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

MAR 1 7 2003
Mr. Terry Brune
Education Consultant
New Hampshire Department of Education
101 Pleasant Street
Concord, New Hampshire 03301
Dear Mr. Brune:
In your letter dated January 10, 2003, the following questions were raised in regard to a
manifestation determination review that was held for a student receiving special education
services in a New Hampshire School Administrative Unit. Each question is separately
addressed below as it relates to the Individuals with Disabilities Education Act (IDEA), which the
Office of Special Education Programs (OSEP) is responsible for administering.
1. May a LEA [local educational agency] conduct more than one manifestation
determination review for the same incidence of behavior?
The regulations under Part B of IDEA set forth specific requirements related to manifestation
determination reviews. The Part B regulations at 34 CFR {}300.523 state that:
(a) 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 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 the 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.
(b) A review described in paragraph (a) of this section must be conducted by the IEP
[individualized education program] team and other qualified personnel in a meeting.
(c) In carrying out a review described in paragraph (a) of this section, the IEP team and
other qualified personnel may determine that the behavior of the child was not a
manifestation of the child's disability only if the IEP team and other qualified personnel (1) First consider, in terms of the behavior subject to disciplinary action, all relevant
information, including(i) Evaluation and diagnostic results, including the results or other relevant
information supplied by the parents of the child;
(ii) Observations of the child; and
(iii) The child's IEP and placement; and
(2) Then determine that (i) In relationship to the behavior subject to disciplinary action, the child's IEP and
placement were appropriate and the special education services, supplementary
aids and services, and behavior intervention strategies were provided consistent
with the child's IEP and placement were appropriate and the special education
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Page 2 - Mr. Terry Brune
services, supplementary aids and services, and behavior intervention strategies
were provided consistent with the child's IEP and placement;
(ii) The child's disability did not impair the ability of the child to understand the
impact and consequences of the behavior subject to disciplinary action; and
(iii) The child's disability did not impair the ability of the child to control the behavior
subject to disciplinary action.
(d) If the IEP team and other qualified personnel determined that any of the standards in
paragraph (c)(2) of this section were not met, the behavior must be considered a
manifestation of the child's disability.
(e) The review described in paragraph (a) of this section may be conducted at the same IEP
meeting that is convened under §300.520(b).
(f) If, in the review in paragraphs (b) and (c) of this section, a public agency identifies
deficiencies in the child's IEP or placement or in their implementation, it must take
immediate steps to remedy those deficiencies.
The statute and regulations do not speak specifically to IEP teams holding additional
manifestation determination reviews on the same incidents of behavior, once the IEP team has
completed an initial manifestation determination review for a child with a disability who has
engaged in behavior described in 34 CFR §§300.520(a)(2) or 300.521; is involved in a removal
that constitutes a change of placement under §300.519; or who has engaged in other behavior
that violated any rule or code of conduct of the LEA that applies to all children.
2. May an LEA conduct more than one manifestation determination review for the same
incidence of behavior if new information is uncovered after the initial manifestation
review meeting has taken place?

As noted above, the statute and regulations do not address this issue. However, where the time
for conducting the manifestation determination has expired, it is not recommended that the IEP
team reconvene to re-conduct the manifestation determination. Any new information could,
however, be used as a basis for an IEP meeting to reexamine the student's program and
placement.
If you have further questions, please contact Rex Shipp at (202) 401-4061 or Dr. JoLeta
Reynolds at (202) 205-5507 (press 3).
Sincerely,

Stephanie S. Lee
Director,
Office of Special Education Programs
cc:

Mary J. Ford
Susan Izard
Maureen Soraghan


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

MAR - 6 2003

This letter is in response to your e-mail dated December 11,2002, requesting information
regarding your previous correspondence to the Office of Special Education Programs (OSEP)
In your e-mail you indicate that the concerns you posed concerning the Tulsa Public School
District and the Oklahoma State Department of Education (OSDE) were not adequately
addressed.
However, the OSDE conducted an on-site focused compliance review on May 4, 2001 in
response to your concerns. As indicated in the communication sent to you on September 10,
2001, although the complaint procedures applicable to Part B of the Individuals with Disabilities
Education Act (Part B), prior to May 11, 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, which is before you filed your complaint and
the Department received your request for review. The Secretarial review process is no longer
available. Therefore, in regard to your complaint related to the Tulsa Public School District ant
the OSDE, you have exhausted the avenues available to you. Part B also provides a procedure
for filing a due process hearing against school systems.
If you have additional concerns regarding the Tulsa Public School District please contact:
Ms. Misty Kimbrough
Interim Assistant State Superintendent for Special Education
Oklahoma State Department of Education
2500 N. Lincoln Blvd.
Oklahoma City, OK 73105-4599
(405) 521-4873
OSEP will be responding to your request for documents in a separate letter.
Sincerely,
Stephanie S. Lee.
Director
Office

cc:

of

Special

Education

Programs

Misty Kimbrough

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O u r m i s s i o n is to e n s u r e e q u a l a c c e s s to e d u c a t ] o n a n d to p r o m o t e e d u c a t i o n a l e x c e l l e n c e t h r o u g h o u t t h e Nat:, ":


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

FEB I I 21303
Ms. Barbara Gantwerk
Director, Office of Special Education Programs
N.J. Department of Education
P.O. Box 500
Trenton, New Jersey 08625-0500
Dear Ms. Gantwerk:
I write to respond to your letter that requested clarification of school district
documentation and other issues when parents refuse to consent for the initial provision of
special education and related services under the Individuals with Disabilities Education
Act (IDEA). Your letter asked generally about school districts' documentation on this
issue and related potential "liability" and whether school districts should treat students
whose parents refuse to consent to the initial provision of special education and related
services as "general education" students for purposes of disciplinary actions.
You also asked about whether the lack of a parent signature was sufficient for purposes
of documenting the parent's refusal to consent to the initial provision of special education
and related services and what efforts school districts must make to attempt to obtain
consent. The IDEA statute and regulations require school districts to obtain parent
consent prior to conducting an initial evaluation or reevaluation and prior to the initial
provision of special education and related services. 20 U.S.C. § § 1414(a)(1)(C) and
(c)(3); 34 C.F.R. §300.505(a). School districts also are required to fully inform parents
of all information relevant to the activity for which consent is sought, which for the initial
provision of special education and related services includes information enabling the
parent to determine the appropriateness of the services to be provided. 34 C.F.R.
§300.500(b)(1)(i). Documentation of attempts by school officials to fully inform parents
in order to obtain their consent is encouraged in the event there are any later questions as
to whether the school district met its duty to fully inform the parent. If you are concerned
about school officials being able to demonstrate that they made good faith efforts to
obtain consent for the initial provision of special education and related services, they may
wish to consider the measures used to document attempts to obtain consent for
reevaluations (described below),
For purposes of consent for the initial provision of special education and related services,
there is no difference between a refusal to consent and a parent's failure to respond. The
statute and regulations carve out a specific exception for the need to obtain parent consent
if the school district can demonstrate it took reasonable measures to obtain parent consent
for reevaluation, but the parent failed to respond. See, 20 U.S.C. §1414(c)(3); 34 C.F.R.
§300.505(c). In the case of reevaluations, documentation of reasonable measures to
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Page 2 - Ms. Barbara Gantwerk
obtain consent can include (1) detailed records of telephone calls made or attempted and
the results of those calls; (2) copies of correspondence sent to parents and any responses
received; (3) detailed records of visits to the parent's home or place of employment.
No such exception exists for the initial provision of special education and related services
for which parental consent must be obtained.
We now turn to your question as to whether school districts should treat students whose
parents refuse to consent to the initial provision of special education and related services
as "general education" students for purposes of disciplinary actions. School districts are
not required to provide the discipline protections of 300.520 - 300.529 to children who
are not receiving special education because their parents have refused to provide consent
to the initial provision of special education and related services by the school district.
The provisions of 300.527(d)(2)(iii) do not apply to these children since the purpose of
300.527 is to ensure the prompt identification and evaluation by school districts of
children with disabilities.
We hope that you find this explanation helpful. If you need further assistance, please call
Dr. JoLeta Reynolds at 202-205-5507.
Sincerely,

V

Stephanie S. Lee
Director
Office of Special Education Programs

cc: Commissioner Vito A. Gagliardi, Sr.


