent with the policies of the IDEA. See, Birmingham v. Omaha School
Dist. et al, 220 F.3d 850 (8 th Cir. 2000). In Birmingham, the Eighth Circuit specifically
rejected application of a 30-day limit under Arkansas' Administrative Procedures Act
(APA) to judicial review of IDEA claims because it would conflict with IDEA's two
primary policies: (1) to provide disabled children with a free appropriate public education
and to encourage parents and school officials to resolve disputes cooperatively "so that
the child is not needlessly deprived of the education mandated by law."
"Thirty days does not allow parents sufficient time to work with school officials to
resolve educational disputes. Useful discourse that may resolve such disputes is
foreclosed because parents are forced to immediately litigate." 220 F.3d at 855.
"[T]hirty days ... is insufficient for an IDEA claim because review is de novo and may
expand beyond the record." Id. The Birmingham court further noted the realities of
parents o f a child with a disability. A "truncated limitations period does not take into
account the realities of raising a disabled child .... , which leaves parents limited time to
prepare a lawsuit." In rejecting the Arkansas APA 30-day limit, the Eighth Circuit
applied a three-year statute of limitations applicable to Arkansas general personal injury
claims. "A three year statute of limitations encourages parents to work with school
officials to resolve disputes over the disabled child's education. It also allows parents
time to prepare a federal lawsuit, and account for the time constraints faced by parents of
disabled children." 220 F.3d at 856.

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Page 2 - Ms. Melodie Friedebach
If you believe that Birminghamis not applicable, please provide for our review a detailed
explanation no later than 10 days from the date of this letter. Otherwise, please delete
from Missouri's Part B eligibility documents any references to the applicability of Mo.
Chapter 536's 30-day limit to civil actions under the IDEA in Missouri and further revise
any Part B documents that impose such a limit. Kindly resubmit these documents and
also confirm in writing to OSEP the methods that Missouri will use to provide notice of
this time limit change to school districts and parents. You should provide us within 10
days the timeline for accomplishing each of these steps.

If you have any questions, please contact Dr. JoLeta Reynolds at 202-205-5507.

Sincerely,

Stephanie S. Lee
Director
Office of Special Education Programs

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

JUN - 4 2002

Mr. Gary M. Sherman
Administrator
Special Populations Office
Nebraska Department of Education
301 Centennial Mall South
P.O. Box 94987
Lincoln, Nebraska 68509-4987
Dear Mr. Sherman:
Nebraska's 30-day time period for filing in State court an appeal of a due process hearing
officer's decision under the IDEA appears inconsistent with applicable law of the U.S.
Court of Appeals for the Eighth Circuit. Nebraska submitted Nebraska Statute §791167(2) and Nebraska Rule 55,009.02 as part of its eligibility documents for funding
under Part B of the Individuals with Disabilities Education Act (IDEA). These two
provisions of Nebraska law provide that parties who wish to file an IDEA action in court
"must file a petition.., within thirty days after service of the final decision and
order . . . . " Neb. Stat. §79-1167(2) & Rule 55,009.02.
The Eighth Circuit has specifically held that a 30-day limit for judicial review of IDEA
claims is inconsistent with the policies of the IDEA. See, Birmingham v. Omaha School
Dist. et al, 220 F.3d 850 (8 th Cir. 2000). In Birmingham, the Eighth Circuit specifically
rejected application of a 30-day limit under Arkansas' Administrative Procedures Act
(APA) to judicial review of IDEA claims because it would conflict with IDEA's two
primary policies: (1) to provide disabled children with a free appropriate public
education and (2) to encourage parents and school officials to resolve disputes
cooperatively "so that the child is not needlessly deprived of the education mandated by
law."
"Thirty days does not allow parents sufficient time to work with school Officials to
resolve educational disputes. Useful discourse that may resolve such disputes is
foreclosed because parents are forced to immediately litigate." 220 F.3d at 855.
"[T]hirty d a y s . . , is insufficient for an IDEA claim because review is de novo and may
expand beyond the record." Id. The Birmingham court further noted the realities of
parents of a child with a disability. A ".truncated limitations period does not take into
account the realities of raising a disabled c h i l d . . . , which leaves parents limited time to
prepare a lawsuit." In rejecting the Arkansas APA 30-day limit, the Eighth Circuit
applied a three-year statute of limitations applicable to Arkansas general personal injury
claims. "A three year statute of limitations encourages parents to work with school
officials to resolve disputes over the disabled child's education. It also allows parents
time to prepare a federal lawsuit, and account for the time constraints faced by parents of
disabled children." 220 F.3d at 856.
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Page 2 - Mr. Gary M. Sherman

