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

SEP 1 1

unam
This letter is in response to your June 17, 2007 electronic mail (email) inquiry to Secretary
Margaret Spellings, U .S . Department of Education, which was forwarded to the Office of Special
Education and Rehabilitative Services, Office of Special Education Programs (OSEP), for reply .
In your email, you point out differences in terminology between the Federal definition of specific
learning disability and the definitions used by the Learning Disabilities Association of America
(LDAA) and its Michigan chapter. Your email additionally describes your son's individual
special needs, and asks for clarification on the definition of hearing impairment .
In response to your inquiry about the definitions and terminology used by the LDAA, it is not
within the scope of the Department of Education's authority under the Individuals with
Disabilities Education Act (IDEA) to require national organizations to adopt the exact
definitions or terminology used in the IDEA or implementing regulations in 34 CFR Part 300
(Part B regulations) . The IDEA authorizes Federal financial assistance to States and local
educational agencies (LEAs) and authorizes OSEP to administer and carry out the programs
and activities under the IDEA . Thus, the LDAA and similar national organizations that are
not part of the State or LEA are not covered under the IDEA and are not required to use the
same definitions or terminology as the IDEA and Part B regulations . In order for a State to be
eligible to receive assistance under Pail B, it must provide assurances to the Secretary of
Education that the State has in effect policies and procedures to ensure that it meets the
eligibility requirements in section 612 of the Act and the Part B regulations . The assurances
relevant to your inquiry require a State to ensure that all children with disabilities residing in
the State who arc in need of special education and related services, arc identified, located, and
evaluated (20 U .S .C . 1412(a)(3) ; 34 CFR §300 .111) and that a free appropriate public
education (FAPE) is available to all eligible children (20 U .S .C . 1412(a)(1) ; 34 CFR
§300 .101-300 .113) . In addition, a State must provide an assurance in its application for Part
B funds that it will provide data to the Secretary of Education on any information that may be
required by the Secretary . 20 U.S .C . 1418(a)(3) ; 34 CFR §§300 .640-300.646 . Consistent
with this assurance, States receiving assistance under Part B must provide data to the
Secretary and to the public on an annual basis on the number and percentage of children with
disabilities, by race, ethnicity, limited English proficiency status, gender, and disability
category, who are receiving FAPE . 20 U .S .C . 1418(a)(1) . This is true regardless of whether
the State uses the terminology in the IDEA definition of "child with a disability," substitutes
different terms for the terminology used in the IDEA definition, or does not classify any
eligible children in the State by disability category .

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edutauio,ul excellence throughout the Nutton .

Page 2The term "child with a disability" under Part B includes children with specified impairments
who are evaluated and determined to need special education and related services by reason of
those impairments . "Specific learning disability" and "hearing impairment" are two of the
categories listed in the definition of "child with a disability"under Part B of the IDEA . 20
U .S .C . 1401(3)(A)(i) ; 34 CFR §300 .8(a)(1) . A State is not required to use the precise
terminology of the IDEA in describing children who meet the criteria for a "child with a
disability," provided that all children who arc in need of special education and related services
who have impairments listed in the Part B definition of "child with a disability" receive
appropriate instruction and services .
It is important to note that the IDEA does not require children to be identified with a particular
disability category for purposes of the delivery of special education and related services . A
child is entitled to FAPE under Part B and not to a particular label . Implicit in the definition of
FAPE is the requirement that a child with a disability be provided with special education and
related services in conformity with the child's individualized education program (IEP) in the
least restrictive environment, 71 Fed . Reg . 46540, 46553 (August 14, 2006) . In the evaluation
process, the Part B regulations require the use of a variety of assessment tools and strategies to
gather relevant functional, developmental, and academic information about the child, including
information provided by the parent, that may assist in determining whether the child is a child
with a disability and the content of the child's IEP . 34 CFR §300 .304(b)(1) . The child's IEP
must include, among other things, a statement of measurable annual goals designed to meet the
child's needs that result from the child's disability to enable the child to be involved in and
make progress in the general curriculum and the child's other educational needs that result from
the disability . 20 U .S .C . 1414(d)(1)(A)(i)(II) . These provisions underscore that it is the child's
unique, identified needs, not the child's disability category, that determine the services to be
provided to the child .
Based on section 607(e) of the IDEA, we are informing you that our response is provided as
informal guidance and is not legally binding, but represents an interpretation by the U .S .
Department of Education of the IDEA in the context of the specific facts presented .
We hope that you find the above explanation helpful . If you have any further questions
regarding the requirements of Part B that have been discussed in this response, please
contact Dr. Al Jones, the Michigan State contact for Part B in the Monitoring and State
Improvement Planning Division, at (202) 245-7394 .
Sincerely,

A4
Patricia J . Guard
Acting Director
Office of Special Education
Programs

cc : Dr . Jacquelyn Thompson


T

UNITED STATES DEPARTMENT OF EDUCATION
r
z

OFFICE OF SPECIAL EDUCATION AND REHABILITATIVE SERVICES

fttss oQ

MAY

3

2007

Contact Persons
Name :
Ruth Ryder
Telephone : (202)245-7513
Deborah Morrow
Name :
Telephone : (202)245-7456
OSEP 07 - 10

MEMORANDUM
TO:

State Directors of Special Education

FROM :

Alexa Posny, Ph.D.
Director
Office of Special Education Programs

SUBJECT:

Interpretation of 34 CFR §300 .154(d)(2)(iv)(A)

The Office of Special Education Programs (OSEP) has received many requests for clarification
regarding interpretation of the requirement at 34 CFR §300 .154(d)(2)(iv)(A) of the final Part B
regulations implementing the Individuals with Disabilities Education Act of 2004 (IDEA) . This
regulation requires that, with regard to services required to provide a free appropriate public
education (FAPE) under Part B, the public agency must obtain parental consent, consistent with
34 CFR §300 .9, each time [emphasis added] that access to public benefits or insurance is sought .
In this context, "parental consent" means • The parent has been fully informed of all information relevant to the activity for
which the consent is sought, in his or her native language or other mode of
communication ;
• The parent understands and agrees in writing to the carrying out of the activity for
which his or her consent is sought, and the consent describes that activity and lists the
records that will be released and to whom ;
• The parent understands that the granting of consent is voluntary on the part of the
parent and may be revoked at any time ; and
• If a parent revokes consent, that revocation is not retroactive (i.e., it does not negate
an action that has occurred after the consent is given and before it is revoked) .
OSEP believes that permitting a public agency to obtain parental consent for a specified amount
of services for a specified period of time would be sufficient to enable parents to make an
informed decision as to whether to provide consent for a public agency to access their or their
child's public benefits or other public insurance .
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Page 2 - State Directors of Special Education

This consent may be obtained one time for the specific services, and duration of services
identified in a child's individualized education program (IEP), and a local educational agency
(LEA) would not be required to obtain a separate consent each time a Medicaid agency or other
public insurer or public program is billed for the provision of required services . For example, if
it is known that a child is to receive three hours per week of occupational therapy (OT) for 36
weeks, parents could be asked to give consent to the public agency's billing of the parent's
public benefits or insurance for 108 hours of service for the 36-week period . (The amount billed
would depend on the amount of OT service that was actually provided .) While this type of
consent may be obtained at an IEP meeting, it could also be obtained at some point after the IEP
is developed .
However, if the public agency seeks to use the child's or parents' public benefits or public
insurance to pay for additional hours of service (due to the IEP being revised or extended) or the
public agency is charging different amounts for such services, and would like to access the
child's or parents' benefits or insurance for those costs, the public agency must obtain parental
consent, covering the additional amount of service or costs to be charged to the child's or
parents' public benefits or public insurance . The Part B provisions in 34 CFR §300 .154(d)(2)
are intended to ensure that the parent is fully informed of a public agency's proposed access of
the child's or parents' benefits under a public benefits or public insurance program and provide
written parental consent prior to the public agency's access to those public benefits or public
insurance .
If parental consent is given directly to another agency, such as the State Medicaid agency, the
LEA does not have to independently obtain a separate parental consent, as long as the parental
consent provided to the other agency meets the requirements of 34 CFR §§300 .9 and 300.154(d) .
The public agency seeking parental consent to access public benefits or public insurance
programs is also obligated, under 34 CFR §300 .154(d)(2)(iv), to notify the parent that the
parent's refusal to allow access to their public benefits or public insurance does not relieve the
public agency of its responsibility to ensure that all required FAPE services are provided at no
cost to the parent . If another agency obtains the parental consent required by 34 CFR §§300 .9
and 300.154(d)(2), the LEA must maintain a copy of the parental consent to both demonstrate its
compliance under Part B of the IDEA and to ensure that it is available for the parent or child to
review.
Based on section 607(e) of the IDEA, we are informing you that our response is provided as
informal guidance and is not legally binding, but represents an interpretation by the U .S .
Department of Education of the IDEA .
cc:

CSSOs
Part C Lead Agency Directors
Part C Coordinators
PTI Directors
P&A Directors
RRCs
NECTAC