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

DEC 17 2002
Ms. Marilyn M. Scott
Indian Policy Advisory Committee Chair
Department of Social and Health Services
State of Washington
Olympia, Washington 98504-5000
Dear Ms. Scott:
This is in response to your letter dated June 11, 2002 to Assistant Secretary Robert H.
Pastemack, requesting that the U.S. Department of Education "bring the Office of Special
Education Programs (OSEP) and the federal IDEA [Individuals with Disabilities Education Act],
Part C, 619 and Part B statutes and regulations into a working framework for Tribal
Governments." You further requested that OSEP facilitate a gathering of Tribes in order for
Tribes "to educate OSEP and other federal agencies, on how individual Tribal governments
function, and how they can be best coordinated to serve children and their families."
Under Part C of IDEA, the State is responsible for providing early intervention services
to all infants and toddlers with disabilities in the State and their families, including Native
American infants and toddlers with disabilities residing on reservations geographically located in
the State. 20 U.S.C. 1434(1). Under Part B of IDEA, the State is responsible formaking a free
appropriate public education (FAPE) available to all three through five year old Native American
children with disabilities residing on reservations, with a few exceptions where certain
preschool-aged children remain the responsibility of the Bureau of Indian Affairs (BIA). 20
U.S.C.
1411(i)(1)(B) and (C). Under Part B of IDEA, the BIA is responsible for providing
FAPE to children with disabilities aged five to twenty-one enrolled in elementary and secondary
schools for Indian children operated or funded by the Secretary of the Interior. The State is
responsible for ensuring that FAPE is provided to all other children on reservations. 20 U.S.C.
14110)(1).
Under Part B of IDEA, funds are provided to the Secretary of Interior to be distributed to tribes
or tribal organizations (as defined under section 4 of the Indian Self-Determination and
Education Assistance Act) or consortia of the above to provide for the coordination of assistance
for special education and related services for children with disabilities aged three through five on
reservations served by elementary and secondary schools for Native American children operated
or funded by the Department of Interior. 20 U.S.C.
1411(i)(3)(A). Under Part C of IDEA, funds
are provided to the Secretary of Interior to be distributed to tribes and tribal organizations for the
coordination of assistance in the provision of early intervention services by States to infants and
toddlers with disabilities and their families on reservations served by elementary and secondary
schools for Native American children operated or funded by the Department of Interior.
20 U.S.C. 1443(b)(1). The funds received by the tribes and tribal organizations must be used to
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Page 2 - Ms. Marilyn M. Scott
assist States in child find, screening, and other procedures for the early identification of Native
American infants and toddlers and preschool children with disabilities and parent training. The
statute permits tribes to use funds for early intervention services and special education and
related services, but tribes are discouraged from using these funds for direct services when other
entities exist to provide direct services. 20 U.S.C.
1411(i)(3)(D)and 20 U.S.C. 1443(b)(4). See
also House Report 102-198, September 11, 1991 (pages 6 and 22). Tribes and tribal
organizations may carry out these activities directly or through contracts or cooperative
agreements with the BIA, local educational agencies (LEAs), and other public or private nonprofit organizations. Referrals should be made, as appropriate, to local, State, or Federal entities
for the provision of services or further diagnosis. 20 U.S.C. 1411(i)(3)(D) and 20 U.S.C.
1443(b)(4).
As noted above, current law gives the State and the BIA responsibility for ensuring that Native
American children with disabilities on reservations receive the early intervention and special
education and related services to which they are entitled under IDEA. Tribes and tribal
organizations are encouraged to use the funds received under IDEA to work together
collaboratively with States to ensure that all infants and toddlers and their families and preschool
children with disabilities residing on reservations are identified, located, evaluated and provided
appropriate services under the IDEA. We understand from our contacts in the States that these
relationships are more successful in some States than others.
Given the current statutory scheme, we would suggest that you may wish to contact the
Department of Interior and/or individual State education agencies to discuss methods of
improving services to Native American children and their families. Also, as you probably know,
the Department and Congress are preparing for the reauthorization of IDEA. Given the many
issues raised in your letter, you may wish to provide comments for consideration during the
IDEA reauthorization process. Please feel free to send them to Thomas.Irvin@ed.gov.
If you have concerns regarding the delivery of Part C services to eligible Native American
infants and toddlers, please contact Sandy Loerch Morris, the Part C Coordinator at the
Washington State Early Intervention program at (360) 902-8488. And if you have further
questions regarding OSEP's implementation of IDEA as it relates to tribal entities, please contact
JoLeta Reynolds at (202) 205-5507 (press 3) or Judith Gregorian at (202) 205-9092.
Sincerely,

Stephanie S. Lee
Director
Office of Special Education Programs
cc: Sandy Loerch Morris


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

NOV 21 2002
Honorable Dennis Moore
House of Representatives
Washington, DC 20515-1603
Dear Congressman Moore:
In a letter concerning
you raised four questions
regarding the evaluation, transition and other requirements for children with disabilities in
secondary schools. We address each of your questions separately below as it relates to the
Individuals with Disabilities Education Act (IDEA), which this Office of Special Education
Programs (OSEP) is responsible for administering.
1. It seems that I n d i v i d u a l
Education Plan [Program] (IEP) did not lay the groundwork
for him to make a seamless transition from high school to college. How does the existing
IEP structure ensure that students are prepared for college?

One of the key purposes of the IDEA Amendments of 1997 was to "promote improved
educational results for children with disabilities through early intervention, preschool, and
educational experiences that prepare them for later educational challenges and employment."
(H. Rep. No. 105-95, p. 82 (1997); S. Rep. No. 105-17, p. 4 (1997)). Thus, throughout
preschool, elementary, and secondary education, the IEPs for children with disabilities must,
to the extent appropriate for each individual child, focus on providing instruction and
experiences that enable the child to prepare himself or herself for later educational
experiences and for post-school activities, including formal education, if appropriate,
employment, and independent living.
The regulations under Part B of the IDEA set forth specific requirements related to transition
planning and transition services that must be implemented by no later than ages 14 and 16.
These requirements focus on preparing students with disabilities for their move toward, and
life following, completion of high school. The Part B regulations at 34 C.F.R.
§300.347(b)(1) require that each student's IEP, beginning no later than age 14, include
specific transition-related content that focuses on the student's courses of study, and,
beginning no later than age 16, include a statement of needed transition services.
Specifically these regulations state:
Beginning at age 14 and younger if appropriate, and updated annually, each student's IEP
must include: "... a statement of the transition service needs of the student under the
applicable components of the student's IEP that focuses on the student's courses of study
(such as participation in advanced-placement courses or a vocational education
program)". 34 C.F.R. §300.347(b)(1)(i) (emphasis added).

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Page 2 - Congressman Dennis Moore
Beginning at age 16 (or younger, if determined appropriate by the IEP team), each
student's IEP must include: "... a statement of needed transition services for the student,
including, if appropriate, a statement of the interagency responsibilities or any needed
linkages." 34 C.F.R. §300.347(b)(2) (emphasis added).

Congressional Committee Reports on the IDEA Amendments of 1997 make clear that the
requirement added to the statute in 1997 that beginning at age 14, and updated annually, the
IEP include "a statement of the transition service needs" is "... designed to augment, and not
replace," the separate, preexisting requirement that the IEP include, "... beginning at age 16
(or younger, if determined appropriate by the IEP team), a statement of needed transition
services .... " H. Rep. No. 105-95, p. 102 (1997); S. Rep. No. 105-17, p. 22 (1997). As
clarified by these Reports, "The purpose of [the requirement in §300.347(b)(1)(i)] is to focus
attention on how the child's educational program can be planned to help the child make a
successful transition to his or her goals for life after secondary school." H. Rep. No. 105-95,
pp. 101-102 (1997); S. Rep. No. 105-17, p. 22 (1997).
"Transition services" is defined at 34 C.F.R. §300.29 to mean:
... a coordinated set of activities for a student with a disability that -- (1) Is designed
within an outcome-oriented process, that promotes movement from school to post-school
activities, including post-secondary education, vocational training, integrated
employment (including supported employment), continuing and adult education, adult
services, independent living, or community participation; (2) Is based on the individual
student's needs, taking into account the student's preferences and interests; and (3)
Includes -- (i) Instruction; (ii) Related services; (iii) Community experiences; (iv) The
development of employment and other post-school adult living objectives; and (v) If
appropriate, acquisition of daily living skills and functional vocational evaluation.
34 C.F.R. §300.29.
While §300.347(b)(1) requires that the IEP team begin by age 14 to address the student's
need for instruction that will assist the student to prepare for transition, §300.347(b)(2)
requires that by the time the student turns 16, the IEP must include a statement of needed
transition services under §300.347(b)(2) that includes a "coordinated set of activities ...
designed within an outcome-oriented process, that promotes movement from school to postschool activities.... " The type of activities is broadly defined under §300.29 and must be
individualized for each student. Thus, beginning by age 14, the IEP team, in determining
appropriate measurable annual goals (including benchmarks or short-term objectives) and
services for a student, not only must determine what instruction and educational experiences
will assist the student to prepare for transition from secondary education to post-secondary
life, but must include under §§300.29(ii)--(v): related services, community experiences,
employment experiences, other post-school adult living objectives, and, if appropriate,
acquisition of daily living skills and .functional vocational evaluations.

