July 2, 2003

Dear Chief State School Officer:
It has come to our attention that some of your State’s local educational agencies (LEAs) may have
policies regarding the release of student information to military recruiters that are contrary to the law.1
The Family Policy Compliance Office (FPCO) within the Department of Education is responsible for
ensuring that the military recruiter provisions of the No Child Left Behind Act of 2001 are carried out
in accordance with the intent of the statute and looks forward to working with you.
As you know, Congress has passed two statutes that require LEAs receiving assistance under the
Elementary and Secondary Education Act of 1965 (ESEA) to afford military recruiters the same access
to secondary school students as they provide to postsecondary institutions or to prospective employers.
These laws also generally require LEAs to provide secondary school students’ names, addresses, and
telephone listings to military recruiters, when requested.
In October 2002, Secretary Rod Paige and Secretary Donald Rumsfeld jointly issued guidance to our
Nation’s schools. Enclosed is a copy of that guidance. It is also available on FPCO’s Web site at
<http://www.ed.gov/offices/OII/fpco/hot_topics/ht_10-09-02.html>. Our guidance assists schools as
they inform parents about the new requirements. It is important to note that under the statutes parents
may “opt out” of allowing schools to provide information about their children to military recruiters.
Some LEAs may be confused by the application of 10 U.S.C. § 503, which allows LEAs, by majority
vote of the LEA governing body, to have a policy that denies military recruiters access to students or
“directory information” about those students.2 However, the subsequently enacted No Child Left
Behind Act of 2001 does not include such an exception. Therefore, while a school board enacting such
a policy would be exempt from the intervention provisions of 10 U.S.C. § 503, the LEA could still be
subject to potential Department of Education enforcement actions. The No Child Left Behind Act of
2001 makes it clear that, even if an LEA does not have a policy of disclosing “directory information”
under the Family Educational Rights and Privacy Act (FERPA), the LEA must still comply with a
request from a military recruiter for names, addresses, and telephone listings of students.
A second apparent area of confusion for LEAs has involved the “opt out” provision of the law. Our
Departments have received copies of school district letters and newspaper accounts of some
LEA actions that misapplied the law by conditioning the disclosure of student information to military
recruiters upon first receiving a parent’s written consent – essentially establishing an “opt-in”
notification process. Contrary to an “opt-in” process, the referenced laws require an “opt-out”
1

§ 9528 of the Elementary and Secondary Education Act (20 U.S.C. § 7908), as amended by the No Child Left
Behind Act of 2001 (P.L. No. 107-110); 10 U.S.C. § 503, as amended by § 544 of the National Defense Authorization
Act for Fiscal Year 2002 (P.L. No. 107-107).

2

10 U.S.C. § 503(c)(5)(A).

Page 2
notification process whereby parents are notified and have an opportunity to request that the
information not be disclosed without their consent, similar to the “directory information” provisions
under FERPA. The referenced laws do not permit LEAs to institute a policy of not providing the
required information unless a parent has affirmatively agreed to provide the information.
While the Department of Education is committed to working with LEAs to achieve voluntary
compliance with the law, a number of options are available to help ensure that State Educational
Agencies (SEAs) monitor LEAs and ensure compliance. Those options include the ability to withhold
payments, issue cease and desist orders, and recover funds. See 20 U.S.C. § 1234c, et. seq.
We are asking you to review your State’s LEA actions and report to the FPCO at the Department of
Education, within three weeks of the date of this letter, on the steps your agency has taken or will take
to ensure that your State’s LEAs are in compliance with these laws. If some of your State’s LEAs are
not then in full compliance, please include in your response a compliance action plan and schedule.
We are enclosing a list of your State’s LEAs that may have policies that are inconsistent with the
referenced statutes.
Please note that the FPCO routinely provides training sessions on the requirements of FERPA, the
Protection of Pupil Rights Amendment, and the military recruiter provisions of the No Child Left
Behind Act of 2001. These sessions are a service of the Department of Education designed to assist
you by providing LEA and SEA officials an enhanced understanding of the laws administered by
FPCO, as well as advice and guidance for complying with those laws. If your State department of
education is interested in sponsoring such compliance training sessions, please let FPCO know, and
that office can work with the appropriate officials in making arrangements for the training on either a
statewide or regional basis.
If you have any questions about this matter, please do not hesitate to contact FPCO at the following
address or telephone number:
Family Policy Compliance Office
U.S. Department of Education
400 Maryland Avenue, SW
Washington, DC 20202-4605
(202) 260-3887.
We appreciate your attention to this important matter.
Sincerely,

/s/
William D. Hansen
Deputy Secretary of Education

Enclosures

/s/
David S. C. Chu
Under Secretary of Defense
(Personnel and Readiness)


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

Jill_

I

2003

I am writing in response to a series of letters you have written to the Department. I hope
the following information is helpful.
Your main question throughout these letters appears to be whether there is an entitlement
under the Individuals with Disabilities Education Act (IDEA), 20 U.S.C. § 1400 et seq.,
which would allow parents to choose any private school that is part of a choice program,
and have special education and related services provided at that school.
In your letters, you cite the provision in 34 C.F.R. § 300.552(c), which requires that each
public agency ensure that "unless the IEP of a child with a disability requires some other
arrangements, the child is educated in the school he or she would attend if nondisabled."
I first note that 34 C.F.R. § 300.552(c) was developed in the context of special education
programs within local education agency (LEA) schools, and not choice programs.
However, even with regard to LEA programs, the IDEA does not require that LEAs make
all services needed by all students with disabilities available at all locations.
Moreover, the IDEA does not require that private schools provide special education and
related services that meet the needs of all students with disabilities, and it does not
require that States certify all private schools to provide services to all students. In Letter
to Reedy, 16 IDELR 1364 (OSEP 1990), the Office of Special Education Programs
responded to the question of whether private schools serving students in Vermont are
"bound by the same admission and discipline policies that apply to public schools."
OSEP explained that "if a private school or facility is unable or unwilling to provide an
appropriate educational program for a child who is disabled, the public agency remains
responsible for providing, or ensuring the provision of, a FAPE to that child, either by
locating another appropriate private school placement for the child or by educating the
child in a public agency program."
The United States Court of Appeals for the Second Circuit agreed with the policy in
Letter to Reedy that private schools are not subject to the same admission policies that
apply to public schools. St. Johnsbury Academy v. D.H. et. al., 240 F.3d 163 (2 nd Cir.
2001). In St. Johnsbury Academy, a parent contested a private school's policy that
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Page 2
students had to perform at or above the fitth grade level before being assigned to the
Academy's ninth grade mainstream academic classes. The Court held that, although the
public school was responsible for making a free appropriate public education (FAPE)
available to the student (which in Vermont was done by paying students' tuition at
private schools or schools outside the district), that particular private school was not
required to change its policy to ensure that the student was able to receive FAPE at that
school.
I will also address your request that this Department review the State's response to the
issues we forwarded to the State for review, pursuant to its State complaint procedures
under 34 CFR §§ 300.660 - 300.662, in a letter dated February 26, 2003. Although the
complaint procedures applicable to Part B of the Individuals with Disabilities Education
Act (Part B), prior to May I 1, 1999, included a provision that after a complaint had been
filed with the State and the State had acted on it, either party to the complaint could
request the U.S. Secretary of Education to review the State's final decision; on March 12,
1999, new final regulations were published that no longer include a Secretarial review
process. The new regulations became effective May 11, 1999, so the Secretarial review
process is no longer available. As with other issues raised under the IDEA, if you
• disagree with the response from the State, you may take advantage of the procedures for
the filing of a due process hearing under the IDEA. If you wish the State to address
additional issues, you may file a new complaint with the State.
In your April 22, 2003 letter to Ms. Jill Harris you also ask about services plans.
Contrary to the statements in your letter, school systems are not required to prepare
services plans for all children with disabilities placed in private schools by their parents.
Instead, under 34 CFR § 300.455(b), services plans are prepared only for private school
children with disabilities who are designated to received services under 34 CFR §
300.452. If you wish to raise the issue of a services plan for a student who has been
designated to receive services, you may file a complaint with the State.
Finally, in response to your question, the Office of Civil Rights (OCR) address where we
sent the February 26, 2003 letter is:
U.S. Department of Education
Office for Civil Rights
330 C Street, S.W.
Washington, D.C. 20202
As you requested, we are forwarding a copy of your February 27, 2003 letter to OCR,
along with a copy of this letter.