If you believe that Birmingham does not apply to Neb. Stat. §79-1167(2) & Rule
55,009.02, please provide for our review a detailed explanation no later than 10 days
from the date of this letter. Otherwise, please revise Neb. Stat. §79-1167(2) & Rule
55,009.02 to delete the applicability of a 30-day limit to filing civil actions under the
IDEA in Nebraska. Kindly resubmit these Nebraska Part B eligibility documents to
OSEP for approval and also confirm in writing to OSEP the methods that Nebraska will
use to provide notice of the change in Nebraska's time limit to school districts and
parents. You should provide us within 10 days the timeline for accomplishing each of
these steps.
If you have any questions, please contact Dr. JoLeta Reynolds at 202-205-5507.
Sincerely,

Stephanie S. Lee
Director
Office of Special Education Programs


UNITED STATES DEPARTMENT OF EDUCATION
OFFICEOF ELEMENTARYANDSECONDARYEDUCATION
April 30, 2002

Honorable Edward R. Richardson
Superintendent of Education
Alabama Department of Education
Gordon Persons Office Building
50 North Ripley Street
P.O. Box 302102
Montgomery, AL 36130-2101
Dear Superintendent Richardson:
The No Child Left Behind Act (NCLB Act) enacted on January 8, 2002, introduced many
changes designed to improve student academic achievement. The Department is developing
guidance and regulations for Title I requirements, including teacher and paraprofessional
qualifications. As we strive to complete this work as quickly as possible, I want to outline a
few key paraprofessional requirements that took effect on January 8. There is no time for
delay in their implementation.
All paraprofessionals hired after January 8 must have (1) completed two years of study at an
institution of higher education; (2) obtained an associate's (or higher) degree; or (3) met a
rigorous standard of quality and be able to demonstrate, through a formal State or local
academic assessment, knowledge of and the ability to assist in instructing reading, writing,
and mathematics (or, as appropriate, reading readiness, writing readiness, and mathematics
readiness). Paraprofessionals hired before January 8 and working in a program supported
with Title I funds must meet these requirements in four years. Our policy is not finalized, but
our current thinking i s - These requirements apply to paraprofessionals with instructional duties in any program
supported by Title I funds. For a schoolwide school, this means all paraprofessionals with
instructional duties without regard to the source of funding of the positions.
The above requirements do not apply to paraprofessionals working primarily as translators
or solely on parental involvement activities. Individuals who work solely in noninstructional roles, such as food service, cafeteria or playground
supervision,
personal care
services, and non-instructional computer assistance are not considered to be
paraprofessionals for Title I purposes.

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•

•

paraprofessionals (regardless of their hiring date) in a program supported with Title I
funds must have a secondary school diploma or equivalent. This is a change from the
previous statute, which permitted the hiring of paraprofessionals without high school
diplomas, or the recognized equivalent, to work as translators
Finally, Title I and Title II funds may be used for ongoing training and professional
development to help paraprofessionals meet the statutory requirements.

All

We will post regulations and further guidance at www.ed.gov as we develop them.
Sincerely,

Joseph F. Johnson, Jr.
Director
Compensatory Education Programs
cc: State Title I Director
State Special Education Director


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

APR 19 2002

You have contacted the Office of Special Education Programs (OSEP) regarding a
complaint investigation (Intake Number
e Massachusetts
Department of Education against the
District concerning the