Page 3 - Congressman Dennis Moore
2. Upon entering college, d i d

not have the testing required to prove his needfor
accommodations or additional services in college. How often are secondary schools
required to provide testing? Are they required to provide testing at the request of the
parents?
Your inquiry asks about the requirements for evaluations and reevaluations of children with
disabilities under the IDEA when children are in high school. An "evaluation" under the
IDEA is defined as "procedures used ... to determine whether a child has a disability and the
nature and extent of the special education and related services that the child needs." 34
C.F.R. 9300.500(b)(2). An evaluation conducted by a high school under the IDEA is not
intended to determine whether a child is eligible for academic adjustments in college under
either Section 504 of the Rehabilitation Act or Title II of the Americans with Disabilities Act.
Evaluations and reevaluations under the IDEA are conducted to determine whether a child is
eligible for services under Part B of the IDEA. 34 C.F.R. §300.500(b)(2). Once a child is
receiving services under the. IDEA, under §300.536, each school district must ensure that the
IEP of each child with a disability is reviewed periodically, but no less than annually. In
addition, the school district must ensure under this regulation that a reevaluation is conducted
"if conditions warrant a reevaluation, or if the child's parent or teacher requests a
reevaluation, but at least once every three years." 34 C.F.R. §300.536(b). The information
obtained in an evaluation or reevaluation is integral to the determination of the special
education and related services (including transition services) a child needs under §300.346
and the child's educational placement under §300.552. If the child's parent requests a
reevaluation, the school must either: (1) conduct the reevaluation in conformance with 34
C.F.R. §9300.532 through 300.535; or (2) provide parents with written notice of the school's
refusal to conduct a reevaluation. 34 C.F.R. §300.503(a)(1)(ii). However, as you may know,
graduation with a regular high school diploma ends a student's eligibility for services under
Part B of the IDEA.
If a parent requests that a reevaluation or additional assessments be performed on his or her
child (for purposes other than determining continued eligibility of the child) and the public
agency refuses, the agency must provide notice to the parent under §300.503 that includes an
explanation of why the agency is refusing to conduct the reevaluation. The parent may
challenge the public agency's refusal to conduct the reevaluation by requesting a due process
hearing under 9300.507(a) and may also attempt to resolve the issue with the agency through
mediation under 9300.506(a). If the parent initiates a due process hearing, the parent or the
attorney representing the child also must provide notice to the public agency that describes
the nature of the problem. The parent may also file a State complaint under the procedures
described at §9300.660-300.662 if the parent believes that the action taken by the agency
violates a provision of IDEA or its implementing regulations.

3. Do high schools have the responsibility under the IDEA law to prepare students for college
by arranging testing required by the college?
Under the IDEA, the determination of what evaluations a child needs or are appropriate is an
individual one made by a group of individuals consistent with IDEA §§300.530-300.536. As

Page 4 - Congressman Dennis Moore
noted in response to question two above, parents of children with disabilities in high school
have the fight to request a specific assessment, as part of a reevaluation, if they believe it is
necessary to determine whether their child continues to have a disability under IDEA or to
identify the special education and related services (including transition services) their child
needs. There may be a difference of opinion as to whether additional data, assessments or
reevaluation's are necessary particularly if a child's continued eligibility under IDEA is not in
question. The denial of the parents' request for additional evaluation or assessments is
subject to the notice provisions and dispute resolution procedures are discussed in the
response to question two above.
Under §300.347(b), the IEP team must begin by age 14 to address the student's need for
instruction that will assist the student to prepare for transition and the IEP must include by
age 16 a statement of needed transition services under §300.347(b)(2) that includes a
"coordinated set of activities ..., designed within an outcome-oriented process, that
promotes movement from school to post-school activities .... (§300.29) Section
300.344(b)(3) further requires that, in implementing §300.347(b)(1), public agencies (in
addition to required participants for all IEP meetings), must also invite a representative of
any other agency that is likely to be responsible for providing or paying for transition
services. Thus, §300.347(b)(2) requires a broader focus on coordination of services across,
and linkages between, agencies beyond the SEA and LEA.
"

Under both the statute and the regulations, parents have the right to request an assessment, as
part of a reevaluation, to determine whether their child continues to have a disability under
IDEA. If the group reviewing the existing data does not believe additional data are needed to
determine a child's continued eligibility under IDEA, but the parents want additional testing
for reasons other than continued eligibility under IDEA, such as admission to college, the
denial of the parent's request would be subject to due process.
As stated earlier, graduation with a regular high school diploma ends a student's eligibility
for Part B services, and is, therefore, a change in placement requiring notice under §300.503
a reasonable time before the public agency proposes to graduate the student. The
requirements for transition planning and for reporting to parents regarding the progress of
their child, together with the notice to them regarding proposed graduation, are sufficient to
ensure that parents are appropriately informed to protect the rights of their child. The parents
have the option, as with any public agency proposal to change the educational program or
placement of a child with a disability, to seek to resolve a disagreement with the proposal to
graduate the student through all appropriate means, including mediation and due process
hearing proceedings.
While the requirements for transition planning and the availability of reevaluations and
procedural safeguards under the IDEA are all intended to help parents and schools assist an
individual child in transitioning beyond high school, there is no specific requirement under
the IDEA that high schools must arrange for all students with disabilities to be tested to
determine their eligibility to be considered students with disabilities in college.

Page 5 - Congressman Dennis Moore

4. What rights does h a v e
college education?

under the Americans with Disabilities Act with regard to his

OSEP is responsible for administering the IDEA. We have referred your question on the
Americans with Disabilities Act (ADA) to the:
U.S. Department of Education
Office for Civil Rights (OCR)
Customer Service Team
Mary E. Switzer Building
300 C Street, SW
Washington, D.C. 20202
1-800-421-3481
We enclose a copy of OCR's publication "Students with Disabilities Preparing for Postsecondary
Education: Know Your Rights and Responsibilities" released July, 2002, which may provide
you with basic information about rights under Section 504 of the Rehabilitation Act of 1983 and
Title II of the ADA. The web-site link is http://www.ed.gov/offices/OCR/transition.html. We
have asked OCR to respond directly to your question and you will receive their response under
separate cover.
Finally, with regard to your interest in the reauthorization of the IDEA, the Department of
Education (Department) takes the reauthorization process very seriously. In preparation for
IDEA reauthorization, the Assistant Secretary for Special Education and Rehabilitative Services
hosted many public forums designed to gather input regarding the reauthorization of the IDEA.
In addition, on January 10, 2002, the Department published in the Federal Register a notice
requesting written comments from the public on the IDEA to assist in preparing for the Act's
reauthorization. The President's Commission on Excellence in Special Education has issued its
report regarding recommendations for the reauthorization of the IDEA. As the Department
moves forward in the reauthorization process, it will take into consideration the comments
received, as well as the recommendations of the Commission. At this time, no decision has been
reached regarding recommendations that will be made concerning the reauthorization of IDEA.
We hope your questions about transition and evaluation requirements under the IDEA have been
addressed. Should h
a
v
e
further questions concerning special education
programming in the State of Kansas, the .following individual should be contacted:
Ms. Zoann Torrey
Team Leader, Student Support Services
Kansas State Department of Education
120 SE 10th Avenue
Topeka, Kansas 66612-1182
(785) 291-3097
ztorrey@ksde.org

Page 6 - Congressman Dennis Moore
If you have further questions, please do not hesitate to contact me or Dr. JoLeta Reynolds at

(202) 205-5507.
Sincerely,

Stephanie S. Lee
Director,
Office of Special Education Programs
cc: Ms. Zoann Torrey


Page 2

Under other statutes setting forth the general authority of the Department, such as the
Department of Education Organization Act and the General Education Provisions Act, it
is clear that this Department, generally does not have the authority to determine personnel
and administrative matters in the schools . These limits on authority would include
whether to require nurses in each school, unless these matters are directly related to
requirements in Federal education statutes .
With regard to other Federal statutes, it is ossible under specific circumstances that a
-mail message) may be eligible under
child with asthma (as mentioned in
the Individuals with Disabilities Education ct (IDEA) or under Section 504 . of the
Rehabilitation Act or under both .
Although children with asthma are not recognized in IDEA as a separate "disability
category," there may be instances when a child with such a condition could be identified
as "other health impaired ." See : the regulations issued under IDEA at 34 C .F.R. ยง 300 .7.
To be classified as "other health impaired", the child must have limited strength, vitality
or alertness, due to chronic or acute health problems such as a heart condition,
tuberculosis, rheumatic fever, nephritis, asthma, sickle cell anemia, hemophilia, epilepsy,
lead poisoning, leukemia, or diabetes, that adversely affects a child's educational
performance . That determination is made as part of an evaluation to determine whether
the child needs special education and related services . If it is determined that the child
requires special education and related services, a meeting to develop an individualized
education program (IEP) for the child must be conducted within 30 calendar days of a
determination that the child needs special education and related services . See : 34 C .F.R .
ยง 300 .343(b)(2) . It is the responsibility of the IEP "team" to determine any special
education and related services, including any school health services that the child needs,
and formulate an IEP that includes those services . A copy of the IDEA regulations is
available on the Department's Internet website at :
http ://www.ed .gov/offices/OSERS/OSEP/Policy/regulations .html
Separate and apart from the IDEA requirements, your constituent may wish to contact the
U .S. Department of Education's Office for Civil Rights (OCR) Regional Office . OCR is
responsible for implementation of Section 504 of the Rehabilitation Act of 1973, as
amended (Section 504), which prohibits discrimination on the basis of disability .
Although, a child might not otherwise be eligible for special education and related
services pursuant to IDEA, the child may require accommodations under Section 504 .
OCR may be able to provide your constituent with information about specific
accommodations that can be made for children with asthma . You or your constituent may
address an inquiry to the OCR Regional Office at the following address and telephone
number :

Page 3

Philadelphia Office
U.S. Department of Education
Wanamaker Building
Suite 515
100 Penn Square East
Philadelphia, PA 19107
Telephone : 215-656-8541
For more information re ardin IDEA, Section 504, and Title V Part A with regard to
this specific situation, may also wish to contact appropriate State and local
officials to share her concerns and to get their views on this matter .
I appreciate your interest in this matter and in education, and
concerns. I
hope you find the information in this letter helpful . If you have further questions on this
matter, please let me know .
Sincerely,

Philip Rosenfelt
Assistant General Counsel
for Elementary, Secondary,
Adult, and Vocational Education


