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

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OCT 2 4 2003

Linda Goodman, Director
Connecticut Birth to Three System
Central Office
460 Capitol Avenue
Hartford, Connecticut 06106
Dear Ms. Goodman:
This is in response to your electronic letter to the Office of Special Education Programs
(OSEP) asking several questions regarding Part C of the Individuals with Disabilities
Education Act (IDEA) . I am providing responses to each of your questions .
1. Initial evaluation for eligibility
Question: Some referrals that we receive appear to be children who are not delayed .
Sometimes parents are overanxious, especially about speech development, and sometimes
physicians recommend that parents "get a baseline" evaluation for example, for a child
adopted from another country . If, over the telephone, and using a series of screening
questions, it appears that the child does not really require an eligibility evaluation, do we
have the right to deny that evaluation if the parent insists? Is there a proper role for
"screening"?
Response : If parents call to refer their infant or toddler to the Part C program, the Part C
staff can describe the purpose of the program, the eligibility criteria for Part C, the
evaluation process and the type of early intervention services provided under the program .
The discussion of the Part C eligibility criteria includes the State's definitions of (1)
developmental delay, (2) the diagnosed physical or mental conditions covered, and (3) atrisk infants and toddlers with disabilities if the State has chosen to serve that population .
See, 20 USC 1432(5) ; 34 CFR §303 .16 . The Part C staff may also wish to ask questions
about the parent's specific concerns regarding the infant or toddler's development . If,
based on this information, the parent determines that a referral is not appropriate, then the
State is not required to conduct an evaluation or provide further information . However, if
parents continue to refer their infant or toddler who is suspected of having a disability to
Part C, the State must conduct an evaluation and assessment that meets the requirements of
34 CFR §§303 .322 and 303 .323 . If the State refuses to conduct an evaluation of the child
despite the referral, then the State must provide the parent with the information required
under prior written notice requirements at 34 CFR §303 .403(b) . The notice must include
the fact that an evaluation is being refused, the reasons for refusing to provide an
evaluation and the procedural safeguards available under Part C including the due process

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Page 2 - Linda Goodman, Director
and mediation procedures adopted by the State under 34 CFR §§303 .401 through 303 .460
and the State complaint procedures adopted under 34 CFR §§303 .510 through 303 .512.
Under Part C regulations at 34 CFR §303 .322(a)(1), the State "system must include the
performance of a timely, comprehensive, multidisciplinary evaluation of each child, birth
through age two, referred for evaluation . . . ." The Part C regulations require that the
evaluation and assessment be conducted by personnel trained to utilize appropriate
methods and procedures . 34 CFR §§303 .323(c) and 303 .323(d) . The regulations also
specify that no single procedure is used as the sole criterion for determining eligibility . 34
CFR §303 .322 . The evaluation and assessment of each infant or toddler must be based on
informed clinical opinion, and include the following :
(i) a review of pertinent records related to the child's current health status and
medical history ;
(ii) an evaluation of the child's level of functioning in each of the following
developmental areas : (A) cognitive development ; (B) physical development,
including vision and hearing ; (C) communication development ; (D) social or
emotional development ; and (E) adaptive development ;
(iii) an assessment of the unique needs of the child in terms of each of the
developmental areas in paragraph (c)(3)(ii) of this section, including the
identification of services appropriate to meet those needs for determining a child's
eligibility .
34 CFR §303 .322(c)
2. Initial assessment
Question : If the child has been evaluated by a doctor or by another clinician such as an
OT or speech pathologist (although not across all five domains), is it allowable to have one
additional evaluator from another discipline assess the child in all of the other areas of
development or is it necessary that both evaluators assess in all five developmental
domains?
Response : In response to the first part of this question, if an infant or toddler has been
evaluated by a qualified professional in one of the developmental areas under 34 CFR
303 .322(c)(3)(ii), it is not inconsistent with the IDEA to have one additional evaluator
from another discipline or profession evaluate and assess the infant or toddler in all of the
other areas of development, if the evaluator is qualified under the State's standards to
conduct the evaluation . Part C does not require that, in conducting a "comprehensive,
multidisciplinary evaluation of each child", each child be evaluated by more than one
evaluator in any particular development area .
In response to the second part of this question, Part C also does not require that more than
one evaluator conduct an evaluation and assessment of each infant or toddler if the
evaluation is multidisciplinary and comprehensive as set forth in 34 CFR §§303 .322 and
303 .323 . Specifically, "multidisciplinary means the involvement of two or more

Page 3 - Linda Goodman, Director
disciplines or professions in the provision of integrated and coordinated services, including
evaluation and assessment activities in §303 .322 . . . ." 34 CFR §303 .17 . Thus, if a
particular evaluator (including a service coordinator) is qualified under the State's
standards in more than one discipline or profession, that evaluator may conduct a
comprehensive, multidisciplinary evaluation of each infant or toddler .
3. Denial of service for refusal to pay on sliding fee scale
Question : A July 22, 1996 letter from OSEP to Lamona H . Lucas, Commissioner of the
Alabama Dept . of Rehabilitation Services, was in answer to the question about use of
private insurance . In the letter, OSEP says: Where federal or state law authorizes a
system ofpayment for Part H services, and the parents are able to pay for the services and
refuse to, Part H services can be withheld . The letter cautions that Part H services must
not be withheld from eligible children whose parents cannot pay for services . Is this still a
correct interpretation? If we have an established fee scale that says, for example, a family
with a gross income of $45,000 would be charged $25/month and the family refuses to
pay, can services other than service coordination be denied?
Response : Under Connecticut's hypothetical, Connecticut's system of payments must
comply with 34 CFR §§303 .520 and 303 .521 . Thus, Connecticut must provide to all
infants and toddlers and families all services that must be provided at no cost under Part C,
which under 34 CFR §303 .521(b) are child find, evaluations and assessments, service
coordination, IFSP meetings and development, and procedural safeguards .
Additionally, the Part C regulations provide that the "inability of the parents of an eligible
child to pay for services will not result in the denial of services to the child or the child's
family ." 34 CFR §303 .520(b)(3). Thus, if a parent meets the State's definition of
"inability to pay" as set forth in the State's system of payments, the State must provide all
early intervention services at no cost to the infant or toddler with a disability and the
family . The State's definition of "inability to pay" must be on file with the Secretary as
part of its system of payments under 34 CFR §§303 .520(a) and (b) . Finally, in a State that
provides for a free appropriate public education (FAPE) to be provided from birth (i.e .,
birth mandate state) that all FAPE services are available at no cost to the child . If, under
Connecticut's hypothetical a parent is able to pay (as determined by the definition of
inability to pay on file with the Secretary) and refuses to pay, the State does not need to
provide services unless the services are covered under 34 CFR §303 .521(b), or, in the case
of a FAPE birth-mandate state, the FAPE services are available at no cost to the child .
4. Denial of service to families that repeatedly fail to keep appointments
Question : A letter from OSEP to Bob Frymoyer and Pat Berger from the Pennsylvania
Legislative Budget and Finance Committee on November 22, 1996 responded to their
question "Can services be denied to families that repeatedly fail to keep appointments?"
OSEP's answer at that time was that "Part H does not allow a state to deny early
intervention services to an eligible child whose family cannot keep appointments, even if
this occurs on a repeated basis . States can give parents a choice as to whether they will

Page 4 - Linda Goodman, Director
accept or refuse the services the child is eligible for ." We would like to adopt a procedure
that after the third time an early interventionist comes to a home for a scheduled visit and
finds no one home (with reminders left after the first two times) that the family receive
prior written notice, along with a copy of their rights, that their child will be exited from
the System unless they are able to call or write to schedule and be present for, another visit .
They would also be given the option of notifying us that they wish to withdraw their child
from services . Under OSEP's current interpretation, would that be permissible?
Response: It would be inconsistent with Part C of the IDEA for a State to adopt a
procedure that "after the third time the early interventionist comes to a home for a
scheduled visit and finds no one home . . . that the family receive prior written notice, along
with a copy of their rights, that their child will be exited from the system unless they are
able to call or write to schedule and be present for, another visit ." The State cannot assume
the parent has revoked consent for services listed on the existing IFSP or that the consent
provided for those services is time-limited .
Part C requires that the IFSP be reviewed every six months or "or more frequently if
conditions warrant, or if the family requests such a review ." 34 CFR §303 .342(b)(1) .
Because under 34 CFR §303 .342(b)(1), the "purpose of the periodic review is to
determine-- (i) The degree to which progress toward achieving the outcomes is being
made ; and (ii) Whether modification or revision of the outcomes or services is necessary,"
the State may determine that repeated absences from appointments and home visits are
"conditions" that warrant a review of the IFSP . The Part C regulations note that the
"review may be carried out by a meeting or by another means that is acceptable to the
parents and other participants ." 34 CFR §303 .342(b)(2) . The State must notify the parent
of the IFSP review meeting. Meetings must be accessible and scheduled as conveniently
as possible . See 34 CFR §303 .342(d) . If the new IFSP developed at the IFSP review
meeting includes services that were listed on the previous IFSP (to which the parent
provided consent) and the parent is absent at the IFSP review meeting, then those services
listed on the previous IFSP must be provided unless the parental consent on the previous
IFSP clearly stated that it was being provided for all services until a new IFSP was in
place . Additionally, the State may wish to document the different attempts it made to
notify the parents of the IFSP review meeting in order to comply with the parent notice
requirements .
As a separate practical approach to addressing a child and parents' repeated failure to
attend appointments, the State may wish to use the periodic IFSP review meeting to
explore the reasons for the repeated absences . If the parent is concerned about the service
delivery location, the IFSP review meeting can be used to explore the options that best
meet the needs of, and address the outcomes for, the infant or toddler with a disability and
that child's family . As for the cost incurred by States for repeated parental absence, Part C
does not preclude the State from adding a provision in its system of payments (which must
be on file with the Secretary prior to being implemented) that a parent shall pay the actual
cost incurred by a State for a service appointment if the parent repeatedly fails to attend or
make the child available for that appointment . As noted above in response to question
four, such a provision could not apply to early intervention services for those families that