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

OCT

19 2006

Barbara Trader
Executive Director,
TASH
29 W Susquehanna Avenue Suite
210 Baltimore, MD 21204
Dear Director Trader :
Thank you for your August 23, 2006 electronic correspondence expressing concern
regarding the New York State Department of Vocational and Educational Services for
Individuals with Disabilities' preparation to implement State regulations on Aversive
Behavioral Intervention (Regulations) . It is our understanding that the other
organizations listed in the electronic transmission (The Self-Advocacy Association of
New York State, Inc ; The RespectABILITY Law Center ; The Family Alliance to Stop
Abuse and Neglect ; The Public Interest Law Center of Pennsylvania ; and The
Advocacy Institute) also object to implementation of these Regulations .
As you are aware, the Individuals with Disabilities Education Act (IDEA or Act)
requires that in order for a State to be eligible to receive funds under Part B of the Act,
the State must, among other conditions, ensure that a free appropriate public education
(FAPE) is made available in the State to all children with specified disabilities in
mandated age ranges . 20 U .S .C . 1412 (a)(1) . The term "FAPE" includes, among other
elements, special education and related services, provided at no cost to parents, in
conformity with an individualized education program (IEP) . 20 U .S .C . 1401(9) . The
Act provides a strong preference for educating children with disabilities in regular classes
with appropriate aids and supports . Specifically, the Act provides that States must have
in effect policies and procedures ensuring that, to the maximum extent appropriate,
children with disabilities, including children in public or private institutions or other
care facilities, are educated with nondisabled children, and that 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 . 20 U .S .C 1412 (a)(5)(A) .
The final decision on the provision of special education and related services for any
child with a disability rests with the IEP Team, including the child's parents . IDEA
and the final Part B implementing regulations' require that the IEP Team consider, in
the case of a child whose behavior impedes the child's learning or that of others, the
use of positive behavioral interventions and supports, and other strategies, to address
that behavior . 20 U .S .C . 1414(d)(3)(B)(i) and (C), and 34 CFR ยง300 .324(a)(2)(i) .
Thus, while the Act
' Final regulations implementing the Individuals with Disabilities Education Improvement Act of 2004
will take effect on October 13, 2006 . 71 Fed . Reg. 46,540 (August 14, 2006) (to be codified at 34 CFR
Part 300) .

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requires that an IEP Team consider the use of positive behavioral interventions and
supports, and as such, emphasizes and encourages the use of such supports, it does
not contain a flat prohibition on the use of aversive behavioral interventions .
Whether to allow IEP Teams to consider the use of aversive behavioral interventions
is a decision left to each State .
Accordingly, based on the information we have reviewed, we do not believe the New
York Regulations conflict with IDEA, so long as the requirements of the Act and its
regulations are met . Consistent with Federal-State relations and authority, OSEP
cannot provide an opinion on whether the State's regulations are consistent with New
York civil and criminal laws and the New York Constitution .
This response regarding a policy, question, or interpretation under Part B of IDEA is
provided as informal guidance, is not legally binding, is issued in compliance with
the requirements of 5 U .S.C. 553, and represents the interpretation by the Department
of Education of the applicable statutory or regulatory requirements in the context of
the specific facts presented.

Sincerely,

Hager

CC: Dr . Rebecca Cort


LETTER TO HONORABLE CECIL J. PICARD IN RESPONSE TO
LOUISIANA'S REQUESTS FOR FLEXIBILITY
September 21, 2005
Honorable Cecil J. Picard
Superintendent of Education
State Department of Education
626 North 4th Street, 12th Floor
Baton Rouge, Louisiana 70804
Dear Superintendent Picard:
Thank you for sending me the details of how Louisiana is responding to the educational
challenges brought about by Hurricane Katrina. I have traveled to the Gulf Coast area since the
hurricane and am inspired by the resolve of everyone who has been impacted by this disaster. I
am especially touched by the hope and commitment of students and their families to move
forward and recover from these devastating events. I also appreciate your kind words about our
work with the States affected by this tragic situation.
I am responding to your letter to me dated September 14, 2005, in which you describe your
specific requests for flexibility in light of the disruption and damage caused by Hurricane
Katrina. As you know, I have designated Assistant Secretary for Elementary and Secondary
Education Henry Johnson to serve as this Department's liaison between our two agencies for
additional follow-up. We appreciate the cooperation of your office in arranging for his September
13 visit with you and your staff. I also receive regular reports from my staff, including Hudson
La Force, who is representing the Department in Louisiana, about the efforts you are making to
ensure that educational services are restored as quickly as possible to your students. I trust his
presence in Louisiana has been helpful to you in this regard. Be assured that the Department of
Education staff and I continue to stand with you throughout the recovery.
We have reviewed the specific requests you outlined in the conference calls, the September 13
meeting, and the follow-up letter, and I am pleased to respond. First, with respect to additional
funding, and in recognition of the additional expenses that Louisiana school districts and other
districts around the country will incur in serving your State's and Mississippi's children, the
Administration is proposing up to $1.9 billion in funding similar to the Impact Aid program to
school districts, including charter schools, enrolling at least 10 displaced children. This funding
would reimburse districts for the unexpected cost of educating these new children for the 200506 school year. This funding would be granted to districts based on the number of displaced
students enrolled multiplied by up to 90 percent of the State's average per pupil expenditure for
education, with a maximum payment of $7,500 per child for the 2005-2006 school year. In
addition, the Administration has also requested $488 million in private-school reimbursements
for the many families who have been displaced by the hurricane and have already chosen to
enroll their children in private schools. I have enclosed a fact sheet that provides further
information on the proposal (http://www.hurricanehelpforschools.gov/0916-factsheet.html). For
Louisiana (and Mississippi as well), we have requested that the funding will go to the State,
rather than directly to school districts. We believe this structure will give Louisiana the flexibility

Page 2 — Honorable Cecil J. Picard
to divide the money between districts enrolling displaced students and districts within the
severely impacted areas that are working to reopen schools as quickly and effectively as possible.
We will notify you of further developments as they become available.
Second, with respect to your waiver requests, I have grouped the Department's responses into
five categories: (1) Waivers To Be Granted; (2) Flexibility in IDEA and NCLB timelines,
reporting and monitoring; (3) State Flexibility Is Available: Federal Waivers Not Needed; (4) No
Current Legal Authority; and (5) Additional Information Needed.
WAIVERS TO BE GRANTED
You requested waivers of the obligation deadlines for Fiscal Year (FY) 2003, 2004, and 2005
funds, and a similar waiver for the respective liquidation periods. The Department is granting an
immediate 12-month extension of the time within which Louisiana and its districts have
available to obligate funds that have been awarded under the Elementary and Secondary
Education Act of 1965 (ESEA) and for which the period of availability expires on September 30,
2005. We are also extending by 12 months the liquidation period for the FY 2003 funds. We will
continue to work with you and your staff on the funding deadlines for other affected fiscal years
if additional relief is needed as those deadlines occur. Unfortunately, we do not have the current
authority to extend the obligation period for non-ESEA programs, although the Administration is
proposing specific Hurricane Katrina-related waiver authority to enable us to respond more fully
to this request.
In addition, you requested a waiver of the maintenance-of-effort requirements for all applicable
Federal programs for all impacted school districts and schools and the State Department of
Education. While the impact of the hurricane will generally not affect the maintenance-of-effort
requirements under covered programs of the ESEA including Title I (Education of the
Disadvantaged) until the 2007-2008 school year, the Department will grant your request for
appropriate waivers for the affected school districts. We will also waive the Individuals With
Disabilities Education Act (IDEA) State-level maintenance-of-effort requirement as permitted
under section 612(a)(18)(C) of the IDEA. We will work with you and your staff to obtain
additional information, such as the names of these school districts and other relevant fiscal data,
that will help complete this portion of the waiver process as the actual deadlines occur. Please let
us know of any other requests for waivers of maintenance-of-effort requirements under other
Department programs that you may wish us to consider.
You requested a waiver of the Title I carryover limitation and the three-year time limitation for
all impacted school districts and schools. As you know, Louisiana has authority to waive the 15
percent carryover limitation in Title I, as provided under § 1127(b) of the ESEA, but your
representatives indicated that, in some cases, the State agency has already waived these
provisions in the most recent three-year period, and that the statute does not permit a State
agency to waive this provision more than once in the three-year period. Under the circumstances,
I will waive the limitation of the waivers for Title I carryover funds that your agency may grant
in a three-year period.
We are also granting your request for a waiver of the requirement under section 2416(a) of the
ESEA that 25 percent of Enhancing Education Through Technology Grant (EETT) (Title II, Part

Page 3 — Honorable Cecil J. Picard
D) funds must be spent on professional development. This waiver will apply to any available
funds that you have received under this program for FYs 2004 and 2005.
FLEXIBILITY IN IDEA AND NCLB TIMELINES, REPORTING AND MONITORING
You requested an extension of timelines relating to State and local educational agency (LEA)
reporting and postponement of on-site monitoring, reports, and reviews of Louisiana. I am open
to extending timelines and to rescheduling on-site monitoring for the Louisiana Department of
Education. To ensure this is a feasible and workable solution that can be managed efficiently, I
have listed those timelines and monitoring visits that will be extended or rescheduled. If there are
others, not mentioned below, for which you would like extensions, please contact us and we will
work with you to accommodate your request.
•

The Title I (Education for the Disadvantaged) monitoring visit, originally scheduled for
April 2006, has been postponed.

•

Submissions for the NCLB Consolidated Performance Report will not likely be due until
late January or February 2006. We will work with you to extend the deadlines if you
determine that additional time is needed.

•

Louisiana is scheduled currently to have its standards and assessment system peerreviewed in February 2006. We can arrange for you to submit this information during our
May 2006 review instead. If additional time is needed beyond this, please contact Zollie
Stevenson at (202) 260-1824.

•

Data collection for the Education for Homeless Children and Youth is due October 1,
2005. If additional time is needed, please work with the program office (Gary Rutkin at
(202) 260-4412) to determine when the data may be submitted.

