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

NOV 10 2004

Richard A . Cohen
Executive Director
Disabilities Rights Center, Inc .
18 Low Avenue
Concord, New Hampshire 03301
Dear Mr . Cohen :
This is in response to your letter to Stephanie Smith Lee, Director, Office of Special
Education Programs (OSEP) regarding New Hampshire's use of funds under the
Individuals with Disabilities Education Act (IDEA) for funding Statewide assessments .
You indicate in your letter that New Hampshire is proposing to use $299,999 of IDEA
discretionary funds and $441,167 of "sliver grant" funds to pay for the Statewide
assessments for grades 3,6, and 10 . You are requesting that OSEP review the State's
proposed diversion of these funds and determine whether such diversion is permissible
under the IDEA .
The two categories of IDEA funds that you indicate the State wants to use for the
assessment have different restrictions and purposes . "Sliver grant" funding (pursuant to
20 USC 1411(f)(4) of the IDEA) in the years it is available must be distributed to local
educational agencies (LEAs) . These funds may be used for a variety of purposes
including direct services ; addressing needs or carrying out improvement strategies
identified in the State's Improvement Plan under Part D of the IDEA ; adopting promising
practices, materials or technology; establishing or implementing interagency agreements
between LEAs and other agencies concerning services to children with disabilities ; and
cooperative problem solving between parents and school personnel . These funds are not
available to be used by the State for a State-level activity . In addition, "sliver grant"
funds are subject to State and local level supplement, and not supplant requirements
under the IDEA .
IDEA State set-aside funds ("discretionary" funds available under 20 USC 1411(f)(1)(3)) are available to be used by the State for a variety of purposes, including support and
direct services, and activities at the State and local levels to meet performance goals
established by the State under section 612(a)(16) of the IDEA and to support
implementation of the State Improvement Plan under Part D of the IDEA . These funds
are not subject to supplement, and not supplant requirements . These funds could be used
to pay for expenses related to the assessment of children with disabilities .
Further, if the State uses IDEA funds to pay for an activity that it previously had paid for
with State funds, it would have to be able to demonstrate that at least the same amount of
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Page 2 - Mr. Richard A . Cohen
additional State funds was spent on some other activity for the special education of
children with disabilities . Under the IDEA maintenance of effort requirement, the State
must not reduce the amount of State financial support for special education and related
services for children with disabilities, or otherwise made available because of the excess
costs of educating those children, below the amount of that support for the preceding
fiscal year . The State must be able to demonstrate that it meets this standard on either a
total or per capita basis .
Through the No Child Left Behind Act, New Hampshire receives funds, which are
estimated at 4 million for the 2005 fiscal year, for the purpose of developing State
assessments. Earlier this year, the Office of Elementary and Secondary Education sent a
letter to the Commissioner about the use of these funds. That letter may be found at the
following website address : http ://www .ed .gov/policy/elsec/guid/stateletters/uofnh .html
We are asking that the New Hampshire Department of Education submit documentation
regarding how funds for LEA capacity building and improvement were spent . I hope you
find this response helpful . If you would like further assistance, please contact Marie
Mayor at (202) 245-7433 or Dr . JoLeta Reynolds at (202) 245-7459 (press 3) .
Sincerely,

AA-~

~Xzjev

Stephanie Smith Lee
Director
Office of Special Education Programs
cc: Nicholas Donahue, Commissioner of Education
Virginia Irwin, Interim Director, Bureau of Special Education


UNITED STATES DEPARTMENT OF EDUCATION

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OFFICE OF SPECIAL EDUCATION AND REHABILITATIVE SERVICES

NOV - 3 2004

Louis H . Geigerman
National ARD/IEP Advocates
P.O. Box 16111
Sugar Land, Texas 77496-6111
Dear Mr. Geigerman :
This letter is in response to your request for clarification regarding the provision of
physical therapy and occupational therapy under Part B of the Individuals with
Disabilities Education Act (Part B) in light of the Office of Special Education Programs'
(OSEP) April 28, 2004, Letter to Janet D. Gully of the Illinois Department of Human
Services . OSEP's Letter to Gully provided guidance on the provision of physical therapy
services to infants and toddlers with disabilities under Part C of the Individuals with
Disabilities Education Act . Specifically, you ask: "What is OSEP's opinion on when a
therapy is/is not educationally relevant when the deficit that needs remediation impacts
behavior and learning?"
Under Part B, each State and its local school districts must make available a free
appropriate public education (FAPE) to all eligible children with specified disabilities in
mandatory age ranges . 34 CFR §§300 .121 and 300 .13 . FAPE is defined as :
Special education and related services that • Are provided at public expense, under public supervision and direction, and
without charge ;
• Meet the standards of the SEA [State educational agency], including the
requirements of this part ;
• Include preschool, elementary school, or secondary school education in the State ;
and
• Are provided in conformity with an individualized education program (IEP) that
meets the requirements of §§300 .340-300.350 . 34 CFR §300 .13 .
The term "related services" is defined broadly under Part B as including "transportation
and such developmental, corrective, and other supportive services as are required to assist
a child with a disability to benefit from special education ." 34 CFR §300 .24(a) .
Examples of related services identified in Part B include "occupational therapy" (34 CFR
§300 .24(b)(5)), "physical therapy" (34 CFR §300 .24(b)(8)) and medical services for
diagnostic and evaluation purposes (34 CFR §300 .24(b)(4)) . Medical services provided
by a licensed physician that are not for diagnostic and evaluation purposes are
specifically excluded . See 34 CFR §300 .24(b)(1)-(15) .
The determination as to whether physical therapy or occupational therapy is a related
service that is necessary to assist the child to benefit from special education must be
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Page 2 - Louis H . Geigerman
made by the child's IEP team on a case-by-case basis in light of the child's unique needs .
Under 34 CFR §300 .300(a)(3)(ii), the services and placement needed for a child to
receive FAPE must be based on the child's unique needs, and not on the type of
disability . Related services, including occupational therapy and physical therapy, that the
IEP team determines are necessary to assist the child to benefit from special education
must be included in the child's IEP and provided to the child at no cost to the parents .
With regard to your inquiry, Part B would not require an IEP team to include
occupational therapy or physical therapy, or any other related service in a child's IEP
based on a parental request for those services, unless the IEP team determines that the
services are required to assist the child to benefit from special education . Parents can
utilize Part B's due process procedures at 34 CFR §§300 .506-300 .514 if they disagree
with the determination about the special education and related services that are
appropriate and necessary for their child .
I hope this information is helpful . If you have any further questions, please feel free to
contact Dale King at 202-245-7405 .
Sincerely,

Stephanie Smith Lee
Director
Office of Special Education Programs
cc:

Mr. Gene Lenz
Deputy Associate Commissioner for Special Education
Texas Education Agency


UNITED STATES DEPARTMENT OF EDUCATION
w
o

x

OFFICE OF SPECIAL EDUCATION AND REHABILITATIVE SERVICES

OCT 2 8 20,04

Honorable Randy J . Dunn
Interim State Superintendent of Education
Illinois State Board of Education
100 North First Street
Springfield, Illinois 62777-0001
Dear Dr . Dunn :
This letter is in response to questions raised regarding services to students with
disabilities in East St . Louis. We hope that we have addressed the questions below in a
way that will help you and your staff to resolve the issues in that school district .
1 . What recourse would the district have against the State if IDEA funds were
withheld? Would the district be able to appeal to OSEP?
Part B of the Individuals with Disabilities Education Act (Part B) sets forth, at 20 USC
1413(d) and 34 CFR §300 .197, the procedures that the State educational agency (SEA)
must follow if it determines that it should withhold funds from a local educational agency
(LEA) or State agency . The regulation at 34 CFR §300 .197(a) provides :
(a) In General . If the SEA, after reasonable notice and an opportunity for a
hearing, finds that an LEA or State agency that has been determined to be eligible
under this section is failing to comply with any requirement described in
§§300 .220-300 .250, the SEA shall reduce or may not provide any further
payments to the LEA or State agency until the SEA is satisfied that the LEA or
State agency is complying with that requirement .
Thus, if the SEA determines that an LEA or State agency previously determined to be
eligible may not be complying with an applicable Part B requirement, it must provide that
LEA or State agency with reasonable notice and an opportunity for a hearing .
Part B does not specify the type of hearing that States must make available to an LEA or
State agency in this circumstance . As indicated in the pages from your State's
monitoring manual that were attached to your inquiry, the procedures affording a
subgrantee an opportunity for a hearing at 34 CFR §76 .783 of the Education Department
General Administrative Regulations (EDGAR) are applicable if a subgrantee alleges that
an SEA has violated a Federal statute or regulations in terminating further assistance to a
subgrantee for an approved project . 34 CFR §76 .783(a)(2) . That section cross references