Page 5 - Linda Goodman, Director
meet the State's definition of inability to pay or for those services required to be provided
at no cost under 34 CFR §303.521(b) or, in a FAPE-mandate State, services that constitute
FAPE.
We hope this response provides the necessary clarifications . Please feel free to contact
Jackie Twining-Martin, OSEP Connecticut Part C Contact, at 202-205-8258 or JoLeta
Reynolds at 202-205-5507 (press 3 and ask to be transferred to Dr . Reynolds) if you need
further assistance.
Sincerely,

4*~Zk
Stephanie Smith Lee
Director
Office of Special Education Programs
cc: George P . Dowaliby
Chief, Bureau of Special Education and Pupil Services


UNITED STATES DEPARTMENT OF EDUCATION
W

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OFFICE OF SPECIAL EDUCATION AND REHABILITATIVE SERVICES

OCT 2 4 2003

Honorable William L. Librera
Commissioner of Education
100 River View Plaza
Trenton, New Jersey 08625-0500
Dear Dr. Librera:

This letter is in response to a letter received by the Office of Special Education Programs
(OSEP), U .S. Department of Education from Ms . Diana Autin of the Statewide Parent Advocacy
Network in Newark New Jersey . Ms . Autin requested clarification regarding the responsibility
of the New Jersey Department of Education to ensure a free appropriate public education (FAPE)
to children with disabilities who live in New Jersey, but attend school in New York under a
contract between New Jersey and New York school districts . According to Ms . Autin, beginning
in middle school, all public school students who live in Montague, New Jersey attend school in
Port Jervis, New York under a contractual agreement between the two districts. Ms Autin
specifically asked whether, for these students, evaluations are to be conducted and eligibility
determinations made consistent with New Jersey's policies, and whether the New Jersey
Department of Education must provide access to dispute resolution procedures (e.g., due process
hearings, mediation) that are available to all parents of children with disabilities who live in New
Jersey.
The Individuals with Disabilities Education Act (IDEA) requires States to have in effect policies
and procedures to ensure that children with disabilities have available to them special education
and related services that meet their unique needs . Among the requirements under the IDEA and
its implementing regulations, States must ensure that : (a) a free appropriate public education is
available to all children with disabilities residing in the State (20 U .S.C . 1412(a)(1) ; 34 C .F .R
§300 .121) ; (b) all children with disabilities residing in the State who are in need of special
education and related services are identified, located, and evaluated (20 U .S .C . 1412(a)(3) ; 34
C.F.R §300 .125) ; (c) children with disabilities and their parents are afforded their procedural
safeguards (20 U .S .C . 1412(a)(6) ; 34 C .F .R §300 .129) ;and (d) children with disabilities are
evaluated in accordance with procedures outlined in section 614 of the IDEA (20 U .S .C .
1412(a)(7); 34 C .F.R. §300 .126) .
The IDEA does not prohibit a State or school district from entering into an agreement with
another entity to provide special education and related services . However, the State remains
responsible for ensuring that the requirements of Part B of the IDEA are carried out and that each
educational program for children administered within the State, including each program
administered by any other State or local agency, is under the general supervision of the persons
responsible for educational programs for children with disabilities in the State ; and meets the
educational standards of the State, including the requirements of Part B of the IDEA (20 U .S .C .
1412(a)(11) ; 34 C .F.R. §300.600) . In addition, each local educational agency (LEA) must have
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Page 2 - Honorable William L . Librera
policies, procedures and programs that are consistent with the State policies and procedures . (20
U.S .C . 1413(a)(1) ; 34 C .F.R.§300.220.)
It is unclear how some aspects of the mechanisms in place for children with disabilities living in
New Jersey and attending school in New York are consistent with these requirements . Based on
a review of the contract agreement between the Montague School District in New Jersey and the
Port Jervis City School District in New York (obtained from the New Jersey Department of
Education), it appears to apply New York's policies and procedures for evaluation and eligibility
determinations, and for due process to students who are residents of New Jersey . However,
under the IDEA, New Jersey and the Montague School District are responsible for ensuring the
provisions of FAPE to these students .
Furthermore, with regard to procedural safeguards, the contract arrangement provides that New
Jersey students and parents must file for a due process hearing with the State of New York and
that such appeals are pursued in accordance with applicable New York State law . Under the
IDEA, parents who disagree with a hearing officer's decision in a due process hearing have the
right to bring a civil action in any State court of competent jurisdiction or in a district court of the
United States (20 U .S.C. 1415(i)(2) ; 34 C .F.R. §300.512) . As New Jersey and its LEA are
responsible under the IDEA for ensuring the provision of FAPE to these students, their parents
cannot be denied the opportunity to pursue complaints against the New Jersey LEA or State
through the New Jersey due process system, and, if necessary, civil actions through the State of
New Jersey courts of competent jurisdiction or federal district court .
Please explain in writing how New Jersey is fulfilling its responsibilities under the IDEA for
these children and specifically address the concerns raised above regarding how the State is
fulfilling its responsibilities to ensure the availability of FAPE, the implementation of the child
find and evaluation requirements, and the procedural safeguards afforded to New Jersey parents
and children, consistent with the IDEA .
We look forward to hearing from you no later than 30 days following receipt of this letter .
Please also send a copy of your response to Ms . Autin . If you have any questions, please do not
hesitate to contact Dr. Wendy Tada at 202-205-9094 or Dr . JoLeta Reynolds at 202-205-5507
(press 3) and ask to be transferred to Dr . Reynolds .
Sincerely,

Stephanie Smith Lee
Director
Office of Special Education Programs
cc : Ms . Barbara Gantwerk, Director, Office of Special Education Programs,
New Jersey Department of Education
Ms . Diana Autin, Statewide Parent Advocacy Network, Inc ., Newark, New Jersey


UNITED STATES DEPARTMENT OF EDUCATION
z

OFFICE OF SPECIAL EDUCATION AND REHABILITATIVE SERVICES

OCT 2 4 2003

Diana MTK Autin, Executive Director
Statewide Parent Advocacy Network, Inc .
35 Halsey Street, 4th Floor
Newark, New Jersey 07102
Dear Ms . Autin :
This letter is in response to your request for clarification regarding the responsibility of
the New Jersey Department of Education to ensure a free appropriate public education
(FAPE) to children with disabilities who live in New Jersey, but who attend school in
New York under a contract between New Jersey and New York school districts . You
state in your letter that, beginning in middle school, all public school students who live in
Montague, New Jersey attend school in Port Jervis, New York under a contractual
agreement between the two districts . You specifically ask whether, for these students,
evaluations are to be conducted and eligibility determinations made consistent with New
Jersey's policies, and whether the New Jersey Department of Education must provide
access to dispute resolution procedures (e.g., due process hearings, mediation) that are
available to all parents of children with disabilities who live in New Jersey .
The Individuals with Disabilities Education Act (IDEA) requires States to have in effect
policies and procedures to ensure that children with disabilities have available to them
special education and related services that meet their unique needs . Among the
requirements under the IDEA and its implementing regulations, States must ensure that :
(a) a free appropriate public education is available to all children with disabilities residing
in the State (20 U .S.C . 1412(a)(1) ; 34 C .F.R §300.121) ; (b) all children with disabilities
residing in the State who are in need of special education and related services are
identified, located, and evaluated (20 U .S .C . 1412(a)(3) ; 34 C .F .R §300 .125) ; (c) children
with disabilities and their parents are afforded their procedural safeguards (20 U .S .C .
1412(a)(6) ; 34 C .F.R §300.129) ;and (d) children with disabilities are evaluated in
accordance with procedures outlined in section 614 of the IDEA (20 U .S.C . 1412(a)(7) ;
34 C.F.R. §300.126) .
The IDEA does not prohibit a State or school district from entering into an agreement
with another entity to provide special education and related services . However, the State
remains responsible for ensuring that the requirements of Part B of the IDEA are carried
out and that each educational program for children administered within the State,
including each program administered by any other State or local agency, is under the
general supervision of the persons responsible for educational programs for children with
disabilities in the State ; and meets the educational standards of the State, including the
requirements of Part B of the IDEA (20 U .S.C . 1412(a)(11) ; 34 C .F.R . §300.600) . In
addition, each local educational agency (LEA) must have policies, procedures and
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Page 2 - Ms. Diana Autin
programs that are consistent with the State policies and procedures . (20 U.S.C.
1413(a)(1) ; 34 C .F .R.§300 .220 .)
It is unclear how some aspects of the mechanisms in place for children with disabilities
living in New Jersey and attending school in New York are consistent with these
requirements . Based on a review of the contract agreement between the Montague
School District in New Jersey and the Port Jervis City School District in New York
(obtained from the New Jersey Department of Education), it appears to apply New York's
policies and procedures for evaluation and eligibility determinations, and for due process
to students who are residents of New Jersey . However, under the IDEA, New Jersey and
the Montague School District are responsible for ensuring the provisions of FAPE to
these students .
Furthermore, with regard to procedural safeguards, the contract arrangement provides
that New Jersey students and parents must file for a due process hearing with the State of
New York and that such appeals are pursued in accordance with applicable New York
State law . Under the IDEA, parents who disagree with a hearing officer's decision in a
due process hearing have the right to bring a civil action in any State court of competent
jurisdiction or in a district court of the United States (20 U .S .C . 1415(i)(2) ; 34 C .F.R.
§300.512) . As New Jersey and its LEA are responsible under the IDEA for ensuring the
provision of FAPE to these students, their parents cannot be denied the opportunity to
pursue complaints against the New Jersey LEA or State through the New Jersey due
process system, and, if necessary, civil actions through the State of New Jersey courts of
competent jurisdiction or federal district court .
A copy of this letter is being sent to Dr . William L. Librera, New Jersey Commissioner of
Education along with a request to explain in writing how the New Jersey Department of
Education is meeting the requirements of the IDEA for students with disabilities under
the contract between the Montague School District in New Jersey and the Port Jervis City
School District in New York . We are asking that a copy of their response be sent to you .
If you have any further questions, please do not hesitate to contact Dr . Wendy Tada at
202-205-9094 or Dr. JoLeta Reynolds at 202-205-5507 (press 3) and ask to be transferred
to Dr . Reynolds .
Sincerely,