Page 3
I hope this information is helpful.
Sincerely,

Stephanie S. Lee
Director
Office of Special Education Programs
cc: Vermont Department of Education
U.S. Department of Education, Office for Civil Rights


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

JUN 3 0 2003

This letter is in response to your request for a written response to your concern that your
children and other students who are deaf or hard of hearing in the State of California are
not being assessed to determine their proficiency and progress in American Sign
Language (ASL). Neither the Individuals with Disabilities Education Act (IDEA) nor its
implementing regulations at 34 CFR Part 300 have specific requirements regarding the
assessment of ASL skills or proficiency.
Section 300.532 of the regulations implementing Part B of the IDEA sets forth the
minimum evaluation procedures each public agency is required to meet when conducting
initial evaluations and reevaluations to determine eligibility for special education and
related services. Section 300.532(b) requires that "a variety of assessment tools and
strategies be used to gather relevant functional and developmental information about the
child, including information provided by the parent, and information related to enabling
the child to be involved in and progress in the general curriculum .... " (34 CFR
ยง300.532(b)). Section 300.532(g) requires that a child be "assessed in all areas related to
the suspected disability, including, if appropriate, health, vision, hearing, social and
emotional status, general intelligence, academic performance, communicative status, and
motor abilities." (Emphasis added.) Section 300.5320) further states that the public
agency must use "assessment tools and strategies that provide relevant information that
directly assists persons in determining the educational needs of the child.'" The
individualized education program (IEP) team members, including the parent, and other
qualified professionals, as appropriate, make the determination of what evaluation data
are needed (as part of an initial evaluation or reevaluation). (34 CFR ยง300.533). The
IEP team could determine that an assessment of the student's proficiency in ASL was
needed as part of this process.
Section 300.346 requires that the communication needs of a child who is deaf or hard of
hearing be considered in the development, review, and revision of the child's IEP.
Specifically, ยง300.346(a)(2)(iv) states that the IEP team must consider the
"communication needs of the child, and in the case of a child who is deaf or hard of
hearing, consider the child's language and communication needs, opportunities for direct
communications with peers and professional personnel in the child's language and
communication mode, academic level, and full range of needs, including opportunities
for direct instruction in the child's language and communication mode..." The IEP team
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Page 2
may develop measurable annual goals, including short-term objectives or benchmarks in
a particular student's IEP to assess that student's ability and proficiency in ASL. Further,
the IEP team may specify in the IEP that certain assessment methods, such as teachermade tests and observational assessments, be used to assess the student's proficiency in
ASL.
I hope this information is useful. If you have any further questions, please feel flee to
contact Dr. Wendy Tada at 202-205-9094.
Sincerely,

Stephanie S. Lee
Director
Office of Special Education Programs
cc: Dr. Alice Parker
Assistant Superintendent of Public Instruction
State Director of Special Education
California Department of Education


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

JUN 2 7

This is in response to the inquiry set forth in your March 18, 2003 electronic letter and
during subsequent telephone conversations between you and Wendy Tada and Dale King,
members of the Office of Special Education Programs (OSEP). You asked for
clarification regarding a proposed alternative special education program for your State,
intended to be modeled after Florida's McKay scholarship program. As you stated in
your electronic letter, you are proposing to offer parents of children in special education
"an option, other than mediation, to allow their child to attend an alternative State
approved special education program other than where their child is presently assigned."
You specifically asked if federal funds provided under the Individuals with Disabilities
Education Act (IDEA) could be used to pay tuition at a public or private State-approved
special education program. Since you reference providing parents an additional
placement option and the McKay scholarship program, it is our understanding that
alternate State-approved private school placement options are intended to be selected by
the parents rather than as a way for public agencies to provide a free appropriate public
education (FAPE) through the regular IDEA placement process. Based upon this
understanding, the availability of federal funds for such enrollment will primarily depend
on whether the student's placement is into a public or private program. A discussion of
the various issues is set out below.
Children Enrolled in Private Schools By Their Parents. Based upon our review of the
draft legislation, your communications with staff and the stated intent to model the
proposed program after the McKay Scholarship program in Florida, it is our
understanding that Connecticut is not proposing to provide FAPE to students with
disabilities through private school placements under this program. Under the IDEA,
where the State and its local school districts have made FAPE available to eligible
children with disabilities in its public school system but their parents elect to place them
in private schools through a program such as the one you are proposing, such children
would be considered "private school children with disabilities" enrolled by their parents.
See 34 CFR. ยง300.450. Under IDEA, such parentally-placed private school children with
disabilities have no individual entitlement to FAPE, including special education and
related services. Under these circumstances, it would not be permissible to use IDEA
funds to pay for the tuition of children enrolled by their parents in private alternative
State-approved special education programs. Instead, a proportional share of IDEA funds
would be used to provide limited services to parentally-placed private school students in
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Page
accordance with specific federal provisions covering such students. (As you are
intending to model your program proposal on Florida's McKay Scholarship program, it is
important to point out that the Florida program uses State funds, not federal funds, to
finance its private school scholarships.)
IDEA requires local education agencies (LEAs) to consult with representatives of
parentally-placed private school children with disabilities to consider the special
education and related services that may be available in light of available funding, the
number of private school children with disabilities, the needs of private school children
with disabilities, and their location. 34 CFR ยง300.454(b). "Amounts expended for the
provision of those services by a [LEA] shall be equal to a proportionate amount of the
Federal funds available under [Part B]," based on the number of children with disabilities
in private schools relative to the number of such children in public schools. 20 USC
ยง1412(a)(10).
Public School Choice. Under the IDEA, LEAs must ensure that funds received under
Part B of the IDEA are used only to pay the excess costs of providing special education
and related services to children with disabilities and expended in accordance with the
applicable provision of the Act. See 34 CFR ยง300.230. In designing a program that
allows parents to choose between public school programs, Connecticut must ensure that
FAPE is made available and should carefully review the Department's previous letters on
this topic (enclosed, see below).
In general, the Department has previously approved public school choice programs 1)
where parents choose which public agency will be responsible for providing FAPE; and
2) that allow IDEA placement teams to offer the parent a choice between two or more
placement options capable of providing FAPE. However, the Department has rejected a
public school choice program that was based solely on parental choice, without regard to
the provision of FAPE.
In a 1990 joint OSERS-OCR letter, the Department stated that:
if a State chooses to allocate district responsibility for FAPE based upon parental
choice, that is not inconsistent with [IDEAl providing that the effect of this will
not result in the denial of any of the fights guaranteed by the [IDEAl.
Consequently, it is not inconsistent with [IDEAl for choice legislation to require
that responsibility for providing FAPE be delegated to the district of choice.
Letter to Tatel, 16 EHLR 349 (1990). Under such a program, parents may choose
between one or more public agencies that, if chosen, would be responsible for making
FAPE available consistent with the IDEA. Likewise, the Department also previously
stated that:
it would be permissible under [the IDEAl for school officials to give the parent
the right to select a child's placement from one or more public placements that

Page 3
have been determined appropriate for a child by the placement team based upon
applicable [IDEAl requirements.
Letter to Siegel, 16 EHLR 797 (1990). Under both such programs, the responsible public
agency could use IDEA funds to pay the excess costs of providing FAPE.
However, it also is important to note that in 1991, the Department concluded that a State
law "permitting a public agency to base a placement decision solely on 'parent option' or
'parent preference' is inconsistent with Federal requirements." Letter to Bayh, 17 EHLR
840; see also, Letter to Evans, 17 EHLR 836 (1991); Letter to Lugar, 17 EHLR 834
(1991); and Letter to Bina, 18 EHLR 582 (1991).
Mediation. Finally, I would like to address the issue of mediation that you raised in your
electronic letter and in your phone conversations with Wendy Tada and Dale King. You
stated that your proposed bill would offer parents of special education students "'an
option, other than mediation" to attend an alternative State-approved special education
program. I want to be clear that under the IDEA, mediation must be offered whenever a
due process hearing is requested. See 34 CFR ยง300.506. Therefore, it would not be
permissible under IDEA to offer an alternative State-approved special education program
in lieu of mediation. That is, parents of students with disabilities attending public school
programs and eligible to receive FAPE must have the option of mediation whenever a
due process hearing is requested, regardless of whether or not they are offered enrollment
in an alternative State-approved special education program under the proposed State
legislation.
We hope this information is helpful. This letter is not intended to address any
compliance issues under Section 504 or other statutes, including the No Child Left
Behind Act. Similarly, this letter is not intended to address any other compliance issues
under Part B of IDEA. Please feel free to contact Wendy Tada at (202) 205-9094 or Dale
King at (202) 260-1156 if you need further assistance.
Sincerely,