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Page 2 - Honorable Randy J . Dunn

the application disapproval hearing procedures in 34 CFR §76 .401(d)(2)-(7) of EDGAR,
and a copy of these EDGAR provisions is enclosed with this letter .
After determining that an LEA or State agency is eligible for a subgrant, if the SEA
determines that it should withhold funds from one of its LEAs or State agencies because
that LEA or State agency is not complying with a particular Part B requirement, the SEA
must provide the hearing before it terminates funding. 34 CFR §76 .401(d)(2) and 34
CFR §76 .783(b) . Under 34 CFR §76 .401(d)(3), the affected applicant must request the
hearing within 30 days of the action of the SEA . Paragraph 76 .401(d)(4) provides that
the SEA must hold a hearing on the record within 30 days of the date of the hearing
request, and must issue its written ruling within 10 days of the date of the hearing . Under
34 CFR §76 .401(d)(5), if as a result of the hearing the SEA does not rescind the
disapproval, the LEA may file, within 20 days of being notified of the results of the
SEA's review, a notice of appeal to the Secretary of Education . The Secretary has
delegated responsibility for appeals under 34 CFR §76 .401(d)(5) involving Part B to the
Assistant Secretary for Special Education and Rehabilitative Services .
The regulation at 34 CFR §76 .401(d)(5) provides that if supported by substantial
evidence, the SEA's findings of fact are final, and 34 CFR §76 .401(d)(6)(ii) provides that
the Secretary can overturn the SEA's action only if it was contrary to the Federal statutes
or regulations that govern the applicable program . Your letter makes reference to a June
27, 2002, decision of the_ former Assistant Secretary for Special Education and
Rehabilitative Services in the appeal under 34 CFR §76 .401(d)(5) by the ABC
Alternative Learning Center of a hearing decision of the Arizona Department of
Education . That decision is an example of a situation where an LEA invoked the
procedures in 34 CFR §76 .401(d)(5), after notice and hearing at the SEA level, to appeal
the State's final action withholding Part B funds from the LEA under 34 CFR
§76.401(d)(5) to the Secretary of Education .
We also have reviewed the procedures referenced in the attached pages from your State's
monitoring manual entitled, "Enforcement of Legal Obligations ." Most of the
information contained there is consistent with applicable Federal requirements ; however,
we have the following comments and suggestions . In the section entitled "Enforcement
of Legal Obligations," language from 20 USC 1413(d) or the implementing Part B
regulation at 34 CFR §300 .197 should be added, since Part B provides for notice and an
opportunity for a hearing in the case of LEA or State agency noncompliance after an
LEA has approved the subgrantee's application . The section entitled Notice and
Opportunity for Hearing on LEA Applications should be modified to include the citation
to and language from 20 USC 1413(c) (Notification to.LEA or State agency in case of
ineligibility) . A reference to the Part B regulation implementing this statutory provision
at 34 CFR §300 .196 also could be added . The language from section 613(a)(8), which is
no longer a current provision of IDEA, should be removed .
2 . Pursuant to 34 CFR §300.360(a) and other than paying for a private provider,
what other mechanisms are there for an SEA to provide special education and
related services directly to children with disabilities in an LEA?

Page 3 - Honorable Randy J . Dunn

Part B sets forth procedures, at 20 USC 1413(h) and 34 CFR §§300 .360 and 300 .361, for
an SEA to follow in using Part B funds, that would otherwise have been available to an
LEA or State agency, for the SEA to provide direct services to children with disabilities
residing in an area served by an LEA or State agency . As referred to in your inquiry, this
authority could be utilized under the circumstances set out at 34 CFR §300 .360(a)(1)-(4)
if the SEA determines that the LEA or State agency :
(1) Has not provided the information needed to establish the eligibility of the
agency under Part B of the Act;
(2) Is unable to establish and maintain programs of FAPE that meet the
requirements of this part ;
(3) Is unable or unwilling to be consolidated with one or more LEAs in order to
establish and maintain the programs ; or
(4) Has one or more children with disabilities who can best be served by a
regional or State program or service-delivery system designed to meet the
needs of these children .
The regulations provide, at 34 CFR §300 .360(c), that the SEA may provide special
education and related services directly, by contract, or through other arrangements, and at
34 CFR §300 .361, in the manner and at the location it considers appropriate (including
regional or State centers) . However, the manner in which the education and services are
provided must be consistent with the Part B statute and regulations (including the least
restrictive environment provisions of §§ 300 .550-300 .560) . The regulations do not
otherwise specify how the SEA meets its direct services obligations, but we find nothing
in Part B that would preclude an SEA from using staff of other LEAs or State agencies, if
the SEA determines that those arrangements would be appropriate .
3. If IDEA funds are withheld, how long should these funds be withheld? What is
the mechanism for reinstating IDEA funds to an LEA?
As explained above, the Part B statute and regulations specify, at 20 USC 1413(d)(1) and
34 CFR §300 .197(a), that if the SEA determines, after reasonable notice and an
opportunity for a hearing, that an LEA or State agency that has been determined to be
eligible under this section is failing to comply with any requirement, the SEA shall
reduce or not provide any further payments to the LEA or State agency until the SEA is
satisfied that the LEA or State agency is complying with that requirement. If the SEA
utilizes this authority, Part B does not specify a time period for the SEA to use to
determine whether the LEA or State agency has come into compliance . However, once
the SEA determines that the LEA or State agency has come into compliance, it would be
appropriate for the SEA to send a letter, informing the LEA or State agency of its
decision to end the withholding and of the basis on which the SEA has determined that it
is satisfied that the LEA or State agency is complying with Part B .

Page 4 - Honorable Randy J . Dunn

I hope that this clarification is helpful and encourage you to contact Cynthia Bryant at
(202) 245-7284 or Larry Ringer at (202) 245-7496 of my office for further assistance .

Sincerely,

P492~~'9 . hzc-le-j /-ZStephanie Smith Lee
Director
Office of Special Education Programs

cc: Dr. Christopher A . Koch
Enclosure


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

OCT

- 1

2004

Contact Persons
Ruth Ryder
Name:
Telephone :
202.245 .7513
Rex Shipp
Name:
Telephone :
202.245 .7523
1

OSEP 05-01
MEMORANDUM
TO:

Chief State School Officers
State Directors of Special Education

FROM:

Stephanie Smith Lee
Director
Office of Special Education Programs

SUBJECT:

Part B Grant Award

The Department of Education Appropriations Act for Federal Fiscal Year (FFY) 2004 provided
that part of the funds for the Individuals with Disabilities Education Act Section 611 Grants to
States program become available on July 1, 2004 and the remainder of on October 1, 2004 .
Attached is the Part B grant award containing the additional funds that became available for
your State on October 1, 2004 .
Block 10 of the Grant Award Notification addresses allowable pre-award costs from the funds
made available by this supplemental grant award . In addition, we have attached the
October 1, 2004 non-regulatory guidance issued by the Department of Education, pertaining to
programs with advance appropriations in FFY 2004 . Please note that if special conditions were
placed on your FFY 2004 Part B grant award from funds that become available for obligation to
States on July 1, 2004, these conditions also apply to the enclosed funds .
Should you have any questions, please contact Ruth Ryder at 202 .245 .7513 or Rex Shipp at
202 .245 .7523. We appreciate your on going commitment to providing quality services to
children and youth with disabilities .
Attachments

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E
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UNITED STATES DEPARTMENT OF EDUCATION
WASHINGTON, D .C . 20202-

\

-frA

MEMORANDUM

DATE:

October 1, 2004

TO:

CHIEF STATE SCHOOL OFFICERS

FROM:

Raymond Simon
Assistant Secretary for Elementary and Secondary Education
Susan Sclafani
Assistant Secretary for Vocational and Adult Education
Troy R. Justesen, Ed .D.
Delegated the authority to perform the functions of Assistant Secretary for
Special Education and Rehabilitative Services

SUBJECT : Nonregulatory guidance pertaining to programs with advance
appropriations in FY 2004
We are writing to provide you with guidance regarding advance appropriations that affect
some of our programs in the Fiscal Year (FY) 2004 Department of Education
Appropriations Act (P .L. 108-199). In that Act, Congress appropriated a sum of funds for
several Federal education programs but made only a portion of those funds available for
obligation beginning on July 1, 2004 . The remaining funds did not become available for
obligation until October 1, 2004 . The initial grant awards issued for the affected
programs included only the amount of funds made available on July 1 .
We have prepared the enclosed guidance for your information . This guidance is similar to
the guidance the Department sent to State officials in the previous four years . We have
attempted to provide State and local educational agencies with as much flexibility as
possible consistent with applicable Federal budget and appropriations laws .
Please contact us if you need additional clarification . We look forward to working with
you as you implement Federal education programs during this school year .
Enclosure

Q1 . What does it mean when Congress "advances" a portion of a program's appropriation?
Al . In the Fiscal Year (FY) 2004 appropriations for a number of Federal education programs,
Congress appropriated a sum of funds but made only a portion available for obligation on July 1,
2004 . The remaining funds did not become available for obligation until October 1, 2004 .
Advancing a portion of a program's appropriation in this manner allowed Congress to appropriate
more money than otherwise would have been permitted under the annual budget caps on Federal
discretionary spending, because the advance appropriation (i .e ., the amount that becomes
available October 1) will count against the FY 2005 cap rather than the FY 2004 cap .
Q2 . Which programs have advance appropriations in FY 2004?
A2 . In the FY 2004 appropriations act, Congress passed an advance appropriation for the
programs listed in the following table . Unlike in previous years, the Congress did not provide an
advance appropriation for Safe and Drug-Free Schools (ESEA Title IV, Part A) or Innovative
Programs State Grants (ESEA Title V, Part A) .
Program

Amount available
July 1

Amount available
October 1

Education of the Disadvantaged (ESEA, Title I,
Part A)

$5,150,708,200

$7,188,301,000

Reading First State Grants (ESEA Title I, Part
_
B, Subpart 1)

828,923,000

195,000,000

Improving Teacher Quality State Grants (ESEA
Title II, Part A)

1,495,126,132

1,435,000,0001

Vocational Education State Grants (Perkins Act,
Title I)

404,007,610

791,000,000

4,655,106,452

5,413,000,000

Individuals with Disabilities Education ActGrants to States (Part B, section 611)