•

Data collection for the Migrant Child Count is due December 1, 2005. If additional time
is needed, please work with the program office (Francisco Garcia at (202) 260-1127) to
determine when the data may be submitted.

•

The Annual Performance Report (APR) under IDEA may be submitted along with the
State Performance Plan (SPP). Both will be due December 4, 2005.

Finally, my staff will contact you to discuss the extensions needed for the School Improvement
Plans for Schools in School Improvement Two or Higher.
STATE FLEXIBILITY IS AVAILABLE: FEDERAL WAIVERS NOT NEEDED
You requested a waiver regarding the reallocation of federal funds from affected districts that are
not operational to districts absorbing displaced students through an interagency agreement. We
are not authorized to waive allocation formulas to States, school districts, or other recipients.
However, Louisiana has considerable authority to accomplish its goal in Title I, Part A without a
waiver. Under § 1126(b) of the ESEA, a State educational agency (SEA) may allocate Title I,
Part A (Education of the Disadvantaged) funds, without any action by us, among affected LEAs
in the State, if an LEA provides free public education for children who reside (or resided) in
another school district. Moreover, under § 1126(c), if an LEA determines that the amount of Title
I, Part A funds an LEA would receive is more than the agency will use or if other unused Title I,
Part A funds are available, the SEA may, without any action by us, reallocate those funds among

Page 4 — Honorable Cecil J. Picard
districts in the State on the basis of need in accordance with criteria established by the SEA. If
you are also exploring the transfer of some allocations from Louisiana districts to districts in
other States that are serving children who resided in Louisiana, we will be glad to work with
your agency and affected districts on that issue.
With regard to other programs, such as Title II, Part A (Teacher Quality); Title IV, Part A (Safe
and Drug-Free Schools); and Title V, Part A (Innovative Programs), as noted above, we do not
have the authority to waive allocation amounts in these programs. However, in each of these
cases, Louisiana can work with school districts to reach formal agreement(s) on the transfer of
funds, from one district to another, where the second district serves students who reside or
resided in the first district. As to the specific four-step proposal you outline, we will continue to
work with you on those details as you consider this issue and, should the broader waiver
authority be granted, we will work with you to develop a reasonable approach.
NO CURRENT LEGAL AUTHORITY
You requested addressing issues such as "supplement, not supplant" requirements for all
impacted districts, schools, and the Louisiana Department of Education that might arise as
districts seek available funds to handle increased costs. Under the ESEA waiver authority, we are
specifically prohibited from waiving the "supplement, not supplant" requirements (see § 9401 of
the ESEA). You also asked for a waiver of the excess cost requirement under the IDEA. While
the Department does not have legal authority to waive this IDEA requirement, we will contact
you to discuss your concerns to see if there are other ways of addressing the issue.
As you are aware, the McKinney-Vento Homeless Education Act requires that State and local
educational agencies adopt policies and practices to ensure that homeless children be educated in
the regular school environment and not be segregated on the basis of their status as homeless. We
do not currently have the legal authority to waive the McKinney Act. Accordingly, the
Department expects that those districts receiving students displaced by Hurricane Katrina will
take steps necessary to enroll immediately these students in school and mainstream them into the
regular school environment.
I know that many Louisiana school districts are facing tremendous increases in the number of
homeless students displaced by the hurricane. These districts are working tirelessly to address the
numerous logistical and practical concerns raised by the rapid and substantial increase in their
student enrollment. Due to Hurricane Katrina's extensive impact, some districts may need to
provide educational services, temporarily, to homeless students in a separate setting. The
Department understands that, in certain instances, it may take longer than one might otherwise
expect for districts to provide educational services to homeless students in the regular school
environment.
You requested a waiver of the IDEA State Performance Plan (SPP) submission deadline. The
Department currently does not have legal authority to delay the deadline for the SPP. Section
616(b)(1)(A) of the IDEA requires States to have performance plans "in place" no later than
December 4, 2005.

Page 5 — Honorable Cecil J. Picard
The Administration is proposing specific Hurricane Katrina-related waiver authority that would
enable us to better meet the education needs of the Gulf Coast region and other affected areas.
The limited waiver authorities we currently possess are unlikely to be sufficient for us to respond
as fully as we would like in this extraordinary situation. Should Congress grant additional
authority, we will contact you to discuss how that authority might be used to address your needs.
ADDITIONAL INFORMATION NEEDED
There are a number of items for which we need more information. You requested permission to
begin obligating carryover funds as well as new funds under the current year grants for ESEA
Titles I; II; III; IV; V; IDEA, Part B; and IDEA Preschool without receiving, in all cases,
substantially approvable plans from the LEAs. Louisiana has considerable flexibility regarding
this issue and we are prepared to work closely with you so that you can take advantage of this
flexibility. My staff has a conference call scheduled for Thursday, September 22, with your staff
and will discuss that issue during the conference call.
You requested that adequate yearly progress (AYP) for school year 2005-2006 be calculated only
for students who are continuously enrolled at the same school for two years (2004-2005 and
2005-2006) and that no additional sanctions be imposed based on 2005-2006 calculations. As
you know, AYP is the linchpin of the No Child Left Behind accountability system, and I am
reluctant to waive, even partially, AYP or approve broad changes in State AYP definitions at this
time. We appreciate, however, that you are not requesting a complete waiver of AYP, and we will
contact you in the coming days to discuss your specific proposal in more detail.
You also requested a one-year extension for meeting the requirement that "all core academic
subjects are taught by a teacher who meets the NCLB highly qualified requirements." You
describe your proposal as allowing Louisiana an additional year by which to meet the mandate.
We are currently reviewing this topic in general and also want to talk with you in more detail
about your specific proposal as well.
You have asked the Department to permit LEAs to offer supplemental educational services (SES)
instead of choice in those schools identified for their first year of improvement. I am not
prepared to offer a waiver to Louisiana on this point, but do offer the following guidance. With
regard to offering choice, LEAs must make available to all students enrolled in a Title I school
identified for improvement, corrective action, or restructuring, the opportunity to transfer to
another school in the district not identified for improvement. See section 1116(b)(1)(E)(i) of
ESEA. LEAs have the discretion to close the transfer enrollment period after giving parents a
reasonable amount of time to apply. An LEA may decide that any student, including a student
displaced by Hurricane Katrina, who enrolls in an eligible school after the choice window has
closed may not be eligible to transfer in the 2005-06 school year. While I understand there may
be some logistical and practical complications of offering and implementing public school
choice, if a displaced student enrolls in a Title I school in improvement while the choice window
is still open, that student is eligible to transfer to a school not identified for improvement.
As to your request regarding the E-rate program waivers and a special filing window, we will
assist you in working with the Federal Communications Commission (FCC) to determine what
additional flexibility may be available with respect to that program and its services. In addition,

Page 6 — Honorable Cecil J. Picard
you asked for policy waivers regarding Reading First (Title I, Part B), English Language
Acquisition (Title III), and the National Assessment of Educational Progress 2006. Your letter
also references a waiver for other Federal agencies to approve cost allocation plans to allow
payment of additional administrative costs. We are continuing to review your requests in these
categories in greater detail and will contact you in the near future to discuss further.
Again, thank you for contacting me and sharing your requests and concerns. Be assured that the
Department remains committed to working hand-in-hand with you and your staff in the days
ahead on the remaining issues, as well as any new ones that may develop as we continue through
this process. Finally, please know of my personal commitment to you and the children of
Louisiana and feel free to contact me at 202-401-3000, or Assistant Secretary Johnson at 202401-0113, for any additional follow-up or assistance that you require.
Sincerely,
/s/
Margaret Spellings
Enclosure


LETTER TO HONORABLE SHIRLEY NEELEY IN RESPONSE TO
TEXAS'S REQUESTS FOLLOWING HURRICANE KATRINA
September 21, 2005
Honorable Shirley Neeley
Commissioner of Education
Texas Education Agency
William B. Travis Building
1701 North Congress Avenue
Austin, Texas 78701
Dear Commissioner Neeley:
Thank you for your letter regarding Texas's educational challenges in the wake of Hurricane
Katrina. During my time in Houston last week, I was moved by and proud of the remarkable
generosity of the State of Texas in welcoming the thousands of evacuees who have left Louisiana
and Mississippi and found safety and refuge in Houston, San Antonio, Dallas, and other Texas
communities. Be assured that staff at the U.S. Department of Education (ED) and I stand with
you during these difficult and challenging times.
We have reviewed the specific requests outlined in your September 8, 2005 letter and I am
pleased to respond. First, with respect to additional funding, and in recognition of the additional
expenses that Texas school districts and other districts around the country will incur in serving
displaced children, the Administration is proposing up to $1.9 billion in funding similar to the
Impact Aid program to school districts, including charter schools, enrolling at least 10 displaced
children. This funding would reimburse districts for the unexpected costs of educating these new
children for the 2005-06 school year. This funding would be granted to districts based on the
number of displaced students enrolled multiplied by up to 90 percent of the State's average per
pupil expenditure for education, with a maximum payment of $7,500 per child for the 2005-2006
school year. In addition, the Administration has also requested $488 million in private-school
reimbursements for the many families who have been displaced by the hurricane and have
already chosen to enroll their children in private schools. I have enclosed a fact sheet
(http://www.hurricanehelpforschools.gov/0916-factsheet.html) that provides further information
on the proposal. We will notify you of further developments, including any congressional action
that occurs.
Second, with respect to your waiver requests, I have grouped the Department's responses into
five categories: (1) Waivers and Modifications To Be Granted; (2) State Flexibility Is Available:
Federal Waivers Not Needed; (3) Current Exception in Federal Law Applies: Federal Waivers
Not Needed; (4) No Current Legal Authority; and (5) Additional Information Needed.