Stephanie Smith Lee
Director
Office of Special Education Programs
cc: Barbara Gantwerk, Director
Office of Special Education Programs
New Jersey Department of Education


UNITED STATES DEPARTMENT OF EDUCATION

o

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OFFICE OF SPECIAL EDUCATION AND REHABILITATIVE SERVICES

OCT

- 2

2003

Daniel W . Morse, Esq .
Disability Law Center
205 North 400 West
Salt Lake City, Utah 84103
Dear Mr . Morse :
This is in response to your letter requesting clarification from the Office of Special
Education Programs (OSEP) . You ask the following questions :
1) Does Utah [State Board of Education Special Education] Rule 111 .1 .10
(2001) violate Part B of the IDEA [Individuals With Disabilities Education
Act] by allowing LEAs [local education agencies] to write services required
under IDEA on a Section 504 plan instead of an IEP (individualized
education program] .
2) More generally, can LEA compliance with Section 504 substitute for
compliance with Part B of the IDEA?
You ask these questions in the context of whether accommodations for a student
with disabilities can be listed solely on a Section 504 plan and not on the child's
IEP .
The Part B regulations implementing the IDEA require that a State have on file
with the Secretary policies and procedures approved by the Secretary that
demonstrate that the State has in effect policies and procedures to ensure that it
meets the conditions in §§300 .121-156 of the Part B regulations (§300 .110(a)) .
Given that Rule 111 .1 .10 of Utah's State Board of Education Rules of June 2000 is
a change to the policies and procedures Utah currently has on file with the
Secretary, the Monitoring and State Improvement Planning Division (MSIP) of
OSEP is currently reviewing the change in Utah's rule for consistency with Part
B.
In response to your questions, it is important to contrast the requirements of
Section 504 and the IDEA that apply to elementary and secondary students with
disabilities . Section 504 prohibits discrimination based on disability in programs
or activities receiving federal financial assistance . For elementary and secondary
school students, the Section 504 regulations require that a free appropriate
public education (FAPE), as defined in the regulations, be provided to students
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Page 2 - Daniel W . Morse, Esq .
with disabilities in the recipient's jurisdiction . The Section 504 regulations at 34
CFR §1 04 .33(b)(2) specifically set out that the implementation of an IEP
developed in accordance with the IDEA is one means of meeting the requirement
for FAPE contained in the Section 504 regulations . Therefore, many school
districts develop and implement IEPs in accordance with the IDEA, to meet both
the Section 504 and IDEA requirements for elementary and secondary students
with disabilities who are covered under both statutes .
The IDEA and its regulations also require that States and school districts make
FAPE available to eligible elementary and secondary students with disabilities
and set out specific requirements for the development and content of students'
IEPs . The IDEA regulations do not permit a Section 504 plan to substitute for an
IEP . While this does not mean that an IEP cannot contain information or
services that were previously a part of the student's Section 504 plan, a Section
504 plan that does not meet the specific IEP requirements of the IDEA may not
be used to substitute for an IEP .
If this office can be of further assistance do not hesitate to contact Sheila
Freedman at (202) 205-9055 or Dale King at (202) 260-1156 .
Sincerely,

Stephanie Smith Lee
Director
Office of Special Education Programs
cc:

Karl Wilson, USOE Director of At Risk and Special Education Services
Brenda Broadbent, USOE State and Federal Compliance Officer


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

SEP - 9

200,'3

Mr. Robert Rutten
Director of Special Education
Department of Public Instruction
600 E. Boulevard Ave., Dept. 201
Bismarck, North Dakota 58505-0440
Dear Mr. Rutten:
This is in response to your letter requesting clarification on the IDEA Part B complaint
investigation procedures. You presented a situation that occurred during a recent
complaint investigation in which (1) an employee of the State Protection and Advocacy
Project was present with a parent during an interview by the complaint investigator and
(2) the complaint investigator sent copies of the statement of issues to be investigated to
employees of the State Protection and Advocacy Project for their review. You clarified
that the parent (who is the complainant) chose to involve the State Protection and
Advocacy Project and asked that correspondence be directed to that agency. You also
indicated that if a complainant does not choose to involve an advocate or other outside
counsel, the North Dakota Department of Public Instruction does not share
correspondence with them or include them in complaint investigation interviews. A local
special education administrator objected to any outside agency being directly involved in
the State complaint process believing that involvement of outside parties "places bias into
what is to be a non-biased investigation..."
The State complaint procedures are set out at 34 CFR §§300.660-300.662 of the Part B
regulations, published in the Federal Register on March 12, 1999. Generally, §300.660
requires each SEA to adopt written procedures for resolving any complaint, including any
complaint filed by any organization or individual from another State, that meets the
requirements of §300.662 (see next paragraph). Under §300.660(a), these procedures
must:
(1) provide for the filing of a complaint with the SEA;
(2) at the SEA's discretion, provide for the filing of a complaint with a public
agency, and the right to have the SEA review the public agency's decision on
the complaint; and
(3) provide for wide dissemination of these procedures to parents and other
interested individuals, including parent training and information centers,
protection and advocacy agencies, independent living centers, and other
appropriate entities.

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Page 2 - Mr. Robert Rut-ten
It is not inconsistent with the State complaint procedures set out at 34 CFR §§300.660300.662 of the Part B regulations for a complainant to have an advocate present during an
interview or for the complaint investigator to send a copy of the issues to be investigated
to an advocate if requested to do so by the complainant.
I hope this information answers your questions. If you have any further questions, please
do not hesitate to contact Dr. Wendy Tada at (202) 205-9094

Sincerely,

Stephanie Smith Lee
Director
Office of Special Education Programs


@

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

SEP - 5
Frank G. Bowe, Ph.D., LL.D.
Department of Counseling, Research, Special
Education and Rehabilitation
School of Education and Allied Human Services
223 Hagedorn Hall
Hofstra University
Hempstead, New York 11549 L,
Dear Professor Bowe
This is in response to your e-mail asking for the statutory provisions that substantiate the
position set forth in the letter dated September 24, 2001 to Virginia Department of
Education Assistant Superintendent H. Douglas Cox, regarding the Individuals with
Disabilities Education Act (IDEA) requirement that parental consent must be obtained
before the initial evaluation, the reevaluation, and the initial provision of special
education and related services.
The IDEA statute and regulations contain express provisions that require local education
agencies (i.e., school districts) to obtain informed parental consent prior to a child's
initial evaluation or reevaluation or initial provision of services for special education and
related services. 20 U.S.C. §§1414(a)(l)(c)(i) and (c)(3) and 34 CFR §300.505(a). The
IDEA statute at section 614(a)(1)(c)(ii) and regulations at 34 CFR §300.505(b) also
contain express provisions that allow an agency to override parental consent if the parents
of a child with a disability refuse to provide informed consent for the child's initial
evaluation or reevaluation. Specifically, the agency may continue to pursue those
evaluations by using the due process procedures under 34 CFR §§300.507-300.509, or
the mediation procedures under 34 CFR §300.506, if appropriate and voluntary.
Additionally, the statute and regulations make clear that consent for the initial evaluation
is not to be construed as consent for the initial provision of special education and related
services. 20 U.S.C. §1414(a)(1)(c)(i) and 34 CFR §300.505(a)(2).
However, there are no comparable provisions in either the statute or IDEA regulations
that allow the agency to override parental refusal to consent for the initial provision of
special education and related services to a child with a disability. Under 34 CFR
§300.505(a)(1)(ii), informed parent consent must be obtained before the initial provision
of special education and related services to a child with a disability. The public agency
may not override this requirement by using the due process procedures under the IDEA.
In States that offer mediation prior to a due process hearing request, school districts may
use mediation to try and resolve parental refusal to consent to the initial provision of
services, provided, however, that it must be clear to both parties that participation in

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Page 2 - Professor Frank G. Bowe
mediation is voluntary on the part of the parents and the local education agency. See, 34
CFR §§300.506(a) and (b)(1).
Congress chose not to include an express provision in the IDEA that would allow school
districts to use the IDEA due process hearing procedures to override a parent's refusal to
consent to the initial provision of special education and related services although an
express provision was included under IDEA §614(a)(I)(c) for school districts to use these
procedures to override parental refusal to consent to initial evaluations. We assume this
was intended to support parents' rights to choose whether their children would initially
receive special education and related services. The provision allowing school districts to
proceed to due process for non-consent on evaluations was enacted to ensure that parents'
choices were informed (such that parents would have information about the special
education and related services needs of each individual child) while still enabling the
parent to ultimately determine if his or her child would initially receive special education
and related services.
We hope that this information is helpful.