Q3 . Because a portion of funds is not available until October 1, will a State receive two grant
awards for FY 2004?
A3 . Yes. For each affected program, the Department issued, to States meeting the necessary
legal requirements, an initial grant award obligating the State's portion of funds the appropriations
act made available on July 1 . The Department is now issuing supplemental awards for each
affected program obligating the remaining funds .
Q4 . How does a State make grant awards to its subgrantees?
A4 . Prior to October 1, a State could not award more funds than the Department had made
available to the State from the "July 1 funds ." Subject to this condition, however, a State had
several options for awarding "July 1 funds" to its subgrantees . A State, like the Department, could
calculate each subgrantee's allocation and award a percentage of that allocation commensurate
with the amount of "July 1 funds" available to the State . The State would then issue a
supplemental grant after October 1 awarding the remaining funds . However, if the State knew
that certain subgrantees will need more funds prior to October 1 than their initial awards would
provide, a State could award those subgrantees a larger percentage of the "July 1 funds,"
provided that doing so did not disadvantage the remaining subgrantees and that all subgrantees
receive their correct share of the total funds appropriated in the FY 2004 appropriations act after
the "October 1 funds" are awarded . There also may be circumstances in which a State would

make full grant awards after October 1, 2004 . For Title I Concentration Grants, Targeted Grants,
and Education Finance Incentive Grants, no funds were available for obligation until after October
1, 2004 .
Q5 . How long are the funds that become available on October 1 available for obligation by State
and local recipients?
A5. With the exception of the Vocational Education State Grant program, the funds that become
available on October 1, 2004 will be available for obligation by State and local recipients through .
September 30, 2006 . Note that the funds that were made available on July 1, 2004 also are
available for obligation until September 30, 2006 . This period of availability includes the initial
period authorized by the appropriations act and an additional 12 months authorized by section
421(b) of the General Education Provisions Act (the "Tydings Amendment") . Thus, funds
awarded on July 1 are available for obligation for 27 months, while funds awarded on October 1
are available for obligation for 24 months .
With respect to Vocational Education State Grant funds, a State may make these funds available
to subgrantees for only one academic year . A subgrantee must return any unexpended funds for
the State to reallocate . The returned funds will be available for the State to reallocate and for new
subgrantees to obligate until September 30, 2006 .
Q6 . May a State use and permit a subgrantee to use funds it receives on or after October 1 to
retroactively fund allowable pre-award costs it may have incurred prior to October 1 in operating
its school year 2004-2005 program?
A6 . Yes . In operating its school year 2004-2005 program, a State may use and may authorize a
subgrantee to use funds it receives on or after October 1, 2004 to retroactively fund allowable
pre-award costs it may have incurred between the date it was first authorized to begin obligating
FY 2004 funds and October 1 . (For example, for most States, the date they may begin obligating
FY 2004 formula grant funds would be July 1 . However, under 34 CFR 76 .703, if a State plan is
due and is not submitted in substantially approvable form in a timely manner, that State's
authority to obligate Federal funds could be delayed .)
The Department considers (consistent with 34 CFR 76 .707) the obligation of pre-award costs to
be made at the State or local level on the first day of the supplemental grant or subgrant period i .e ., a date on or after October 1 . They must be costs that would be allowable if incurred after the
date of the award and must be approved, in writing, by the Department (in the case of State
grants) or the State (in the case of State subgrants) .
Q7 . Must a State or subgrantee account for funds that become available on July 1 separately
from funds that become available on October 1?
A7 . No . However, a State must be able to show that each subgrantee received its correct share
of the total FY 2004-appropriated funds consistent with any statutory within-State formula
applicable to a program . Moreover, if a State does not award pre-award costs to its subgrantees,
the subgrantees must be able to demonstrate that their obligations prior to October 1 do not
exceed their allocation of "July 1 funds ."
Q8 . If a program has a limitation on the amount of funds that may be carried over to the following
fiscal year, how is that amount calculated?
A8 . Under Part A of Title I of the ESEA, an LEA generally may not carry over to the 2005-2006
school year more than 15 percent of the Part A, subpart 2 formula grant funds it receives for FY
2004 . These caps are calculated on the total allocation that an LEA receives from its July 1 and
October 1 installments .


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

0J
AUG 2 4 2004

Leigh M . Manasevit
Attorney at Law
Brustein and Manasevit
3105 South Street, NW
Washington, DC 20007
Dear Mr . Manasevit:
This is in response to your June 30, 2004 letter to me and Mr . Raymond J . Simon,
Assistant Secretary, Office of Elementary and Secondary Education . You ask for
guidance as to whether the "local educational agency (LEA) schoolwide cap, established
by 20 USC § 1413 (a)(2)(D) of the Individuals with Disabilities Education Act (IDEA),
[applies] to schoolwide programs that elect not to combine Part B funds in their
schoolwide plan ."
Consistent with 20 USC §1413(a)(2)(D) of the IDEA and the final implementing
regulation at 34 CFR §300.234(a), and 34 CFR §200 .29(c)(3) of the regulations
implementing Title I of the Elementary and Secondary Education Act (ESEA), a school
that operates as a schoolwide program may consolidate funds received under Part B of
the IDEA. However, under 34 CFR §300 .234(a), the amount of funds consolidated may
not exceed the amount received by the LEA under Part B of the IDEA for that fiscal year,
divided by the number of children with disabilities in the jurisdiction of the LEA, and
multiplied by the number of children with disabilities participating in the schoolwide
program.
A school also may consolidate funds it receives for students with disabilities under
section 8003(d) of Title VIII of the ESEA, which provides additional funds to school
districts that educate federally connected children who are eligible for services under the
IDEA. A school that consolidates funds under Part B of the IDEA or section 8003(d) of
the ESEA may use those funds in its schoolwide program for any activities under its
schoolwide program plan but must comply with all other requirements of Part B of the
IDEA, to the same extent it would if it did not consolidate funds under Part B of the
IDEA or section 8003(d) of the ESEA in the schoolwide program, including providing
services to students with disabilities in accordance with a properly developed
individualized education program and ensuring that students with disabilities and their
parents are afforded all the rights and services guaranteed to children with disabilities
under the IDEA .

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Page 2 - Leigh M. Manasevit, Esq.
Unlike other Federal education programs whose funds are combined in a schoolwide
program, the IDEA only allows flexibility in the use of funds. All other requirements of
the IDEA must be met for children with disabilities in schoolwide program schools.
Given the unique special education and related services needs of students with
disabilities, it is conceivable that additional Part B funds, beyond those consolidated
pursuant to 20 USC §1413(a)(2)(D), may be necessary to ensure that all students with
disabilities in a schoolwide program school receive a free appropriate public education .
There is nothing in the IDEA or its final implementing regulations that would preclude an
LEA from using Part B funds, not consolidated with other funds to carryout a schoolwide
program plan under section 1114 of the ESEA, to meet the special education and related
service needs of individual students with disabilities in a schoolwide program school . In
addition, Part B funds used in a schoolwide program school that are not used to carry out
the schoolwide program plan would not be subject to the cap on the amount of Part B
funds consolidated under 20 USC §1413(a)(2)(D) . However, any Part B funds not
consolidated with other funds to carry out the schoolwide program must be expended
consistent with the IDEA and must be accounted for separately.
I hope you find this explanation helpful . If you would like further assistance, please
contact Dale King at (202) 245-7405 or Dr . JoLeta Reynolds at 202-245-7459 (press 3)
and ask to be transferred to Dr . Reynolds.
Sincerely,

Troy R
t
Ed .D .
Acting Depu
sistant Secretary
Office of Speci Education
and Rehabilitative Services
cc: Raymond Simon
Assistant Secretary


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

AUG

1 2 2004

This is in reply to your letter to the Office of Special Education Programs (OSEP) in
which you continue to express your dissatisfaction with OSEP's response to your
concerns. In OSEP's December 10, 2003, September 25, 2002, and April 2, 2002 letters,
and in our previous communications with you over the past nine years, OSEP has
carefully examined the questions you raised regarding State sovereign immunity, the
State's program of Scholarships to Public or Private Schools of Choice for Students with
Disabilities and whether Florida has a one-tier or two-tier due process system . As we
have stated in previous correspondence to you, we believe we have fully addressed these
questions and, therefore, have no additional response .
In your letter you continue to raise a question regarding the Florida Second District Court
of Appeals being unable to accept additional evidence and do a de novo review. In our
December 10, 2003 letter to you we replied that, under section 615(i)(2) of the
Individuals with Disabilities Education Act (IDEA), any party aggrieved by the findings
and decisions of the hearing officer in a one-tier system has the right to bring a civil
action in any State court of competent jurisdiction or in a district court of the United
States without regard to the amount of controversy . The court must receive the records of
the administrative proceedings and hear additional evidence at the request of a party .
Upon further review of Florida's Eligibility Documents for federal fiscal year (FFY)
2004, including the Eligibility Documents submitted to OSEP on April 13, 2000, OSER
notified Florida that the provisions in the Florida statute and regulations under which a
party aggrieved by the final decision can choose to appeal to a State court that does not
have authority to hear additional evidence at the request of a party are inconsistent with
sections 615(i)(1) and (2) of the IDEA . OSEP is currently working with the Florida
Department of Education as it seeks to revise its statute and regulations to be consistent
with section 615(i)(1) and (2) of the IDEA and 34 CFR ยง300 .512(a) and (b) of the final
regulations implementing the IDEA . In the meantime, as a part of Florida's Eligibility
Documents for FFY 2004, Florida has made an assurance, under 34 CFR ยง80 .11(c), that
it will comply with all applicable federal statutes and regulations in effect with respect to
the periods for which it receives grant funding .