Page 2 — Honorable Shirley Neeley
WAIVERS AND MODIFICATIONS TO BE GRANTED
Individuals with Disabilities Education Act (IDEA)
Postponement of Office of Special Education Programs (OSEP) Data Verification Visit
You asked specifically for postponement of the OSEP Data Verification Visit scheduled for
October 3-7, 2005. On September 13, 2005, Department staff notified your Executive Assistant,
Ms. Patty Foster, that OSEP would postpone this visit and work with you to reschedule for a
future time.
You also asked for an extension to submit your Annual Performance Report (APR) response to
OSEP in conjunction with the submission of your State Performance Plan (SPP). You may
submit your APR response along with your SPP, which is due on December 4, 2005.
Flexibility in No Child Left Behind (NCLB) timelines, reporting and monitoring
You requested an extension of timelines relating to State and local educational agency (LEA)
reporting and postponement of all on-site monitoring of Texas until after January 31, 2006. I am
open to extending timelines and to rescheduling on-site monitoring for the Texas Education
Agency (TEA). To ensure this is a feasible and workable solution that can be managed
efficiently, I have listed those timelines that the Department will extend and monitoring visits
that we will reschedule. If any others are not mentioned below, please contact us and we will
work with you to accommodate your request.
•
•

•

•

The Title II (Highly Qualified Teachers) monitoring visit, scheduled for December 13-15,
will be rescheduled for a later date.
Data collection for the Education for Homeless Children and Youth is currently due
October 1, 2005. If additional time is needed, please work with the program office (Gary
Rutkin at (202) 260-4412) to determine when the data may be submitted.
Data collection for the Migrant Child Count is currently due December 1, 2005. If
additional time is needed, please work with the program office (Francisco Garcia at (202)
260-1127) to determine when the data may be submitted.
Our Impact Aid program staff has scheduled visits to two Texas districts (Terlingua and
San Vincente). It is our understanding that these visits should not interfere with Texas's
response efforts, but if these visits need to be rescheduled please work with the program
office (Catherine Schagh at (202) 260-3858) to reschedule. Please note that delays in
these Impact Aid visits may result in delayed payments.

STATE FLEXIBILITY IS AVAILABLE: FEDERAL WAIVERS NOT NEEDED
Highly Qualified Teachers and Paraprofessionals
You have notified the Department of your intent to implement a statewide programmatic waiver
under the State's Ed-Flex authority to waive Section 1119(a) and (c) of the Elementary and
Secondary Education Act of 1965 (ESEA), relating to highly qualified teachers and
paraprofessionals. The waiver would cover any teacher or paraprofessional hired from out of

Page 3 — Honorable Shirley Neeley
state to respond to the increased enrollments caused by Hurricane Katrina for the 2005-06 school
year.
The Department has determined that Texas has sufficient flexibility under its Ed-Flex agreement
to waive these sections. Texas may implement its plan for hiring teachers and paraprofessionals
and may consider these individuals highly qualified for the 2005-06 school year based on the
criteria you established for this situation. No additional waiver from the Department is necessary.
IDEA
Flexibility for process timelines related to evaluation
You requested flexibility for evaluation timelines. The IDEA provides for two evaluation
timelines: (1) one timeline that is from the time of the signed parental consent for evaluation to
the time of determination of eligibility; and (2) another timeline that is from the time of the
determination that a child needs special education and related services (i.e., is eligible) to the
time of the Individualized Education Program (IEP) meeting. While the Department does not
have current legal authority to waive either timeline, the law provides flexibility regarding the
first timeline. That flexibility is found in a new provision of the IDEA, which provides for either
a 60-day timeline, or another timeline established by the State for the period between parental
consent for evaluation and the determination of eligibility. (Section 614(a)(1)(C)(I) of the
IDEA.) Therefore, Texas has sufficient authority under current law to establish its own timeline
in this area.
Under normal circumstances, the Department would expect that a State-established timeline
would be the same throughout the State. However, under the extraordinary and unprecedented
conditions faced by Texas in dealing with the aftermath of Hurricane Katrina, it would be
reasonable for the TEA to establish a different timeline for completing evaluations of all children
suspected of having a disability in districts enrolling a significant number of displaced students.
The second timeline is discussed later in the letter (see "No Current Legal Authority," IDEA,
Deadline extension for State Performance Plan at page 5).
CURRENT EXCEPTION IN FEDERAL LAW APPLIES: FEDERAL WAIVERS NOT
NEEDED
Family Educational Rights and Privacy Act
You asked whether the Family Educational Rights and Privacy Act (FERPA) would permit the
TEA and other State educational agencies (SEAs) to share students' education records in order to
meet the needs of children displaced by Hurricane Katrina. As discussed below, the Department
has determined that, under these extraordinary circumstances, two exceptions to FERPA's
general consent rule would apply and permit these disclosures pursuant to the conditions
described below.
One exception to FERPA's general consent rule permits the disclosure of education records to
officials of another school or school system where the student seeks or intends to enroll. (34 CFR
§§ 99.31(a)(2) and 99.34) Under this provision, school districts in affected areas may disclose
students' education records to school districts in Texas where students will be or are now

Page 4 — Honorable Shirley Neeley
attending. Additionally, the Louisiana Department of Education may, on behalf of its LEAs,
disclose the students' education records it has received from Louisiana LEAs, to Texas LEAs or
to the TEA, on behalf of its LEAs. In this situation, the receiving school district should provide
the parental notice required under § 99.34 and should comply with other provision requirements.
In circumstances where a large number of parents and/or eligible students, i.e., those age 18 or
older, must be notified, the Department would find a general notice, either by school newsletter,
local newspaper, or a school's website, to constitute "a reasonable attempt to notify the parent or
eligible student at the last known address of the parent or eligible student." Please note that
FERPA's record keeping requirements (§ 99.32) apply to disclosures made under § 99.31(a)(2)
and § 99.34.
In addition, the health and safety emergency exception to FERPA's general consent rule allows
disclosure of education records to appropriate parties in connection with an emergency, if the
knowledge of such information is necessary to protect the health or safety of individuals. (34
CFR § 99.31(a)(10) and § 99.36) Under the health and safety exception, school officials may
share relevant information with "appropriate parties," that is, those parties whose knowledge of
the information is necessary to protect the health and safety of the student or other individuals.
(34 C.F.R. § 99.36(a)) Typically, law enforcement officials, public health officials, and trained
medical personnel are "appropriate parties" for purposes of this exception. Under these
extraordinary circumstances, the Department also will consider entities that provide housing and
medical services to evacuees to be "appropriate parties," provided that disclosure of personally
identifiable information from education records is limited to what is necessary to protect the
health or safety of the students or other individuals. FERPA's record keeping requirements (§
99.32) also apply to disclosures made pursuant to the health or safety exception.
Finally, with regard to distinguishing apparel provided by shelters or other service providers, the
Department agrees with you that FERPA would not apply, as this is not information from
students' "education records."
NO CURRENT LEGAL AUTHORITY
McKinney-Vento Homeless Assistance Act
You requested a waiver of the provisions of the McKinney-Vento Homeless Assistance Act
(McKinney Act) so that you may serve students displaced by Hurricane Katrina at facilities
where they are housed or in classrooms separate from the general population. The Department
does not have current legal authority to waive the requirements of the McKinney Act.
As you are aware, the McKinney Act requires that State and local educational agencies adopt
policies and practices to ensure that homeless children and youth are not stigmatized or
segregated on the basis of their homeless status. The Department expects that those districts
receiving students displaced by Hurricane Katrina will take steps necessary to enroll immediately
these students in school and mainstream them into the regular school environment.
I know that many Texas school districts are facing tremendous increases in the number of
homeless students displaced by the hurricane. These districts are working tirelessly to address the
numerous logistical and practical concerns raised by the rapid and substantial increase in their

Page 5 — Honorable Shirley Neeley
student enrollment. Due to Hurricane Katrina's extensive impact, some districts may need to
provide educational services, temporarily, to homeless students in a separate setting. The
Department understands that, in certain instances, it may take longer than one might otherwise
expect for districts to provide educational services to homeless students in the regular school
environment.
IDEA
Deadline extension for State Performance Plan
You requested a waiver of the IDEA State Performance Plan (SPP) submission deadline. The
Department currently does not have legal authority to delay the deadline for the SPP. Section
616(b)(1)(A) of the IDEA requires States to have performance plans "in place" no later than
December 4, 2005.
Flexibility for process timelines related to evaluation
You also requested flexibility for evaluation timelines. As mentioned earlier, the Department
does not have current legal authority to waive the two evaluation timelines. However, as noted
earlier, Texas has the authority under current law to establish its own timeline from signed parent
consent to eligibility determination (see page 3). The other timeline, a 30-day process, from
determination that a child needs special education and related services to the IEP meeting is
specified by 34 CFR §300.343(b)(2). There is currently no legal authority to waive this timeline.
The Administration is proposing specific Hurricane Katrina-related waiver authority that would
enable us to better meet the education needs of the Gulf Coast region and other affected areas.
The limited waiver authorities we currently possess are unlikely to be sufficient for us to respond
as fully as we would like in this extraordinary situation. Should Congress grant additional
authority, we will contact you to discuss how that authority might be used to address your needs.
ADDITIONAL INFORMATION NEEDED
Flexibility in use of NCLB funds
You requested that the Department exempt the TEA and its LEAs from the statutorily prescribed
uses of all NCLB program funds. Specifically, you have asked the Department, for the 2005-06
school year, to allow NCLB funds to be used for any justifiable supplemental expenditure the
TEA or its LEAs determine is necessary to provide an education to the students affected by
Hurricane Katrina. There is no general authority for Texas to commingle funds from various
programs and then use them for "any justifiable supplemental expenditure to provide an
education to the students affected by Hurricane Katrina." However, under Title VI, Part A,
Subpart 2 of the ESEA, there is limited authority to transfer funds from one program to another.
We would be pleased to discuss the specifics of your request further to ascertain a legal and
workable solution.

