t

/

,

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

APR 16 2001
Honorable Wayne T. Gilchrest
Member, House of Representatives
44 Calvert Street, Suite 320
Annapolis, Maryland 21401
Dear Congressman Gilchrest:
I am writing in response to your letter that was forwarded to the former Assistant
Secretary for the Office of Special Education and Rehabilitative Services, Judith E.
Heumann, from the former Assistant Secretary for Legislation and Congressional Affairs,
Scott Fleming, on behalf of your constituent,
expressed concern in her February 21, 2000 letter to you regarding the provision of
special education and related services by the Maryland State Department of Education
(MSDE) under Part B of the Individuals with Disabilities Education Act (Part B). We
apologize for the delay in our response.
In her letter to your office, n o t e d
concern for what she believes to
be the MSDE's non-compliance with federal law regarding the provision of a free
appropriate public education (FAPE) for the unique needs o f .
In particular, she
contends that Maryland's enforcement of Maryland Education Article w
concerning reimbursement for private school tuition is contrary to the provisions in Part
B addressing the same issue. Additional concern was referenced in
letter
regarding the National Council of Disabilities report to Congress regarding
State compliance with Part B. Former Assistant Secretary Heumann responded to the
report, and that response is enclosed for your information. The following information is
for your consideration in responding to .
OSEP received a letter from o
n
October 11, 1999, after a United
States District Court Judge had reversed a December 17, 1997 decision of a Maryland
hearing officer, in which the hearing officer had denied the parents' request for a due
process hearing. The basis for the denial was the parents' alleged failure to comply with
the requirements of Maryland Education Article w 413(i). w
a
s
waiting for the hearing officer to schedule the remanded due process hearing in order to
review the identification, evaluation and placement of her child and her request for
reimbursement for tuition associated with her child's placement in a private school. On
December 15, 1999, the Administrative Law Judge rendered a decision on the merits of
the case, finding that the school district had offered FAPE t
o
and denying the parents' request for reimbursement for tuition and related costs for the
parents' unilateral placement of their child in a private school for the 1997 - 1998 school
year (see decision attached).

400 MARYLANDAVE, S.W. WASHINGTON, D C. 20202
Our mission is to e n s u r e equal a c c e s s to e d u c a t i o n a n d to p r o m o t e educational excellence throughout the Nation.

Honorable Wayne T. Gilchrest
Page 2 of 4

After consulting
legal counsel, Mr. Michael F. Slade of my
staff telephoned
anuary 27, 2000, and explained to her that the
implementing regulations under Part B, 34 CFR w
provide that a decision made
in an impartial due process hearing is final, leaving the United States Department of
Education with no authority to intervene in her individual case. Rather, as indicated in
w
we informed
that she had the right to bring a civil action
to appeal the hearing officer's December 1999 decision in any State court of competent
jurisdiction or in a district court of the United States without regard to the amount in
controversy.
also contends in her letter to you that Maryland Education Article
w
denies parents a timely due process hearing, contrary to the requirements of
Part B. Section 8-413(i) addresses reimbursement for private school tuition and costs. It
provides:
If the parent or guardian of a student with disabilities, eligible to receive
special education and related services from a county board, enrolls the
child in a nonpublic school, the county board is not required to reimburse
the parent or guardian for tuition or related costs associated with the
enrollment if:
(1) The parent or guardian does not provide to the county board prior
written notice rejecting the program proposed by the county board,
including the reason for the rejection, and stating an intention to enroll
the student in a nonpublic school;
(2) The nonpublic school placement of the student is found inappropriate;
or
(3) The proposed county board program is found appropriate.
Part B of the IDEA addresses limitations on the reimbursement for private school tuition
and costs at 34 CFR w 300.403(d), which provides:
(d) The cost of reimbursement described in paragraph (c) of this section
may be reduced or denied--

(1) if-(i)

At the most recent IEP meeting that the parents attended
prior to removal of the child from the public school, the
parents did not inform the IEP team that they were rejecting
the placement proposed by the public agency to provide
FAPE to their child, including stating their concerns and
their intent to enroll their child in a private school at public
expense; or