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Page 2 We hope you find this information helpful.
Sincerely,

Stephanie Smith Lee
Director
Office of Special Education Programs
cc: Michele Polland
Florida Department of Education


UNITED STATES DEPARTMENT OF EDUCATION

a

z

OFFICE OF SPECIAL EDUCATION AND REHABILITATIVE SERVICES

JUL 1 9 2004

Leigh M. Manasevit
Attorney at Law
Brustein and Manasevit
3105 South Street, NW
Washington, DC 20007
Dear Mr . Manasevit :
This is in response to your letter on behalf of the North Carolina Department of Education to the
Office of Special Education Programs (OSEP) regarding OSEP's December 24, 2003 letter to
you . Your inquiries raise additional issues related to the requirement under Part B of the
Individuals with Disabilities Education Act (IDEA) for parent consent to the initial provision of
special education and related services . As you noted in your letter, school districts may not use
the Part B due process hearing procedures to seek an override of the parental refusal to provide
the requisite consent under 34 CFR §300 .505(a)(1)(ii) to the initial provision of special education
and related services . In your letter, you raise questions regarding the impact of IDEA on
settlement agreements between parents and local educational agencies . The Department
continues to review this issue and will respond to your question regarding settlement agreements
in a separate letter. The remaining issues raised in your letter are restated below along with our
responses.
Public agency's obligation to provide FAPE and any protections for the public agency
when parents refuse to consent to the initial provision of special education and related
services .
Under the IDEA, an individual parent's refusal to consent to the initial provision of special
education and related services relieves the school district of the obligation to provide a free
appropriate public education (FAPE) to that child until the parent provides that consent.
However, in order for the school district to meet its obligation to make FAPE available to that
child, it must ensure it has met its obligations under the IDEA to (1) make FAPE available to the
child with disabilities (34 CFR §300.300(a)(1)) ; (2) attempt to obtain parent consent prior to
conducting an initial evaluation or reevaluation and prior to the initial provision of special
education and related services (34 CFR §300 .505(a)) ; and (3) fully inform the parent 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 and the fact that FAPE services and IDEA
protections are not available to the child if consent is not provided (34 CFR §300 .500(b)(1)) .
If North Carolina is concerned that school districts may not be protected from future liability or
later questions as to whether the school district met its obligation to fully inform parents and
offer FAPE to the child, it may wish to encourage school districts to maintain written

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

Page 2 - Leigh M . Manasevit, Esq .
documentation of their efforts in meeting the obligations under IDEA and the parents' refusal to
consent to the initial provision of special education and related services . North Carolina also
may wish to advise school officials to consider the measures used to document attempts to obtain
consent for reevaluations, such as (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 ; and (3) detailed records of visits to the parent's home or place of employment .
Effect of parental refusal to consent to the initial provision of special education and
related services on the right of a student with disabilities to receive compensatory
services .
As stated above, where a public agency has offered a student with a disability FAPE and the
parent of the student with a disability refuses consent for the initial provision of special
education and related services, the parent is considered to have refused on behalf of the child the
right to the benefits of FAPE and the IDEA's protections, including the right to compensatory
services under the IDEA . A parent may still request a new evaluation be conducted or challenge
the appropriateness of the services that are offered as FAPE by the school district .
Applicability of IDEA disciplinary protections to children with disabilities whose
parents refuse consent to the initial provision of special education and related services .
A student with a disability who is not receiving special education and related services because
his or her parent has refused to provide consent to the initial provision of special education and
related services does not have the discipline protections of 34 CFR §§300 .520-300 .529 and,
therefore, may be disciplined in the same manner as nondisabled students . This means if
nondisabled students are long-term suspended or expelled for a particular violation of school
rules, a student with a disability whose parent has refused to consent to the initial provision of
special education and related services also may be long-term suspended or expelled. Finally,
school officials can report crimes committed by children with disabilities to appropriate law
enforcement authorities to the same extent as they do for crimes committed by nondisabled
students .
I hope you find this explanation helpful . If you would like further assistance, please contact Dale
King at (202) 245-7405 .
Sincerely,

Stephanie Smith Lee
Director
Office of Special Education Programs
cc:

Ms. Mary N . Watson, Director, Exceptional Children Division
North Carolina Department of Public Instruction


UNITED STATES DEPARTMENT OF EDUCATION
0
OFFICE OF SPECIAL EDUCATION AND REHABILITATIVE SERVICES

J U L 1 4 2004

Mr. Howard J . Fulfrost
Lozano Smith Attorneys at Law
2800 28th Street, Suite 240
Santa Monica, California 90405-2934
Dear Mr. Fulfrost :
This is in response to your letter to the Office of Special Education Programs (OSEP)
containing four sets of questions regarding school districts' inability under Part B of the
Individuals with Disabilities Education Act (IDEA) to use the Part B due process hearing
procedures to override a parent's refusal to consent to the initial provision of special
education and related services under the IDEA .
In your letter you specifically reference 34 CFR §300.507(a) of the regulations, which
states that "a parent or a public agency may initiate a hearing on any of the matters
described in §300 .503(a)(1) and (2) relating to the identification, evaluation or
educational placement of a child with a disability, or the provision of FAPE [free
appropriate public education] to the child." The more specific regulatory language
regarding parental consent would take precedence over the more general language in 34
CFR §300 .507(a) regarding due process hearing procedures . 34 CFR §300 .505(a) states
that parental consent must be obtained before an evaluation is conducted . It further states
that parental consent for initial evaluation may not be construed as consent for initial
placement for receipt of special education and related services . This provision is
immediately followed by 34 CFR §300 .505(b), which states that if the parents of such
child refuse consent for evaluation, the agency may continue to pursue an evaluation by
utilizing the mediation and due process procedures under 34 CFR §§300 .506-300.509,
except to the extent inconsistent with State law relating to parental consent . There is no
similar express authority for public agencies to use mediation or due process procedures
to override a parent's refusal to consent to the initial provision of special education and
related services. In fact, the express authorization to override a parent's refusal to
consent in this case was removed from the Part B regulations in response to the 1997
Amendments to the IDEA .
Your letter raises several questions, which are stated below with our response to each
question . We have grouped questions that are similar .
How should school districts address lack of parental consent to the initial
provision of services? How should a district respond where a parent does not
consent to any of the initial services and the district believes that the program is
necessary for the student to receive FAPE?

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Page 2 - Mr . Howard J . Fulfrost
Under the IDEA, a parent's refusal to consent to the initial provision of special education
and related services relieves the school district of the obligation to provide FAPE to that
child until the parent provides that consent . However, in order for the school district to
meet its obligation to make FAPE available to that child, it must ensure it has met its
obligations under the IDEA to (1) make FAPE available to the child with disabilities (34
CFR §300 .300(a)(1)) ; (2) attempt to obtain parent consent to conduct an initial evaluation
or reevaluation and for the initial provision of special education and related services (34
CFR. §300.505(a)) ; and (3) fully inform the parent 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 and the fact that FAPE services and IDEA
protections are not available to the child if consent is not provided (34 CFR
§300 .500(b)(1)). The 1997 IDEA Amendments reflect a judgment that once parents are
knowledgeable about their child's eligibility for special education and related services
under the IDEA and receive a proposed individualized education program, they have the
right to make the decision as to whether the initial receipt of special education and related
services' is appropriate for their child . School districts may wish to maintain written
documentation of their efforts in meeting the obligations outlined above and the parents'
refusal to consent to the initial provision of special education and related services .
Although the school district may not use the due process procedures or other methods
under the IDEA to override a parent's refusal to consent to the initial provision of special
education and related services, in California, where mediation is offered prior to a due
process hearing request, school districts may offer mediation to try and resolve parental
refusal to consent to the initial provision of special education and related services,
provided, however, that it must be clear to both parties that participation in mediation is
voluntary on the part of the parents and the school district . 34 CFR §§300 .506(a) and
(b)(1). The school district may use mediation to informally explain to the parent the
potential consequences to their child's education if the parent chooses not to provide
consent for the initial provision of special education and related services for their child.
What if the parent later claims that the lack of consent was due to the district's
failure to offer FAPE, and not due to a refusal to accept all special education
services? In this instance, how can the district protect itself from possible future
claims by the parent if it cannot seek a due process hearing? How can the
district protect itself from possible future claims if it cannot seek a due process
hearing when a parent fails and/or refuses to consent to the initial provision of
special education and. related services?
If a school district is diligent in meeting its responsibilities under the IDEA as outlined
above, the district will have met its obligation to offer FAPE . However, school districts
may wish to document their offer of FAPE and attempts by school officials to fully
inform parents in order to obtain their consent in the event there are any later questions as
to whether a school district met its duty to fully inform parents and offer FAPE to the
child . If school districts are concerned about school officials being able to demonstrate
that they made good faith efforts to obtain consent for the initial provision of special

Page 3 - Mr. Howard J . Fulfrost

.

education and related services, they may wish to advise school officials to consider the
measures used to document attempts to obtain consent for reevaluations, such as (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 ; and (3) detailed
records of visits to the parent's home or place of employment.
How should a district respond where it believes that, without special education a
student might harm himself and/or other students ; or that the student interferes
with others' learning in the general education program? In this instance, does
the district have any way of requiring the student to participate in special
education and related services without initial parent consent?
Part B of the IDEA does not permit a school district to use the IDEA due process hearing
procedures to override a parental refusal to consent to the initial provision of special
education and related services or require a student to participate in special education and
related services without initial parent consent, even if a student might harm himself
and/or other students or interfere with the learning of other students . A school district
may take measures necessary to ensure the safety of all students including a student with
a disability whose parents will not consent to the initial provision of special education
and related services . However, a student with a disability who is. not receiving special
education and related services because his or her parent has refused to provide consent to
the initial provision of special education and related services is not provided the
discipline protections under the IDEA at 34 CFR §§300.520 - 300.529 and, therefore,
may be disciplined in the same manner as nondisabled students . This means if
nondisabled students are suspended or expelled for a particular violation of school rules,
a student with a disability whose parent has refused to consent to the initial provision of
special education and related services may also be suspended or expelled . Finally, school
officials can report crimes committed by children with disabilities to appropriate law
enforcement authorities to the same extent as they do for crimes committed by
nondisabled students.