Page 6 — Honorable Shirley Neeley
IDEA
The 2004 IDEA includes opportunities for States to propose ideas addressing multi-year IEPs
(i.e., developing comprehensive IEPs that include student goals not to exceed three years) and
paperwork reduction (i.e., waiving or changing requirements that would lessen the paperwork
requirements associated with special education). You expressed concern that Texas might be
unable to apply for the multi-year IEP and paperwork reduction pilots authorized in the 2004
IDEA because of personnel commitments related to providing services for Katrina-affected
students. The Department will provide States an opportunity to participate in these pilots through
a competition. At this point, the timing of competitions for these pilots is not certain but also not
immediate. By way of explanation, we are working to finalize notices of proposed priorities for
these pilots for publication in the Federal Register. The notices of proposed priorities then will
be subject to a 75-day public comment period, after which we will respond to public comment,
publish final priorities, and announce competitions. It is our hope that, by the time the
opportunity to apply for this pilot project arrives, Texas will be able to respond. However, once
the timing for these pilots is more concrete, you may choose to renew your request at that time.
Participation in National Studies
Concerning participation in national studies and research projects, including data requests, we
are still identifying the studies and data collections that might apply, but we will work with the
TEA and affected LEAs on a case-by-case basis. In general –
•

•

For research projects carried out under discretionary grants, where the State or an
affected LEA is not the grantee, but is part of the study, there is no requirement that the
State or LEA continue its participation in the study.
For research projects where the State or an affected LEA is the grantee, it is possible that
an extension of the project period could be granted to permit completion of the project.

For studies that are utilizing a nationally representative sample of schools, we are currently
investigating the possibility and impact of delaying several of these studies. Other collections
that gather data on every school or LEA in the State, such as the EDEN and Common Core of
Data collections, already incorporate timelines that are long enough to accommodate your
requests. Please understand that the ability to delay your submission until the latter part of these
collection timelines does not waive TEA's responsibility to participate in the collection.
Student Assignment under NCLB
You have asked the Department to permit the TEA to determine, for the 2005-06 school year and
on a case-by-case basis, whether a Title I School Improvement school must offer choice and/or
supplemental educational services (SES) to displaced students enrolled at that school campus.
You indicated you would implement this flexibility when the following three criteria are met: (1)
the school can demonstrate a substantial influx of students; (2) school capacity does not allow
further choice or SES; and (3) the school can demonstrate the ability to provide other
supplemental services or activities to the students who remain at the School Improvement
Campus.

Page 7 — Honorable Shirley Neeley
With regard to offering choice, LEAs must make available to all students enrolled in a Title I
school identified for improvement, corrective action, or restructuring the opportunity to transfer
to another school in the district not identified for improvement. See section 1116(b)(1)(E)(i) of
ESEA. LEAs have the discretion to close the transfer enrollment period after giving parents a
reasonable amount of time to apply. An LEA may decide that any student, including a student
displaced by Hurricane Katrina, who enrolls in an eligible school after the choice window has
closed may not be eligible to transfer in the 2005-06 school year. I understand there may be some
logistical and practical complications; however, if a displaced student enrolls before the LEA
closes its choice window, that student would be eligible to transfer to a school not identified for
improvement.
With regard to offering SES, I am concerned that students displaced by Hurricane Katrina may
have a very great need for SES in order to help them achieve academically. Further, the funding
we are working to secure for affected schools and children in Texas and other States may be used
to provide SES to displaced students.
Adequate Yearly Progress (AYP) Calculations
You have notified the Department that Texas will identify amendments the State believes are
necessary to educate displaced students, including amendments to the State's Accountability Plan
Workbook, its pending compliance agreement relating to assessment and AYP, and its own
policies.
As you know, AYP is the linchpin of the No Child Left Behind accountability system. I am
reluctant to waive, even partially, AYP or approve broad changes even though all States,
including Texas, may submit amendments to their Accountability Plans at any time. In offering
any possible amendments, I encourage you to consider carefully these requests to ensure that the
proposed actions would not adversely affect the following student groups: new students from
Louisiana and Mississippi; students already enrolled in those schools that opened their doors to
the displaced students; and the Texas students, schools, and districts that are largely untouched
by Hurricane Katrina.
Since Texas's assessments upon which AYP determinations are made will not be administered
until spring 2006, it is premature for us to consider your request at this time. We appreciate that
you are not requesting a complete waiver of AYP and we will contact you in the coming days to
discuss your specific proposals in more detail.
Timelines
The Department understands that collecting data and administering assessments to the large
number of displaced students newly enrolled in Texas's schools could result in some
unanticipated, logistical problems. I expect that Texas will meet the required statutory timelines
for identifying schools for improvement next year. It is possible that Texas may encounter
problems based on the State's 2005-2006 school year assessments due to the aftermath of
Hurricane Katrina. If, as a result of such problems, Texas needs additional time to make AYP
decisions based on data from the 2005-2006 school year test administration, and to identify Title

Page 8 — Honorable Shirley Neeley
I schools for improvement, we may be prepared to provide additional time. Please be sure that
the TEA provides updates to Deputy Secretary Ray Simon on the need for additional time.
Again, thank you for contacting me and sharing your requests and concerns. Please know that the
Department stands behind you and that my staff remains available to work closely with you in
the days ahead. I have designated Deputy Secretary Ray Simon at 202-401-8450 to serve as our
liaison between the Department and your Agency for additional follow-up. Finally, please know
of my personal commitment to you, as well as to the generous citizens and children of Texas.
Sincerely,
/s/
Margaret Spellings
Enclosure


September 13, 2005
Mr. Gary S. Mathews
Superintendent
Carroll Independent School District
3051 Dove Road
Grapevine, Texas 76051
Dear Mr. Mathews:
A (Parent) filed a complaint with the Department of Education alleging that the Carroll
Independent School District (District) has an ongoing practice of destroying and refusing to
allow parents to inspect and review education records in violation of the Family Educational
Rights and Privacy Act (FERPA), 20 U.S.C. § 1232g. FERPA protects the privacy interest of
parents and students in education records maintained by educational agencies and institutions.
This Office administers FERPA and provides technical assistance to educational agencies and
institutions to ensure compliance with the statute and regulations, which are codified at 34 CFR
Part 99.
We are not initiating an investigation under FERPA because the Parent has not alleged facts
giving reasonable cause to believe a violation of FERPA has occurred, as required under 34 CFR
§ 99.64(a). However, we are providing this letter of technical assistance because the District’s
submissions to the Texas Education Agency (TEA), as discussed below, indicate that the District
may lack a sufficient understanding of FERPA requirements to avoid future violations.
This complaint involves records that are also subject to regulations promulgated under Part B of
the Individuals with Disabilities Education Act (IDEA). Part B includes confidentiality of
information requirements (at 34 CFR §§ 300.560-300.577) that contain many of the same
provisions that exist in FERPA and apply, along with FERPA, to any public school district that
provides services to students with disabilities under Part B of IDEA. The term “education
records” has the same meaning in the Part B confidentiality of information regulations as it does
in FERPA. See 34 CFR § 300.560(b).
Parents of children receiving services under IDEA may file a complaint with their State
educational agency (SEA) for alleged violations of the Part B confidentiality of information
regulations using the State complaint procedures under 34 CFR §§ 300.660-300.662. (Proposed
regulations to implement 2004 amendments to IDEA were published in the Federal Register on
June 21, 2005, and include proposed changes to the complaint procedures at §§ 300.150300.152.) This Office does not enforce or investigate violations of the Part B confidentiality of
information regulations but is available to provide technical assistance to an SEA to ensure that it
interprets and enforces those requirements in a manner that does not conflict with FERPA. We
do not attempt to describe or discuss any allegations that this Office is not authorized to
investigate under FERPA.