Honorable Wayne T. Gilchrest
Page 3 of 4

(ii)

At least ten (10) business days (including any holidays that
occur on a business day) prior to the removal of the child
from the public school, the parents did not give written
notice to the public agency of the information described in
paragraph (d)(1)(i) of this section;
(2) If, prior to the parents' removal of the child from the public school,
the public agency informed the parents, through the notice
requirements described in w
of its intent to evaluate
the child (including a statement of the purpose of the evaluation
that was appropriate and reasonable), but the parents did not make
the child available for evaluation; or
(3) Upon a judicial finding of unreasonableness with respect to actions
taken by the parents.

(e) Exception. Notwithstanding the notice requirement in paragraph
(d)(1) of this section, the cost of reimbursement may not be reduced or
denied for failure to provide notice if-(1) The parent is illiterate and cannot write English;
(2) Compliance with paragraph (d)(1) of this section would likely
result in physical or serious emotional harm to the child;
(3) The school prevented the parent from providing the notice; or
(4) The parents had not received notice, pursuant to section 615 of the
Act, of the notice requirement in paragraph (d)(1) of this section.
OSEP is aware of Maryland's Education Article w
and s h a r e s
concern that the statute may not use language concerning limitations to
reimbursement for private school tuition and the exceptions to those limitations
consistent with 34 CFR w
and (e). OSEP has raised this issue with the
Maryland State Department of Education in the course of OSEP's review of the State's
statutes, regulations, policies and procedures to determine Maryland's eligibility to
receive a grant under Part B of the IDEA. See 34 CFR w167
300.110 and 300.133. OSEP
will continue to work with the MSDE to ensure that Maryland's statutes, regulations,
policies and procedures meet all requirements of the IDEA in order for the State to
receive its Part B funding.
In your March 8, 2000 letter, you also inquired after a complaint
had filed with the U.S. Department of Education's Office for Civil Rights (OCR). OSEP
has contacted OCR to ascertain the status o
f
complaint.
Subsequent to an April 27, 2000, letter from OCR informing you that the complaint had
yet to be resolved, OCR issued a decision on July 27, 2000, closing its file on the
complaint with a finding of no Section 504 violation. On September 29, 2000, OCR
issued another letter to
denying her request for reconsideration of
OCR's decision and finding no evidence to cause OCR to alter its original determination.

Honorable Wayne T. Gilchrest
Page 4 of 4

OCR noted, as we confirm herein, that the issue to be resolved is the compliance of
Maryland Education Article w
with IDEA, not Section 504. Copies of the two
OCR letters referenced above are enclosed. If you have any questions related to OCR's
decision on
complaint, please feel free to contact Wendella P.
Fox, Director in the Philadelphia Office of the Office for Civil Rights, at (215) 656-8541.
I hope this information is helpful to you in responding to .
If this
Office can be of any further assistance regarding this matter please feel free to contact me
or Michael F. Slade at (202) 205-8969.
Sincerely,

Patricia J. Guard
Acting Director
Office of Special Education
Programs

cc:

Nancy Grasmick, Superintendent of Schools, MSDE

Enclosures:

Part B regulations published March 12, 1999
Statement on NCD Report by Assistant Secretary of Education
Maryland Office of Administrative Hearings Decision Re:
Letter from OCR to ~
Letter from OCR to ~