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

George P. Dowaliby
Bureau Chief
Connecticut Department of Education


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

JUN 2 6 2008
Dr. Carol Ann Baglin
Assistant State Superintendent
Division of Special Education/
Early Intervention Services
Maryland State Department of Education
200 West Baltimore Street
Baltimore, Maryland 21201
Dear Dr.
We are in receipt of your letter requesting clarification from the Office of Special
Education Programs (OSEP) regarding the parent's role in the team process as it pertains
to 34 CFR §300.543. Your letter to OSEP was prompted by the Baltimore City Public
Schools System's (BCPSS) response to your office's interpretation made in a finding to a
complaint investigation "that a parent is a full member of the IEP team who maintains all
of the rights of school personnel, including the opportunity to agree or disagree with the
decision as to whether the student has a specific learning disability and to certify in
writing that the written report reflects his or her conclusion." You are seeking OSEP's
clarification of the parent's role in the IEP team process as it pertains to 34 CFR
§300.543.
A key emphasis in the 1997 amendments to the Individuals with Disabilities Education
Act (IDEA) and the implementing regulations was the strengthening of the parents' role
in their child's education and an expansion of opportunities for parents and key public
agency staff to work in new partnerships at the State and local levels. (See Appendix A
to 34 CFR part 300, Section II). Accordingly, the IDEA and the implementing
regulations require that parents have an opportunity to participate in meetings and be part
of the groups that make decisions about identification, eligibility, evaluation, educational
placement and the provision of a free appropriate public education. (See 34 CFR
§§300.501,300.533(a)(1), 300.534(a)(1)). Further, parents' concerns and the information
they provide about their children must be considered in developing and reviewing the
IEPs. (See 34 CFR §§300.343(c)(iii) and 300.346(a)(1)(i)).
Sections 300.540-300.543 of the Part B regulations set forth the Additional Procedures
for Evaluating Children with Specific Learning Disabilities. Section 300.540 states that
"the determination of whether a child suspected of having a specific learning disability
(SLD) is a child with a disability as defined in 34 CFR §300.7, must be made by the
child's parents and a team of qualified professionals which must include - (a)(1) the
child's regular teacher; or (2) if the child does not have a regular teacher, a regular
classroom teacher qualified to teach a child of his or her age; or (3) for a child of less
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Page 2 - Dr. Carol Ann Baglin
than school age, an individual qualified by the State Education Agency (SEA) to teach a
child of his or her age; and (b) at least one person qualified to conduct individual
diagnostic examinations of children, such as a school psychologist, speech-language
pathologist, or remedial reading teacher." (Emphasis added). Section 300.540 clearly
identifies those persons who must be included in the team o f qualified professionals. The
regulation makes clear that it is the parent and the team of qualified professionals who
determine whether a child is a child with a SLD. It is important to note that the "team"
described in §300.540 is not the same as the IEP team defined in §300.344.
The regulations at 34 CFR §300.543(b) require that each team member shall certify in
writing whether the report documenting the team's determination of eligibility reflects his
or her conclusion. If it does not reflect his or her conclusion, the team member must
submit a separate statement presenting his or her conclusions. Team member as used in
this citation speaks specifically to the team of qualified professionals involved in the
additional evaluation procedures that must be used to conduct evaluations and to submit
written reports where it is suspected that a child has a SLD. Therefore, the requirements
at 34 CFR §300.543(b) do not require or place an "affirmative duty" on the child's parent
to submit a separate statement presenting his or her conclusions. However, it would not
be inconsistent with the IDEA for a State to require that the child's parent be afforded the
opportunity to provide (but not be required to provide) such a statement.
Although the parent is not listed as a member of the team of qualified professionals and is
not required to submit a written statement reflecting his or her conclusion, the regulations
at 34 CFR §§300.540 and 300.534 are very clear in requiring the determination of
whether a child suspected of having a SLD is a child with a disability must be made by
the parents and the team of qualified professionals.
We hope you find this explanation helpful. If we can be of further assistance, please do
not hesitate to contact Dale King at (202) 260-1156 or Dr. JoLeta Reynolds of the Office
of Special Education Programs at (202) 205-5507 (press 3).
Sincerely,

Stephanie S. Lee
Director
Office of Special Education Programs


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

26 200,-1

This letter is in response to your correspondence to Secretary Paige and Assistant
Secretary Robert H. Pastemack requesting clarification of various requirements under the
Individuals with Disabilities Education Act (IDEA). In your letter you specifically
requested clarification in the following seven areas: (1) statewide high school
proficiency assessments; (2) alternative assessments and proficiencies; (3) appropriately
configured IEP teams and authority of IEP teams to make decisions; (4) direct services by
the State Educational Agency (SEA) and remedies available under state complaint
procedures; (5) for the filing of a complaint with the SEA; (6) due process, procedural
safeguards and parents with disabilities; and (7) completeness of complaint
investigations. Although you enumerated child-specific questions within each of these
seven areas, our response is directed only toward those areas of IDEA that we feel
specifically address the general topical areas as they relate to your questions. I
understand that you have spoken with members of my staff on a number of occasions and
may have addressed some of these issues during those conversations.
1. Statewide High School Proficiency Assessments

Is it permissible under IDEA for a school district not to include a child with a
disability in the statewide high school proficiency assessment solely because the
student's special education placement is out-of-state, and/or because the student
attends a state-approved private school for students with learning disabilities in
another state?
The Individuals with Disabilities Education Act (IDEA) provides that a State must
demonstrate that children with disabilities are included in general State and district-wide
assessment programs with appropriate accommodations and modification in
administration, if necessary. 34 CFR §300.138. The IEP team is responsible for
determining how the child will participate in State and district-wide assessments of
student achievement and determines if any individual modifications in administration are
needed in order for the child to participate in the assessment. If the IEP team determines
that the child will not participate in a particular State or district-wide assessment, the IEP
team must state why the assessment is not appropriate for the child and how the child will
be assessed. This could include identifying other tests that could be used for the same
purpose or that would give the student the opportunity to achieve the same benefit. These
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Page 2 provisions also apply to a child with a disability placed at a private school by the public
agency as a means of providing special education and related services. Specifically, if a
public agency places or refers a child with a disability to a private school or facility for
the purpose of providing a free appropriate public education (FAPE) to that child, the
child and his or her parents have all of the rights that they would have if the child were
served at the public school. 34 CFR §300.401. Therefore, the IEP team would be
responsible for determining how the child will participate in State and district-wide
assessments and determining any appropriate modifications or accommodations needed
in order for the child to participate in the assessment. If a student is placed by his or her
parent in a private school when FAPE from a public agency program or placement is not
at issue, even one that has been approved by the State, the child and his or her parents do
not have all the rights that they would have if the child were served by the public agency
and have no individual entitlement to services under Part B. 34 CFR §§300.403(a) and
300.450-462. Therefore, the IEP team would not be required to determine how a child
with a disability will participate in State and district-wide assessments.
2. Alternative Assessments

ls it permissible under IDEA to: (1) utilize a student's goals and objectives from the
IEP and/or an education plan from the out-of-state state-approved private school as
"an alternative assessment" and to serve as "alternative proficiencies "for
graduation; (2) utilize "alternative proficiencies '" with a student who is deemed able
to take a statewide high school proficiency assessment "because the student attends
school out-of-state "; and (3)for IEP goals and objectives to be considered "an
alternative assessment "for a student who is deemed able to take a statewide high
school proficiency assessment?
IDEA does not address whether or not a student's IEP goals and objectives or an
education plan can serve as alternative proficiencies for graduation. This is an issue that
can best be addressed by the State or local school system. If a child attends an out of
state school because the child is parentally placed, there is no entitlement to the same
rights for a student who has been placed by the school district in a private placement.
An alternate assessment is an assessment designed for students with disabilities who are
unable to participate in general State or district-wide assessments, even when
accommodations or modifications in administration are provided. IDEA does not
prescribe a particular alternate assessment.