Page 2 – Mr. Gary S. Matthews
According to the Parent, her son, (Student) is a special education student at Carroll High School.
The Parent filed a complaint against the District with TEA on April 12, 2004, alleging that the
District had failed to provide her with access to all of the Student’s education records, as she had
requested on October 27, 2003, and destroyed some of his records in violation of § 300.573 of
Part B, IDEA regulations. (The Parent’s complaint to TEA contained another allegation not
relevant to the current matter.)
The allegation regarding destruction of records was based on the District’s failure to provide the
Parent with access to various tests, questionnaires, surveys, inventories, etc., that were used to
evaluate the Student’s eligibility for special education services. It is our understanding that
public schools in Texas use professionals to conduct a “Full Individual Evaluation” or FIE in
order to determine whether a student qualifies for special education services and to identify areas
of strength and need. Information provided by the Parent indicates that the, Director of Special
Education for the District, advised the Parent on January 22, 2004, that the District does not keep
the underlying tests or test protocols after the FIE has been completed, and that the FIE report
alone serves as the District’s document of test information that was gathered about a student for
evaluation purposes.
TEA’s amended final decision, issued on August 5, 2004, concluded (at page 3) that the District
violated § 300.573 of the Part B regulations because the “the Parent was not informed when
personally identifiable information that was collected, maintained, or used under Part B of the
IDEA, [i.e., test protocols used to prepare the FIE report] was destroyed.” In response, the
District’s Director of Special Education wrote to the Deputy Associate Commissioner for Special
Education at TEA on August 26, 2004, stating that the District disagrees with the opinion of this
Office, issued in a letter to Ms. Mary Lou Philbin on October 2, 1997, that completed test
instruments that identify a student are “education records” under FERPA based on the U.S.
Supreme Court’s ruling in Owasso Independent School District v. Falvo, 534 U.S. 426 (2002). The
District said that it would nonetheless notify parents that test protocols would not be maintained by
the District “once the information has been included in the Comprehensive Test Report.”
Parents have a right under FERPA to inspect and review their children’s “education records.”
See 34 CFR Part 99, Subpart B. The term “education records” is defined as information that is
directly related to a student and maintained by an educational agency or institution, or by a party
acting for the agency or institution. 34 CFR § 99.3. (“Education records”). As explained in our
October 2, 1997, letter, referenced above, test instruments, question booklets, answer sheets,
evaluations, surveys, inventories, and other materials that identify a student (by name or number)
and that are maintained by the District – or by a party acting for the District, such as a
psychologist conducting an FIE – are “education records” under this definition. The Falvo
opinion is limited to the narrow holding that “peer grading” does not violate FERPA because “the
grades on students’ papers would not be covered under FERPA at least until the teacher has
collected them and recorded them in his or her grade book.”
There is no provision in FERPA comparable to § 300.573 of the Part B, IDEA regulations,
requiring a “public agency [to] inform parents when personally identifiable information
collected, maintained, or used under this part is no longer needed to provide educational services
to the child” before it destroys that information. (In regard to the TEA’s August 5, 2004,
decision, we note that the Part B, IDEA provision in question refers not to “education records”

Page 3 – Mr. Gary S. Matthews
but “personally identifiable information collected, maintained, or used” under Part B.) In fact,
unlike Part B of the IDEA, FERPA does not require an educational agency or institution to
maintain any particular record or notify a parent if it intends to destroy an education record. Nor
does FERPA require an agency or institution to refrain from destroying education records except
when a parent has asked to inspect and review the records. See 34 CFR § 99.10(e).
However, so long as an educational agency or institution, such as the District, maintains education
records, which includes test protocols and other records that are personally identifiable to a student
and maintained by professionals conducting FIEs for the District, then it is required to comply with
a parent’s request to inspect and review those records in accordance with § 99.10(b) of the FERPA
regulations. This means that under FERPA, the District must allow a parent to inspect and review
personally identifiable test protocols and other records maintained by professionals conducting an
FIE for the District if the request is received before the District has destroyed the records. FERPA
also requires the District to respond to reasonable requests for explanations and interpretations of
those records so long as they are maintained. 34 CFR § 99.10(c).
For your information, parents do not have a right under FERPA to inspect and review records
that are not directly related or personally identifiable to a student. For example, a test protocol or
question booklet that is separate from the sheet on which a student records answers and that is
not personally identifiable to the student is not considered the student’s “education record” under
FERPA. However, both FERPA and Part B provide that an educational agency or institution
(under FERPA) and a participating agency (under Part B) must respond to reasonable requests
for explanations and interpretations of education records. 34 CFR § 99.10(c); 34 CFR §
300.562(b)(1). Accordingly, if an educational agency or institution or participating agency
maintains a copy of a student’s test answer sheet, then it must provide the parent with an
explanation and interpretation of the record, which could involve showing the parent the test
question booklet, reading the questions to the parent, or providing an interpretation for the
responses in some other manner adequate to inform the parent.
I trust that you find this information helpful in understanding how FERPA applies to records
maintained by the District and its agents. Please note that this Office will investigate any
complaint that the District has refused to allow parents to inspect and review their children’s
education records in accordance with the explanation set forth in this letter.
Sincerely,
/s/
LeRoy S. Rooker
Director
Family Policy Compliance Office
cc:Parent
Gene Lenz, Deputy Associate Commissioner for Special Education
Texas Education Agency
Troy Justesen, Acting Director, Office of Special Education Programs
U.S. Department of Education


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

MAR

1 8

2005

This is in response to your email to the Office of Special Education Programs (OSEP) in
which you seek written clarification of the requirements of Part B of the Individuals with
Disabilities Education Act Amendments of 1997 (Part B) for conducting a manifestation
determination review for children with disabilities in disciplinary situations .
In your inquiry, you request that OSEP provide an opinion on the Oregon Department of
Education's interpretation of 34 CFR §300 .523 of the March 12, 1999 regulations
implementing Part B . Specifically, you state : "Oregon has determined that no
manifestation determination review need be held, even when a student has an expulsion
hearing pending ." You further state that it is your contention that "the IDEA was written
to include all times a district `contemplates' such a removal, and furthermore, that
scheduling and holding an expulsion hearing, no matter what the outcome, is evidence of
contemplating exactly that ." This response confirms the oral clarification that members of
my staff provided you regarding this matter .
The U .S. Supreme Court decision in the case of Honig v . Doe, 108 S . Ct . 592 (1988)
established that a student with a disability could not be unilaterally removed from school
for more than ten school days for misconduct that arose from the student's disability .
The Individuals with Disabilities Education Act Amendments of 1997 included specific
provisions in law requiring a manifestation determination review before a school district
could implement a disciplinary removal that constituted a change of placement . 20
U.S .C. §1415(k)(4) ; see also 34 CFR §300 .523 .
Section 300 .519 of the Part B regulations defines "change of placement for disciplinary
removals" as a "removal for more than 10 consecutive school days" or "a series of
removals that constitute a pattern because they cumulate to more than 10 school days in a
school year, and because of factors such as the length of each removal, the total amount
of time the child is removed, and the proximity of the removals to one another ." 34 CFR
§300.519(a)-(b) .
The Part B regulation at 34 CFR § 300 .523(a) provides as follows :
§300 .523 Manifestation determination review .
(a) General . If an action is contemplated regarding behavior described in
§§300 .520(a)(2) or 300 .521, or involving a removal that constitutes a change of
placement under §300 .519 for a child with a disability who has engaged in other behavior
400 MARYiAND AVE ., S .W . . WASHINGTON, D .C . 20202
www.ed .gov
Our mission is to ensure equal access to education and to promote educational excellence throughout the Nation .

Page 2 that violated any rule or code of conduct of the LEA that applies to all children(1) Not later than the date on which the decision to take that action is made, the parents
must be notified of that decision and provided the procedural safeguards notice described
in §300 .504 ; and
(2) Immediately, if possible, but in no case later than 10 school days after the date on
which the decision to take that action is made, a review must be conducted of the
relationship between the child's disability and the behavior subject to the disciplinary
action.
34 CFR §300 .523(a)(1)-(2). Part B does not require that a manifestation determination
review occur when a disciplinary removal is being considered ; rather, the requirement to
conduct the manifestation review determination is triggered on the date that the decision
is made to implement a removal that constitutes a change of placement, and such review
must occur "immediately, if possible, but in no case later than 10 school days after the
date on which the decision to take that action is made ." With regard to your inquiry, Part
B does not require that a manifestation determination occur prior to scheduling or
conducting an expulsion hearing .
I hope this information is helpful .
Sincerely,

Patricia J. Guard
Acting Director
Office of Special Education Programs
cc : Dr. Nancy J . Latini
Associate Superintendent


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UNITED STATES DEPARTMENT OF EDUCATION
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OFFICE OF SPECIAL EDUCATION AND REHABILITATIVE SERVICES
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Contact Persons :
JoLeta Reynolds
Name:
Telephone : (202) 245-7468
Name:
Thomas Irvin
Telephone : (202) 245-7468

J

OSEP 05-08
MEMORANDUM
TO:

State Directors of Special Education

FROM:

Patricia J . Guard pQ~
Acting Director
Office of Special Education Programs

SUBJECT :

Educational Expenses for Children in Private Residential Facilities

As you may know, the number of children with disabilities in private residential
treatment programs continues to rise . For example, data collected by the Office of
Special Education Programs (OSEP) regarding services under the Individuals with
Disabilities Education Act (IDEA) show that in the 2002-03 school year 21,673 eligible
children received special education and related services at public expense in those
facilities, compared to 15,941 children in the 1998-99 school year .t Such residential
placements are often very expensive . In some cases, the total annual cost for placement
in a residential facility, including room, board, therapies, and educational services, may
exceed $100,000 for a single child in a school year .
In meetings with representatives of the Youth Services Committee of the National
Association of Psychiatric Health Systems (NAPHS), these representatives identified
problems they periodically face when a new child enters their facility -- in determining
the appropriate educational agency responsible for providing (or paying for) special
education and related services, or for evaluating the child . Having this information
available at the outset is crucial to staff in residential facilities, in order to ensure that
service arrangements are effectively established for the child with the responsible
educational agency, and, thus, that appropriate special education and related services are
provided to the child in a timely manner .
t This number includes children with disabilities who lived in private residential facilities during the
school week, and received special education and related services for greater than 50 percent of the school
day .