July 27, 2000
September 29, 2000


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

APR 16 201::}1
Honorable Jo Ann Emerson
Member, House of Representatives
22 East Columbia
Farmington, Missouri 63640
Dear Representative Emerson:
This is in response to your letter on behalf of your constituents,
of
Missouri. w
r
o
t
e
to you regarding their issues with t h e
Schools and the Missouri Department of Elementary and Secondary Education (MDESE).
Your letter has been referred to the Office of Special Education Programs (OSEP) for a response.
OSEP is responsible for administering the Individuals with Disabilities Education Act (IDEA),
which provides Federal financial assistance to State educational agencies and through them to
local educational agencies, to ensure that all children with specified disabilities have available to
them a free appropriate public education (FAPE) in the least restrictive environment.
p r o v i d e d
to your office information about their concerns regarding:
(1) their rights as members of the individualized education program (IEP) team; (2) the
reasonableness of
help with their concerns; and (3) whether MDESE
based its complaint investigation decision on their son's needs.
Under Part B, when a local school district conducts an IEP meeting, the child's parents
are members of the IEP team and must be invited to participate. Parents play a key role,
along with school personnel in developing, reviewing and revising, if necessary, a child's
IEP, in determining the nature and extent of the child's needs. Through the IEP process,
a parent can discuss with school officials different approaches that would appropriately
meet their child's unique needs.
If the parent and the local school district staff cannot agree on the content of the IEP, the
parent can ask for a due process hearing, and an impartial hearing officer can make an
independent decision in order to resolve any disagreements (see 34 CFR w167
300.517). A mediation process must be available to parents who request a due process
hearing, in accordance with the requirements at 34 CFR w
of the Part B
regulations. A parent also has the option of filing a complaint with the State if they
believe that a public agency has violated a requirement of Part B. The complaint
procedures applicable to Part B are described in the enclosed regulations at 34 CFR
w167
From the materials provided to us by you, it is apparent that
e x e r c i s e d
their option to file a complaint with MDESE.

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

Our misssion is to e n s u r e equal

cce s s to e d u c a t i o n a n d to p r o m o t e educational excellence throughout the N a t i o n

Honorable Jo Ann Emerson - Page 2
The State complaint procedures are available for resolving any complaint that meets the
requirements of 34 CFR w
including: (1) complaints that raise systemic issues;
and (2) individual child complaints. Parents may use (but are not required to use) the
complaint procedures - in addition to the due process hearing system - to resolve
disagreements with public agencies over any matter concerning the identification,
evaluation, or educational placement of the child, or the provision of a FAPE to the child,
as well as any other allegation that a public agency has violated Part B.
Under IDEA, the State education agency (SEA) is responsible for ensuring that FAPE has
been made available to children with disabilities. If a parent believes that what is offered
during an IEP meeting to his or her child with a disability does not constitute FAPE and
files a complaint, the State must resolve the complaint. The SEA resolves a complaint
challenging the appropriateness of a public agency's determination regarding a child's
education program or placement by determining not only whether the public agency has
followed the required procedures to reach that determination, but also whether the public
agency has reached a decision that is consistent with Part B requirements in light of the
individual child's abilities and needs. The SEA may conduct an on-site investigation, or
it may interview appropriate individuals if necessary to resolve the complaint. Please see
enclosed OSEP memo 00-20, "Complaint Resolution Procedures under Part B of the
Individuals with Disabilities Education Act (Part B)," for further information.
Although it appears d i s a g r e e
with the decision of the MDESE on
their complaint, as of May 11, 1999, the Part B regulations no longer provide for a
process by which the Secretary of Education may review SEA decisions. A State may
have established procedures for reconsideration of complaint decisions, but it is not
required to do so. If, after the MDESE's decision on the complaint,
still wish to dispute the issue, they may, if they have not done so already, initiate
a due process hearing.
It may be of interest to your constituent to know that OSEP has addressed the issue of a
school district's obligation to provide eyeglasses to a student under Part B of IDEA in the
Notice of Final Regulations published in the Federal Register on March 12, 1999. There
OSEP stated, "As a general matter, public agencies are not responsible for providing
personal devices, such as eyeglasses or hearing aids or braces, that a disabled child
requires regardless of whether he or she is attending school. However, if a child's IEP
team specifies that a child requires a personal device in order to receive FAPE, the public
agency must provide the device at no cost to the child's parents." See 64 Fed. Reg.
12406, 12540 (March 12, 1999). OSEP's statement is consistent with Section 300.308 of
the Part B regulation, which provides that it is the IEP team that determines when certain
devices or services are considered special education, related services, or supplementary
aids and services.
I have also enclosed some information that may be helpful to your constituents. This
information is issued by the National Information Center for Children and Youth with
Disabilities which is a national information clearinghouse that provides free information
to assist parents, educators, and others in helping children with disabilities become