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

NOV

7 2002

Dr. Norena Hale
Director, Division of Accountability and Compliance
Minnesota Department of Children, Families, and Learning
1500 Highway 36 West
Roseville, MN 55113-4266
Dear Dr. Hale:
This letter is in response to your April 10, 2002 e-mail inquiry regarding the use of State setaside funds under section 619 of the Individuals with Disabilities Education Act (IDEA).
Specifically, your inquiry is, "Can 619 discretionary dollars be used to fund state monitoring
staff as we do with Part B dollars? It appears to us that 619 administrative dollars must be used
to fund those staff and that 619 discretionary dollars must go for support services which may
benefit children, direct services and for implementation of the State Improvement Plan."
The following information is being provided in response to your request regarding whether funds
under section 619 of Part B may be used for monitoring. In order to completely respond to your
inquiry, information on funds under section 611 of Part B is also included. Following is a breakout of use of State-level set-aside funds under section 611 and section 619 for monitoring:
. 20 U.S.C.
1411(f)(2)- State Administration. The regulations at 34 CFR §§300.620 300.621 specifically permit use of section 611 state administration set-aside funds to
be used for monitoring of local programs and projects for the education of children
with disabilities.
. 20 U.S.C. 1411(f)(3) - Other State-Level Activities. The regulations at 34 CFR
§300.370(a) set forth a specific list of permissible uses of section 611 funds retained
for State set-aside purposes and not used for State administration. This list, which
reflects statutory language at 20 U.S.C.
1411(f)(3),includes administrative costs of
monitoring and complaint investigation, but only to the extent that those costs exceed
the costs incurred for those activities during fiscal year 1985.
. •20 U.S.C. 1419(e) - State Administration. The regulations at 34 CFR §301.25 state
that section 619 state administration set-aside funds may be used for administering
section 619. Therefore, these funds may be used for monitoring programs for
preschool-aged children with disabilities.
. 20 U.S.C. 1419(f) - Other State-Level Activities. The regulations at 34 CFR §301.26
list the specific uses of section 619 funds retained for State set-aside purposes and not
used for state administration. This list, which reflects the statutory language at
20 U.S.C. 1419(f), does not include monitoring as an allowable use of these funds.

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Page 2 - Dr. Norena Hale
I hope this information is helpful to you. Please contact Ms. Nancy Treusch at (202) 205-9097 if
you have further questions on this issue.
Sincerely,

• Stephanie S. Lee
Director
Office of Special Education
Programs
cc: Dr. Thomas Lombard
Director, Division of Special Education


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

NOV - 6 2002

Susan D. DuRant, Director
Programs for Exceptional Children
South Carolina Department of Education
Rutledge Office Building
1429 Senate Street
Columbia, South Carolina 29201
Dear Ms. DuRant:
This letter is in response to your request for additional clarification on whether parental
permission is required prior to accessing Medicaid if all of the provisions of Part B of the
Individuals with Disabilities Education Act (IDEA) 34 CFR § 300.142(e) have been met by the
State.
Part B requires States and local school districts to make a free appropriate public education
(FAPE) available to all children who are eligible to receive services. FAPE includes the
provision of special education and related services which meet State educational standards and
Part B requirements. These services must be provided as written in the child's individualized
education program (IEP) and at no cost to parents. Public agencies may access, as appropriate,
available public sources of support (for example, public insurance or Medicaid programs) to pay
for required services to the extent that parents would not incur a financial loss by the use of other
sources of support.
A public agency may not require a parent to sign up for Medicaid or other public insurance
benefits as a condition for the child's receipt of FAPE under Part B. A child's entitlement to
FAPE under Part B exists whether or not a parent is willing to sign up for Medicaid or other
public insurance benefits. Children with disabilities are entitled to services under Part B,
regardless of parents' personal choices to access Medicaid or other public insurance benefits.
Medicaid or other public insurance benefits cannot be considered available public sources of
support when parents decline to sign up for those public benefits. However, there is nothing in
the Federal Regulations that would prohibit a public agency from requesting that a parent sign up
for Medicaid or other public insurance benefits.
With regard to your specific question related to whether parental permission is needed prior to
accessing Medicaid, I will address the requirements under Part B and the Family Educational
Rights and Privacy Act (FERPA), 20 U.S.C. § 1232g, 34 CFR § 99.31. It is important to note
that the terms of the public insurance and State law should also be consulted as they may have
additional requirements.
Under FERPA, a parent must provide a signed and dated written consent before an educational
agency or institution discloses personally identifiable information from the student's education
records, except as provided in FERPA. See 34 CFR §§ 99.30 and 99.31. In Wisconsin Dept. of
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Ms. Susan D. DuRant - Page 2
Pub. Instruction, 28 IDELR 497 (FPCO 1997), the Family Policy Compliance Office (FPCO)
addressed the question of whether FERPA requires parental written consent "before school
districts disclose information from student education records in order to determine which
students with disabilities are Medicaid eligible and to seek reimbursement from the State's
Medicaid agency for services provided to those students." The FPCO found that "it does not
appear that any of FERPA's exceptions to the prior written consent provisions would permit the
nonconsensual disclosure by school districts of personally identifiable information from
education records to the State Medicaid agency." Accordingly, schools may not disclose
information on students who are receiving services under IDEA to the State's Medicaid agency
in order to determine which of the students are Medicaid eligible, or to seek reimbursement,
without the prior consent of the students' parents. School officials that have additional questions
about FERPA as it relates to this matter should contact the FPCO directly at the following
address:
Family Policy Compliance Office
U.S. Department of Education
400 Maryland Avenue, SW
Washington, D.C. 20202-4605
Under Part B, if a child is covered by a public insurance program and there is no cost to the
family or the child in using the benefits of that program to support a service written in a child's
IEP, the public agency is encouraged to use the public insurance benefits to the extent possible.
Although Part B does not specifically require public agencies to obtain parental consent when
they use public insurance if there is no cost to the family or child in using the benefits of that
program, Part B does require public agencies to comply with FERPA with regard to releasing
information. 34 C.F.R. § 300.571(b). Accordingly, under Part B, public agencies are required to
obtain parental consent prior to releasing personally identifiable information about students to
public insurance agencies.
Furthermore, if the Medicaid-enrolled child also has private insurance coverage, Medicaid would
require the use of the private insurance. The Part B regulations do not affect the requirement
under Medicaid that the State Medicaid agency pursue liable third party payers such as private
insurance providers. In this case, in addition to obtaining consent for releasing information to
public insurance agencies, the public agency would also be required to obtain consent to use the
private insurance program to support the service prior to accessing the public insurance.
34 C.F.R. § 300.142(0. Under IDEA, parents may not be required to assume costs incurred
through use of private insurance so that the school can get reimbursement from the public insurer
for services in the child's IEP. Under IDEA, if a Medicaid-enrolled child also is covered by
private insurance, the public agency must either obtain the parent's consent to use the private
insurance, or not use Medicaid tO provide the service. See, 64 Fed. Reg. 12568 (March 12,
1999). One way a public agency might be able to obtain consent would be by offering to cover
the costs that would normally, under Medicaid, be assessed against the private insurer, and agree
to cover all out-of-pocket expenses. As stated in 34 CFR § 300.142(g), if a public agency is
unable to obtain parental consent to use the parent's private insurance, or public insurance when
the parent would incur a cost for a specified service, to ensure FAPE, the public agency may use
its Part B funds to pay for the services.

Ms. Susan D. DuRant - Page 3

I hope that this information provides clarity to obtaining parent consent in order to access
Medicaid or public insurance benefits. As I stated above, the terms of the public insurance and
state law should also be consulted as they may have additional requirements. If you have any
questions regarding this letter, please contact Dr. JoLeta Reynolds of my staff at 202-205-5507.
Sincerely,

Stephanie S. Lee
Director
Office of Special Education Programs


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

OCT 2 9 20O2
Dr. Perry A. Zirkel
University Professor of Education
and Law
Lehigh University College of Education
Mountaintop Campus
111 Research Drive
Bethlehem, Pennsylvania 18015-4794
Dear Dr. Zirkel:
This is in response to your letter to JoLeta Reynolds of the Office of Special Education
Programs. You ask "whether, and it [sic] so to what extent, the requirements of the IDEA and
Section 504 (or the ADA), respectively apply to the following three types of overseas schools:
1. Department of Defense overseas schools
2. private international schools overseas that receive limited support from the
U.S. Department of State
3. other private international schools that offer the 'American Model' of
education but without any support from the Department of State."
In preparing this response, we have consulted with the Office for Civil Rights (OCR) in the
Department of Education (Department).
In reviewing your inquiry, we note that the substance of some of your questions is the same as
that of questions to which the Department responded in a letter dated December 22, 1994. Based
on the information you have provided, the prior response to you still represents the Department's
position with regard to the Individuals with Disabilities Education Act. Another copy of the
1994 letter is included for your convenience.
With respect to the application of Section 504 of the Rehabilitation Act of 1973 (Section 504)
and the Americans with Disabilities Act (ADA) to Department of Defense overseas schools,
since Department of Defense schools operate under separate statutory authority, you may wish to
contact:
Ms. Lorie Sebestyen
Special Education Coordinator
Office of Dependents Education
Department of Defense Education Activity (DoDEA)
4040 North Fairfax Drive, 9th Floor
Arlington, VA 22203-1635
(703) 696-4235
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Page 2 - Dr. Perry A. Zirkel