Sincerely,

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


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

AUG 2 8 2003
Ms. Rita Byrd
Assistant Superintendent
Fort Thomas Independent Schools
28 North Fort Thomas Avenue
Fort Thomas, Kentucky 41075-1555
Dear Ms. Byrd:
I am writing in response to your letter requesting clarification of the Pan B regulations under the
Individuals with Disabilities Education Act (IDEA) as it relates to the individualized education
program's (IEP) team membership. Specifically, you inquire whether a public agency is
required to ensure attendance at an IEP meeting of an individual who the parent invites and who
is an" employee of the public agency, including a former teacher who has not worked with the
student in several years.
Under Part B of the IDEA, 20 U.S.C. ยง 1400 et. seq., and its implementing regulations at 34
C.F.R. Pan 300, a public agency must ensure that all individuals who are necessary to develop an
IEP that will meet the child's unique needs and ensure the provision of a free appropriate public
education (FAPE) to the child participate in the child's IEP meeting. Under the Part B
regulations, the public agency must ensure that the IEP team for each child with a disability
includes"(1) The parents of the child;
(2) At least one regular education teacher of the child (if the child is, or may be,
participating in the regular education environment);
(3) At least one special education teacher of the child, or if appropriate, at least
one special education provider of the child;
(4) A representative of the public agency who โข (i) Is qualified to provide, or supervise the provision of, specially designed
instruction to meet the unique needs of children with disabilities;
(ii) Is knowledgeable about the general curriculum; and
(iii) Is knowledgeable about the availability of resources of the public
agency;
(5) An individual who can interpret the instructional implications of evaluation
results, who may be a member of the team described in paragraphs (a)(2) through
(6) of this section;
(6) At the discretion of the parent or the agency, other individuals who have
knowledge or special expertise regarding the child, including related services
personnel as appropriate; and
(7) If appropriate, the child."
34 CFR ยง300.344(a).
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Page 2 - Ms. Rita Byrd

The regulations now require that if the parents or the public agency invite other individuals to the
IEP meeting; those individuals must have "knowledge or special expertise regarding the child."
34 C.F.R. ยง300.344(a)(6). This is a change from prior law, which provided, without
qualification, that.parents or agencies could have other individuals as members of the IEP team
at the discretion of the parents or agency. See 34 CFR Part 300, Appendix A, Question 28. The
determination as to whether an individual has knowledge or special expertise, within the
meaning of 34 C.F.R. ยง300:344(a)(6), shall be made by the parent or public agency who has
invited the individual to be a member of the IEP team, and that determination must be made on a
case-by-case basis. See 34 C.F.R. ยง300.344(c). The Federal regulations, however, do not
address the public agency's responsibility to make an employee of the agency, including a
student's former teacher, available for IEP meetings. That determination may be addressed by
the State and/or local policy.
If you have any questions about how the requirements of Part B are implemented in Kentucky,
you may contact the State educational agency at the following address and telephone number:
Ms. Judy Mallory
Director
Division of Exceptional Children's Services
Kentucky Department of Education
Capital Plaza Tower, 8th Floor
500 Mero Street, Room 801
Frankfort, Kentucky 40601
Telephone Number: (502) 564-4970
Again, thank you for sharing your concerns with us. If this Office can be of assistance in the
future, please feel free to contact Mr. Martin Benton, OSEP's Part B contact for Kentucky, at
(202) 205-9028.
Sincerely,

Stephanie Smith Lee
Director
Office of Special Education
Programs
cc: Judy Mallory


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

AUG 2 8 2003

I am writing in response to your letters to Dr. Gregg Corr in the United States Department of
Education's Office of Special Education Programs (OSEP) c o n c e r n i n g
In your letters
you request clarification on the obligation of a local education agency (LEA), specifically t h e
D istrict to ensure the presence of specific teachers at the individualized education
program
(IEP)
meeting
for(
your
In letters, you state that you feel that the teachers in
question,
have knowledge and expertise about
would be
After requesting that the teachers
meeting, you learned that the school administration requested that the teachers discuss their
"leave options" if they planned to attend the meeting. Your letter does not state whether these
teachers presently teach or provide supplementary aids and services to your child. I would like
to provide you with the following information concerning the Federal requirements for IEP
meeting participants.
Under Part B of the Individuals with Disabilities Education Act (Part B), 20 U.S.C. § 1400 et.
seq., and its implementing regulations at 34 C.F.R. Part 300, a public agency must ensure that all
individuals participate in the child's IEP meeting who are necessary to develop an IEP that will
meet the child's unique needs and ensure the provision of a free appropriate public education
(FAPE) to the child. Under the Part B regulations, the public agency must ensure that the IEP
team for each child with a disability includes"(1 ) The parents of the child;
(2) At least one regular education teacher of the child (if the child is, or may be,
participating in the regular education environment);
(3) At least one special education teacher of the child, or if appropriate, at least
one special education provider of the child;
(4) A representative of the public agency who (i) Is qualified to provide, or supervise the provision of, specially designed
instruction to meet the unique needs of children with disabilities;
(ii) Is knowledgeable about the general curriculum; and
(iii) Is knowledgeable about the availability of resources of the public
agency;
(5) An individual who can interpret the instructional implications of evaluation
results, who may be a member of the team described in paragraphs (a)(2) through
(6) of this section;

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Page 2
(6) At the discretion of the parent or the agency, other individuals .who have
knowledge or special expertise regarding the child, including related services
personnel as appropriate; and
(7) If appropriate,, the child."
.34 CFR §3.00.344(a).
The current regulations permit the IEP team to include, at the discretion of the parent or the
agency, "other individuals who have knowledge or special expertise regarding the child..." See
34 C.F.R. §300.344(a)(6). This is a change from prior law, which provided, without
qualification, that parents or agencies could have other individuals as members of the IEP team
at the discretion of the parents or agency. See 34 CFR Part 300, Appendix A, Question 28. The
determination as to whether an individual has knowledge or special expertise, within the
meaning of §300.344(a)(6), shall be made by the parent or public agency who has invited the
individual to be a member of the IEP team, and that determination must be made on a case by
case basis. See 34 C.F.R. §300.344(c).
The Part B regulations do not address the public agency's responsibility to make an employee of
that agency who is not a required participant in the IEP meeting available for IEP meetings, nor
do the regulations address the question as to whether an individua! employed by the school
district who is not a required participant in the IEP meeting may be charged for leave if that
individual attends the IEP meeting at the request of the parent. Thus, whether or not an
employee of the school district who is not required by 34 C.F.R. §300.344(a) to be part of the
IEP team may be required to attend or he charged leave to attend the IEP meeting is a matter of
State and/or local policy.
If you have any questions about how the requirements of Part B are implemented in Kentucky or
the requirements of Kentucky law and regulations, you may contact the State educational agency
at the following address and telephone number:
Ms. Judy Mallory
Director
Division of Exceptional Children's Services
Kentucky Department of Education
Capital Plaza Tower, 8th Floor
500 Mero Street, Room 801
Frankfort, Kentucky 40601
Telephone Number: (502) 564-4970

Page 3
Again, thank you for sharing your concems with us. If this Office can be of assistance in the
future, please feel free to contact Mr. Martin Benton, OSEP's Part B contact for Kentucky, at
(202) 205-9028.
Sincerely,

Stephanie Smith Lee
Director
Office of Special
Education Programs
cc: Judy Mallory