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Page 2
The statute and regulations for IDEA-Part B include a number of relevant provisions that
directly relate to the responsibilities of State educational agencies (SEAs) and local
educational agencies (LEAs) in providing special education and related services to
eligible children who are placed in or referred to private residential facilities . We are
including with this memorandum a summary description of those key provisions for your
information and use (see Attachment).
To the extent appropriate, we encourage you to share the attached provisions with LEAs
and other appropriate public agencies in your State . We have also asked NAPHS to
encourage its members -- before accepting a new child in their residential facilities -- to
communicate with appropriate public educational officials about the child . Through
these efforts, written agreements can be developed in order to clarify respective
responsibilities regarding both financial matters and the coordination or provision of
services .
Establishing meaningful and effective communication "before the fact" between
personnel in all agencies and facilities that are involved with a given child, including
educational and non-educational public agencies in the State (e.g., social service and
social welfare agencies), if applicable, as well as staff from private residential facilities,
should benefit all affected parties, but especially the children who have been placed in or
referred to those facilities .
If you have any questions or comments about this memorandum, please contact your Part
B State contact in OSEP, or the persons listed on page one of this memorandum .
Attachment
cc :

Chief State School Officers
Federal Resource Center
Regional Resource Centers
Independent Living Centers
Parent Training Centers
Protection and Advocacy Agencies
Part C Coordinators
Section 619 Coordinators

Attachment
Responsibilities for Serving Children with Disabilities in Private
Residential Facilities Under IDEA-Part B
The following is a description of the key provisions under Part B of the Individuals with
Disabilities Education Act (IDEA) 1 regarding the responsibilities of State and local
education agencies and other public agencies in providing for the education of children
with disabilities placed in or referred to private residential programs :
A. Free Appropriate Public Education
Under Part B of the IDEA each State (through its State educational agency (SEA)) must
ensure that a free appropriate public education (FAPE) is available to all eligible children
with disabilities in mandated age ranges residing in the State .' FAPE is made available
through the local educational agencies (LEAs) and other public agencies in the State,
under the general supervision of the SEA . 20 U.S.C . §§ 1402(8) and 1412(a)(1)(A) ; 34
CFR §§300 .300 and 300 .600.
If a public agency3 determines in an individual situation that an eligible child cannot
receive an appropriate education from the programs that the public agency conducts, and,
therefore, placement in a public or private residential program is necessary in order to
provide special education and related services to the child, the program, including nonmedical care and room and board, must be at no cost to the parents of the child . 34 CFR
§300.302 . In addition, each SEA must ensure that a child with a disability who is placed
in, or referred to, a private school or facility by a public agency is provided special
education and related services in conformance with the child's individualized education
program (IEP), and with the standards that apply to education provided by the SEA and
LEAs (including the requirements of IDEA-Part B) . 20 U .S .C. §§1402(8) and
1412(a)(10)(B) and 34 CFR §300 .401 .
B . Out of State Placements
For a child placed outside the State by an educational or non-educational State or local
agency, the State initiating the placement (i.e., the "placing State") is responsible for
ensuring that the child's IEP is developed and implemented . (Question 16, Appendix A
to Part 300) .

' Please note that statutory and regulatory citations are to the IDEA'97 and its 1999 implementing
regulations . The Individuals with Disabilities Education Improvement Act of 2004, which takes effect July
1, 2005, contains similar provisions, but some citations may be different .
2

Children whose parents have placed them in a private school or facility even though FAPE was available
are an exception to this rule .
3 The term "public agency" includes the SEA, local educational agencies (LEAs), and any other political
subdivisions of the State that are responsible for providing education to children with disabilities . 34 CFR
§300 .22 .

Page 2

It is the child's or parent's residence that defines "placing State" and creates a State's
duty under the Act and regulations, not the location of the school or facility in the State
where the child has been placed. As traditionally interpreted by the Department, a child
is a resident of the State in which (1) the parent or guardian legally resides, or (2) the
child is a ward of the State .4 Where State law specifically addresses residency, such
provisions would apply .
C . Determining Local Residence
Determining the specific school district or LEA in a State that is responsible for the cost
of a residential placement is a matter of State law, policy or practice . (Question 16,
Appendix A to Part 300) . Although the IDEA does not address which LEA in a State is
responsible for the cost of a placement under Part B, the SEA must exercise general
supervision over all educational programs for children with disabilities residing in the
State, and has ultimate responsibility for ensuring the availability of FAPE to these
children . 34 CFR §300 .600. Therefore, if there is a question regarding which LEA is
responsible for the cost of a placement, the SEA is responsible for ensuring that the issue
is resolved.
D. Determining Covered Services
Under the IDEA, the term related services means transportation and such developmental,
corrective, and other supportive services as are required to assist a child with a disability
to benefit from special education, and includes, among other things, counseling services ;
psychological services ; therapeutic recreation services ; school health services ; and
medical services for diagnostic or evaluation purposes (i.e., provided by a licensed
physician to determine a child's medically related disability that results in the child's need
for special education and related services) . Two Supreme Court decisions have set out
the proper analysis for determining whether certain services that are medically related fall
under the definition of related services in the IDEA . See, Irvine Indep . Sch . Dist. v .
Tatro, 468 US 883 (1983) and Cedar Rapids Comm . Sch . Dist . v. Garrett, 526 US 66
(1999) .
The determination of whether a child requires therapeutic and habilitation services,
including the therapeutic and habilitation components of a residential treatment program,
as related services under the IDEA is made on an individual basis by the child's IEP team .
In situations where the IEP team determines that the child's educational needs are
inseparable from the child's other needs or the child is determined, on an individual basis,
to require the therapeutic and habilitation components of a residential program in order to
receive a free appropriate public education, in general, these services would be
considered to be related services under the IDEA . In such cases, the SEA is responsible
for ensuring that the entire cost of the special education and related services provided at
4 Although additional provisions apply in order to ensure that an impartial person acts on behalf of the
child when he or she is a ward of the State, that child retains all rights under the IDEA . See, 20 U .S .C .
§1415(b)(2) ; and 34 CFR §§300 .20 and 300 .515 .

2

Page 3
the residential placement, including the therapeutic and habilitation services, as well as
room and board, is provided without cost to the parents . (See, 34 CFR §300 .302 and the
discussion of financial arrangements in Item E, below .)
If, on the other hand, the IEP team determines that the child's therapeutic and habilitation
services needs are separate and distinct from the child's educational needs, and the
therapeutic and habilitation components of the residential placement are not required in
order for the child to receive a free appropriate public education, the responsibility of the
SEA, LEA, or other public agency is limited only to the special education and related
services listed on the child's IEP .
E . Paying for FAPE-Methods of Ensuring Services
Each State may use whatever State, local, Federal, and private sources of support are
available in the State to cover the cost of serving an eligible child who is publicly-placed
in a residential program . However, the State must ensure that there is no delay in
implementing a child's IEP, including any case in which the payment source for
providing or paying for special education and related services is being determined . 34
CFR §300 .301(a) and (c) .
Questions regarding which public agency is responsible for the cost of a placement are to
be addressed under the provisions of 34 CFR §300 .142. Under those requirements, the
SEA must ensure that an interagency agreement or other mechanism for interagency
coordination is in effect between the SEA and each non-educational public agency that is
otherwise obligated under Federal or State law to provide or pay for any special
education and related services necessary for ensuring FAPE to children with disabilities
within the State . 34 CFR §300 .142(a) .
If a public agency other than an educational agency fails to provide or pay for these
special education and related services, the LEA (or State agency responsible for
developing the child's IEP) must provide or pay for these services in a timely manner .
The LEA or State agency may then claim reimbursement for the services from the noneducational public agency that failed to provide or pay for those services, and that agency
must reimburse the LEA or State agency in accordance with the terms of the interagency
agreement or other mechanism . 34 CFR §300 .142(b)(2) .

3


t

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

FEB 17 2005

Mr. David Noble Stockford
Director
Office of Special Services
Maine Department of Education
23 State House Station
Augusta, Maine 04333
Dear Mr . Stockford :
It has come to our attention that there may be an issue concerning the provision of special
education services to students with disabilities in Maine . The Department recognizes that Maine
has a somewhat unique approach to providing a secondary education to students residing in the
State . We understand that in Maine, a number of towns that do not have their own public high
schools pay tuition to enable students to attend private town academies and that this practice has
been longstanding. These publicly tuitioned students attend private academies as a means of the
State and its public agencies providing a secondary education for students who reside in the
towns .
Even though some of the children who attend these schools have disabilities, they are placed in
the school because the towns do not operate any public high schools . Further, we understand
that the standard for attendance at these schools is residence, not disability . The Maine
Department of Education (MDE) and its public agencies, however, must ensure that a free
appropriate public education is made available to children with disabilities in this circumstance.
It is the Department's understanding that some private schools are concerned that Maine may
impose new requirements on Maine private schools that enroll publicly tuitioned students based
on interpretations of federal special education laws .
The Individuals with Disabilities Education Act (IDEA) applies to public schools and does not
place requirements on private schools . IDEA imposes requirements on States and public
agencies that refer to or place students with disabilities in private schools . Each public agency in
the State is responsible for ensuring that the rights and protections of Part B of IDEA are ,given to
children with disabilities "[r]eferred to or placed in private schools and facilities by that public
agency ." 34 CFR §300.2(c)(l) .
Private schools are not run by the State government or other public agency and, therefore, are not
responsible for ensuring compliance with the requirements of IDEA . IDEA requires States and
their public agencies, including school districts, to ensure that FAPE is made available to all
children with disabilities residing in the State in mandatory age ranges, and that the rights and
protections of IDEA are extended to eligible children and their parents . 20 U.S .C. § 1412(a)(1) ;

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.,

S .W. WASHINGTON. D .C . 20202-2500

Our mission is to ensure equal access to education and to promote educational excellence throughout the Nation .