Honorable Jo Ann Emerson - Page 3
participating members of the school and community. The Parent Training and
Information Centers listed on the enclosed resource sheet were established to make
parent-to-parent training and information services available to parents of children with
disabilities across the country. The purpose of these services is to enable families to
participate more fully in the education of their children.
Finally, it appears that your constituents believe that members of the school district have
discriminated against them based on their disability and have retaliated against them
based on their complaints of discrimination. If they believe that they have been subjected
to discrimination based on disability, they may file a written complaint with U.S.
Department of Education's Office for Civil Rights, Kansas City Office, Director Angela
M. Bennett, 10220 N. Executive Hills Blvd., Suite 720, Kansas City, MO 64153-1367.
I hope that this information is helpful in responding to your constituents. I have enclosed
a copy of the Part B regulations for their review. Please let me know if I can be of further
assistance.
Sincerely

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


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

APR 16 2001
Honorable Robert C. Byrd
United States Senate
Washington, D.C. 20510
Dear Senator Byrd:
Your letter dated October 5, 2000 addressed to former Assistant Secretary Scott Fleming,
Office of Legislation and Congressional Affairs on behalf of your constituent, P. Kay
Nottingham Chaplin, Program Director, West Virginia Birth to Three Early Intervention,
was referred to the Office of Special Education and Rehabilitative Services, Office of
Special Education Programs. I apologize for the delay in responding. Ms. Chaplin's
letter questioned whether an outside entity, such as Medicaid managed care, can override
the Individualized Family Services Plan (IFSP) process in determining intensity and
frequency of services under Part C of the Individuals with Disabilities Education Act
(IDEA).
Under Part C, appropriate early intervention services must be available to all eligible
children and their families. Early intervention services are services that (1) are designed
to meet the developmental needs of each eligible child and the needs of the family related
to enhancing the child's development; (2) are selected in collaboration with the parents;
(3) are provided under public supervision, by qualified personnel and in conformity with
an individualized family service plan (IFSP); (4) are at no cost, subject to the permissible
system of payments under Part C; and (5) meet the standards of the State. To the
maximum extent appropriate to the needs of the child, early intervention services must be
provided in natural environments, including the home and community settings in which
children without disabilities participate. 20 U.S.C. w14326(4), 1436.
Early intervention services needed by a particular child are determined through the IFSP
process. The IFSP team, which includes the parent(s), has the decision-making
responsibility to identify early intervention services that meet the unique developmental
needs of the child and the needs of the child's family related to enhancing the child's
development. The need for such services must be based on the results of the evaluation
and assessment of the child and the child's family. The IFSP must include a statement of
the specific early intervention services necessary to meet the unique needs of the child
and family to achieve certain identified results, including frequency, intensity and method
of delivering the services, the natural environments in which the early intervention
services will be provided, the location of the services and payment arrangements, if any.
20 U.S.C. w
34 CFR w
Early intervention services under Part C must be at no cost to the parent unless the
service is one that is subject to fees under the Part C program. 20 U.S.C. w
Although Part C funds are to be used only as payor of last resort (20 U.S.C. w1440), there

400 MARYLANDAVE., S.W. WASHINGTON, D.C. 20202
Our mission is to e n s u r e equal a c c e s s to education a n d to p r o m o t e educational excellence throughout the Nation.

Page 2 - Senator Robert C. Byrd

may be circumstances in which all or a portion of services for a particular child must be
paid by the Part C lead agency. For example, for a child who has been identified as
having significant delay in speech-language development, the IFSP team might decide
that intervention is needed five times per week to enhance the child's overall
communication needs. An outside funding source, such as Medicaid, may decide that it
will only provide Medicaid payments to cover speech-language services three times per
week. In that circumstance, the Part C lead agency must assume the financial
responsibility, subject to a system of payments (if any), for that portion of services not
covered by Medicaid: I reiterate that the frequency and intensity of early intervention
services specified on a child's IFSP are determined by the IFSP team and are based on
the results of that child's evaluations and assessments. 20 U.S.C. w1436, 34 CFR
w167
and 303.344.
I hope this information provides some additional clarity. If you have any questions,
please contact Jill Harris, Part C State Contact at 202-205-9583.
Sincerely,