Under Part B of the-Individuals with Disabilities Education Act (IDEA) and its
implementing regulations, the term "related services" includes transportation, and such
developmental, corrective, and other supportive services as are required to assist a child
with a disability to benefit from special education. 20 U.S.C. ยง1401(22) and 34 CFR
ยง300.24(a). Such transportation includes transportation to and from school and between
schools; travel in and around school buildings; and specialized equipment (such as
special or adapted buses, lifts, and ramps) if required to provide special transportation for
a child with a disability. 34 CFR ยง300.24(b)(15).
As OSEP explained in a letter to District of Columbia Public Schools Superintendent
Franklin Smith, "if a public agency does not provide transportation to the general student
population, the issue of transportation for students with disabilities must be decided on a
case-by-case basis. If a public agency determines that a disabled student needs
transportation to benefit from special education, it must be provided as a related service
at no cost to the student and his or her parents." The letter goes on to state that "in all
instances, each student's need for transportation as a related service and the type of
transportation to be provided are issues to be discussed and decided during the evaluation
process and individualized education program (IEP) meeting, and the transportation
arrangements agreed upon should be included in the disabled student's IEP." 23 IDELR
344..
We reviewed
individualized education programs (IEPs) covering the school
years 1999-2000 and 2000-2001. In both IEPs, the section entitled transportation plan
states no special transportation plan is needed and transportation is not specified as a
related service. IDEA does not address your particular situation concerning whether
parents are entitled to reimbursement for transporting their child to services if
transportation is not a required related service on the IEP. We appreciate your bringing
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โข this issue to our attention and will consider this issue as we move forward in the IDEA
reauthorization process.
Sincerely,

Stephanie S. Lee
Director
Office of Special Education Programs
cc: Ms. Marcia Mittnacht
State Director of Special Education


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

APR - 2 2002

Thank you for your letter regarding the Florida Department of Education's (FDE)
compliance with the Individuals with Disabilities Education Act (IDEA). We apologize
for the delay in responding.
One of the primary concerns that you raise in your most recent letter is whether FDE
operates either a one-tier or two-tier due process system. Section 6A-6.03311(5) of the
Florida Statute of State Board of Education Rules outlines the requirements for due
process hearings in Florida. Section 6A-6.0331 1(5)(a)-(b) describes certain
responsibilities to be carried out by school districts, such as keeping a list of persons who
serve as hearing officers including a statement of their qualifications. However, Section
6A-6.03311 (5)(e) states, "A hearing shall be conducted by a hearing officer from the
Division of Administrative Hearings, Department of Administration." For your
information, we are enclosing a copy of the sections referenced above. As stated in our
most recent letter to you dated July 2, 2001, the Office of Special Education Program s
(OSEP) has determined that FDE operates a one-tier due process system. This decision
was reached as a result of OSEP's 2000 monitoring review of FDE as well as our review
of Florida's Eligibility Document Submission for Federal Fiscal Year 2000.
On July 2, 2001, based on FDE's assurance that throughout the period of the current
grant award, all public agencies in Florida that provide special education and related
services to children with disabilities will operate their programs in a manner fully
consistent with Part B and Florida will resolve all of the issues identified in OSEP's
review of the Florida eligibility documentation , Florida received a conditional approval
from the U.S. Department of Education (Department). At this time, FDE is revising its
eligibility documents and will resubmit the documents to the Department this spring. As
you may know, this process included public hearings recently conducted by FDE on the
Florida statute and State Board of Education rules. When we receive FDE's eligibility
documents, OSEP's review will again include a careful analysis of the State's policies
and procedures, including the due process system, to ensure that FDE's documents meet
the requirements of Part B of IDEA.
Another issue you raise in your correspondence is that OSEP's April 23, 2001 monitoring
report is "59 pages of fluff' that contains "only suggestions for improvement". That is
incorrect. While the report contains suggestions for improvement, it also includes a
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Page 2 number of significant findings of noncompliance. These findings include, among others,
that FDE's monitoring system is not effective in identifying and correcting
noncompliance with Part B requirements that focus on improved results for children with
disabilities. The next phase of OSEP's Continuous Improvement Monitoring Process,
developed with input from stakeholders throughout the nation, is the development,
implementation and evaluation of the State's Improvement Plan (IP). Currently, FDE,
with input from the Florida State Advisory Panel, is developing an IP that will address
the areas of noncompliance identified in OSEP's monitoring report. We are working
closely with FDE staff to track the progress of the IP and ensure that it includes the
activities necessary to correct the deficiencies identified in OSEP's monitoring report.
You also mention Florida's program of Scholarships to Public or Private Schools of
Choice for Students with Disabilities authorized by Florida statute 229.05371 (referred to
as the Scholarship Program). The March 30, 2001 letter you refer to from the
Department concerning the Scholarship Program does state that if FDE and its local
school districts have made a free appropriate public education (FAPE) available to
eligible children with disabilities in a public school but their parents elect tO place them
in private schools through the Scholarship Program, then such children are considered
"private school children with' disabilities" enrolled by their parents. See 34 CFR
§300.450. IDEA provides for a process by which limited services may be provided to
some parentally placed private school students with disabilities. 34 CFR §§300.453300.462. You state that school districts consider children who participate in the
Scholarship Program to be dually enrolled both in the school district and in the private
school placement. Under 34 CFR §300.753(a)(3), a State may include in its annual count
of children with disabilities served the number of private school children with disabilities
provided special education or related services under 34 CFR §§300.452-300.462 that
meet State standards. Therefore, a school district may count these children for IDEA
purposes if they are providing them special education or related services under 34 CFR
§ §300.452-300.462. Finally, the letter states that the Department strongly recommends
that the State or local school district notify parents who choose private school placement
under the Scholarship Program that the student may retain certain rights under Section
504 of the Rehabilitation Act of 1973 (Section 504) and Title II of the Americans with
Disabilities Act, although the student will not be entitled to FAPE under IDEA, while
enrolled in the private school.
In your letter, you asked, "how do parents exhaust 504 issues?" The U.S. Department of
Education's Office for Civil Rights (OCR) is responsible for enforcing Section 504. The
address and telephone number for OCR's Southern Division are listed below:
Office for Civil Rights, Atlanta Office
U.S. Department of Education
61 Forsyth St. S.W., Suite 19T70
Atlanta, GA 30303-3104
Telephone: (404) 562-6350
Fax: (404) 562-6455
Email: OCR_Atlanta@ed.gov