I f it is well-documented and determined by the IEP team that the student is able and
will take the statewide high school proficiency assessment, is it the school district's
responsibility under IDEA to provide either: (i) the required travel and associated
costs to get the student to either a place where the state has an approved proctor to
administer the assessment within an environment that meets the student's required
accommodations; (ii) to send a state approved proctor to the location of the student's
placement or (iii) provide for the training of the private school personnel to
administer the assessment to the student at his placement within his normal and

Page 3

customary environment and assume all associated costs so that the student's absence
from school due to travel is minimized?
Although the IDEA requires that the SEA ensures that all children with disabilities are
included in general State and district-wide assessment programs, there is no requirement
that the local agency provide transportation costs for a child to return from a parentally
placed out-of-state placement to the local education agency for the purpose of assessing
the child or provide a proctor or train out-of-state private school personnel to administer
the State or district-wide assessment to a student placed out of state by the parent.
3. Appropriately Configured IEP Team and Authority of IEP Team to Make Decisions

ls it permissible under IDEA for an individual from the school district (such as the
ex-case manager and CST supervisor/administrator) to: (1) be considered as a
member of the student's IEP team if they have never attended an IEP meeting for this
student; has not been identified on the student's IEPs as being present; listed on the
sign-in sheet as part of the students IEP team in any IEP meetings; and has not been
invited or listed as a member of the student's IEP team on the meeting notice; (2)
limit the authority of the IEP team and/or case manager/agency representative in any
way; (3) decide what services and placement the school district will provide prior to
the IEP meeting; (4) despite what the team discovers as "needs" in the forthcoming
annual review, to decide in advance of the IEP meeting what services and placement
the IEP team and/or case manager can approve; (5) limit the areas o f discussion,
described in IDEA Part B as necessary in an annual review to only certain items; and
(6) mandate that the agency representative/case manager wait to approve what the
team decided until they speak with administration?
If in fact the IEP meeting outcomes were predetermined unilaterally by anyone in or
outside the IEP team, is it possible that: despite the parents and others, including the
case manager, actively participation as part o f the IEP meeting and team, with all
procedural steps taken except for the "authority issue'" because o f the predetermined
set of services and anything beyond that requires permission o f the administration,
that the administration acted "unilaterally?"
In a situation where the school district or agency representative was not given the
authority to approve what the IEP team decided was necessary for the provision of
FAPE, or authority to make independent decisions was limited in any way in advance
of a n IEP meeting, or the agency representative/case manager was told to wait to
approve what the team decided until they spoke with administration: (a) is this
annual review meeting of the IEP team a properly configured IEP team; (b) is this
annual review meeting o f the IEP team a valid IEP meeting; and (c) would the IEP
document that resulted from this IEP meeting be a valid IEP?
Under the Part B regulations, the public agency must ensure that the IEP team for each
child with a disability consists of-

Page 41) the parent of the child;
2) at least one regular education teacher of the child (if the child is, or may be,
participating in the regular education environment);
3) at least one special education teacher of the child, or if appropriate, at least one
special education provider of the child;
4) a representative of the public agency who is (i) qualified to provide, or
supervise the provision of, specially designed instruction to meet the unique needs
of children with,disabilities; (ii) is knowledgeable about the general curriculum;
and (iii) is knowledgeable about the availability of resources of the public agency;
5) an individual who can interpret the instructional implications of evaluation
results;
6) at the discretion of the parent or the agency, other individuals who have
knowledge or special expertise regarding the child, including related services
personnel as appropriate; and
7) if appropriate, the child.
See 34 CFR §300.344(a).
The public agency may designate another public agency member of the IEP team to also
serve as the agency representative, if the criteria in 34 CFR §300.344(a)(4) are satisfied.
34 CFR §300.344(d). Appendix A to 34 CFR Part 300, question 22, clarifies that the
public agency has the discretion to determine the individual who should serve as the
public agency representative, provided that the criteria in 34 CFR §300.344(a)(4) are
satisfied. Question 22 also notes that it is important that "the agency representative have
the authority to commit agency resources and be able to ensure that whatever services are
set out in the IEP will actually be provided." The Part B regulations, however, do not
specify further which individuals may or may not serve as a "representative of the public
agency" on the IEP team. There is no specific requirement for a case manager. As long
as the Part B regulatory requirements are met, the public agency has the discretion to
determine which individual will serve as the public agency representative on the IEP
team.
Part B allows the parents or school district to have other persons who have knowledge or
special expertise regarding the child to be members of the IEP team. 34 CFR
§300.344(a)(6). Question 28 in Appendix A to 34 CFR Part 300 clarifies that the IEP
team may, at the discretion of the parent or public agency, invite other individuals who
have knowledge or special expertise regarding the child to be participants on their child's
IEP team. Under §300.344(c), the determination as to whether an individual has
knowledge or special expertise within the meaning of §300.344(a)(4), shall be made by
the parent or public agency who has invited the individual to be a member of the IEP
team. The public agency must ensure that all the individuals who are necessary to
develop an IEP that will meet the child's unique needs and ensure the provision of FAPE
to the child participate in the child's IEP meeting.
The Part B regulations lay out the IEP team's duties when developing and reviewing an
IEP. 34 CFR 9300.346 and §300.343(c). The IEP team participates in an IEP meeting
that enables all participants to make joint informed decisions regarding the child's needs

P-age 5
and appropriate goals as well as the services needed to support and achieve the agreed
upon goals. Decisions regarding a student's special education and related service needs
and his or her placement cannot be predetermined prior to the IEP team meeting.
Although agency staff may come to an IEP meeting prepared with evaluation findings
and proposed recommendations regarding IEP content, the public agency must make it
clear to the parents at the beginning of the meeting that the services proposed by the
agency are only recommendations for review and discussion with the parent. See
Question 32 in Appendix A to 34 CFR Part 300.
The Part B regulations require public agencies to ensure that during a review or revision
of a child's IEP, the IEP team determines whether the annual goals are being achieved,
revises the IEP if appropriate to address any lack of expected progress toward the annual
goals and in the general curriculum, if appropriate, the result of any reevaluation,
information about the child provided to, or by, the parents, the child's anticipated needs,
and discusses other matters. 34 CFR §300.343(c). Since the regulations provide for the
discussion of"other matters" during an annual IEP meeting, in general, most matters
concerning the student that a team member raises may be discussed.
Under the IDEA, States are required to provide all children with disabilities with a free
appropriate public education (FAPE). FAPE is defined as special education and related
services that are provided at public expense, that meet the standards of the State
educational agency, include an appropriate preschool, elementary, or secondary school
education in the State involved and are provided in conformity with the IEP.
20 U.S.C.§ 1401(18); 34 CFR §300.13. Further, the Part B regulations require that at the
beginning of each school year, each public agency shall have an IEP in effect for each
child with a disability within its jurisdiction. Each public agency is required to ensure
that an IEP is in effect before special education and related services are provided and that
the IEP is implemented as soon as possible following the IEP meetings. 34 CFR
§300.342.
4. Direct Services by the SEA and Remedies Available Under State Complaint

Procedures

Under IDEA state complaint procedures, is it permissible: (1) to provide direct
services to a student as a portion of the 'relief" if the state finds that the patterns and
practices of the school district are noncompliant over a period of years which justify
this action; (2)for the SEA to provide as part of their "individual" relief, an
independent child study team either paid for by the LEA or by Direct Services
through the SEA; and (3)for the SEA to provide as part of their "individual" relief,
an independent child study team either paid for by the LEA or by Direct Services
through the SEA if the state finds that the patterns and practices of the school district
are noncompliant over a period of years which justify this action?
IDEA does not address specific remedies for complaints. Under the state complaint
procedures defined at 34 CFR §300.660(b) in resolving complaints in which it has found
a failure to provide appropriate services, an SEA, pursuant to its general supervisory

Page 6
authority under Part B of IDEA, must address (1) how to remediate the denial of those
services, including as appropriate, the awarding of monetary reimbursement or other
corrective action appropriate to the needs of the child; and (2) appropriate future
provision of services for all children with disabilities. How a State resolves such matters
depends on the specific facts and circumstances. If parents are dissatisfied with the relief
provided and the matter is one described in §300.503(a)(1)-(2) (relating to the
identification, evaluation, or educational placement of a child with a disability, or the
provision of FAPE to the child), they can file a due process complaint and seek relief
from a due process heating officer. See 34 CFR §300.507(a).
5. Provide for the Filing of a Complaint with the SEA
*

Is it impermissible under IDEA for an SEA to allow an individual to submit a
complaint in "alternative formats "?
Is it permissible under IDEA to provide as an accommodation for a parent with a
disability for submission of a state complaint via a personal interview or conversation
with the state representative with audiotape backup of the interview as
"documentation" of the requested complaint?
Would it be impermissible under IDEA to allow a parent with a disability an
extension of time (within 4 days of 1 year statute of limitations) in which to submit the
complaint if: (1) the SEA has denied the requested accommodation (e.g. audiotape of
verbal filing with the SEA representative for documentation of filing of complaint);
(2) the parent provides documentation that the violations are continuing," and (3) the
parent requests relief in the form of compensatory services?