With respect to your questions regarding the application of Section 504 or the ADA to private
international schools overseas, OCR in the Department, as you know, enforces Section 504,
which applies to recipients of Federal financial assistance, and Title II of the ADA, which
applies to public entities whether or not they receive Federal funds. Regarding the Department's
position on the application of Section 504, please see the enclosed case closure letter issued by
OCR, Arizona State University, 08-01-2047 (2001).
Your inquiry regarding the application of Section 504 to schools receiving "support" from the
U.S. Department of State should be directed to:
Barbara Pope
Assistant Secretary for Civil Rights
U.S. Department of State
2201 C Street, NW
Washington, DC 20520
Because your inquiry does not appear to apply to public entities under Title II of the ADA, any
specific questions regarding the applicability of other titles of the ADA should be directed to:
U.S. Department of Justice
Civil Rights Division
950 Pennsylvania Avenue, NW
Disability Rights Section - NYAVE
Washington, DC 20530
Questions about the obligations or conditions attached to other funding programs would have to
be responded to in the context of the particular program at issue.
We hope that this information is helpful to you.
Sincerely,

Stephanie S. Lee
Director
Office of Special Education Programs
Enclosures

U N I T E D S T A T E S D E P A R T M E N T OF E D U C A T I O N
OFFICE

OF SPECIAL

EDUCATION

AND REHABILITATIVE

SERVICES

22
DEC
1994
Professor Perry A. Zirkel
University Professor
of Education and Law
College of Education
Mountaintop Campus
iii Research Drive
Bethlehem, Pennsylvania
18051-4783
Dear Professor

Zirkel:

This is in response to your letter in which you ask a series of
questions concerning overseas schools and the applicability of
the Individuals with Disabilities Education Act (IDEA) to the
operation of those schools.
I would like to provide the
following responses to each question.
i.

Does the IDEA apply for American students attending any
of these types of overseas schools:
a.

b.
c.

Department of Defense Overseas Schools [DODDS]?
American or International schools incorporated in
the U.S. (e.g., Delaware)?
American or international schools not incorporated
in the U.S.?

Section 24 of the Individuals with Disabilities Education Act
Amendments of 1991, Public Law 102-119, amended the Defense
Dependents' Education Act of 1978, see 20 U.S.C. ยง927(c), to
provide that the provisions of Part B of IDEA (Part B), other
than the funding and reporting provisions, shall apply to all
schools operated by the Department of Defense under Chapter 25A,
including
the
requirement that children with disabilities aged
3 to 5, incIusive, receive a free appropriate public education
(FAPE) by academic year 1993-1994.
The same amendments to 20 U.S.C. ยง927(c) provide that the
responsibility to provide comparable early intervention services
to infants and toddlers with disabilities and their families in
accordance with an individualized family service plan, described
in section 677 of IDEA, and to comply with the procedural
safeguards set forth in Part H of IDEA shall apply with respect

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WASHINGTON. D.C. 2 0 2 0 2

O u r m i s s i o n is to e n s u r e e q u a l a c c e s s to e d u c a t i o n a n d to p r o m o t e e d u c a t i o n a l e x c e l l e n c e t h r o u g h o u t t h e N a t i o n .

Page 2 - Professor

Perry A. Zirkel

to all eligible dependents overseas.
The implementation of the
services that are to be provided to infants and toddlers are
phased in over the academic years 1991-1996.
See 20 U.S.C.

927(c)(3).
For the purpose of answering your question about the
applicability of IDEA's provisions for American students
attending American or International schools incorporated in the
U.S. (e.g., incorporated in Delaware) and American or
International schools not incorporated in the U.S., we assume
that these schools are private schools, and not facilities
operated by DODDS.
Part B requirements with respect to children
with disabilities that are placed in private schools would apply
to the child if DODDS or a public agency within a State or
jurisdiction to which IDEA applies places a child in one of these
schools in order to meet its responsibility under Part B.
See 20
u.s.c. ยง927(c) (1).
2.

If so, do the regulations or their application differ
from the procedural and substantive requirements that
are applicable to stateside public schools?
Please
specify the type of overseas schools and the
significant differences, if any?

Since DODDS' schools operate under separate statutory authority,
i.e., Defense Dependents' Education Act of 1978, see 20 U.S.C.
ยง921, et seg., which is not administered by the Office of Special
Education Programs (OSEP), I am forwarding your letter to Mr.
Paul Koffsky of the Office of General Counsel (OGC), U.S.
Department of Defense, for response with reference to that
statute.
.

Does your response to any of the above items change
depending on w h e t h e r the school receives grants or
other funding from:
a.

b.

the U.S.
the U.S.

State Department?
Department of Education?

If so, please specify?
Other than their applicability to DODDS schools, both domestic
and overseas, Parts B and H of IDEA apply to States and
jurisdictions that receive payments under those programs.
Questions about the obligations or conditions attached to other
funding programs would have to be responded to in the context of
the requirements of the p a r t i c u l a r p r o g r a m at issue.

Page 3 - Professor Perry A. Zirkel
I hope that this information is helpful to you.
further assistance, please let me know.

If I may be of

Sincerely,

Thomas Hehir
Director
Office of Special
Programs
cc:

Mr. Paul Koffsky
Department of Defense
Michelle DeSera
Pennsylvania Department of
Education

Ms.

Education


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

OCT

17 2002

Ms. Shan Goff
Bureau of Instructional Support and
Community Services
Florida Education Center
325 West Gaines Street
Tallahassee, Florida 32399-0400
Dear Ms. Goff:
This letter is a follow-up to those actions that the Office of Special Education Programs
(OSEP) has taken to address the availability of speech and language pathology as a
related service to children with disabilities in Florida. These include OSEP's review of
the Florida Department of Education (FDE) and the report issued on April 26, 2001, the
January 30, 2002 letter from OSEP to FDE concerning an Office for Civil Rights (OCR)
complaint, FDE's additional assurance as stated in the July 1, 2002 grant award letter,
and O SEP's review of Florida's Improvement Plan submitted on August 20, 2002.
In the monitoring report assessing FDE's compliance with the Individuals with
Disabilities Education Act (IDEA), OSEP determined that school districts do not ensure
that children who need speech and language pathology as a related service to benefit from
special education receive that service. This finding was based on 34 CFR
§§300.24(b)(14) and 300.300 requiring public agencies to provide speech and language
pathology as a related service to children with disabilities who need that service to benefit
from special education.
In response to an inquiry from a member of the public, who also filed an OCR complaint
on the same issue, OSEP sent a letter to FDE concerning the standard FDE applied in its
September 11,2001 Report of Inquiry to the complainant. The conclusion that FDE
reached in the Report of Inquiry states that "a student must be determined eligible under
the criteria for the special programs for students who are speech and language impaired in
order to receive direct services from a speech and language pathologist."
OSEP is currently in the process of reviewing FDE's Improvement Plan intended to
guide Florida's efforts to ensure compliance and improve results for children with
disabilities and their families who are served under IDEA. The Improvement Plan
addresses the areas of noncompliance, including the speech issue, identified in OSEP's
monitoring report and will be used by FDE as a vehicle for correcting deficiencies. With
regard to the speech issue, the Improvement Plan strategies will not correct the problem
because they are based on the incorrect interpretation of the standard as evidenced in the
memorandum to district school superintendents developed to respond to the OCR
complaint.

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Page 2 - Ms. Shan Goff

Although FDE, as set forth in the State Board of Education Rules 6A-6.03012, considers
speech to be a special education service, FDE must also ensure that school districts
provide speech and language services to any child with a disability who needs those
services to benefit from special education, even if he or she does not meet the State's
criteria to receive speech-language pathology services as a special education service.
In response to an OCR complaint and OSEP's monitoring report, FDE issued a
memorandum dated April 26, 2002 to district school superintendents to inform them of
the outstanding issue concerning the provision of speech-language services as a related
service. This memorandum does not provide clear guidance to the districts or direct the
districts to ensure that any child with a disability who needs speech-language pathology
services to benefit from special education services receives that service whether or not he
or she meets the State's criteria to receive speech-language services as special education.
OSEP continues to have serious concerns over this matter. We are requesting that FDE
issue new guidance to school districts to clarify that speech and language services may be
provided directly by a speech and language pathologist as a related service if necessary
for the child to benefit from special education without meeting the State's eligibility
criteria for speech and language impairments. In addition, the Improvement Plan must
be revised to contain the evidence of change, measurable benchmarks, and reasonable
timelines, as well as agency resources necessary to correct this deficiency and to insure
that the activities undertaken are consistent with Federal requirements. Improvement
activities need to include staff training, including training of State level complaint
investigators, that clarifies that speech and language services may be provided directly by
a speech and language pathologist as a related service if necessary to benefit from special
education, without meeting the State's eligibility criteria for speech and language
impairments. The Improvement Plan must also address how FDE will incorporate this
area into its monitoring system during the current monitoring cycle.
Please submit a draft of the revised guidance memorandum to district school
superintendents for our review within 30 days of receipt of this letter. Upon O SEP's
approval of the memorandum, FDE must issue it within 30 days. In order to be in
compliance, FDE will need to provide evidence of change demonstrating that it has
corrected this violation within one year of our final approval of the guidance
memorandum.