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

AUG 2 2 2003
Ms. Robin L. Leeds
Regulatory Liaison
National School Transportation Association
625 Slaters Lane, Suit 205
Alexandria, VA 22314
Dear Ms. Leeds:
This is in reply to your letter regarding concerns expressed by your Association that
transportation providers, including contractors, bus drivers, and aides, are often not
included in school district plans or training related to transporting children with
disabilities under Part B of the Individuals with Disabilities Education Act (Part B) and
its implementing regulations. I am sending an identical response to Michael Martin,
Executive Director of the National Association for Pupil Transportation. We appreciate
the concerns identified in your letter and share your interest in ensuring that children with
disabilities are appropriately and effectively transported by informed and well-trained
transportation providers.
In your letter, you indicated that (1) transportation providers are rarely consulted by
members of the individualized education program (IEP) teams for children with
disabilities who require transportation as a related service and are not provided with the
opportunity to express their opinions regarding appropriate supports and potential
problem areas during the development of those students' IEPs; and (2) transportation
providers are rarely included in special education training programs and do not receive
child-specific training from the education personnel who are familiar with the students'
needs.
You stated that the problems facing transportation providers as outlined above seem to be
the result of a failure to appropriately implement and comply with the Part B regulations
at the state and local levels, rather than a deficiency in the regulations themselves. You
have asked the Office of Special Education Programs (OSEP) to remind the States of
their obligationto transportation personnel as related services providers and listed
specific suggestions to address the situation.
Although under Part B, there is no specific requirement that related services personnel be
part of the IEP team, it would be appropriate for public agency officials to solicit the
opinions of these personnel, including transportation providers, in the development of the
IEP. (§614(d)(1)(B); 34 CFR §300.344). In addition, the public agency must notify a
related services provider of his or her responsibility under the IEP and the specific
supports that must be provided for the child in accordance with the IEP. (34 CFR
§300.342Co)(3)). In order to ensure that related services, including transportation, are
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Page 2 - Ms. Robin L. Leeds
provided in accordance with a child's IEP, it is important that the providers be
appropriately trained to provide these accommodations, modifications and supports.
We have prepared an "OSEP Memorandum" to be sent to all State directors of special
education suggesting that they contact all local educational agencies within their
respective States to remind them of their obligations under Part B and to encourage them
to ensure that transportation providers are fully informed - before the f a c t - of their
responsibilities under the IEPs as well as the individual needs of the children they are
transporting. When this memorandum is disseminated, we will ensure that you receive
copies to share with your respective constituencies.
If you have comments or questions regarding this letter, please feel free to contact either
Dr. JoLeta Reynolds at (202) 205-5507 (press 3) or Mr. Thomas B. Irvin at (202) 205-

5803).
Sincerely,

Stephanie Smith Lee
Director
Office of Special Education
Programs


UNITED STATES DEPARTMENT OF EDUCATION
OFFICE OF SPECIALEDUCATIONAND REHABILITATIVESERVICES

AUG 2 2 2003
Contact Persons:
Name:
Telephone:
Name:
Telephone:

JoLeta Reynolds
(202) 205 5507
(press 3)
Thomas Irvin
(202) 205 5803

OSEP03-10

I

MEMORANDUM
TO:

State Directors of Special E d u c a t i o n

FROM:

Stephanie Smith Lee - Director
Office of Special Education Programs

SUBJECT:

Ensuring Safe and Appropriate Transportation for Children with Disabilities

As you know, being transported to and from school by school bus is a major factor of school
life for millions of children, nationally, including many children with disabilities.
Transportation is a costly venture. For example, during the 1999-2000 school year, the
nation's school districts spent over $13 billion on home-to-school and school-to-school
transportation for students in public schools. Of that amount, an estimated $3.7 billion (or
28% of the $13.1 billion) was for special transportation services for children with
disabilities
In meetings (and correspondence) with representatives of two major national transportation
associations (i.e., the National School Transportation Association, and the National
Association for Pupil Transportation), these representatives have expressed concerns that
transportation providers are often not included in local school district plans or training related
to transporting children with disabilities. They also provided examples of problems resulting
American Institutes for Research, Center for Special Education Finance, Report 3: WhatAre We Spending on
Transportation Services for Students with Disabilities, 1999-2000? (Revised 4/17/03).

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Page 2
from not having prior knowledge about the needs of some of these children, and expressed
interest in finding ways to ensure that transportation of children with disabilities is safely and
appropriately provided.
The current regulations implementing Part B of the Individuals with Disabilities Education
Act (IDEA) include a number of provisions related to transportation of children with
disabilities. See e.g., -- (1) the definition of related services, which lists transportation, and
includes a separate definition of "transportation" (34 CFR §300.24(a); (b)(15)); (2) Appendix
A--Notice of Interpretation, which includes questions and answers regarding the provision of
transportation in individualized education programs (i.e., Q-30 (64 FR 12478, March 12,
1999) and Q-33 (64 FR 12479); and (3) Attachment 1 to the 1999 Part B Regulations
(Analysis of Comments and Changes) that includes a discussion about transportation as a
related service (64 FR 12551).
To the extent appropriate, we encourage you to contact the local educational agencies in your
State to call their attention to the transportation provisions in the regulations, and to
encourage them, as appropriate, (consistent with the confidentiality provisions in §§300-560300.576), to ensure that there is meaningful and effective communication -- before the fact -between school district personnel and transportation providers about the transportation needs
and potential problems of individual students with disabilities. This effort should be
beneficial to all affected parties, but especially the children who are being transported.
Transportation providers play an integral role in the school lives of many children, including
children with disabilities, which makes effective communication between the school and the
providers essential. We believe that, for the safety and well-being of all children who ride
school buses, including children with disabilities, it is crucial that they are appropriately and
effectively transported by well-informed and well-trained transportation providers.
If you have questions or comments about this memorandum, please contact your Part B State
contact or the persons listed above.
CC:

Chief State School Officers
Federal Resource Center
Regional Resource Centers
ParentTraining Centers
Protection and Advocacy Agencies
Section 619 Coordinators


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

AUG19 2003

Your electronic correspondence to Congressman Dave Weldon, concemin
has
been referred to the Office of Special Education Programs (OSEP) within
Department of Education (Department) for reply. In your correspondence, you requested
assistance from Congressman Weldon in resolving a complaint you had filed with the
Florida Department of Health (FDH), Lead Agency for Pan C of the Individuals with
Disabilities Education Act (IDEA). You state in your correspondence that you "have
exhausted all state administrative processes and would request Congressman Weldon
intervene on a federal level."
I am aware that Alma McPherson, OSEP's Part C State contact for Florida, has had
several conversations with you regarding your concerns. Our records also indicate that
•OSEP referred your complaint to FDH on August 8, 2002 for FDH to resolve in
accordance with complaint procedures at 34 CFR §§303.510-303.312. FDH was asked to
send a copy of the agency's final decision to OSEP. OSEP received a copy of FDH's
October 3 I, 2002 Final Report of Inquiry and reviewed it. While OSEP did review the
report, it is important to clarify the regulations implementing the 1997 Amendments to
the IDEA removed the Department's authority to conduct Secretarial review of State
complaint decisions and that currently, neither the regulations implementing Pan B nor
Part C provide for a Secretarial review of the State's decisions in a complaint resolution.
In your electronic correspondence to Congressman Weldon you requested "(1) an
investigation into deliberate and malicious discrimination against our child who has a
disability, (2) for our family to be made whole and our child to receive compensatory
services as described in the procedural safeguards for the duration of his assignment in
Early Intervention and Prevention, (3) an established jurisdiction for Prevention and
Early Intervention to be determined so you may file with the appropriate office. HHS
and DOE claim they do not have jurisdiction, (4) under the Freedom of Information Act
(FOIA), a copy of the resume of one of the state-sanctioned interpreters, and (5)
legislation to provide families with alternative options to Pan C to provide a competitive
services module to the disabled." We have responded to each of these concerns
separately below. You also requested in your electronic correspondence that "Criminal
charges to be brought against [staff person] for forging a family member's [sic] name on
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Page 2 a federal document and relief from the false and malicious DCFS charge that has been
placed against our family for advocating for our child." OSEP does not have the legal
authority to address these two latter issues. Criminal sanctions for any alleged forgery,
libel or slander are the subject of State law and may be referred to your State's attorney
general's office Or local county sheriff or district attorney.

1. An investigation into deliberate and malicious discrimination against [your] child
who has a disability.
The Department's Office for Civil Rights (OCR enforces laws that prohibit
discrimination based on disability. Section 504 of the Rehabilitation Act. of 1973
prohibits discrimination based on disability in programs or activities receiving Federal
financial assistance. Title II of the Americans with Disabilities Act prohibits
discrimination by public entities on the basis of disability. Enforcement of these laws by
OCR extends to all Part C lead agencies, all State education agencies and preschool,
elementary and secondary schools that receive Department funds. For assistance related
to civil rights or to file a complaint, you should contact the OCR enforcement office
serving Florida.
The OCR office for Florida is located at:
Atlanta Office
Office for Civil Rights
U.S. Department of Education
61 Forsyth St. S.W., Suite 19T70
Atlanta, GA 30303-3104
Telephone: 404-562-6350
FAX: 404-562-6455; TDD: 404-331-7236
Email: OCR Atlanta@ed.gov

2. For [your]family to be made whole and [your] child to receive compensatory services
as described in the procedural safeguards for the duration of his assignment in Early
Intervention and Prevention.
The regulations governing Part C emphasize the importance of the lead agency to resolve
complaints in a way that provides individual relief when, in resolving a State complaint
filed under 34 CFR §§303.510-303.512, it finds a failure to provide appropriate early
intervention services to an infant or toddler with a disability and his or her family. Under
34 CFR §303.510(b), a resolution must address both: (1) how to remediate the denial of
services for the individual child, which can include an award of compensatory services,
monetary reimbursement or other corrective actions appropriate to the needs of the child
and family, and (2) appropriate future provision of services for all infants and toddlers with
• disabilities and their families. Because the basis of the compensatory services remedy is
the past denial of early intervention services that were not originally provided,
compensatory services as a remedy could, if determined appropriate, be available even