Patricia J. Guard
Acting Director
Office of Special Education Programs


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

Dr. Alice Parker
Assistant Superintendent of Public Instruction
California State Department of Education
721 Capitol Mall
Sacramento, California 95814

MAR 1 9 2001

Dear Dr. Parker:
During the week of January 22, 2001, Larry Ringer and Susan Falkenhan of the Office of Special
Education Programs (OSEP) had the opportunity to meet with Chief Deputy Superintendent
Scott Hill, Deputy Superintendent Henry Der, your staff and you to discuss the California
Department of Education's (CDE's) progress in meeting the requirements of Part B of the
Individuals with Disabilities Education Act (Part B). A focus of those discussions was CDE's
progress in developing and implementing the Quality Assurance Process, the State's system for
monitoring local educational agencies' compliance with Part B and State requirements. Mr.
Ringer and Ms. Falkenhan also observed CDE's implementation of the revised data collection
procedures in the Marysville and Cajon Valley School Districts.
In both districts, OSEP was able to observe parent-input meetings, and interviews with various
stakeholders including the local directors of special education, special education and general
education teachers and parents of students with disabilities. In Marysville, Ms. Falkenhan also
was able to observe CDE's training of school district staff to prepare them to participate in CDE's
review of student records as part of CDE's review of the district, to observe the review of student
records by both district and CDE staff, and to talk with some of those district staff regarding their
experiences in reviewing student records. On Friday, January 26, 2001, Mr. Ringer and Ms.
Falkenhan met with Mr. Henry Der, your staff and you to share their perceptions from the
observations in Marysville and Cajon Valley.
These opporttmities to observe the State's new monitoring procedures in action were very helpful
in providing us with information about how CDE is implementing its new Quality Assurance
Process. Mr, Ringer and Ms. Falkenhan were impressed by the apparent differences in current
data collection from CDE's prior monitoring procedures. It was evident that CDE staff is
continuing to work hard to make the monitoring procedures effective in collecting accurate
information regarding district practices and the impact on services and results for children with
disabilities. OSEP will be better able to judge the effectiveness of CDE's verification reviews of
Cajon Valley and Marysville when we are able to review the monitoring reports that CDE
develops based upon these reviews.
During the January 2001 visit, CDE staff showed Mr. Ringer and Ms. Falkenhan how they are
integrating all monitoring, complaint resolution, procedural safeguards referral service, local
plan, and other documents regarding each county in a central location. They also described

600 INDEPENDENCE AVE. S.W. WASHINGTON. D.C. 20202
Our m i s s i o n is to e n s u r e e q u a l a c c e s s to e d u c a t i o n a n d to p r o m o t e e d u c a t i o n a l e x c e l l e n c e t h r o u g h o u t t h e Nation.