•

Is California law consistent with federal law in light of Letter to Cox and Letter to
Yudien, 38 IDELR 267 (OSEP 2003)?

Your last question asks whether California Education Code provisions at 30 Cal . Educ.
Code §56346 are consistent with 34 CFR §300 .505(a)(1) of the IDEA in light ofLetter to
Cox and Letter to Yudien . The California Department of Education (CDE) previously
submitted 30 Cal . Educ . Code §56346 as part of its eligibility documents under Part B
and OSEP's analysis of this statutory provision requested that the State clarify that 30
Cal. Educ . Code §56346 does not allow school districts to use the Part B due process
hearing procedures to override a parent's refusal to consent to the initial provision of
special education and related services . CDE indicated in its March 2003 response that 30
Cal. Educ . Code §56346 is consistent with 34 CFR §300 .505(a)(1) because it "does not
override parental refusal to initiate services since the parent has signed consent to those
portions of the IEP they are in agreement ." CDE further clarified in its April 2004
response to OSEP that :

Page 4 - Mr. Howard J . Fulfrost

". . . EC 56346(a) requires that if the parent refuses all services, an LEA cannot
initiate any services . If a parent refuses only a part, as in EC 56345(b) [sic
56346(b)] of the proposed IEP, logically they agreed with the other part ala (a),
otherwise they agreed to none . CDE assures an agency may not use due process
to override a parent's refusal for all services ."
In the memorandum and issues chart that OSEP sent to CDE on May 20, 2004, OSEP
informed CDE that it must include and maintain as a part of the State's eligibility
document the issues chart and the assurance that an agency may not use due process to
override a parent's refusal to consent to the initial provision of special education and
related services . Furthermore, OSEP has requested that CDE clarify the language in EC
56346 with regard to situations where the parent refuses consent to all but a related
service on the initial IEP . OSEP explained that: (1) if a parent refuses consent to all but
a related service in the initial IEP and has not previously separately provided consent to
the initial provision of special education and related services, the school district is not
required to (but may as California's statute indicates) provide that related service ; and (2)
the school district may not, under these circumstances, use the Part B due process hearing
procedures to override the parent's refusal to consent to the initial provision of special
education and other related services . OSEP has also requested that CDE clarify that Part
B funds are not used to provide the related service under these specific circumstances
(when a parent has not consented to the initial provision of special education and related
services but has only provided consent to a related service) . In its April 2004 submission,
CDE informed OSEP that the State has proposed changes to EC 56346(a) in AB 152 that
contain the provision that parent consent must be ..obtained before initial provision of
special education and related services to a child with a disability .
I hope you find this response helpful . If you would like further assistance, please contact
Dale King at (202) 245-7405 or Larry Ringer at (202) 245-7496 .
Sincerely,
PaZie-~ 9 . /~-

e ;,,

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

Dr. Alice Parker
California Department of Education


UNITED STATES DEPARTMENT OF EDUCATION
0
x

OFFICE OF SPECIAL EDUCATION AND REHABILITATIVE SERVICES

JUL 13 2004

Thank you for your communication with the U .S. Department of Education over the past year.
This letter is in response to several communications, written and other, regarding the educational
program of your daughter. Specifically, you have written that you are satisfied with her current
placement, but have alleged that several past complaints have not been resolved .
The Office of Special Education Programs (OSEP) administers the Individuals with Disabilities
Education Act (IDEA) . Under the Part B regulations of the IDEA (Part B), parents of children
with disabilities have two separate means available to them for resolving disputes with public
agencies concerning the education of their children -- i .e., (1) the State complaint resolution
system required in 34 CFR §§300 .660-300 .662, and (2) the impartial due process hearing system
required in 34 CFR §§300 .506-300 .513 . States also are required to have mediation available, at a
minimum, when a due process hearing is requested . Additionally, underr the current Part B
regulations, at 34 CFR §300.662(c), the alleged violation must have "occurred not more than one
year prior to the date that the complaint is received [by the State educational agency] unless a
longer period is reasonable because the violation is continuing, or the complainant is requesting
compensatory services that occurred not more than three years prior to the date the complaint is
received under 34 CFR §300 .660 (a) ."
The Part B regulations implementing the IDEA do not contain a mechanism for review of a
State's decision when a complainant is dissatisfied with the SEA's resolution of a complaint . A
State decision about a complaint may be appealable under State law to a civil court of competent
jurisdiction, depending on .the laws of that State . Part B of the IDEA does not provide for an
OSEP review of individual State-level complaint decisions or due process hearings . We have
reviewed the information you have provided and determined that there is nothing further our
office can provide at this time . If this office can provide any further information about IDEA in
the future, please contact Rex Shipp, State contact for New Hampshire at (202) 245-7523 .
Sincerely,

Stephanie Smith Lee
Director
Office of Special Education Programs
Cc: Dr. Mary Ford
Troy Justesen
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Our mission is to ensure equal access to education and to promote educational excellence throughout the Nation .


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

JUN

1x004

Honorable Chas Anderson
Deputy Commissioner
Minnesota Department of Education
1500 Highway 36 West
Roseville, Minnesota 55113-4266
Dear Deputy Commissioner Anderson :
This is in response to your May 12, 2004 letter to Suzanne Sheridan, of our Office of the General
Counsel . In that letter, you set forth a corrective action plan for ensuring that all local education
agencies (LEAs) receive the flow-through funds to which they are entitled, pursuant to the
formulae set forth in Part B of the Individuals with Disabilities Education Act, at 20 USC
1411(d) and (e) and 1419(g) . The Office of Special Education Programs accepts that plan .
In your letter, you also ask for clarification as to whether the Minnesota Department of
Education (MDE) can direct LEAs to expend a portion of the Part B flow-through funds that they
receive from MDE in specified ways . You explain that MDE has directed all LEAs in the State
to use a specified portion of the Part B flow-through funds they receive for personnel
development, transition, coordinated services, and training in specific research based specialized
instruction techniques . You further explain, however, that MDE now believes that it does not
have authority to require all LEAs in the State to set aside certain portions of their Part B, section
611 flow-through allocations for specific State priorities, and request our guidance as to whether
that assumption is correct .
Part B requires, at 20 USC 1412(a)(18)(a) and 34 CFR §300 .155, that MDE ensure that public
agencies in the State expend all Part B funds that they receive in a manner that is consistent with
Part B . MDE may not establish specific State priorities and require all public agencies in the
State to spend a portion of their flow-through funds in accordance with those priorities .
We, however, recognize the importance of the priorities that MDE has established (i.e.,
personnel development, transition, coordinated services, and the provision of appropriate
specialized instruction). Indeed, Part B requires that, as part of its general supervisory
responsibility under 20 USC 1412(a)(11) and 34 CFR §§300 .141 and 300 .600), MDE must
ensure that public agencies comply with the Part B requirements related to qualified personnel,
transition, and the provision of a free appropriate public education . MDE must exercise its
general supervisory responsibility (including its monitoring and complaint resolution procedures)
to ensure compliance with all Part B requirements .

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

Page 2 - Honorable Chas Anderson
If you have any questions regarding this letter, please contact Lawrence Ringer of my staff at
(202) 205-9079 .

U
Stephanie Smith Lee
Director
Office of Special Education Programs
cc :

Dr. Norena Hale


T

UNITED STATES DEPARTMENT OF EDUCATION

C

2

OFFICE OF SPECIAL EDUCATION AND REHABILITATIVE SERVICES

Mi AY 2 7 2004

Ms . Sylvia Hensley
Deputy State Auditor
California Bureau of State Audits
555 Capitol Mall, Suite 300
Sacramento, California 95814
Dear Ms. Hensley :
OMB Circular A-133, Audits of States, Local Governments and Non-Profit
Organizations, contains implementing provisions under the Single Audit Act
Amendments of 1996 . Paragraph 520 of OMB Circular A-133 covers the
determination of major Federal programs in Single Audits . Among the provisions
of that paragraph, is the following portion of subparagraph (h):
. . .Federal agencies and pass-through entities may provide auditors
guidance about the risk of a particular Federal program and the auditor
shall consider this guidance in determining major programs in audits not
yet completed .
Paragraph 525 of OMB Circular A-133 sets forth criteria for Federal program risk .
It includes the following with respect to internal controls :
Weaknesses in internal control over Federal programs would indicate
higher risk. Consideration should be given to the control environment over
Federal programs and such factors as the expectation of management's
adherence to applicable laws and the provisions of . . .grant agreements .
[Paragraph 525(b)(1)]
Pursuant to these provisions, I am writing to you as independent auditor of the
California Department of Education (CDE), on behalf of the U .S . Department of
Education, a Federal agency that provides funds to the State of California . The
information concerns matters affecting the Special Education - Grants to State
Program, Catalog of Federal Domestic Assistance No . 84 .027 administered by
CDE . In light of serious allegations in letters that the Office of Special Education
Programs (OSEP) has received and CDE's failure, to date, to resolve those
allegations as we have requested, compliance with Part B of the Individual with
Disabilities Education Act's (Part B of IDEA) requirements regarding State-level
maintenance of effort and non-supplanting of funds may be high-risk areas for
the State .