Page 3 - Ms. Shan Goff

We would like to emphasize our continued commitment to working with you to resolve
this matter in a way that ensures a free appropriate public education to all eligible
children with disabilities in Florida.
Sincerely,

Stephanie S. Lee
Director
Office of Special Education
Programs


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

OCT 9 2002
-

Beth L. Sims, Esq.
Mill & Garden Streets
P.O. Box 112
Poughkeepsie, New York 12602
Dear Ms. Sims:
The Office of Special Education Programs (OSEP), U.S. Department of Education, is in
receipt of your correspondence to Mr. Michael Slade, the OSEP State Contact for the
State of New York, dated January 10, 2001. Your letter, which we assume should be
dated 2002, is in response to a series of conversations between you and Mr. Slade
beginning on December 13,2001, regarding OSEP Memorandum # 96-5 (December 6,
1995) titled Obligations of States and School Districts to Disabled Students and Their
Parents in Interstate Transfer Situations. You have requested a written statement
indicating whether OSEP Memo # 96-5 has been amended, modified, or repealed since
its issuance. You have further requested a copy of any changes, amendments,
modifications, or revocation of that OSEP memorandum.
During your conversations with Mr. Slade, you indicated that you were representing a
parent of a disabled student who, having transferred from the State of Connecticut,
sought enrollment as a special education student in a local educational agency (LEA) in
New York for school year 2001-2002. You initially conveyed to Mr. Slade that you were
seeking clarification of OSEP Memo # 96-5 because the LEA in New York refused to
accept either the individual education program (IEP) or the supporting evaluations from
Connecticut. You further indicated to Mr. Slade that the LEA in New York placed your
client's son in a regular educational setting without the needed supports. In subsequent
conversations with Mr. Slade, you noted that your client had requested and had been
granted an impartial due process hearing seeking tuition reimbursement for her son's
current private placement. Further, of greatest import, the defense for your client's case
was purportedly predicated on the policy guidance provided in OSEP Memo # 96-5.
OSEP Memorandum # 96-5 was written prior to the enactment of the Individuals with
Disabilities Education Act, as amended in 1997 (IDEA). Therefore, the statutory and
regulatory citations in OSEP Memo # 96-5 are no longer accurate. IDEA, as amended,
and the implementing regulations at 34 CFR Part 300 do not obligate a school district
receiving a special education student from another State to accept the evaluation results,
eligibility determinations, and IEP decisions made in another State. However, the
obligation for an LEA to provide a free appropriate public education, in accordance with
State education standards, to all eligible students has not changed.
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Page 2 -Beth L. Sims, Esq.

Each public agency shall ensure that a full and individual evaluation is conducted in
accordance with 34 CFR §§300.532-300.533 for each child being considered for special
education and related services to determine if the child is eligible under State standards
for special education and, if so, to determine the educational needs of the child. Pursuant
to 34 CFR §300.343, each public agency shall ensure that a child is evaluated within a
reasonable period of time following an agency's receiPt of parent consent to an initial
evaluation of a child. A meeting to develop an IEP for the child must be conducted
within 30 days of a determination that the child needs special education and related
services.
As part of an initial evaluation, if appropriate, and as a part of any reevaluation under Part
B, the IEP team (as described under 34 CFR §300.344), and other qualified professionals,
as appropriate, shall review existing evaluation data on the child, including: (1)
evaluations and information provided by the parents of the child; (2) current classroombased assessments and observations; and (3) observations by teachers and related services
providers. On the basis of that review and input from the child's parents, the team must
identify what additional data, if any, are needed to determine: (1) whether the child has a
particular category of disability, as described in §300.7, or, in case of a reevaluation of a
child, whether the child continues to have such a disability; (2) the present levels of
performance and educational needs of the child; (3) whether the child needs special
education and related services, or in the case of revaluation of a child, whether the child
continues to need special education and related services; and (4) whether any additions or
modifications to the special education and related services are needed to enable the child
to meet the measurable annual goals set out in the IEP and to participate, as appropriate,
in the general curriculum (34 CFR §300.533).
A child's educational placement must be based upon the child's IEP. The child's parents
are members of the IEP team and must be invited to participate (see 34 CFR §300.345).
Parents play a key role, along with school personnel in developing, reviewing, and
revising, if necessary, a child's IEP; in determining the nature and extent of the child's
needs; and in the placement decision. Through the IEP process, a parent can discuss with
school officials different approaches that would appropriately meet their child's unique
needs.
If the parent and the local school district staff cannot agree on the content of the IEP, the
parent can ask for a due process hearing, and an impartial hearing officer can make an
independent decision in order to resolve any disagreements (see 34 CFR §§300.500300.517). A mediation process must be available to parents who request a due process
hearing, in accordance with the requirements at 34 CFR §300.506 of the Part B
regulations. A parent also has the option of filing a complaint with the State if he or she
believes that a public agency has violated a requirement of Part B (see 34 CFR
§§300.660-300.662).
Except when a parent requests a hearing or an appeal regarding a disciplinary action,
during the pendency of any administrative or judicial proceeding regarding a complaint

Page 3 -Beth L. Sims, Esq.

under §300.507, unless the State or local agency and the parents of the child agree
otherwise, the child involved in the complaint must remain in his or her current
educational placement. If the complaint involves an application for initial admission to
public school, the child, with the consent of the parents, must be placed in the public
school until the completion of all the proceedings. While the placement may not be
changed unilaterally by the public agency, this does not preclude the parent from
changing the placement at his or her own expense and risk.
I hope this information proves helpful in meeting the needs of your client. If this Office
can be of any further assistance regarding this matter please feel free to contact me or
Michael F. Slade, OSEP's Part B contact for New York, at (202) 205-8969.
Sincerely,

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

Lawrence C. Gloeckler
Deputy Commissioner


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

OCT 9 2002
-

Colleen Baumtrog, Ph.D.
Executive Director of Special Education
Minneapolis Public Schools
2225 East Lake Street
Minneapolis, Minnesota 55407
Dear Dr. Baumtrog:
This is in response to your letter of February 8, 2002, to Dr. Robert Pastemack, Assistant
Secretary for the Office of Special Education and Rehabilitative Services. When you met with
Dr. Pastemack on January 22, 2002, you shared information with him regarding Minneapolis
Public Schools' (MPS') "Problem Solving Model" (PSM) for the identification of students with
high incidence disabilities. In your letter, you provide additional information regarding the PSM,
and request a letter of endorsement from this Department in your effort to gain formal state
approval of the PSM. You also ask for the Department's "view on IQ [intelligence quotient]
tests, if they are required by federal law, and the use of ability-achievement discrepancy based
procedures for determining the eligibility of LD [specific learning disabilities]."
The regulations promulgated under Part B of the Individuals with Disabilities Education Act
(IDEA) set forth, at 34 CFR §§300.530-300.536, specific requirements that public agencies must
follow in evaluating and identifying children with disabilities, and 34 CFR §§300.540-300.543
set forth additional procedures for evaluating children with specific learning disabilities. Neither
the Act nor the Part B regulations require the use of IQ tests as part of an initial evaluation or a
reevaluation.
The current Part B regulations require, at 34 CFR §300.541, that:
(a) A team may determine that a child has a specific learning disability if-- (1) The
child does not achieve commensurate with his or her age and ability levels in one or
more of the areas listed in [34 CFR §300.541(a)(2)], if provided with learning
experiences appropriate for the child's age and ability levels; and (2) The team finds
that a child has a severe discrepancy between achievement and intellectual ability in
one or more of the following areas: (i) Oral expression. (ii) Listening comprehension.
(iii) Written expression. (iv) Basic reading skill. (v) Reading comprehension. (vi)
Mathematics calculation. (vii) Mathematics reasoning.
(b) The team may not identify a child as having a specific learning disability if the severe
discrepancy between ability and achievement is primarily the result of-- (1) A
visual, hearing, or motor impairment; (2) Mental retardation; (3) Emotional
disturbance; or (4) Environmental, cultural or economic disadvantage.

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Page 2 - Dr. Colleen Baumtrog
The Commission on Excellence in Special Education and a number of commenters providing
input into the reauthorization of the IDEA have raised issues concerning the current Part B
requirements regarding the identification of children with specific learning disabilities, and we
are closely reviewing those requirements as part of the reauthorization process. The current Part
B regulations, however, specifically require that, to determine that a child has a specific learning
disability, a public agency must find that the child has a severe discrepancy between
achievement and intellectual ability in one or more of the areas specified in 34 CFR
§300.541(a)(2). Neither the IDEA nor the Part B regulations require that any particular
methodology be used to determine whether such a discrepancy exists for a particular child. As
stated above, however, the Part B regulations, at 34 CFR §§300.530-300.536, set forth specific
requirements that public agencies must meet in evaluating and identifying children with
disabilities, and set forth additional procedures for evaluating children with specific learning
disabilities at 34 CFR §§300.540-300.543.
As the State Educational Agency for Minnesota, the Department of Children, Families &
Learning (DCFL) is responsible for establishing and implementing procedures for ensuring that
all eligible children with disabilities are identified, located and evaluated, and that a free
appropriate public education is made available to all such children. DCFL is also responsible for
ensuring that Part B funds are not used to serve children who do not meet the Part B definition of
"child with a disability." It is the role of DCFL, rather than this office, to establish State
standards for determining eligibility (so long as they are consistent with Part B requirements),
and to determine whether MPS' PSM is consistent with State standards, including the
requirements of Part B.
Dr. Pasternack appreciates your invitation to visit Minneapolis, and he and I will look forward to
the future possibility of such a visit by one of us or by members of our staff.
If you have any questions regarding this letter, please contact Larry Ringer (202-205-9079,
larry.ringer@ed.gov), Associate Director, Division of Monitoring and State Improvement
Planning.
Sincerely,