Page 3

Both the eligibility documents review process and the OSEP monitoring review of FDE
involve extensive analysis of FDE's policies and procedures by Department of Education
staff. We hope you find this information helpful.
Sincerely,

Stephanie S. Lee
Director
Office of Special Education Programs
Enclosure


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

Mr. Eugene Lenz
Senior Director
Division of Special Education
Texas Education Agency
1701 N. Congress Avenue
Austin, Texas 78701-1494

MAR - 6 2002

Dear Mr. Lenz:
This letter is in response to your February, 8, 2002 facsimile transmission to the U.S.
Department of Education, Office of Special Education Programs (OSEP), requesting
OSEP's analysis of Texas proposed rule, Section 89.1152, as it relates to compliance
under the Individuals with Disabilities Education Act (IDEA).
The Texas proposed rule at Section 89.1152 specifically states:
89.1152 Presentment

(a)
(b)

This section will take effect on August 1, 2003.
Pursuant to the policy to encourage and support the resolution of any dispute at
the lowest level possible, and in a prompt, efficient and effective manner, no issue
may be raised at a due process hearing unless it was first raised at an admission,
review and dismissal (ARD) committee meeting. Hearing officers shall dismiss
any hearing request upon satisfactory proof that the issues raised in the hearing
were not first presented to the ARD committee.

The Texas proposed rule impermissibly imposes additional prior notice requirements on
parties. Parents and school districts do not have the fight under IDEA to limit issues
raised in a hearing to only the issues that were previously raised as part of an ARD
committee meeting.
The IDEA identifies with great specificity the circumstances under which a parent or a
school district is required to provide prior notice. Parents are obligated to provide
advance notice to school districts in certain instances to maximize their ability to receive
reimbursement for placing their child in a private school. See 20 U.S.C.
§§1412(a)(10)(C)(iii). This notice provision enables a hearing officer to limit the amount
of the reimbursement in certain instances and does not preclude parents from proceeding
with a due process hearing for failure to provide requisite notice. For school districts, the
major prior written notice provisions are set forth at 20 U.S.C. §§1415(b)(3), (c) and (d).

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Page 2 - Mr. Eugene Lenz

The IDEA's due process heating tight applies to "any matter relating to the identification,
evaluation or educational placement of the child, or the provision of a free appropriate
public education to such child" (20 U.S.C. § 1415(b)(6)) and certain disciplinary matters.
20 U.S.C. § 1415(0(1). Other than the notice provisions expressly contained in the IDEA,
no other notice provisions can be applied to limit the statutory right to a due process
hearing.
Texas' imposition of any additional notice requirements on either party (in a manner that
restricts the issues that may be heard) is inconsistent with IDEA. Application of Texas'
proposed rule would impose additional procedural hurdles on the tight to a due process
hearing that are not contemplated by the IDEA, would in many cases delay access to a
due process hearing, and would bar any review of a school district's actions if a district
refused to conduct an ARD committee meeting.
If you have any further questions, please contact Dr. JoLeta Reynolds at (202) 205-5507
or Paul Steener at (202) 205-9908.
Sincerely,

Stephanie S. Lee
Director
Office of Special Education Programs