Part B of the IDEA neither requires nor precludes that an SEA allow the filing of a State
complaint in an alternative format. There is nothing in Part B of the IDEA that would
prevent an SEA from treating as a "complaint" information that is received in an
alternative format from individuals with disabilities nor is there anything to prevent the
SEA from providing assistance to enable individuals with disabilities to file written
complaints. Under the Part B regulations at 34 CFR §300.662(a), an organization or
individual may file a signed written complaint under the procedures described in the State
complaint procedures at §§300.660-300.661. This provision must be read in conjunction
with the requirements of Section 504 of the Rehabilitation Act of 1973 (Section 504) and
Title II of the Americans with Disabilities Act of 1990 (Title II) regarding
communication with individuals with disabilities. Section 504 prohibits disability
discrimination by recipients of Federal financial assistance and Title II prohibits
disability discrimination by public entities, regardless of receipt of Federal financial
assistance. Section 504 and Title II require that school districts ensure that, among other
things, individuals with disabilities are not denied the opportunity to participate in or
benefit from an aid, benefit, or service. 34 CFR § 104.4(b)(1)(i)-(iv); 28 CFR
§35.130(b)(1)(i)-(iv). Under Title II and Section 504, the SEA must take appropriate
steps to ensure that communication with individuals with disabilities are as effective as
communications with others, including furnishing appropriate auxiliary aids and services

Page 7
necessary to file a State complaint. Under Title II, the SEA must give primary
consideration to the specific types of auxiliary aids or services requested by such
individuals. See 28 CFR §35.160 (2002). Therefore, it would not be inconsistent with
Part B for an SEA to provide a parent with disabilities who requires it, an auxiliary aid of
transcribing a complaint from an alternate format, such as an interview or audiotape, into
a written complaint for the parent to sign or otherwise authenticate.
With regard to the time limitation for filing complaints with an SEA or public agency, the
Part B regulations require that the complaint:
allege a violation that occurred not more than one year prior to the date that the
complaint is received...unless a longer period is reasonable because the violation
is continuing, or the complainant is requesting compensatory services for a
violation that occurred not more thank three years prior to the date the complaint
is received...
34 CFR §300.662(c). Thus, if a complainant provides evidence of a continuing violation
or seeks relief in the form of compensatory services for a violation that occurred not more
than three years prior to the date the complaint is received, the regulations would permit
the State to accept the complaint even if it was filed more than one year after the alleged
violation.
If an individual with disabilities believes that the SEA has violated Section 504 or Title II
by failing to provide a needed auxiliary aid or service in order to allow them to file a
State complaint, they may contact the Regional Office for Civil Rights at 75 Park Place,
14th Floor, New York, New York 10007-21466 at 212 637-6466, FAX: 212 264-3803;
TDD: 870-521-2172; email: OCR_NewYork@ed.gov.
6. Due Process, Procedural Safeguards and Parents with Disabilities

Is it permissible under IDEA for an SEA to: (1) make provisions for legal
representation (a qualified lay advocate or attorney who specializes in or has
experience in the area of special education) in a due process hearing, mediation, or
state complaint process as an accommodation for a parent with a disability, which
prevents them from representing their child or themselves pro se in a due process
hearing; (2) utilize IDEA funds to provide for legal representation (a qualified lay
advocate or attorney who specializes in or has experience in the area of special
education) in a due process hearing, mediation, or state complaint process as an
accommodation for a parent with a disability, which prevents them from representing
their child or themselves pro se in a due process hearing?\
1fit is permissible under IDEA to provide representation as described in #1 and #2
above, and an SEA refused to provide this accommodation, where would a parent
appeal for financial assistance in gaining the representation required
The procedural safeguards provision described at 34 CFR §300.507(a)(3) allows that
when a due process hearing is requested, the public agency shall inform the parent of any

Page8
free or 'low-cost legal and other relevant services available in the area if ( 1) the parent
requests the information or (2) the parent or the agency initiates a hearing. The final
regulations implementing IDEA do not permit the SEA to use Part B funds to provide or
pay for legal representation for any complainant under any circumstances. (See 34 CFR
§300.621 for allowable costs.) Funds under Part B of the IDEA may not be used to pay
attorneys' fees or costs of a party related to an action under section 615 of the Act and
subpart E of this part. (See 34 CFR §300.513(b)(1) for attorney's fees.)
7. Completeness of Complaint Investigations

If an individual files a very broad state complaint alleging "denial of FAPE' due to
gross procedural violations by the school district, stating in their complaint the
violations are "too numerous to delineate here," is the SEA responsible for: (1)
identifying all the procedural violations within the documentation given to them by
the complainant or must the complainant find and identify/allege every single
violation for the SEA; and (2) identifying all the procedural violations within the
documentation given to them by the complainant in order to receive a finding of facts
on all the violations?
If an individual files a complaint alleging 3 or 4 violations by the LEA and the
documentation provided to the SEA contains information which clearly reveals many
more serious violations over multiple years, is the SEA responsible for documenting
those violations not alleged in the complaint but found during their "investigation"
and insuring that the violations are placed in the finding of facts and subsequent
corrective action ?
An SEA finds a school district in noncompliance for not having a complete IEP in
place and issues a corrective action plan directing the school district to hold an IEP
meeting and put in place an appropriate and complete IEP, which includes all the
components required under IDEA and NJ State Regulations. The LEA develops a
corrective action and as part of the approval process the LEA forwards a copy of the
student's IEP. In the SEA 's review of the IEP for corrective action to insure all
components of the IEP are present, is the state also responsible for noting and
correcting any blatant violations in the content of the IEP or are they limited to only
insuring that the previous violations are corrected?
See response to #5. In filing a complaint, the state complaint procedures require that for
an individual or organization filing a signed written complaint, the complaint must
include: (1) a statement that a public agency has violated a requirement of Part B of the
Act and (2) the facts on which the statement is based. 34 CFR §300.662(b). The SEA
must issue a written decision to the complainant that addresses each allegation in the
complaint and contains (1) findings of fact and conclusions and (2) the reasons for the
SEA's final decision. 34 CFR §300.661(a)(4). Given these requirements, it is incumbent
upon the complainant to clearly identify each allegation and supporting facts in order for
the SEA to review all relevant information in a timely manner.

Page 9The SEA is responsible for monitoring and ensuring that the requirements of the IDEA
are met. See 20 U.S.C. §1412(a)(11); 20 U.S.C. §1232d(b)(3). If, in the course of its
complaint resolution, the SEA uncovers other violations not alleged in the complaint, the
State has a duty to enforce the obligations under the IDEA but there is no requirement
that the SEA's decision address or make specific findings with respect to these other
violations that were not alleged in the complaint. See 34 CFR §300.661(a)(4). Lastly,
the SEA complaint procedures must include procedures for effective implementation of
the SEA's final decision, including (1) technical assistance activities with the LEA; (2)
negotiations and; (3) additional corrective actions to achieve compliance. 34 CFR
§300.66 l(b)(2).
We hope that the above information is helpful. If you have specific allegations of
violations of Part B of IDEA, you may file a signed written complaint with the New
Jersey Department of Education, Office of Special Education Programs at P.O. Box 500,
Trenton, New Jersey 08625.
Sincerely,

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


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

Leslie S. Margolis, Esq.
Managing Attomey
Maryland Disability Law Center
1800 North Charles Street, Suite 4000
Baltimore. Maryland 21201_

JUN 2 6 2003

Dear Ms.
This is in response to your letter dated March 27, 2003 regarding the Maryland Disability
Law Center's concern about the Maryland State Department of Education's (MSDE)
decision to support the construction of a separate, single-use facility to replace Cedar
Lane School. Specifically, you are asking that the Office of Special Education Programs
(OSEP) determine if MSDE has taken the necessary steps to conclude that there is no
viable alternative to construction of a new separate facility.
As you noted in your letter, while OSEP requires the State to develop corrective actions
in response to findings of noncompliance, OSEP does not intervene in State decisions
regarding construction of new schools. Further, there are no statutory or regulatory
provisions that require a State to take certain steps before concluding that there is no
viable alternative to construction of a new separate facility.
The Individuals with Disabilities Education Act (IDEA) requires each public agency to
ensure that, to the maximum extent appropriate, children with disabilities, including
children in public or private institutions or other care facilities, are educated with children
who are non-disabled and that special classes, separate schooling or other removal of
children with disabilities from the regular educational environment occurs only if the
nature and severity of the disability is such that education in regular classes with the use
of supplementary aids and services cannot be achieved satisfactorily: 20 USC
ยง 1412(a)(5)(A); 34 CFR ยง300.550(b)(1)-(2). Therefore, before a child with a disability
can be placed outside the regular educational environment, the group of persons making
the placement decision, which includes the parents and other persons knowledgeable
about the child, the meaning of the evaluation data, and the placement options, must
consider whether supplementary aids and services could be provided that would enable
education of the student in the regular classroom setting to be achieved. 34 CFR
ยง300.550, 552(a)(1). If a determination is made that a particular student with a disability
cannot be educated satisfactorily in the regular educational environment, even with the
provision of appropriate supplementary aids and services, then that student could be
placed in a setting other than the regular classroom. In all cases, placement decisions
must be individually determined on the basis of each child's abilities and needs, and not
solely on factors such as category of disability, severity of disability, configuration of
service delivery system, availability of space, or administrative convenience. Rather,