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

Page 2 - Ms . Sylvia Hensley
The IDEA requires, at 20 U .S .C. 1412(a)(19), that any State receiving assistance
under Part B of the Act must " . . .not reduce the amount of State financial support
for special education and related services for children with disabilities, or
otherwise made available because of the excess costs of educating those
children, below the amount of that support for the preceding fiscal year ." The
Part B regulations further specify, at 34 CFR §300 .154(a), that "The State must
have on file with the Secretary information to demonstrate, on either a total or
per-capita basis, that the State will not reduce the amount of State financial
support for special education and related services for children with disabilities, or
otherwise made available because of the excess costs of educating those
children, below the amount of that support for the preceding fiscal year ."
However, in meeting the "total or per-capita" requirement, a State is not required
to maintain funding for any specific program or particular cost to ensure
compliance with the Act .
Part B also prohibits supplanting at the State level. At 20 U .S .C . 1412(a)(18), the
Act provides that, "except as provided in [20 U .S .C. 1413], funds paid to a State
under [Part B] will be used to supplement the level of Federal, State, and local
funds (including funds that are not under the direct control of State or local
educational agencies) expended for special education and related services
provided to children with disabilities under [Part B] and in no case to supplant
such Federal, State, and local funds, except that, where the State provides clear
and convincing evidence that all children with disabilities have available to them
a free appropriate public education, the Secretary may waive, in whole or in part,
the requirements of this subparagraph if the Secretary concurs with the evidence
provided by the State ."
OSEP has received a number of letters from school district officials, parents and
others in California, questioning the State's compliance with these maintenance
of effort requirements and non-supplanting requirements . Because OSEP has
no independent knowledge of the facts necessary to address the allegations in
these letters, OSEP referred the letters to the CDE on August 29, 2003 . In
OSEP's letter to the State, OSEP requested that the CDE resolve them as State
complaints, pursuant to 34 CFR §§300 .660-662 . In CDE's letters to OSEP of
October 2, 2003 and December 3, 2003, CDE indicated its inability to resolve the
allegations as complaints, raising concerns about internal controls and the
expectation of management's adherence to applicable laws and the provisions of
grant agreements . To date, CDE has not sent any documentation to OSEP that
it has taken any action to address these issues . Copies of the signed letters
regarding these issues are enclosed .
In light of the information described above, OSEP is recommending that, as part
of the next audit of the State of California performed under the Single Audit Act
you cover the Special Education - Grants to State Program, CFDA No . 84.027,
as a major Federal program, and closely review the State's compliance with Part

Page 3 - Ms . Sylvia Hensley
B of IDEA's requirements regarding State-level maintenance of effort and nonsupplanting of funds .
Consideration of this critical area as part of your next single audit of the State of
California would be greatly appreciated . If you have any questions regarding this
letter or need additional information, please contact Ruth E . Ryder, Director of
OSEP's Division of Monitoring and State Improvement Planning (MSIP) or
Lawrence Ringer, MSIP Associate Director . Their telephone numbers are (202)
205-5547 and (202) 205-9079, respectively . We would ask that you notify us as
soon as possible of whether the single audit will include this issue .
Sincerely,

Stephanie Smith Lee
Director
Office of Special Education
Programs
Enclosures
cc: Jack O'Connell
California Superintendent of Public Instruction
Alice Parker, Ed . D ., Assistant Superintendent
California Department of Education
Rich Rasa, Director of State and Local Advisory
and Assistance Services
Office of the Inspector General
Honorable Arnold Schwarzenegger
Governor of California


UNITED STATES DEPARTMENT OF EDUCATION
w
0

OFFICE OF SPECIAL EDUCATION AND REHABILITATIVE SERVICES

MAY 2 6 2004

William L. Librera, Ed .D.
Commissioner
Department of Education
P .O . Box 500
Trenton, New Jersey 08625-0500
Dear Commissioner Librera :
The Office of Special Education Programs (OSEP) received your letter of January 26,
2004, which was sent in response to our request for an explanation of how the New
Jersey Department of Education (NJDOE) is meeting the requirements of the Individuals
with Disabilities Education Act (IDEA) for students with disabilities under the contract
between the Montague School District in New Jersey and the Port Jervis City School
District in New York. This issue was raised by Ms . Diana Autin of the Statewide Parent
Advocacy Network in Newark, New Jersey who requested OSEP clarification on
whether, for these students, evaluations are to be conducted and eligibility determinations
made consistent with New Jersey's policies, and whether the New Jersey Department of
Education must provide access to dispute resolution procedures (e.g., due process
hearings, mediation) that are available to all parents of children with disabilities who live
in New Jersey . Ms. Autin's letter was prompted by a student who was receiving services
under the IDEA while in a middle school in New Jersey, but who was declassified upon
enrollment in high school in New York .
In our October 24, 2003 letter, we requested that you address how the NJDOE and the
Montague School District are meeting responsibilities under the IDEA to ensure the
provision of a free appropriate public education (FAPE) to students with disabilities
living in New Jersey and attending school in Port Jervis, New York. You responded that
the NJDOE and the Montague School District are in compliance with the IDEA because
(a) "the Port Jervis School District is required to comply with all of the same IDEA
mandates with which a New Jersey school district is required to comply ;" (b) "the
sending-receiving contract specifically states that Port Jervis' special education program
is designed and implemented in compliance with the IDEA ;" (c) "the Port Jervis School
District is governed by all requirements of the IDEA, and is subject to oversight and
monitoring by the New York State Department of Education to ensure such compliance ;"
and (d) "just as New Jersey school districts are under the jurisdiction of the United States
Depai tinent of Education (USDOE), so too is a school district in New York, such as Port
Jervis ."

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Page 2 - Commissioner William L . Librera, Ed .D.
Your response appears, on the one hand, to assume that the NJDOE can relinquish its
responsibility for general supervision of education programs for children with disabilities
living in New Jersey, but attending a school in New York, to New York, while at the
same time arguing that NJDOE treats Port Jervis "as it would any receiving school in
New Jersey," noting the application of New Jersey regulations to "receiving schools" and
the responsibilities of "district boards of education" (defined as the school district of
residence by 6A :14-1 .3) for the education of children placed in `receiving schools .'
Frankly, we are unable to see how these two concepts can be reconciled .
As we attempted to clarify in our October 24, 2003 letter, although the IDEA does not
prohibit NJDOE or Montague School District from entering into an agreement with Port
Jervis School District in New York to provide special education and related services,
NJDOE remains responsible for ensuring that each educational program for children
administered by the Port Jervis School District through an agreement is under the general
supervision of the persons responsible for educational programs for children with
disabilities in New Jersey, and meets the educational standards of New Jersey, including
the requirements of Part B of the IDEA . (20 U .S.C . 1412(a)(11) ; 34 CFR ยง300.600) .
Nothing in the IDEA or its implementing regulations would allow the NJDOE to turn
over its responsibility for ensuring the provision of FAPE for children with disabilities
living in New Jersey to New York State . Nor, in fact, do your own regulations seem to
support that proposition .
In our view, the relationship between the Montague, New Jersey school district and the
Port Jervis, New York school district is most closely akin to a public school district's
contract with a private school to provide education services . It is very clear under the
IDEA that in those situations the SEA remains responsible for ensuring that those
children are provided an education that meets the standards that apply to education
provided by the SEA and LEAs and that those children have all the rights that apply to
children served by public agencies . (20 U .S .C. 1412(a)(10)(B) ; 34 CFR ยง300.401) . See
"d
also, St. Johnsbury Academy v. D.H., 240 F. 3d 163 (2 Cir. 2001) . Port Jervis is
serving Montague students as a contractor for Montague, but Montague, and NJDOE,
remain ultimately responsible for ensuring that the requirements of IDEA are met for
these students, including the requirement that their education meet the standards that
apply to education provided by NJDOE and New Jersey school districts . See P.N. and
G.N. v . Greco, 282 F. Supp .2d 221, 238-9 (D.N.J. 2003) ("state and local educational
authorities are ultimately responsible for ensuring that a student's rights under the IDEA
are protected, and they cannot divest themselves of that responsibility * * * * [the
school district] had a non-delegable obligation to ensure that the [student's] rights under
the IDEA were not infringed") .
We also asked that you address how children with disabilities living in New Jersey and
attending school in New York, and their parents, are afforded their procedural safeguards
under the IDEA . You responded that (a) the sending-receiving agreement between the
NJDOE and New York states that the Port Jervis School District in New York is the local
educational agency (LEA) responsible for the individualized education programs (IEPs)
of the Montague students attending its schools, and, as such, procedural protections are

Page 3 - Commissioner William L . Librera, Ed .D.
provided pursuant to New York law, as that State has jurisdiction over the Port Jervis
School District ; (b) the New York Department of Education agrees that procedural
protections for all students in the Port Jervis School District, including those who reside
in Montague, New Jersey, are in accordance with New York law, not New Jersey ; (c) the
NJDOE lacks jurisdiction over the Port Jervis School District to compel action by Port
Jervis School District in the event that it declined to submit to its jurisdiction and
authority ; and (d) the procedural actions afforded in New York are fully enforceable by
the New York Department of Education . You further state that the parents of Montague
students attending Port Jervis are able to bring all due process claims through the New
York due process system, which is subject to the same IDEA mandates as the New Jersey
due process system . For the reasons stated above, we do not believe that the contractual
relationship between Port Jervis and Montague is sufficient to divest New Jersey students
and their parents of their rights, under the IDEA, to procedural safeguards in accordance
with NJDOE rules .
You did not explain how New Jersey parents who disagree with a hearing officer's
decision in a due process hearing are provided the opportunity to pursue complaints
against Montague or the NJDOE through the New Jersey due process system and, if
necessary, civil actions through the State of New Jersey courts of competent jurisdiction
or Federal court . The information in your letter appears to suggest that New Jersey
parents wishing to pursue complaints in a civil action following a due process hearing
would have to do so in New York . It is unclear how a New York court would have
jurisdiction over a conflict regarding a New Jersey LEA's failure to provide FAPE to a
New Jersey resident .
As noted above (and in our previous correspondence), the State Educational Agency
(SEA) is ultimately responsible for ensuring that all Part B requirements, including
eligibility, evaluation, and procedural safeguards, are met for eligible children residing
within the State, including those children served by a public agency other than an LEA .
We are providing you with an additional 30 days to explain in writing how New Jersey is
fulfilling its responsibilities under the IDEA for children living in New Jersey and
attending school in New York. We ask again that you specifically address the concerns
raised in our initial letter of October 24, 2003 and in this letter regarding how the State
will change its policies and practices to ensure the availability of FAPE, the
implementation of the child find and evaluation requirements, and the procedural
safeguards afforded to New Jersey parents and children consistent with the IDEA . If you
determine that other LEAs in New Jersey have contracts with provisions similar to those
in the contract between the Montague School District and the Port Jervis City School
District, please also address how the State will fulfill its responsibilities under the IDEA
for children covered under those contracts .