t

Page 2 - Mr. David Stockford
34 CFR §§300 .2, 300.121 and 300 .300 . In general, a State and its public agencies fulfill this
obligation to make FAPE available either by educating their students with disabilities in an
appropriate public agency program or by placing them at an appropriate private school . The
obligation to make FAPE available to eligible students with disabilities applies to a State and its
public agencies even in a situation, as in Maine, where a school district does not operate public
secondary school programs of its own .
If students with disabilities attend a private school in Maine because the State or public agency
has placed the child in the school or offered that placement for the child, then MDE and the
school district must ensure that these students receive required special education and related
services at public expense, at no cost to the parents, in accordance with an individualized
education program (IEP) . 34 CFR §300 .401(a) . These students retain all the rights under the
IDEA they would have if served directly by a public agency, and MDE and its public agencies
must ensure that this occurs . 34 CFR §300 .401(c). If MDE or its public agencies allow parents
to select from among a list of approved public or private schools where they will enroll their
children and then the State or public agency pays to send the children to those schools in order to
receive an education, MDE or the public agency must ensure either that FAPE can be made
available to the students with disabilities at the school the parents select, or that the parents are
provided the opportunity to enroll their children with disabilities in another appropriate school
(whether public or private) where FAPE is available to their children . 34 CFR §300.2.
MDE and/or the school district may provide special education and related services at a private
school through direct arrangements with the private school or through alternative means (e.g., a
third party contract) using whatever State, local, federal, and private sources of support are
available in the State to meet the requirements of Part B of IDEA . 34 CFR 300.301(a), the State
or public agency may contract with a third party or with the private school which the student
attends to meet these requirements . This Department does not encourage one option over the
other. Either is acceptable .
Let us be clear - The IDEA gives the State and other public agencies no regulatory authority
over private schools ; and the question of whether the State or public agency contracts with a
private school to meet IDEA requirements is an issue between the State or public agency and the
private school . Similarly, the issue of whether a State or public agency can require a private
school that accepts a publicly-placed student with disabilities to take on these contractual
obligations is a matter between the State and the private school under State law . Federal law does
not encourage or prohibit the imposition of such requirements as a condition of placing these
students in the private school . Regardless of the option that MDE utilizes for educating students
with disabilities at private schools, MDE must ensure that the education provided constitutes
FAPE for these students, consistent with the requirements of IDEA .
We should also note that there could be situations where students with disabilities attend private
academies because their parents have enrolled them there even though the school district has
offered to make FAPE available to their child through an appropriate placement at a public
program or another private school . If the parents were to reject that offer of FAPE because they
preferred their child to attend a particular town academy, the child with a disability would have
no individual entitlement to services under IDEA and would have no individual right to receive

Page 3 7- Mr. David Stockford
some or all of the services that the child would receive if enrolled in a public school . 34 CFR
§300.454(a). These children are considered under 34 CFR §300.450 to be children with
disabilities enrolled by their parents in private schools . States and public agencies have different
obligations to parentally placed private school students with disabilities, yet must ensure that
these students have the opportunity to participate in equitable services under IDEA . 34 CFR
§§300.450-300 .462 .
We value the role that private schools play in educating children, including students with
disabilities, and we respect the independence of private schools . We ask that MDE work
together with private school officials to ensure that children with disabilities are appropriately
served under the requirements of the IDEA as outlined above .
If this office can be of further assistance, please do not hesitate to contact my Deputy, Dr. Troy
Justesen, at 202-245-7468 .
Sincerely,

4
cc: Troy R. Justesen
Stephanie Smith Lee

~ Jo

t

4" -

. Hager


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

DEC

2 0 2004

William L . Librera, Ed.D.
Commissioner
Department of Education
Trenton, New Jersey 08625-0500
Dear Commissioner Librera:
The Office of Special Education Programs (OSEP) received your letter which was sent in
response to our second request that the New Jersey Department of Education (NJDOE)
explain in writing how it is fulfilling its responsibilities under Part B of the Individuals
with Disabilities Education Act (Part B) for children with disabilities living in New
Jersey who attend school in New York under a contract between New Jersey and New
York school districts . In that letter, you indicate that in order to develop a plan to ensure
full compliance with Part B, NJDOE was in need of the Department's written responses
to two specific questions . Although we believe that we have thoroughly addressed the
first issue you raise in our prior letters to you of October 24, 2003 and May 26, 2004, we
will again provide an explanation of applicable Part B requirements to enable NJDOE to
provide a written explanation of the steps you are taking to ensure compliance . The
Department's responses to your specific inquiries follow .

•

Clarify whether it is the United States Department of Education's position that
parents of Montague students should have access to due process procedures in
New Jersey regardless of whether they have access to due process procedures in
New York.

It is the Department's position that when a school district in a sending State contracts
with a school district in a receiving State to educate children with disabilities living in the
sending State, the due process procedures of the sending State and its school district must
be made available to parents of students with disabilities attending school in a school
district in the receiving State. As a condition of eligibility for Part B funds, each State
must ensure compliance with the requirements of 34 CFR §§300 .121-300 .156. Among
these requirements is that each State ensure the availability of a free appropriate public
education (FAPE) to children with disabilities residing in the State in mandatory age
ranges, that the State has procedural safeguards consistent with 34 CFR §§300 .500300 .529, and that eligible students and their parents are afforded these procedural
safeguards, including due process protections . 34 CFR §§300 .121 and 300 .129.
Likewise, under 34 CFR §300 .220, local educational agencies (LEAs), in providing for
the education of children with disabilities in their jurisdiction, must have policies,
procedures and programs that are consistent with §§300 .121-300.156. Further, although
Part B does not prohibit NJDOE or Montague School District from entering into a
contractual agreement with Port Jervis City Schools in New York to provide special
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Page 2 - Commissioner William L . Librera, Ed. D.
education and related services, NJDOE retains ultimate responsibility for ensuring that
each educational program for children administered by the Port Jervis City Schools
through a contractual agreement is under the general supervision of the persons
responsible for educational programs for children with disabilities in New Jersey, and
meets the education standards of New Jersey, including the requirements of Part B . 20
U.S.C . 1412(a)(11); 34 CFR §300.600(a)(2)(i)-(ii) .
We are aware that under Clause 4 of the contractual arrangement between the Montague
School District and Port Jervis City Schools, entitled Sending-Receising Contract
Agreement, the parties expressly agree that parents will use New York's due process
procedures if they wish to appeal an educational decision affecting their child . Since the
above contractual provision is inconsistent with Part B, insofar as it removes New Jersey
parents' right to utilize New Jersey's due process procedures, NJDOE must instruct the
Montague School District and any other school districts in New Jersey that may have
.entered .into contractual arrangements with receiving school districts in neighboring
States to eliminate similar contractual provisions from their contracts . In this
circumstance, NJDOE's procedures governing the conduct of mediation and due process
proceedings, and the initiation of a civil action in a New Jersey court of competent
jurisdiction or in a Federal district court of the United States are applicable . See 34 CFR
§§300.506-300.514.
NJDOE may want to consider whether it would be advantageous to the parties to conduct
the hearing at the receiving school district, and there is nothing in Part B that would
prohibit such a practice. Our staff stands ready to provide technical assistance to the
NJDOE and its school districts in developing a plan to ensure that New Jersey's due
process procedures are applicable to parents of children with disabilities educated at Port
Jervis City Schools .
Your letter next asks :
Would a request for a change of program for a Montague student attending
school in Port Jervis require Montague to remove the student from Port Jervis
and place the student itself? In other words, would parents requesting program
changes lose access to Port Jervis?
It depends. As is true with respect to all educational decisions . under Part B,
individualized determinations must be made as to the educational program and services
that are appropriate for each disabled child . In this circumstance, officials of the
Montague School District would need to work with officials of the Port Jervis City
Schools through Part B's individualized education program (IEP) and placement
processes to determine what the student's needs are and if those needs could be met at
Port Jervis. See 34 CFR §§300 .340-300.350 and §§300 .550-300.553. Each child's IEP
forms the basis for the placement decision . 34 CFR §300 .552(b)(2) ; Appendix A to 34
CFR Part 300, question 1 . Whether a student could continue to attend school in Port
Jervis, if a change in program is determined appropriate, is a matter that would have to be
determined by the group of knowledgeable persons responsible for making the child's

Page 3 - Commissioner William L . Librera, Ed. D .
placement decision, which includes the child's parents . If the IEP and placement teams
determine that Port Jervis can appropriately implement the necessary change in the
student's special education program, it would not be necessary for Montague to remove
the student from Port Jervis . However, if the IEP and placement teams determine that
Port Jervis cannot implement the necessary change, Montague, and NJDOE, remain
ultimately responsible for ensuring that the student receives the services specified in his
.or her IEP in the least restrictive environment . 34 CFR §300 .600 and §300 .300(a) .
We trust that the above clarification is sufficient to respond to any remaining questions
you have . We consider this a serious matter and request that you provide us, within thirty
calendar days of the date of receipt of this certified letter, a written explanation of the
steps NJDOE is taking to respond to the concerns raised in our letters to you of October
24, 2003 and May 26, 2004 . If you have any questions, please contact Dale King at 202245-7405 or Dr. JoLeta Reynolds at 202-245-7459 (press 3) .
Sincerely,

Stephanie Smith Lee
Director
Office of Special Education Programs
cc :

Barbara Gantwerk, Director, Office of Special Education Programs,_ New Jersey
Department of Education
Diana MTK Autin, Executive Director, Statewide Parent Advocacy Network, Inc .,
Newark, New Jersey