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Page 2 -Leslie Margolis, Esq.
each student's Individualized Education Program (IEP) forms the basis for the placement
decision. 34 CFR ยง300.552(b)(2).
Further, the regulations implementing the IDEA require that public agencies have
available a continuum of alternative placements to meet the needs of children with
disabilities for special education and related services. 34 CFR ยง300.551. This continuum
of alternative placements must include instruction in regular classes, special classes,
special schools, home instruction, and instruction in hospitals and institutions).
OSEP takes its responsibility very seriously in assessing States' compliance in the
implementation of the IDEA and assisting States in developing strategies to improve
results for children with disabilities. OSEP conducted a review in Maryland in 1999 to
assess the State's compliance with the IDEA. OSEP's Monitoring Report was issued to
MSDE on July 26, 2001. One area that OSEP identified as an area of noncompliance was
Maryland's failure to ensure that students with disabilities are placed in the Least
Restrictive Environment. MSDE has developed an Improvement Plan that identifies
strategies for implementing correction of this, and other areas of noncompliance, sources
of technical assistance, timelines for completing strategies, and methods for evaluating
the effectiveness of the Improvement Plan. OSEP continues to collaborate with MSDE
and review the State's progress in ensuring that students with disabilities are placed in the
least restrictive environment.
I hope the above information has been helpful. If we can be of further assistance, please
contact Dale King at (202) 260-1156.
Sincerely,

Stephanie S. Lee
Director
Office of Special Education Programs

CC:

Dr. Carol Ann Baglin
Assistant State Superintendent
Maryland Department of Education


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

JUN 2 5 29(B

This is in response to your inquiry regarding States' responsibilities for enforcing the
Individuals with Disabilities Education Act (IDEA) and the provision of a free
appropriate public education (FAPE) to students with disabilities. We appreciated having
an opportunity to discuss your concerns with you by telephone on two occasions and
regret the delay in responding to you in writing, as you requested.
In your first question, you asked what oversight responsibility a State educational agency
(SEA) has over a local educational agency (LEA) with regard to the provision of FAPE
to children with disabilities. The IDEA assigns responsibility to SEAs for ensuring that
its requirements are met and that all educational programs for children with disabilities,
including all such programs administered by any other State or local agency, are under
the general supervision of individuals in the State who are responsible for educational
programs for children with disabilities and that these programs meet the educational
standards of the SEA. State support and involvement at the local level are critical to the
successful implementation of the provisions of IDEA. To carry out their responsibilities,
States provide dispute resolution mechanisms (mediation, complaint resolution and due
process), monitor the implementation of State and Federal statutes and regulations,
establish standards for personnel development and certification as well as educational
programs, and provide technical assistance and training across the State. Effective
general supervision promotes positive student outcomes by promoting appropriate
educational services to children with disabilities, ensuring the successful and timely
correction of identified deficiencies, and providing personnel who work with children
with disabilities the knowledge, skills and abilities necessary to carry out their assigned
responsibilities.
In your second set of questions, #2 and #2A, you inquire about the method of an SEA
investigation and ask whether the Florida Department of Education's complaint
investigation in DOE Agency Case No. DOE-2001-659-FOF met appropriate
investigative standards under IDEA. The regulations implementing Part B of the IDEA,
at 34 CFR §§300.660-300.662 (State Complaint Procedures), provide that each SEA
"Carry out an independent on-site investigation, if the SEA determines that an
investigation is necessary." See 34 CFR §300.661(a)(1). However, the regulations do
not specify the manner or method in which the SEA must conduct such an investigation.
We have attached a guidance memorandum about the State Complaint Procedures that
should provide you with clarifying information about these procedures.
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Page 2

In your final set of questions, #3 and 3A, you ask whether an SEA or LEA is adequately
meeting its obligations under the IDEA if the graduation rate for students with disabilities
is below the rate for non-disabled students or if a local educational agency's graduation
rate is below the State average for students with disabilities. Part B of the IDEA does not
specify that students with disabilities attain particular graduation rates as a requirement
for a State to meet its obligations under the IDEA. However, Part B does require each
State to establish goals for the performance of children with disabilities, and to establish
indicators that the State will use to assess progress toward achieving those goals that, at a
minimum, address the performance of children with disabilities on assessments, drop-out
rates, and graduation rates (34 CFR §300.137(a) and (b)).
In addition, the Office of Special Education Programs (OSEP), through its Continuous
Improvement Monitoring Process, does consider graduation and dropout rates among the
critical data that each State collects and reports to the Secretary and the public on the
progress of the State, and of children with disabilities in the State. OSEP also considers
graduation and dropout rates as important indicators as to whether there may be
compliance problems with regard to the provision of appropriate special education and
related services to children with disabilities served by the State. If through the
Continuous Improvement Monitoring Process graduation and dropout rates are identified
as areas of concern, OSEP generally works with the State, through the State's
Improvement Plan, to identify strategies and activities that focus on improved results for
children and youth with disabilities and regularly reviews the State's progress in meeting
its performance goals.
We hope this information is helpful. If you have further questions, please do not hesitate
to contact Sheila Friedman, the Florida State contact, at (202) 205-9055.
Sincerely,

Stephanie S. Lee
Director
Office of Special Education Programs
Enclosure
cc: Ms. Shan Goff
Florida Department of Education


UNITED STATES DEPARTMENT OF EDUCATION
OFFICEOF SPECIALEDUCATIONANDREHABILITATIVESERVICES

dUN - 4

This letter is in response to your telephone call requesting a copy of the April 15, 1988
Office of Special Education Programs (OSEP) Memorandum 88-17 regarding the use of
tape recorders at IEP meetings. As a member of my staff, Mr. Dale King, explained in
your telephone conversation of May 2, 2003, the position expressed in Memorandum 8817 does not reflect OSEP's current position regarding the use of audio or video tape
recorders at IEP team meetings. The Department issued OSEP Memorandum 91-24 on
July 18, 1991 clarifying and amending OSEP's position as expressed in Memorandum
88-17. I am enclosing a copy of Memorandum 91-24.
Moreover, Appendix A to the final regulations (see 34 CFR Part 300) implementing the
Individuals with Disabilities Education Act (IDEA) states the Department's current
position regarding the audio or video tape recording of IEP meetings. OSEP, in its
response to question 21 under "Other Questions Regarding Implementation of IDEA"
states the following:
Part B does not address the use of audio or video recording devices at IEP
meetings, and no other Federal statute either authorizes or prohibits the
recording of an IEP meeting by either a parent or a school official.
Therefore, an SEA or public agency has the option to require, prohibit, limit,
or otherwise regulate the use of recording devices at IEP meetings.
If a public agency has a policy that prohibits or limits the use of recording
devices at IEP meetings, that policy must provide for exceptions if they are
necessary to ensure that the parent understands the IEP or the IEP process or
to implement other parental fights guaranteed under Part B. An SEA or
school district that adopts a rule regulating the tape recording of IEP
meetings also should ensure that it is uniformly applied.
Any recording of an IEP meeting that is maintained by the public agency is
an "education record," within the meaning of the Family Educational Rights
and Privacy Act ("FERPA"; 20 U.S.C. 1232g), and would, therefore, be
subject to the confidentiality requirements of the regulations under both
FERPA (34 CFR Part 99) and Part B (§§300.560-300.575).

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Parents wishing to use audio or video recording devices at IEP meetings
should consult State or local policies for further guidance.
Should you have further questions regarding this issue, please do not hesitate to contact
Dale King at (202) 260-1156.
Sincerely,

Stephanie S. Le e
Director,
Office of Special Education Programs
Enclosure
CC:

Dr. Jana L. Jones
State Director
Idaho State Department of Education

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

July 18, 1991

Contact Person
Name:
Telephone:

Robert LaGarde
(202) 732-1053

OSEP - 91- 24
OSEP MEMORANDUM

TO

:

State Directors

FROM

:

Judy A. Schrag,
Director
Office of Special

SUBJECT:

Amendment
Recorders

of Special Education

Education

Programs

of "OSEP 88-17" Regarding
at IEP Meetings

the Use of Tape

The purpose of this Memorandum is to clarify the position of the
Office of Special Education Programs (OSEP), issued in OSEP
Memorandum 88-17, dated April 15, 1988, on the tape recording of
meetings conducted to develop, review, and revise individualized
education programs (IEPs) for children with disabilities.
Because OSEP has received a number of inquiries regarding our
policy on the tape recording of IEP meetings, we would like to
reiterate the position stated in the previous Memorandum, which
reflects our current position.
This Memorandum is not intended
to alter our conclusion, as stated in the April 15, 1988
Memorandum, that a decision regarding whether parents may tape
record IEP meetings should be left to the discretion of local
school districts, based upon local considerations.
Instead, the
purpose of this Memorandum is merely to provide clarification of
the statements made in OSEP Memorandum 88-17 regarding Federal
privacy law.
Since Part B of the Individuals with Disabilities Education Act
(Part B), formerly cited as the Education of the Handicapped Act,
does not address the issue of tape recording IEP meetings, and
because there are no Federal statutes that authorize or prohibit
the tape recording of an IEP meeting by either a parent or a
school official, a State educational agency (SEA) or school
district has the option to require, prohibit, limit, or otherwise
regulate the use of tape recorders at IEP meetings.
This remains
OSEP's position.