Page 4 - Commissioner William L . Librera, Ed .D .
Thank you, in advance, for your prompt attention to this matter. If we do not receive
your response within 30 days of the receipt of this letter, we will consider our options to
compel compliance . If you have any questions, please call Dr . Wendy Tada at 202-2059094 or Dr . JoLeta Reynolds at 202-205-5507 (press 3) and ask to be transferred to Dr .
Reynolds .
Sincerely,

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


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

MAY

2 6 2004

Ms. Shari A . Mamas
Staff Attorney
Education Law Center
1901 Law and Finance Building
429 Fourth Avenue
Pittsburgh, Pennsylvania 15219
Dear Ms . Mamas :
This is in response to your letter to the Office of Special Education Programs (OSEP) and
the Family Policy Compliance Office (FPCO) regarding the rights of parents of a child
with a disability and their representatives to observe their child in a special or regular
education classroom . It is our understanding that the FPCO addressed your questions
regarding the Family Educational Rights and Privacy Act (FERPA) in a December 8,
2003 letter to you .
Regarding your question to OSEP, you ask that OSEP provide an opinion on whether the
Individuals with Disabilities Education Act (IDEA) guarantees parents and their
representatives a reasonable opportunity to observe their children's classrooms and
proposed placement options . In your letter you state that it is the Education Law Center's
position that "a school district's refusal to allow parents and their professional
representatives to observe their children in a special education classroom violates the
parents' rights under the IDEA to be full and equal participants in the development of an
appropriate individualized education program (IEP) for their children ."
One of the key purposes of the IDEA Amendments of 1997 is to strengthen and expand
the role of parents in the identification, evaluation, and educational placement of their
child . The IDEA specifically provides that the parents of a child with disabilities :
(1) have an opportunity to participate in meetings with respect to the identification,
evaluation, and educational placement of their child, and the provision of a free
appropriate public education to their child (§§300 .501(b), 300 .344(a)(1), and
300.517)) ;
(2) be part of any group that determines what additional data are needed as part of an
evaluation of their child (§300 .533(a)(1)), and determine their child's eligibility
(§300.534(a)(1)) and educational placement (§300 .501(c)) ;
(3) have their concerns and the information that they provide regarding their child
considered in developing and reviewing their child's IEP (§§300 .343(c)(iii) and
300 .346(a)(1)(i) and (b)) ; and
(4) be regularly informed, as specified in their child's IEP, at least as often as parents
are informed of their nondisabled children's progress, of their child's progress
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Page 2 - Ms . Shari A . Mamas
toward the annual goals in the IEP and the extent to which that progress is
sufficient to enable the child to achieve the goals by the end of the year
(§300 .347(a)(7)) .
While the IDEA expects parents of children with disabilities to have an expanded role in
the evaluation and educational placement of their children and be participants, along with
school personnel, in developing, reviewing, and revising the IEPs for their children,
neither the statute nor the regulations implementing the IDEA provide a general
entitlement for parents of children with disabilities, or their professional representatives,
to observe their children in any current classroom or proposed educational placement .
The determination of who has access to classrooms may be addressed by State and/or
local policy. However, we encourage school district personnel and parents to work
together in ways that meet the needs of both the parents and the school, including
providing opportunities for parents to observe their children's classrooms and proposed
placement options . In addition, there may be circumstances in which access may need to
be provided . For example, if parents invoke their right to an independent educational
evaluation of their child, and the evaluation requires observing the child in the
educational placement, the evaluator may need to be provided access to the placement .
Regarding your question about the applicability of the No Child Left Behind Act (NCLB)
to your question, it is our understanding that the provision that you cite (20 U .S .C.
§6318(a)(2)) applies only to Title I schools . If you wish to follow-up on your NCLB
question, please feel free to contact Lorraine Wise at (202) 260-1406 .
We hope this information is helpful . If this office can be of further assistance, please feel
free to contact Dale King at (202) 260-1156 .
Sincerely,

,W

*Y4,ov-

Le~~ly (/l

G4d~~

Stephanie Smith e
Director
Office of Special Education Programs
cc : LeRoy S . Rooker
Director, Family Policy and Compliance Office
Lorraine Wise
Office of Elementary and Secondary Education
Dr. Frances Warkomski
Director, Pennsylvania Bureau of Special Education


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

APR 2 8 2004

Ms. Marcia Mittnacht
State Director
Massachusetts Department of Education
350 Main St .
Malden, Massachusetts 02148-5023
Dear Ms . Mittnacht:
I am responding to your memorandum of March 11, 2004 requesting approval for the
Massachusetts Department of Education (MASSDE) to change the child count date to October 1
for its annual collection of data under Part B of the Individuals with Disabilities Education Act
(IDEA) .
In your memorandum you explain that Massachusetts requires local educational agencies (LEAs)to submit data on every publicly funded student as of October 1 to meet several federal and State
reporting requirements . MASSDE also requires LEAs to submit student-level information as of
December 1 for all students with disabilities solely for Part B reporting . You indicate that
permitting MASSDE to allow Part B reporting on October 1 would reduce the time and resources
that are required to complete two separate student-level data collections .
OSEP is highly supportive of MASSDE's efforts to simplify Federal reporting requirements .
However, the final regulations implementing Part B of the IDEA require that States include in an
annual report to the Secretary a table showing the number of children with disabilities receiving
special education and related services on December 1, or, at the State's discretion, the last Friday
in October of that school year (34 C .F .R. ยง300.751(a)). To collect child count data on a different
day would be inconsistent with the Part B regulations . Neither the Office of Special Education
Programs (OSEP) nor the Secretary has the authority to waive this requirement .
Please do not hesitate to contact Ken Kienas of my staff at 202-205-9057 if you have any
questions or if we can provide assistance in your efforts to better utilize existing resources and
reduce paperwork.
Sincerely,