Stephanie S. Lee
Director
Office of Special Education Programs
cc: Thomas Lombard, DCFL


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

This is in response to your letter of June 10, 2002 seeking guidance regarding the
allowable rates for independent educational evaluations (IEE) as set by the Massachusetts
Department of Education (MASSDE). Specifically, you state in your letter that your
daughter has been diagnosed with autism with extensive and complicated medical,
psychological, and educational needs. You have been unable to obtain an IEE because
you cannot find a qualified examiner that will conduct the evaluation at the rate set by
MASSDE.
The Individuals with Disabilities Education Act (Part B) affords a parent the right to a
publicly-funded IEE if the parent disagrees with an evaluation obtained by the public
agency. 34 CFR §300.502(b)(1). If a parent requests an IEE at public expense, the
public agency must, without unnecessary delay, either initiate a hearing under 34 CFR
§300.507 to show that its evaluation is appropriate or ensure that an IEE is provided at
public expense, unless the agency demonstrates in a hearing under §300.607 that the
evaluation obtained by the parent did not meet agency criteria. 34 CFR §300.502(b)(2).
Under 34 CFR §300.502(e)(1), the criteria under which the publicly-funded IEE is
obtained, including the location of the evaluation and the qualifications of the examiner,
must be the same as the criteria that the public agency uses when it initiates an
evaluation. Except for the criteria described above, a public agency may not impose
conditions or timelines related to obtaining an IEE at public expense.
The denial of an IEE based solely on financial cost would be inconsistent with 34 CFR
§300.502. To avoid unreasonable charges for IEEs, the school district may establish
maximum allowable charges for specific tests. When enforcing reasonable cost
containment criteria, the district must allow parents the opportunity to demonstrate that
unique circumstances justify an IEE that does not fall within the district's criteria. If an
IEE that falls outside the district's criteria is justified by the child's unique circumstances,
that IEE must be publicly-funded. If the total cost of the IEE exceeds the maximum
allowable costs and the school district believes that there is no justification for the excess
cost, the school district cannot in its sole judgment determine that it will pay only the
maximum allowable cost and no further. The public agency must, without unnecessary
delay, initiate a hearing to demonstrate that the evaluation obtained by the parent did not
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Page 2 meet the agency's cost criteria and that unique circumstances of the child do not justify
an IEE at a rate that is higher than normally allowed. See the February 2, 1995 Letter to
Anonymous and the September 10, 2001 Letter to Petska, enclosed and MASSDE
regulations at 603 CMR 28-04(5) and Administrative Advisory SPED 2001-3.
I hope that this information is helpful. If this Office can be of further assistance, please
contact Dr. Ken Kienas of my staff at (202) 205-9057.
Sincerely,

Stephanie S. Lee
Director
Office of Special Education Programs
Enclosures
cc: Marcia Mittnacht, MASSDE


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

2 5 2002
Dr. Thomas P. DiPaolo
Director
Office of Special Needs
Rhode Island Department of Education
Shepard Building
255 Westminster Street, Room 400
Providence, Rhode Island 02903-3400
Dear Dr. DiPaolo:
We have received your August 20, 2002 letter in which you request that the effective date
of Rhode Island's Individuals with Disabilities Education Act (IDEA), Part B, Grant be
changed to July 1, 2002. The grant was awarded on July 18, 2002, the date that the
Office of Special Education Programs (OSEP) received the Rhode Island Department of
Education's (RIDE) assurance that it would take action necessary to ensure that the
requirements of 34 CFR §300.523 are met. You have indicated to us that the delayed
effective date would have significant negative financial impact on programs funded with
Part B monies, as those programs have little if any funding remaining from the FY 00 and
01 grants and had ongoing activities in July.
Under the Cash Management Improvement Act of 1990, which provides for timely
transfer of funds between Federal agencies and States, the Federal government is liable
for interest payments to a State that disburses its own funds for Federal program purposes
before the date that Federal funds are deposited to the States' bank account for those
obligations. OSEP Memo 02-04 (Procedures for States to Follow in Order to Receive a
Grant Award under Part B of the Individuals with Disabilities Education Act (IDEA) for
Federal Fiscal Year 2002), describes the Education Department General Administrative
Regulations (EDGAR) at §§76.703-76.704 that establish procedures for the Department
and States regarding the obligation of funds (copy available upon request).
As explained in OSEP Memo 02-04, OSEP makes grant awards under Part B for FFY
2002 to States that submit complete eligibility document packages and provide an
assurance that as soon as possible within the grant year, the State would make all needed
changes that OSEP identifies in its review of the State's eligibility documentation. Our
records reflect that on June 27, 2002 RIDE received a memo from OSEP informing RIDE
of the appropriate language for its assurance. RIDE and OSEP staff participated in a
conference call on My 12, 2002, during which time it was agreed that it would not be
necessary for RIDE to amend its regulation, but that instead it would send out to local
education agencies a clarifying memo and provide training. OSEP received RIDE's
assurance language on July 18, 2002 and issued RIDE's Part B grant award on that same
date.

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Page 2 - Dr. Thomas P. DiPaolo

The Department is unable to change the effective date of the grant. However, in order to
mitigate any negative financial impact on programs funded with Part B funds, OSEP will
grant Rhode Island pre-award costs. We have determined that it is acceptable to grant
pre-award costs because it appears that it will have very limited potential harm to the
Federal interest and not covering costs incurred between July 1 and July 18, 2002 would
create a significant hardship on State and local special education activities. We are
requiring that before spending State funds for any costs incurred between July 1 and July
18, 2002, RIDE will: 1) Exhaust any unspent Federal funds from prior years' grants
under Part B that are available, consistent with Part B's funding scheme, to be spent on
those costs; or 2) Provide documentation that its procedures do not permit it to use
Federal funds from prior years' grants in this manner or that the use of such funds would
impose substantial administrative costs on the State.
Please be advised, however, that our decision here is based on this particular situation and
the limited potential harm to the Federal interest. In the future we may not be able to
accommodate such requests. This letter will serve as notice of modification to the grant
award period and should be attached to the grant award document.
If you have any questions about the Department's decision to grant pre-award costs,
please contact Dr. Gregg Corr, Associate Division Director, Monitoring and State
Improvement Planning, at 202-205-9027.
Sincerely,
Stephanie S. Lee
Director
Office of Special
Education Programs


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

AUG 13 2002

Lucille M. Linde, Ed.D.
President and Director
Developmental Learning Center, Inc.
1954 Eighteenth Avenue
Greeley, Colorado 80632-5208
Dear Dr. Linde:
Thank you very much for your letter to President George W. Bush regarding
accountability in education. We appreciate hearing your views on this issue. The White
House has referred your letter to the Department of Education for review, and I am
pleased to respond.
Your dedication to our Nation's children and your long-term efforts to understand how
children learn and the factors that make learning difficult for many is impressive. I have
reviewed all of the materials that you have sent and very much appreciate your focus on
making sure that no children are left behind in school.
In your letters, you recommended that President Bush and Secretary of Education Rod
Paige require that the assessment and motor-perceptual training programs that you have
developed be provided to all children across the country who are having difficulties
learning. You have proposed that teachers be trained to administer an Ocumeter pretest,
provide motor-perceptual training linked to the results of the assessment, and then
administer an Ocumeter posttest to determine if students need more training and to
document the effects of the training for accountability purposes.
While this is a laudable goal, the Department of Education does not have the authority to
mandate specific assessment and instructional/intervention programs for use in the public
schools. Such decisions are made at the State and local school district levels. Therefore,
you may wish to approach State educational agencies or school districts directly with
your proposal.
As you may be aware, as States and local school districts make decisions regarding which
programs to use in their schools, they will now be focusing on scientifically based
reading research. This new focus is the result of the No Child Left Behind (NCLB)
legislation, in which President Bush and Secretary Paige wanted to make sure that
screening, diagnostic and classroom based assessments and instructional materials,
programs, learning systems and strategies to promote learning in public schools have
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Page 2 - Lucille M. Linde, Ed. D.
been evaluated and found to be effective on the basis of rigorous scientifically based
research. A major reason for this focus was the recognition that for many years,
assessment and instructional programs, including early intervention programs, generally
have not been rigorously or scientifically evaluated. Because of this, children have been
provided with many programs based on beliefs and untested assumptions that failed to
promote learning.
Over the past two decades, a great deal has been learned about the types of scientific
research methods that can be applied to promising educational innovations (e.g.,
assessment and instructional programs) to make sure that they clearly benefit students.
The No Child Left Behind legislation provides an overview of these research principles
and defines the criteria that exemplify the use of scientifically based research.
Specifically, scientifically based reading research is defined as research that:
(A) applies rigorous, systematic, and objective procedures to obtain valid knowledge
relevant to reading development, reading instruction, and reading difficulties;
and,
(B) includes research that:
1. employs systematic, empirical methods that draw on observation or
experiment;
2. involves rigorous data analyses that are adequate to test the stated
hypotheses and to justify the general conclusions drawn;
3. relies on measurement or observational methods that provide valid data
across evaluators and observers and across multiple measurements and
observations; and
4. has been accepted by a peer-reviewed journal or approved by a panel of
independent experts through a comparably rigorous, objective, and
scientific review.
I am enclosing a copy of the relevant section of the No Child Left Behind legislation. As
States and local school districts begin to make decisions about which assessment and
instructional programs they want to purchase and support with Federal funds, they will be
searching for programs that have been found to be effective on the basis of published
scientifically based research.
Therefore, we recommend that you contact a researcher or team of researchers that
specialize in the development of assessment instruments and the development and
evaluation of instructional programs and intervention protocols to assist you in
developing the appropriate research methodology and design to adequately test the
efficacy of your materials. At a minimum, the data obtained from these tests should
either be published in a peer-reviewed journal or evaluated through a rigorous, objective
and independent review.