400 MARYLAND AVE., S.W. WASHINGTON, D.C. 20202

Page 2 - Chief State School Officers
With regard to Federal privacy
also stated that:

law, the April

15, 1988 Memorandum

A review of case law under the subject of right to
privacy indicated that the rights of a child with a
handicap and the child's parents could be violated if
school officials recorded an IEP meeting without their
permission.
However, the privacy rights of school
officials would not be violated by tape recording an
IEP meeting because they are public officials serving
in an official capacity.
As stated earlier, [Part B]
does not address these issues, but this is the trend in
court cases.
Based on subsequent advice from the Department's Office of the
General Counsel, the following clarification is needed to reflect
current Federal privacy law.
First, Federal privacy law does not
directly address the issue of whether a parent or school official
may tape record IEP meetings.
Second, Federal privacy law does
not suggest that the rights of children with disabilities or
their parents would be violated by an uncontested tape recording
of an IEP meeting by a school official, or that the school
officials ' status as public officials would permit tape recording
by others.
Instead, Federal privacy law does not make it
unlawful for any participant to a communication (or meeting) to
tape record the proceedings without the consent of the other
parties.
See Title III of the Omnibus Crime Control and Safe
Streets Act of 1968, 18 U.S.C. §2520 et. seq., as amended.
The
fact that it is not unlawful under Federal law for a participant
or party to tape record a conversation, however, does not give
that party the absolute right to do so.
It merely means that the
non-consenting parties to the conversation would not be entitled
to sue the tape recording party under Federal statutory law.
It would not be inconsistent with Federal privacy law for a
school district to have a rule prohibiting the tape recording of
IEP meetings if the policY provided for exceptions when they are
necessary to ensure that the parent understands the IEP or the
IEP process or to implement other parental rights guaranteed
under Part B.
However, a school district that is considering the
adoption of such a rule should be aware of the following:
First,
our discussion of privacy law only addresses the absence of
governing Federal law.
An individual State may have its own
statutory or constitutional provisions that will govern this
issue.
Second, this action may involve complex issues of Federal
constitutional law.
We cannot assure that a rule regulating the
taping of IEP meetings would not be subject to challenge under
the U.S. Constitution.
Third, an SEA or school district that
adopts a rule regulating the tape recording of IEP meetings may
wish to ensure that it is uniformly applied.

Page 3 - Chief State School Officers
Interested SEAs or school districts should consult their own
attorneys on these questions.
Further, SEAs or school districts
which permit tape recording of IEP meetings should be aware that
those tape recordings would be subject to the Federal Educational
Rights and Privacy Act (FERPA).
Thus, with respect to such taped
records, parents would have the right to:
(1) inspect and review
the tape recordings; (2) request that the tape recordings be
amended if the parent believes t h a t t h e y contain information that
is inaccurate, misleading, or in violation of that student's
rights of privacy or other rights; and (3) challenge, in a
hearing, information that the parent believes is inaccurate,
misleading, or in violation of the student's rights of privacy or
other rights.
See 34 CFR §§99.10-99.22.
We emphasize that each school district has a responsibility to
take the steps necessary to ensure parent participation at IEP
meetings, including taking steps to ensure that the parent
understands the proceedings at the IEP meeting.
Under 34 CFR
§300.345(e), the [school district] must take whatever action is
necessary to ensure that the parent understands the proceedings
at an IEP meeting, including arranging for an interpreter for
parents who are deaf or whose native language is other than
English.
A district court has held that a parent, whose native
language was Danish, and had difficulty understanding the English
language, and thus, difficulty understanding her child's IEP
meeting, has a right to tape record her child's IEP meeting.
735
F. Supp. 53 (D.Conn. 1990).
The same district court also held
that a parent with a disabling injury to her hand, making
notetaking at her child's IEP meeting, and thus, her ability to
understand the IEP meeting, difficult, has a right to tape record
her child's IEP meeting.
131 F.R.D. 654 (D.Conn. 1990).
Thus,
any policy limiting or prohibiting a parent's right to tape
record the proceedings at an IEP meeting must provide for
exceptions if they are necessary to ensure that the parent is
able to understand the proceedings at the IEP meeting or to
implement other parental rights under Part B.
It also should be noted that under certain circumstances, an SEA
or local district policy limiting a parent's right to tape record
an IEP meeting could also constitute a violation of Section 504
of the Rehabilitation Act of 1973, the Federal law that prohibits
discrimination, in Federally-assisted programs, on the basis of
disability.
A potential violation of Section 504 could arise
where the parent involved is a person who is a deaf or hearing
impaired, and thus, is unable to understand the proceedings at
the IEP meeting without a tape recorder or an interpreter.
Further, if the parent involved has a native language other than
English, the SEA or school district policy could constitute a
violation of Title VI of the Civil Rights Act of 1964, the
Federal law that prohibits discrimination on the basis of race
and national origin in Federally-assisted programs.
The

Page 4 - chief State School Officers
Department's Office for Civil Rights (OCR) is the branch that is
responsible for enforcing these statutes.
For further
clarification of OCR's interpretation of these statutory
requirements, you may wish to contact:
Ms. Jean J. Peelen
Acting Director
Policy and Enforcement Service
Office for Civil Rights
U.S. Department of Education
400 Maryland Avenue, SW
Switzer Building, Room 5036
Washington, DC 20202-1174
We regret any confusion that may have resulted from the April
1988 Memorandum.
If you have any questions regarding OSEP's
position on this issue, please write or telephone the contact
person whose name appears at the top of this Memorandum.
cc:

Part B Coordinators


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

15 2003

MEMORANDUM
TO

State Directors of Special Education

FROM

Stephanie S. Lee
Director
Office of Special Education Programs

SUBJECT

:

Implementing the Funding Formula Under the IDEA-Year of Age Cohorts for Which FAPE is Ensured

ACTION

:

Due May 2, 2003

The Individuals with Disabilities Education Act (IDEA) funding formula for Section 611 o f Pan
B, first allocates base amounts to States that are equal to the amounts they received from Federal
Fiscal Year 1999 funds. Then 85 percent of any remaining funds are allocated among the States,
on the basis of their relative populations of children aged 3 through 21, who are of the same age
as children with disabilities for whom the State ensures the availability of a free appropriate
public education (FAPE), and 15 percent of remaining funds are allocated on the basis of the
relative populations of those children who are living in poverty. See Section 61 i (e)(3)(A): see
also 34 CFR ยง300.707.
At this point, all States are providing FAPE to all children with disabilities aged 3 through 1
State practice varies for children aged 18 through 21. For example, some States ensure FAPE for
all children with disabilities through age 21 (and in some cases, even beyond that age). Some
States ensure FAPE for all children who have not reached 21 by a date certain, such as
September 1, and continue to ensure FAPE for children who turn 21 after that date for the
remainder of the school year. Other States ensure FAPE for all children with disabilities throu gh
age 18, but allow local education agencies to serve children with disabilities beyond that age
In order to calculate State grants under Section 6l 1 of Part B for Federal Fiscal Year 2003. w e
need to determine the age cohort for which each State ensures the availability of FAPE. Our rule
for establishing the age cohort is quite simple -- all children with disabilities, who are a particular
number of years old, must be ensured the availability of FAPE in order for that age year to be
included in the State's relative population-age cohort. For example, if a State ensures FAPE to
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Our mission is to e n s u r e equal a c c e s s to education and to promote educational excellence throughout the Nation.