Page 3
after a child is no longer receiving Services under Part C and independent of any current
right the child may have to a free appropriate public education. Receiving special
education and related services under Part B would not alter a child's right to compensatory
services under Part C, if compensatory services were identified by the lead agency, a due
process hearing officer, or a judge as an appropriate remedy to redress a denial of services.
In the FDH's Final Report of Inquiry regarding your State complaint, the investigation
team found that "the Early Intervention Program failed to document in Family Support
Plans completed during the period of time covered by this investigation, the reasons why
some services were not provided in h o m e .
' ' By copy of this letter to FDH, we are
asking FDH to review its finding and determine whether the failure to document in the
Family Support Plan why your child's services were not provided in his home impeded
your child receiving early intervention services and, if so, whether compensatory services
or any other individual remedy is appropriate for your child. Additionally, under Part C,
you also may request a due process hearing to resolve complaints concerning any matters
related to the identification, evaluation, placement, or the provision of appropriate early
intervention services to your child and family. 34 CFR §303.420. If you pursue this option,
the request for a due process hearing must be filed in accordance with FDH's procedures.
FDH must also allow parties to disputes to resolve the disputes through a mediation
process, which, at a minimum, must be available whenever a hearing is requested. 34 CFR
§303.419(a).
3. An established jurisdiction for Prevention and Early Intervention to be determined so
you may file with the. appropriate office. HHS and DOE claim they do not have
jurisdiction.
OSEP is responsible for the administration of the IDEA at the Federal level. The
Monitoring and State Improvement Planning (MSIP) Division of OSEP is responsible
under Part B and Part C for State Plan review and approval, and for monitoring OSEP's
formula grant programs to ensure consistency with Federal requirements and to ensure,
on a systemic basis, that States and other public agencies continue to implement
programs designed to improve results for infants, toddlers, children, and youth with
disabilities and their families. However, while OSEP is responsible for the
administration of the IDEA, the final regulations implementing Part C of the IDEA place
the responsibility for the resolution of individual complaints with the State lead agency
for Part C.
The Part C regulations require that the Governor establish or designate a lead agency as
the single line of responsibility for the general administration and supervision of
programs and activities under Part C. 34 CFR §303.501. FDH has been designated the
lead agency in Florida. It is the responsibility of the FDH to adopt and use proper
methods of administering programs under Part C, including monitoring agencies used to
carry out Part C services, enforcing any obligations imposed on agencies, providing
technical assistance, and correcting any deficiencies identified through monitoring. 34
Final Report of Inquiry Conducted by the Department of Health Children's Medical Services Involving
Early Intervention Program,October 31, 2002, page 8.

Page 4 CFR §303.501(b). Additionally, the FDH must have written procedures for resolving any
complaint, including provisions for the filing of a complaint with FDH, and
disseminating to parents and other interested individuals those procedures. 34 CFR
§303.510(a).
4. Under the Freedom of Information Act (FOIA), a copy of the resume of one of the
state-sanctioned interpreters.
The Federal Freedom of Information Act (FOIA) applies to documents held by
agencies of the executive branch of the Federal Govemment. The FOIA does not
apply to private companies; private organizations; or State or local governments.
However, all States and some localities have enacted laws like FOIA that allow
individuals to request access to, and copies of, public records. Florida's Public
Records Act is at Chapter 119 of Florida's statutes. To determine whether the
document is a publicly available document under Florida's Public Records Act
and the process for requesting it from a specific State agency, you may wish to
contact an attorney, the Florida attorney general's office and/or the State agency's
legal office.
5. Legislation to provide families with alternative options to Part C to provide a
competitive services module to the disabled.
Congress is currently reauthorizing the IDEA. On April 30, 2003 the House approved,
H.R. 1350, the Improving Education Results for Children with Disabilities Act of 2003
and on June 25, 2003 the Senate Committee on Health, Education, Labor, and Pensions
approved, S. 1248, the Individuals with Disabilities Education Improvement Act of 2003.
The IDEA bill is still pending full Senate consideration. If you wish to review either of
these bills, you may do so at the following websites:
http://health.senate.gov/bills/O13_bill, html
http.'//e dworkforce. house, gov/index. htm
I hope this information is helpful to you.
Sincerely,

Stephanie S. Lee
Director
Office of Special Education Programs
CC:

Monica Rutkowski, Bureau of Prevention and Early Intervention, FDH
Michael L. Haney, Prevention and Interventions Children's Medical Services, FDH
Ms. Shan Goff, Bureau of Instructional Support and Community Services, FDOE


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

AUG 19 2008
Geoffrey A. Yudien, Esq.
Legal Counsel
Vermont Department of Education
120 State Street
Montpelier, Vermont 05620-2501
Dear Mr. Yudien:
This letter is in response to your questions regarding incarcerated youth that you asked of
Jill Harris in an electronic message. Each of your questions is restated below, followed
by the Office of Special Education Program's (OSEP's) response.
Question 1: You cite section 300.31 l(c)(1) of the Individuals with Disabilities Education
Act (IDEA) regulations which states that "...the IEP [individualized education program]
team of a student with a disability, who is convicted as an adult under State law and
incarcerated in an adult prison, may modify the student's IEP or placement if the State
has demonstrated a bona fide security or compelling penological interest that cannot
otherwise be accommodated." You ask, "Does this apply to people who are incarcerated
pre-trial?" (Emphasis added).
Response. Because the statute 20 USC § 1414(d)(6) and regulation use specific language
referencing students with disabilities who are convicted as adults under State law and
incarcerated in an adult prison, OSEP believes that this specific provision contemplates
post-conviction incarcerations. This is in contrast to the provisions at 20 USC
§ 1412(a)(1)(B) and 34 CFR §300.122(a)(2) stating that the obligation to make a flee
appropriate public education (FAPE) available does not apply with respect to children
aged 18 through 21 where State law does not require that special education and related
services be provided to those youth with disabilities who, in the educational placement
prior to their incarceration in an adult correctional facility were not actually identified as
being a child with a disability under Part B and those who did not have an individualized
education program under Pan B.
Question 2: You ask whether there is a child find responsibility with respect to
incarcerated students aged 18 through 21 who had not been previously identified as
eligible for special education or who had not had an IEP.
Response: Under the IDEA, where State law creates an exception to FAPE for students
with disabilities, aged 18 through 21 who in their last educational placement prior to their
incarceration in an adult correctional facility were not identified as being a child with a
disability under the IDEA and did not have an IEP, there also is no obligation for States
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Page 2 -Geoffrey A. Yudien, Esq.
and LEAs to identify and evaluate such individuals under Part B. However, to the extent
consistent with the age ranges established under State law, States must make FAPE
available to students with disabilities in adult prisons who do 'not fall into that exception.
Therefore, States and local educational agencies (LEAs) must include in its child find
•system, those incarcerated youth who would be eligible to receive FAPE.
Question 3: You state that Vermont's correctional system houses inmates from other
states, and also, from the federal correctional system, and ask "What are Vermont's
obligations, if any, to provide FAPE for the students who are in these groups?"
Response: Individuals in the federal correctional system fall under the jurisdiction of the
Federal Bureau of Prisons (BOP) within the Department of Justice. The IDEA makes no
specific provision for funding educational services for individuals with disabilities
through the BOP. If you would like more information regarding education programs for
individuals with disabilities through the BOP, you should contact:
Federal Bureau of Prisons
320 First St., NW.
Washington, DC 20534
Part B and its implementing regulations specifically apply to all subdivisions of the State
involved in the education of children with disabilities, including State and local juvenile
and adult correctional facilities. 34 CFR §300.2(b)(1)(iv). Each State must ensure that
FAPE is available to all children with disabilities, of eligible ages under State law, who
are residing in the State. 34 CFR §300.300(a). Generally, where the student is not
emancipated or of the age of majoritY, residency is determined by the State in which the
parent or guardian resides or the State that has designated the youth as a ward of the
State. Therefore, under Part B, when a youth with disabilities is referred or placed by the
State into an out-of-State facilitY, the referring State is generally responsible for ensuring
that FAPE is available to the youth during the course of the youth's placement in that
facility.
Two Federal laws that are also relevant to your inquiry are Section 504 of the
Rehabilitation Act of 1973 (Section 504) and Title II of the Americans with Disabilities
Act of 1990 (Title II). Section 504 prohibits discrimination on the basis of disability by
recipients of Federal financial assistance from the Department, and Title II prohibits
discrimination on the basis of disabilitY by public entities, including public elementary
and secondary school systems, regardless of receipt of Federal funds. The Department's
Office for Civil Rights (OCR) enforces Section 504 and Title II, as it applies to public
elementary and secondary school systems. For more information about Section 504 and
Title II with respect to your inquiry, you can contact the OCR Boston Office at the
following address and telephone number:

Page 3 -Geoffrey A. Yudien, Esq.