Stephanie Smith Lee
Director
Office of Special Education Programs

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

APR 2 8 2004

Janet D. Gully, Chief
Bureau of Early Intervention
Illinois Department of Human Services
222 South College, 2nd Floor
Springfield, Illinois 62704
Dear Ms . Gully :
This letter is in response to your request for clarification regarding the provision of
physical therapy services under Part C of the Individuals with Disabilities Education Act
(IDEA) . Specifically, you ask for guidance on differentiating therapy that is primarily for
medical purposes from therapy that is primarily for developmental purposes . In your
letter, you describe a situation in which a parent opts to have elective surgery for a child,
such as a dorsal rhizotomy for cerebral palsy-related spasticity. Your opinion, as stated
in your letter, is that "the acute post-operative physical therapy which is prescribed due to
the surgery, is rehabilitative and medically indicated rather than being developmentally
indicated" and, therefore, is a medical, not a developmental service "even though there
may be overlapping objectives in medically-related and developmentally-related physical
therapy." You further state your opinion that "the child's multidisciplinary team may not
be equipped to determine when therapy is for medical purposes versus developmental
purposes if there is no medical person on the team, since a medical opinion is required ."
"Early intervention services" under Part C are those services that "are designed to meet
the developmental needs of each child eligible under this part and the needs of the family
related to enhancing the child's development" (34 CFR §303 .12(a)(1)). As you note in
your letter, the definition of "early intervention services" includes "physical therapy
services" (20 U .S .C. §1432(4)(E)(v)). The Part C regulations at 34 CFR §303 .12(a)(9)
state that physical therapy "includes services to address the promotion of sensorimotor
function through enhancement of musculoskeletal status, neurobehavioral organization,
perceptual and motor development, cardiopulmonary status, and effective environmental
adaptation . These services include (i) Screening, evaluation, and assessment of infants
and toddlers to identify movement dysfunction ; (ii) Obtaining, interpreting, and
integrating information appropriate to program planning to prevent, alleviate, or
compensate for movement dysfunction and related functional problems ; and (iii)
Providing individual and group services or treatment to prevent, alleviate, or compensate
for movement dysfunction and related functional problems ."
The definition of "early intervention services" under Part C also includes "health services
necessary to enable the infant or toddler to benefit from the other early intervention
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Page 2-Janet D . Gully
services" (20 U .S .C. 1432(4)(E)(x)) . The Note to 34 CFR §303 .13 distinguishes health
services that are required to be provided under Part C as early intervention services from
medical services that are not required to be provided as early intervention services under
Part C.
"Health services" under Part C can include "(1) Such services as clean intermittent
catheterization, tracheostomy care, tube feeding, the changing of dressings or colostomy
collection bags, and other health services ; and (2) consultation by physicians with other
service providers concerning the special health care needs of eligible children that will
need to be addressed in the course of providing other early intervention services" (34
CFR §303 .13(b)) . "Health services" under Part C do not include (1) Services that are "(i)
surgical in nature (such as cleft palate surgery, surgery for club foot, or the shunting of
hydrocephalus) ; or (ii) purely medical in nature (such as hospitalization for management
of congenital heart ailments, or the prescribing of medicine or drugs for any purpose) .
(2) Devices necessary to control or treat a medical condition . (3) Medical-health services
(such as immunizations and regular 'well-baby' care) that are routinely recommended for
all children" (34 CFR §303 .13(c)).
Because a major surgery operation may result in different levels of motor and physical
functioning in a child, a new or re-evaluation of the child may be warranted and an IFSP
meeting may need to be convened to determine if the child's functioning after the surgery
warrants a change in existing or new services . Part C requires that a periodic review of
the IFSP for a child and the child's family be conducted "every six months, or more
frequently, if conditions warrant, or if the family requests such a review . The purpose of
the periodic review is to determine (i) the degree to which progress toward achieving the
outcomes is being made; and (ii) whether modification or revision of the outcomes or
services is necessary" (34 CFR §303.342(b)) .
Under Part C, the participants in the individualized family service plan (IFSP) meeting
develop the child's IFSP, and determine the early intervention services and other services
needed to meet the unique needs of the child and family (See 34 CFR §§303 .342 303 .346) . The information provided to the team in making these determinations may
include relevant reports and opinions from medical or other personnel, but it is up to the
participants at the IFSP meeting to determine whether the increased post-surgical
physical therapy services are early intervention services that should be provided under
Part C .
The IFSP participants could request that service providers and evaluators consult with
physicians or other medical personnel prior to or following the IFSP meeting regarding
any questions about the medical/surgical procedure and use this information, along with
the results of any current evaluations and other information available from the ongoing
assessment of the child and family to determine what early intervention services are
needed and will be provided . (See 34 CFR §303 .342(c)) If the IFSP meeting participants
determine that an increase or change in physical therapy is needed to meet the child's
ongoing developmental needs and ability to function, the services would likely be early
intervention services under Part C . If the IFSP meeting participants determine that

Page 3-Janet D . Gully
increased physical therapy is warranted for a very limited time to recover from the
surgery as rehabilitative therapy only, the services would likely be considered medical in
nature and not early intervention services . If the parents disagree with the IFSP team's
decision, then the parents may use the procedural safeguards available under Part C at 34
CFR §§303 .419-303 .425 to challenge that determination by an impartial hearing officer .
The participants in the IFSP meeting include (a) the parent or parents of the child ; (b)
other family members, as requested by the parent, if feasible to do so ; (c) an advocate or
person outside of the family, if the parent requests that the person participate ; (d) the
service coordinator who has been working with the family since the initial referral of the
child for evaluation, or who has been designated by the public agency to be responsible
for implementation of the IFSP ; (e) a person or persons directly involved in conducting
the evaluations and assessments; and (f) as appropriate, persons who will be providing
services to the child or family (34 CFR §303 .343(a)(1)) .
The IFSP must include a statement of the specific early intervention services necessary to
meet the unique needs of the child and the family (34 CFR §303 .344(d)), and, to the
extent appropriate, "other services" including "medical and other services that the child
needs, but are not required under this part" along with the funding sources to be used in
paying for the services (whether health dr medical) or the steps that will be taken to
secure the services through public or private sources (34 CFR §303 .344 (e)) . Listing the
non-required "other services" such as medical services on the IFSP does not mean that
those services must be provided through the Part C program . However, as indicated in
Note 3 to 34 CFR §303 .344, their identification on an IFSP is very helpful to the child,
the child's family, and the service coordinator for principally two reasons . First,
inclusion of this information can result in the IFSP effectively serving as a
comprehensive picture of the child's total service needs (including the need for medical
and health services, as well as early intervention services) . This is useful not only to the
child, the child's family, and the service coordinator, but to all professionals providing
assistance to the child, from service coordinators to service providers .
Secondly, the role of the service coordinator is to assist the family in securing all
services, including early intervention services, as well as the non-required services (34
CFR §303 .22). This role can be met, for example, by (1) determining if there is a public
agency that can provide financial assistance for other services, if needed ; (2) assisting in
the preparation of eligibility claims or insurance claims, if needed ; and (3) assisting the
family in seeking out, and arranging for the child to receive, the needed medical-health
services .
Thus, it is important for a State's procedures to ensure that other service needs of the
child, and of the family related to enhancing the development of the child, such as
medical and health needs, are identified in the IFSP, including determining (1) who will
provide each service, and when, where, and how it will be provided, and (2) how the
service will be paid for (e.g., through private insurance, an existing Federal-State funding
source, such as Medicaid or EPSDT, or other funding arrangement) .

Page 4-Janet D . Gully
Finally, given the circumstances outlined in your letter, it is important to note that if a
parent requests a service be provided for an eligible child and the lead agency (without
convening an IFSP meeting) determines that it is a medical service that is not required
under Part C, the public agency must provide the prior written notice required under 34
CFR 303 .403(b) to the parents . In addition, if after a child undergoes surgery, the agency
determines either an additional evaluation is needed or that a new IFSP meeting must be
held to determine if the services listed on the IFSP are appropriate, the agency must
provide prior written notice . As stated in 34 CFR §303.403 "written prior notice must be
given to the parents of a child eligible under this part a reasonable time before a public
agency or service provider proposes, or refuses, to initiate or change the identification,
evaluation, or placement of the child, or the provision of appropriate early intervention
services to the child and the child's family ." The required contents of this notice are
outlined in 34 CFR §303 .403(b) .
I hope this information is helpful . If you have any further questions, please feel free to
contact Mary Louise Dirrigl at 202-260-9490 or Dr . Wendy Tada at 202-205-9094 of my
staff.
Sincerely,

Stephanie Smith Lee
Director
Office of Special Education Programs

cc : Dr. Anthony E. Sims, Director of Special Education
Illinois State Board of Education


T F

UNITED STATES DEPARTMENT OF EDUCATION
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W

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OFFICE OF SPECIAL EDUCATION AND REHABILITATIVE SERVICES

oQ

MAR 2 6 2004
Butch Stevens, Program Developer
Water Valley School District
Office of Special Education
P.O. Box 808
Water Valley, Mississippi 38965
Dear Mr . Stevens :
The Office of Special Education Programs (OSEP) in the U .S . Department of Education has
received your request to use funds from the Individuals with Disabilities Education Act (IDEA)
to construct a small building on the campus of one of Water Valley School District's two
schools . According to your letter, the building would be used to house the office of the
department and create space for storage of its many documents relating to current and former
students . You also state that additional space is needed for speech/language therapy and for a
more appropriate location for the district's preschool and developmentally delayed classroom .
The information you submitted with your letter is not sufficient for the Secretary to respond to
your request . For approval of any costs under the IDEA, the expenditures must relate to the
provision of special education and related services . Further, to be allowable under Federal
awards, costs must meet the general principles for determining allowable costs set forth by the
Executive Office of the President, Office of Management and Budget (OMB) . OMB Circular
Number A-87 (Attachment A) lists the following general criteria that costs must meet in order to
be allowable under Federal awards :
a. Be necessary and reasonable for proper and efficient performance and administration of
Federal awards .
b. Be allocable to Federal awards under the provisions of this Circular .
c. Be authorized or not prohibited under State or local laws or regulations .
d. Conform to any limitations or exclusions set forth in these principles, Federal laws, terms
and conditions of the Federal award, or other governing regulations as to types or
amounts of cost items .
e. Be consistent with policies, regulations, and procedures that apply uniformly to both
Federal awards and other activities of the governmental unit .
f. Be accorded consistent treatment . A cost may not be assigned to a Federal award as a
direct cost if any other cost incurred for the same purpose in like circumstances has been
allocated to the Federal award as an indirect cost .
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Page 2 - Butch Stevens

g. Except as otherwise provided for in this Circular, be determined in accordance with
generally accepted accounting principles .
h. Not be included as a cost or used to meet cost sharing or matching requirements of any
other Federal award in either the current or a prior period, except as specifically provided
by Federal law or regulation .
i.

Be the net of all applicable credits .

J.

Be adequately documented.

Under section 605 of the IDEA, the Secretary also must make an affirmative determination that a
program authorized under IDEA "would be improved by permitting program funds to be
used . . .to construct new facilities or alter existing facilities . . ." and must meet the compliance
requirements of section 605(b), which state that "any construction of new facilities or alteration
of existing facilities . . . shall comply with the requirements of (1) appendix A of part 36 of title 28,
Code of Federal Regulations (commonly known as the `Americans with Disabilities
Accessibility Guidelines for Buildings and Facilities') ; or (2) appendix A of part 101-19.6 of title
41, Code of Federal Regulations (commonly known as the `Uniform Federal Accessibility
Standards')."
In addition to the information your school district submits, the Secretary will also consider any
information on this request that the State educational agency (SEA) believes is relevant . For that
reason, we will be asking the Mississippi SEA for input on this matter .
Please send us information that addresses each of the issues outlined above so that the Secretary
may consider your request .
Sincerely,
9 . blj r-Stephanie Smith Lee
Director
Office of Special Education Programs
cc : Dr . Melody Bounds, Bureau Director
Mississippi State Department of Education