Page 2 - State Directors of Special Education
children through the end of a school term or school year in which the child turns 21, the State is
ensuring the availability of FAPE to all children with disabilities through age 20 years old, but is
not ensuring the availability of FAPE to all who are 21 years old. Therefore, the last age year to
be. included in their relative population-age cohort would be 20.
The attached chart identifies, in the second column, the year of age cohorts for which each State
ensures FAPE. The third column provides a description, taken from State documents, of how
each State determines the upper age for which it ensures FAPE.
We ask you to carefully review this information. If there are any errors, we need to be notified
immediately. Any unresolved problems will affect the grants to all States. If we do not hear
from your State by May 2, 2003, we will assume you agree with our determination. Please
e-mail any responses to Ruth Ryder at Ruth.Ryder@ed.gov.
If you have any questions about this memorandum, please contact Ms. Ryder at (202) 205-5547.
Attachment


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

APR 10 2003

Mr. Lawrence C. Gloeckler
Deputy Commissioner
Office of Vocational and Educational Services for
Individuals with Disabilities
Room 1606 One Commerce Plaza
Albany, New York 12234
Dear Mr.
Thank you for your letter to Stephanie S. Lee, Director, Office of Special Education Programs
(OSEP), requesting clarification regarding the inability of public agencies to override a parent's
refusal to consent to the initial provision of special education and related services under the
Individuals with Disabilities Education Act (IDEA) by using the IDEA due process hearing
procedures. You also asked about how this provision relates to the State mandate under IDEA to
provide a free appropriate public education (FAPE). Our responses to your questions are as
follows:
. How does OSEP reconcile an interpretation of its regulations that would diminish the
protections provided to students with disabilities with the provisions of 20 U.S.C.
§1406(b) that prohibit the Secretary from implementing a regulation that would lessen
the protections that were embodied in regulations in effect on July 20, 1983 with respect
to parental consent to initial placement in special education, unless the regulation
reflects the clear and unequivocal intent of Congress.
Part B of the IDEA requires parental consent for the initial provision of special education and
related services and does not permit public agencies to use the IDEA due process hearing
procedures to override a parental refusal to consent to the initial provision of special education
and related services. Section 614(a)(1)(C)(i) of the IDEA Amendments of 1997 states that
parental consent must be obtained before an evaluation is conducted. It further states that
"parental consent for evaluation shall not be construed as consent for placement for receipt of
special education and related services." This provision is immediately followed by section
614(a)(1)(C)(ii), which states that if the parents of such child refuse consent for evaluation, the
agency may continue to pursue an evaluation by utilizing the mediation and due process
procedures under section 615, except to the extent inconsistent with State law relating to parental
consent. There is no similar provision authorizing public agencies to use mediation or due
process procedures to override a parent's refusal to consent to the initial provision of special
education and related services.

400 MARYLANDAVE., S.W., WASHINGTON, D.C. 20202
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Page 2 - Mr. Lawrence C. Gloeckler
The IDEA statute was silent on this issue prior to the 1997 Amendments. In enacting the consent
provisions of section 614(a)(1)(C) in 1997, Congress was clearly aware of the long-standing
regulatory requirement that parental consent must be obtained before the initial provision of
special education and related services and of the requirement expressly allowing States to
override parental refusal to the initial provision of special education and related services by using
the IDEA due process hearing procedures. Congress failed in the 1997 Amendments to IDEA to
include express provisions allowing States to use the due process hearing procedures to override
parental refusal to consent to the initial provision of special education and related services. This
statutory language is paralleled in the Part B regulations at 34 CFR §300.505(a) and (b).
The 1997 IDEA Amendments reflect Congress' intent to provide parents the ultimate choice or
decision regarding the initial provision of special education and related services for their child.
Congress chose not to allow school districts to use the IDEA due process hearing procedures to
override a parent's refusal to consent to the initial provision of special education and related
services under section §614(a)(1)(c), although an express provision was included for refusal to
consent to initial evaluations. This distinction indicates a clear congressional intent to support
parents' rights to choose whether their children would be enrolled initially in special education.
The provision allowing school districts to proceed to due process for non-consent on evaluations
was enacted to ensure that parents' choices were informed (such that parents would have
information about the special education and related services needs of each individual child)
while still enabling the parent to ultimately determine if his or her child would be initially placed
in special education. We believe that the IDEA statute and Part B regulations reflect the clear
and unequivocal intent of Congress. We enclose for your information the 2003 OSEP Letter to
Gantwerk and the 2003 OSEP Letter to Yudien as additional background information on the
implementation of 20 U.S.C. § 1414(a)(1)(C) and 34 CFR §505(a)(1)(ii).
Finally, we note that there is a discrepancy in the New York State Education Department
(NYSED) regulations regarding the implementation of the consent provisions under the IDEA.
While NYSED regulations at sections 200.5(b)(1)(ii)(b) and (iii)(a) for 5-20 year olds require the
school district board of education to initiate an impartial hearing to determine if special
education shall be provided without parental consent, New York regulations at section
200.16(g)(5) for preschool children (ages 3-5) expressly state that "in the event the parent does
not provide consent for the initial provision of special education services, no further action will
be taken by the [NY] committee on preschool special education until such consent is obtained.
NYSED must delete the provisions of sections 200.5(b)(1)(ii)(b) and (iii)(a) that allow school
districts to initiate an impartial hearing to determine if special education shall be provided
without parental consent in order to make such regulations consistent with the IDEA's express
statutory and regulatory provisions.
. How does OSEP reconcile this interpretation with the provisions of 20 U.S.C. §1406(c)
that prohibit the Secretary, through policy letters or other statements, from
establishing a rule that is required for compliance or eligibility without following the
rule-making requirements of section 553 of Title 5 of the United States Code?

Page 3 - Mr. Lawrence C. Gloeckler
The IDEA statutory and regulatory provisions are clear as explained above in response to
question 1. The Secretary is implementing congressional mandates as reflected in express IDEA
statutory and regulatory provisions.
. How does OSEP reconcile its interpretation of 34 C.F.R. §300.505 with the provisions of
34 CFR §300.507(a) which authorize a public agency to c o m m e n c e an impartial hearing
on any matter relating to the provision of FAPE to a student?
The more specific statutory and regulatory language regarding parental consent would take
precedence over the more general language regarding due process hearing procedures. The
IDEA does not permit public agencies to initiate a due process hearing if a parent refuses to
consent to the initial provision of special education and related services. Under
§300.505(a)(1)(ii), informed parent consent must be obtained before the initial provision of
special education and related services to a child with a disability. Informed parent consent
means that the parent has been fully informed of all information relevant to the activity for which
consent is sought (including in the case of the initial provision of special education and related
services the fact that FAPE services and IDEA protections are not available to the child if
consent is not provided), in his or her native language, or other mode of communication (see 34
CFR §300.500(b)(1)). The public agency may not override this requirement by using the due
process procedures or other methods under the IDEA. In States that offer mediation prior to a
due process hearing request, school districts may use mediation to try and resolve parental
refusal to consent to the initial provision of services, provided, however, that it must be clear to
both parties that participation in mediation is voluntary on the part of the parents and the local
education agency. See, 34 CFR §§300.506(a) and (b)(1). The public agency may use mediation
to informally explain to the parent the potential consequences to their child's education if the
parent chooses not to provide consent for the initial provision of special education and related
services for their child.
. How does OSEP reconcile its interpretation of 34 CFR §300.505(a) and (b) with the
provisions of 34 CFR §300.505(d) which authorizes a State to impose additional consent
requirements if it ensures that public agencies have procedures in place to ensure that a
parent's refusal to consent does result in a failure to provide FAPE?

The provisions of 34 CFR §300.505(d) do not authorize a State to impose additional consent
requirements that contravene the express IDEA statutory and regulatory provisions regarding
non-consent override for the initial provision of special education and related services. As noted
in response to question 1, the congressional mandate and intent is clear that parental consent
must be obtained before the initial provision of special education and related services and in the
section immediately following reference to that consent requirement only provided for States to
be able to use the IDEA due process hearing procedures to override parental refusal to consent to
evaluations.
. How can States and local educational agencies carry out their responsibilities to ensure
the provision of FAPE to all students with disabilities, if an impartial hearing to
override the withholding of parental consent may not be initiated?

Page 4 - Mr. Lawrence C. Gloeckler
Under the IDEA, an individual parent's refusal to consent to the initial provision of special
education and related services relieves the State's obligation to provide FAPE to that child until
the parent provides that consent. Once a parent consents to the initial provision of special
education and related services for a child with a disability, States have an ongoing mandate to
provide FAPE to that child including, if appropriate, using the due process heating procedures to
override parental refusal to consent to subsequent special education and related services. In the
1997 IDEA Amendments, Congress expressed the judgment that once parents are knowledgeable
about their child's eligibility for special education and related services under the IDEA and
receive an individualized education program, they have the right to make the decision as to
whether the initial receipt of special education and related services is appropriate for their child.
I hope that you find this explanation helpful. If you would like further assistance, please contact
Dr. JoLeta Reynolds of my office at (202) 205-5507.
Sincerely,

Stephanie S. Lee
Director
Office of Special Education Programs
Enclosures