Boston Office
Office for Civil Rights
U.S. Department of Education
J.W. McCormack Post Office and Courthouse
Room 701,01-0061
Boston, MA 02109-4557
Telephone: 617-223-9662
FAX: 617-223-9669; TDD: 617-223-9695
Email: OCR_Boston@ed.gov
If you have any further questions, please feel free to contact Dr. Wendy Tada at 202-2059094 or Dr. JoLeta Reynolds at 202-205-5507 (press 3).
Sincerely,

Stephanie Smith Lee
Director
Office of Special Education Programs

cc: Mr. Dennis Kane
Director of Student Support Services
Division of Special Education
Vermont Department of Education
Thomas J. Hibino
Office for Civil Rights Boston Office

3


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

AUG 1 5 2003

(Reference: Hotline Complaint Number

I am writing in response to your facsimile dated March 3, 2003 transmitted to Ms. Sandra
Holding-Hinton, Hotline Operations Director, Office of the Inspector General, U.S. Department
of Education, concerning alleged violations of the Individuals with Disabilities Education Act
(IDEA) by the
School District and the Washington Office of the Superintendent of Public
Instruction (OSPI). Your correspondence was forwarded to the Office of Special Education
Programs (OSEP) for review.
OSEP is responsible for administering IDEA, which provides financial assistance to State
educational agencies (SEAs) and through SEAs to local educational agencies (LEAs) to assist
States in making available a free appropriate public education (FAPE) to all eligible children
with one or more of thirteen disabling conditions as defined in the regulations implementing Part
B of IDEA Part B) (copy enclosed). Under the Part B regulations, parents of children with
disabilities have two separate means available to them for resolving disputes with public
agencies concerning the education of their children -- i.e., (1) the State complaint resolution
system required in §§300.660-300.662 and (2) the impartial due process hearing system required
in §§300.506-300.513. States also are required to have mediation available at a minimum when
a due process hearing is requested. According to your correspondence, you have already
exercised your rights to the State complaint resolution system and due process hearing under
IDEA.
The IDEA regulations do not contain a mechanism for review of a State's decision when a
Complainant is dissatisfied with the SEA's resolution of a complaint. Although we have no
specific knowledge of Washington State law, we note that in a number of final State agency
actions, that action may be appealed under the State's administrative procedures law. Part B of
the IDEA does not provide for an OSEP review of individual State-level complaint decisions or
due process hearings.

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In your complaint, you raise the issue that some of the records on your children maintained by
the school "contain errors, inaccurate or fraudulent information." Under IDEA, a parent who
believes that information in education records is "inaccurate or misleading" may request that the
agency that maintains the information amend the records. The agency has a reasonable period of
time to amend the records, and if it does not, must notify you of its refusal to do so, and offer you
the right to a hearing. See 34 CFR 300.567.
In your complaint, you also raise concerns with the Washington OSPI's general supervision of
the S c h o o l
district. As you may know, the Department has a responsibility to monitor a
State's compliance with the IDEA. Among the many statutorily mandated areas that the
Department monitors is the State's general supervision of its local school districts' educational
programs for students with disabilities. Washington, in response to a Department Monitoring
Report and a self-assessment by the State and its stakeholders, submitted an Improvement Plan
(IP) that requires reports to outline evidence of progress on the IP. One of the areas addressed in
the IP is the State's general supervision of local school districts. The State's most recent report
(April 2002) indicates that the State is implementing a new monitoring system of its school
districts. The next semi-annual report, which should describe the results of the new system, is
due in October, 2003. We will review that submission carefully to ensure that Washington is
carrying out its responsibilities for general supervision by ensuring that local school districts
comply with the requirements of the IDEA.
If this Office can be of assistance in the future, please feel free to contact Ms. Lucille Sleger,
OSEP's Part B contract for the State of Washington, at (202) 205-8104.
Sincerely,

Stephanie S. Lee
Director
Office of Special Education
Programs
cc: Ms. Melissa Hall
Office of the Inspector General


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

AUG

-

1 2O03

Mr. Brad White
Audit Manager
Washington State Auditor's Office
P.O. Box 40021
Olympia, Washington 98504-0021
Dear Mr. White:
Mr. Hugh Monahan at the U.S. Department of Education, Office of the Inspector
General, forwarded your electronic correspondence seeking clarification regarding a
maintenance of effort issue to the Office of Special Education Programs for response. In
your correspondence you indicate that you have identified a local education agency
(LEA) that appears not to be in compliance with the maintenance of effort requirement
under 34 CFR §300.231. You report the LEA explained that its failure to meet the
maintenance of effort requirement is due to a reduction in retirement rates paid to
certified staff in Fiscal Year (FY) 2002 from the rates paid in FY2001. You specifically
ask whether a change in retirement rates falls under 34 CFR §300.232(a)(1) and therefore
qualifies as an acceptable reason for failing maintenance of effort.
As you point out in your correspondence, the regulations implementing Part B of the
Individuals with Disabilities Education Act (IDEA) contain exceptions to the general rule
that funds provided to an LEA under Part B may not be used to reduce the level of
expenditures for the education of children with disabilities made by the LEA from local
funds below the level of those expenditures for the preceding fiscal year. 34. CFR
§300.23 l(a). See also §613(a)(2)(A)(iii). The regulations provide that the LEA may
reduce its level of expenditures under Part B of the Act below the level of those
expenditures for the preceding fiscal year if the reduction is attributable to:
1) the voluntary departure, by retirement or otherwise, or departure for just cause,
of special education or related services personnel, who are replaced by qualified, lowersalaried staff;
2) a decrease in the enrollment of children with disabilities;
3) the termination of the LEA's obligation to provide an exceptionally costly
special education program to a child with a disability; or
4) the termination of costly expenditures for long-term purchases.
34 CFR §300.232.

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Page 2 - Mr. Brad White
However, neither the Act nor the current regulations implementing the IDEA permit the
LEA to reduce its level of expenditures under Part B below the level of those
expenditures for the preceding fiscal year if the decrease is attributed to a reduction in the
LEA's retirement rates for its staff. §613(a)(2)(B); 34 CFR §300.232. In the situation
you described, there was no actual departure, either voluntary or for just cause, of any
special education or related services personnel in the LEA, so it does not fall under the
exception in §300.232(a)(1).
I hope the above information has been helpful. If we can be of further assistance, please
contact Dale King at (202) 260-1156 or Dr. JoLeta Reynolds at (202) 205-5507 (press 3
and ask to be transferred to Dr. Reynolds).
Sincerely,

Stephanie S. Lee
Director
Office of Special Education Programs
CC:

Hugh Monaghan
U.S. Department of Education
Dr. Douglas Gill
Washington Office of Superintendent of Public Instruction


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

JUL 2 5 2003

This is in response to your email correspondence asking questions about the development
of individualized education programs (IEPs). You stated in your letter that you are
asking these questions because they were presented to you in a meeting with your school
administrators and LEA supervisor to "convince me that I was the one responsible for the
development of IEPs vs. an IEP Team." Your questions are restated and answered
below. You will see that questions addressing the same or similar issue are grouped and
answered together.
Questions: Should the special education teacher be the sole person to develop an IEP for
an IEP review? What is the purpose of the IEP Team?
The Individuals with Disabilities Education Act (IDEA) defines an IEP as "a written
statement for each child with a disability that is developed, reviewed, and revised in
accordance with section 614(d)." (See §601(11); 20 USC §1401(11); 34 CFR §300.340).
As outlined in section 614(d)(1)(B) of the Act and 34 CFR § 300.344 of the
implementing regulations, the members of the IEP team must include the following:
•
•
•
•

•
•
•

the parents of a child with a disability;
at least one regular education teacher of the child (if the child is, or may be
participating in the regular education environment);
at least one special education teacher, or where appropriate, at least one special
education provider of the child;
a representative of the public agency who is (a) qualified to provide or supervise
the provision of special education, (b) knowledgeable about the general
curriculum, and (c) knowledgeable about the availability of resources of the
public agency;
an individual who can interpret the instructional implications of the evaluation
results;
other individuals with knowledge or special expertise regarding the child (at the
discretion of the parent or the agency); and
the child with a disability, whenever appropriate.