Page 3 - Lucille M. Linde, Ed. D.
We wish you the best in evaluating the Ocumeter and the MPT program using the
standards set forth in the No Child Left Behind Legislation. Again, thank you for your
efforts on behalf of our Nation's children.
Sincerely,

Stephanie S. Lee
Director
Office of Special Education Programs
Enclosure


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

AUG 13 2002

Please accept our response to your email sent to Secretary Rod Paige, U.S. Department of Education. We
apologize for the delay in responding to your concerns. It is our understanding
that
received services in natural environments under Part C of the Individuals with Disabilities Education Act
(IDEA) in Washington State. You describe your experience as positive. In your electronic message you
indicated that you believe that certain center-based programs in Washington are urging the State to
withdraw from the Part C program due to their reluctance to implement the natural environments
requirements of the federal law. You asked the Secretary "not to let the state take drastic action with
regard to pulling out of Part C services." You also stated: "let's give families direct accurate, unbiased
information about the federal Natural Environments requirements." Your request has been forwarded to
our Office of Special Education Programs (OSEP) for a written response.
With regard to your request for assistance to keep the State from "pulling out" of Part C, the Part C
program under the IDEA provides grants to States that choose to submit an application for funding.
Although currently all States participate and receive a Part C grant, participation is voluntary on the part
of States. It would be inappropriate for this Department to intervene in the State's decision-making on
that issue.
Regarding information on the natural environments requirements, OSEP has issued several letters that
clarify this topic (enclosed). In addition, you may want to contact your State lead agency (which is
receiving a copy of this letter) to find out what materials they have disseminated on this topic in your
state. My staff works closely with Ms. Sandy Loerch, the early intervention coordinator in the
Washington State Department of Social and Health Services, who is responsible for the implementation
of early intervention, to ensure that the Lead Agency is correctly interpreting the federal requirements
governing Part C of IDEA. We are available to continue to provide technical assistance in support of
Washington State's early intervention efforts. Thank you for bringing your concerns to our attention.
Please feel free to contact Ms. Angela Herring, the OSEP early intervention contact for Washington State
at (202) 260-8640, if you have further concerns.
Sincerely,

Stephanie S. Lee
Director
Office of Special Education Programs
Enclosures
cc: Ms. Sandy Loerch
Part C Coordinator
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UNITED STATES DEPARTMENT OF EDUCATION
OFFICE OF SPECIAL EDUCATION AND REHABILITATIVE SERVICES

August 8, 2002

The Honorable John Boehner
Chairman
House Education and the Workforce Committee
2181 Rayburn House Office Building
Washington, D.C. 20515
Dear Chairman Boehner:
Thank you for your letter of inquiry regarding how the Department of Education is
complying with certain provisions of the Individuals with Disabilities Education Act
(IDEA), as amended in 1997. I am sending an identical reply to Senator Gregg and Mr.
Hoekstra.
As you are aware, under section 687(c)(2) of IDEA, the Department may support
"...captioning of television programs, videos, or educational materials through
September 30, 2001; and after fiscal year 2001, ...captioning of educational, news, and
informational television, videos, or materials."
When the Department makes grant announcements for projects to provide captioning we
often have required that the use of Federal funds be limited to a percentage (usually about
50 percent) of the costs for captioning programs. Grantees are required to meet the
remaining cost of captioning programs. All of the programs captioned using IDEA funds
or a combination of IDEA and other funds must meet the requirements of the IDEA. The
Department does not make awards conditioned on grantees or other organizations
providing captioning for programs outside of those funded by our awards. Programs for
which captions are funded entirely by the private sector are outside of the Federal grant
process and are not subject to the requirements of the IDEA.
In order to ensure effective implementation of the requirement that programs captioned
be educational, news, or informational, we notified each project in existence on October
1, 2001 that it must add at least one educator in its advisory group. We also required
each project to obtain a certification from its advisory group that the television, videos, or
materials that it was currently captioning or proposing to caption were educational, news,
or informational, as required by the IDEA, as amended. If, as a result of this advisory
group review, any program failed to receive that certification, the grantee was requested
to submit to the Department's project officer a list of alternative programs proposed for
captioning that had been certified by its advisory group. As you have requested, a list of

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Page 2 - The Honorable John Boehner
names of the advisory panel members for the grantees under this program is provided as
an enclosure.
Since October 1, 2001, the Department has also requested advisory group members to
monitor the programs that they have certified as educational, news, or informational to
help ensure that program content continues to be educational, news, or informational.
As part of the grant making process for new awards, the Department will rely on several
levels of review to ensure that programming is educational, news, or informational within
the conditions of the law. First, the Department already requires each applicant to
establish, and maintain for the duration of their grant, an advisory group. These advisory
groups, which must include at least one educator, are required to certify that the
programs, videos, and materials that the grantees are proposing to caption are
educational, news, or informational. Second, during the review of applications for new
awards, the peer review panel will review proposed programs, videos, and materials to
determine if they are educational, news, or informational. Finally, before an award is
made, the Department's project officer will review programs to ensure that they are
educational, news, or informational.
On July 8, 2002 the Department published a competition notice for this program with the
following priority areas: national news and public information programs, local news and
public information programs, Spanish language programs, and accessible children's
television programs. In making new awards this year, it is our intent to target our
resources on those programs that are likely to have the greatest educational benefits. I
assure you that we take the statutory provisions very seriously and we are working very
diligently to ensure that the provisions of the law will be carried out.
I hope that this information is helpful to you as you prepare for the reauthorization of the
IDEA. If you have additional questions, please contact David deary in the Office of
Legislation and Congressional Affairs at 401-1030.

Stephanie Lee
Director
Office of Special Education Programs
Enclosure


UNITED STATES DEPARTMENT OF EDUCATION
OFFICE OF MANAGEMENT

JUL 30 2002
Mr. John J. Tommasini
Assistant Director
Bureau of Special Education
Pennsylvania Department of Education
333 Market Street
Harrisburg, Pennsylvania 17126-0333
Dear Mr. Tommasini:
This is in response to your April 25, 2002, letter to this Office in which you request guidance
under the Family Educational Rights and Privacy Act (FERPA). Specifically you ask whether
FERPA allows the Pennsylvania Department of Education (PDE) to share findings in complaints
filed under Part B of the Individuals with Disabilities Education Act (IDEA) with complainants
who are not the parent or guardian of the student to whom the complaint relates. This Office
administers FERPA and is responsible for providing technical assistance under that statute.
You explain in your letter that as the cognizant State education agency (SEA) under the IDEA
State complaint procedure, PDE is required to have procedures for "an organization or
individual" to file a signed written complaint that must include the facts upon which the
allegation is raised. 34 CFR §§ 300.660-662. IDEA regulations provide that within 60 days of
receipt of a complaint the SEA must issue a written decision addressing each allegation and
containing findings of fact, conclusions, and reasons for the SEA's decision. PDE's practice has
been to issue a written complaint report to both the local education agency (LEA) and the
complainant. Your letter notes that PDE's complaint findings contain personally identifiable
information about a student subject to the confidentiality and privacy protections of IDEA and
FERPA.
Based on guidance regarding IDEA State complaint procedures issued by the Department's
Office of Special Education Programs (OSEP) on July 17, 2000, PDE wishes to establish new
procedures for complaints from non-parents under Part B. You expressed doubt whether
redacting information about a student's identity would satisfy FERPA requirements and ask
whether this Office agrees with your conclusion that in order to comply with both IDEA and
FERPA, PDE must require any non-parent individual or organization to include parental consent
for the disclosure of student information before initiating an investigation under PDE's
complaint procedures.

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Page 2 - Mr. John J. Tommasini
OSEP's response to Question 2 in the July 2002 guidance provided with your inquiry states:
An SEA is required to resolve any complaint that meets the requirements of
§ 300.662, including a complaint alleging that a public agency has failed to
provide FAPE to a child with a disability....
If a complaint is filed by someone other than a parent, the SEA may not provide
personally identifiable information to the non-parent complainant as part of the
decision without parent consent. Under § 300.571(a)(1), parental consent
generally must be obtained before personally identifiable information is disclosed
to anyone other than officials of participating agencies collecting or using the
information under Part B.
We understand this guidance to mean that PDE may not refuse to resolve a complaint by a nonparent individual or organization if the parent refuses to consent to the disclosure of personally
identifiable information about the student. However, the SEA may not provide the personally
identifiable information from the complaint decision without the parent's consent. See §
300.571. Accordingly, if the PDE discloses a complaint decision that contains personally
identifiable information, the PDE must obtain the consent of the parent. See § 99.3 "Personally
identifiable information" and § 99.30 of the FERPA regulations. We have consulted with OSEP
in responding to your inquiry. If you have any further questions about IDEA in this regard, you
may call Mrs. JoLeta Reynolds in OSEP at (202) 205-5507.
I trust that the above information is responsive to your concerns. Should you have additional
questions about FERPA, please do not hesitate to contact this Office again.
Sincerely,

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