Under the Part B regulations, the IEP team is responsible for developing, reviewing, and,
if appropriate, revising the IEP. (34 CFR §§300.346 & 300.343(c)). During an IEP team
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Page 2
meeting, all participants are able to make joint informed decisions regarding the child's
needs and appropriate goals as well as the services needed to support and achieve the
agreed upon goals. During the development of the IEP, the IEP team must consider the
strengths of the child and the concerns of the parents for enhancing the education of their
child, the results of the initial or most recent evaluation of the child and as appropriate,
the results of the child's performance on any general State or district-wide assessment
programs. (34 CFR §300.346(a)(2); §614(d)(3)(B)). During a review or revision of a
student's IEP, the IEP team determines whether the annual goals are being achieved and
revises the IEP as appropriate to address (i) any lack of expected progress toward the
annual goals and in the general curriculum, if appropriate, (ii) the result of any
reevaluation, (iii) information about the child provided to, or by, the parents, (iv) the
child's anticipated needs, and (v) other matters. (34 CFR §300.343(c)). During both a
meeting to develop the IEP and during a meeting to review and, if appropriate, revise the
IEP, the IEP team is required to consider any special factors that may impact on the
child's special education or related services needs, such as behavioral issues and special
communication needs. (34 CFR §300.346(b)).
Neither the IDEA nor its implementing regulations address who is responsible for putting
the IEP team decisions in writing. This decision is made by the public agency. It should
be noted that it is not permissible for an agency to have the IEP completed before the IEP
meeting begins. Agency staff may come to an IEP meeting prepared with proposed
recommendations regarding the IEP content, but the agency must make it clear to the
parents at the outset of the meeting that the services proposed by the agency are only
recommendations for review and discussion with the parents. (Appendix A to Part 300 of
the IDEA--Notice of Interpretation, question 32).
Question: Should the Special Education teacher be the sole person who is
knowledgeable of the strengths and weaknesses of the student, or the sole person to
develop the goals and objectives for the student?
Under the IDEA and the Part B regulations no one person is responsible for or entitled to
develop the IEP, which includes developing the goals and objectives for the student. The
entire IEP team is charged with making these decisions. (34 CFR §§300.344). As
described above, the IDEA requires that the IEP team include persons with knowledge of
the student's strengths and weakness, e.g. the parent, the student's regular education
teacher, if applicable, the special education teacher or special education provider, other
individuals with knowledge or special expertise regarding the child (at the discretion of
the parent or agency), and the child, if appropriate. So the special education teacher will
not be the sole person on the team with knowledge of the student's needs.
Questions: Should there be a standing IEP team at the school to develop and annually
review IEPs? Should the IEP team come together only for the date of the scheduled lEP
review?
The IDEA and its implementing regulations (34 CFR 300) do not use the term "standing
IEP team." As noted above, the IDEA lists the required members who are responsible to

Page 3
develop, review, and, if appropriate, revise the IEP and some of the members, i.e., the
regular or special education teacher and special education provider, will be specific to the
student whose IEP is being reviewed.
Section 614(d)(4) of the IDEA states that the IEP team must review a child's IEP
periodically, but not less than annually. An IEP meeting may be convened, however, any
time the need arises. Question 20 of Appendix A to the IDEA, Part B regulations (i.e., 34
CFR 300) states, "In general, if either a parent or a public agency believes that a required
component of the student's IEP should be changed, the public agency must conduct an
IEP meeting if it believes that a change in the IEP may be necessary to ensure the
provision of [a free appropriate public education]."
Question: What is the difference between a "child study team" and an "IEP team; ".are
they the same?

The IDEA statute and regulations do not use the term "child study team." Perhaps this is
a term used in your school/district policies or State statute and regulations. You may
wish to address this question to your school, local educational agency, or State
educational agency.
I hope this information answers your questions. If you have any further questions, please
do not hesitate to contact Dr. Wendy Tada at (202) 205-9094.
Sincerely,

Stephanie S. Lee
Director
Office of Special Education Programs
CC:

Ms. Belinda West-O'Neal
Director, Office of Special Education
Virgin Islands Department of Education


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

JUL 2 3 2003

This letter is in response to your letter seeking clarification on the "least restrictive
environment" and a "typical regular classroom." In your letter you asked, "Can a
program be described as a typical 'regular class,' if the percentage of disabled children
[is] greater than the natural percentage of disabled children in the general population
within the district?" You explained that your school district considers a child with a
disability "mainstream[ed] in a more restrictive hybrid classroom" where the percentage
of children with disabilities ranges from 20% to 36%. You further state that the
percentage of children with disabilities in other regular classrooms within the district is
0% to 10%, and the percentage of children with disabilities in the general population is
9%.
Neither the IDEA statute nor its implementing regulations define the term "regular
classes." The least restrictive environment (LRE) provisions of the Federal regulations
implementing Part B of the Individuals with Disabilities Education Act (IDEA), are set
forth at 34 CFR §§300.550-300.556. Under these requirements, each public agency must
ensure that a continuum of alternative placements, that includes instruction in regular
classes, is available to meet the needs of children with disabilities. 34 CFR §300.551.
The IDEA requires that the placement decision for each child with a disability be based
on the child's individualized education program (IEP) and be made at least annually by a
group of persons, including the parents, and other persons knowledgeable about the child,
the meaning of the evaluation data, and the placement options. 34 CFR §300.552(a)(1)
and (b)(1) and (2). Section 300.550(b) requires that States and local educational agencies
ensure that:
(1) To the maximum extent appropriate, children with disabilities, including
children in public or private institutions or other care facilities, are educated
with children who are nondisabled; and
(2) Special classes, separate schooling or other removal of children with
disabilities from the regular educational environment occurs only if the nature
or severity of the disability is such that education in regular classes with the
use of supplementary aids and services cannot be achieved satisfactorily.

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Page 2
In addition, children with disabilities must be placed so that they participate with
nondisabled Students in nonacademic and extracurricular services and activities to the
maximum extent appropriate to the needs of the individual child with a disability. 34
CFR §300.553. Each child's placement must be as close as possible to the child's home,
and unless the child's IEP requires some other arrangement, each child with a disability
must be educated in the school that he or she would attend if nondisabled. 34 CFR
§300.552(b)(3) and (c). Finally, public agencies also must ensure that children with.
disabilities are not removed from education in age-appropriate regular classrooms solely
because of needed modifications in the general curriculum. 34 CFR §300.552(e).
Thus, the IDEA establishes a presumption that children with disabilities will be educated
in classes and settings with their nondisabled peers unless the education of children with
disabilities cannot be satisfactorily achieved in those classes and settings with the use of
supplementary aids and services. However, the IDEA does not limit the number, or
percentage, of students with disabilities that may be placed into a specific regular
classroom in order to provide a free appropriate public education in the least restrictive
environment, consistent with the requirements above.
I am enclosing a copy of the Part B regulations of the IDEA, referred to in this letter, for
your reference. If you have any further questions, please feel free to contact Dr.' Wendy
Tada at 202-205-9094.
Sincerely,

Stephanie S. Lee
Director
Office of Special Education Programs
Enclosure
cc: Ms. Barbara Gantwerk
Director
Office of Special Education Programs
New Jersey Department of Education


@

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

JUL 1 0 2O03
Dr. Mary J. Ford
Director of Special Education
New Hampshire Department of Education
101 Pleasant Street
Con.cord, New Hampshire 03301-3860
Dear Dr. Ford:
This letter is in response to your E-mail to Lois Taylor regarding surrogate parent requirements
under Part B of the Individuals with Disabilities Education Act (IDEA). Your questions and our
responses appear below:
1. If RSA 186-C:14, II(c) were changed to read as follows, would that comply with federal
regulations ?
(c) "Unavailable parent" shaft include a parent or guardian whose location is unknown or
who is incarcerated, comatose or otherwise unable to act as the child's advocate in the
educational decision-making process.

As you are aware, RSA 186-C: 14,11(c)was repealed effective July 14, 2002, so this question is
moot.
. Why is it that when a child is a ward of the state a surrogate parent may be appointed but
the surrogate parent cannot be the foster parent unless the natural parents' rights to
make educational decisions has [sic] been terminated by state law?

Your question involves two different regulations under the Part B regulations implementing the
IDEA and the distinction between a surrogate parent under 34 CFR §300.515 and a person
acting as a parent under 34 CFR §300.20. The first part of your question, regarding the
appointment of a surrogate parent for a child who is a ward of the State, involves 34 CFR
§300.515(a). This regulation requires the public agency to ensure that the rights of a child are
protected if 1) no parents (as defined in §300.20) can be identified, 2) the public agency, after
reasonable efforts, cannot discover the whereabouts of a parent; or 3) the child is a ward of the
State under the laws of the State. The duty of the public agency under §300.515(a) includes the
assignment of an individual to act as a surrogate for the parents. The public agency must have
a method fo r determining whether the child needs a surrogate parent and for assigning a
surrogate parent for the child. (34 CFR §300.515(b)). The regulations further set forth the
criteria for selection of a surrogate at §300.515(c). There is nothing in the criteria listed in
§300.515(c) requiring that the natural parents' rights to make educational decisions be
terminated in order for a foster parent to be appointed as a surrogate. In fact, there is no
discussion of foster parents in any part of §300.515. Thus, a foster parent may be appointed as
the surrogate parent if the State determines that the criteria found in 34 CFR §300.515(c) are
satisfied.

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Page 2 - Dr. Mary J. Ford
The second part of your question involves the regulatory definition of "parent" at 34 CFR
§300.20(b), which may include a foster parent. This regulation states that unless State law
prohibits a foster parent from acting as a parent, a State may allow a foster parent to act as a
parent under Part B of IDEA if 1) the natural parents' authority to make educational decisions on
the child's behalf has been extinguished under State law and 2) the foster parent has an
ongoing, 10ng-term parental relationship with the child; is willing to make the educational
decisions required of parents under the IDEA; and has no interest that would conflict with the
interests of the child.
In situations where a child who is a ward of the State has a foster parent who meets the
requirements to act as a parent pursuant to §300.20(b) and the State permits the foster parent
to act as the parent, there may be no need to appoint a surrogate. Because the child is a ward
of the State, however, the public agency has a duty under §300.515 to determine if there is a
need for a surrogate parent to ensure the rights of the child.
We hope that this response has been helpful. If you need further assistance, please call Rex
Shipp, the New Hampshire Part B contact, at 202-401-4061.
Sincerely,

Stephanie S. Lee
Director
Office of Special Education Programs