Page 2 - Dr. Alice Parker
future plans to similarly integrate electronically these documents and other information (such as
CASEMIS data) for each school district. CDE staff presented data demonstrating that CDE is
maintaining the very significant improvements that CDE has made over the past several months
in the timeliness of CDE's resolution of complaints. CDE also presented procedures and a
manual that CDE has developed to ensure accuracy, effectiveness, and consistency in complaint
investigations and decisions. Mr. Ringer and Ms. Falkenhan also discussed the status of CDE's
review of local plans (applications for Part B funds).
CDE presented to Mr. Ringer and Ms. Falkenhan data demonstrating that the San Francisco and
San Diego Unified School Districts remain in serious systemic noncompliance, and explained
that CDE is considering taking serious enforcement action against both districts, including taking
the issues to a meeting of the State Board of Education and/or filing a Writ of Mandate against
one or both school districts. (In response to a specific complaint, CDE filed a Writ of Mandate
in State court on April 21, 2000, regarding the failure of the San Diego Unified School District to
identify and serve certain students with disabilities incarcerated in Juvenile Hall. CDE is
considering filing an additional Writ of Mandate to require San Diego to correct systemic
noncompliance relating to the compliance issues addressed by the Special Conditions on the
State's fiscal year 2000 Part B grant award.)It will be important that CDE keep OSEP apprised
of the actions that it takes with these and other districts with serious long-standing
noncompliance and the impact of those actions.
As Mr. Ringer and Ms. Falkenhan discussed with CDE during their.visit, although CDE cannot
yet demonstrate that its Quality Assurance Process is effective in identifying and correcting
noncompliance, OSEP is hopeful that CDE will be able to build upon the progress it has made to
make such demonstration. OSEP looks forward to receiving further information from CDE
pursuant to the Special Conditions, and to OSEP's April 2001 visit to the State, when OSEP staff
will be able to collect further information regarding the effectiveness of CDE's Quality
Assurance Process in identifying and correcting noncompliance, and the impact at the local level
on compliance and on services and results for children with disabilities.
I want to thank you and your staff for the cordial, professional and collaborative way in which
CDE worked with OSEP staff throughout the visit. Both staff and documentation were readily
available to OSEP. By answering our questions in a candid and problem-solving manner, CDE
has helped OSEP to better understand the changes the State is implementing and promoted a
sense of partnership in identifying needs and possible strategies for strengthening the design and
implementation of CDE's new Quality Assurance Process.
Sincerely,

Patricia J. Guard
Acting Director
Office of Special Education Programs


@

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

JA!I 19 2001

This is in response to your letters to the Office of Special Education Programs (OSEP)
regarding obtaining accommodations for certain oortions of general State and districtwide assessments
more general concerns that you have
about the particip~
~in State and district-wide assessments
in Florida. This Office also received related correspondence from the Advocacy Center
for Persons with Disabilities, Inc. requesting an advisory opinion on those subsections of
Florida's then current State Board of Education Rules regarding authorized testing
modifications and accommodations for students with disabilities. As a result of
conversations between you and members of my staff, you sent an email message to OSEP
on August 19, 1999 indicating that you had communicated with the Advocacy Center on
the status of their position on the three subsections of the Florida State Board of
• Education Rules raised in their prior letter. You concluded in your email that the only
issue that needed to be pursued related to "the legality of the prohibition of the use of
calculators by all students--including those for whom a calculator represents assistive
technology--on Statewide assessments."
Although you have spoken with members of my staff on a number of occasions, I regret
that these conversations have not resolved your concerns satisfactorily. This letter will
summarize the requirements of Part B of the Individuals with Disabilities Education Act
(Part B), as amended by the Individuals with Disabilities Education Act Amendments of
1997, Pub. L. 105-17, (IDEA '97) that are relevant to your concerns and restate the oral
advice provided to you during telephone conversations with members of my staff. In
addition, I am enclosing OSEP memorandum 00-24 issued on August 24, 2000. This
memorandum provides guidance on the requirements in IDEA '97 relating to the
participation of students with disabilities in State and district-wide assessments.
A primary focus of IDEA '97 is ensuring each disabled student's appropriate
involvement and meaningful progress in the general curriculum, that is, the same
curriculum as for nondisabled students. 20 U.S.C. § 1414(d)(1)(A) and 34 CFR §300.347.
IDEA '97 also emphasizes the importance of holding students with disabilities to high
expectations and challenging content and performance standards. See 20 U.S.C.
§1400(d).
Consistent with these important principles, IDEA '97 includes specific provisions
regarding the participation of students with disabilities in general State and district-wide
4 0 0 MARYLANDAVE., S.W. WASHINGTON, D.C. 20202

Our m i s s i o n is to e n s u r e equal a c c e s s to edu_,'~_~on a n d to p r o m o t e educational e.x~eUence throughout the Nation.

Page 2
assessment programs. See 20 U.S.C. §1412(a)(17). This statutory provision is
implemented by the Department's regulation at 34 CFR 3300.138. Under the applicable
requirements, States and public agencies must ensure that students with disabilities
participate in general State and district-wide assessment programs, with appropriate
accommodations and modifications in administration, where necessary. 34 CFR
3300.138. For those children who cannot participate in general State and district-wide
assessments, even with appropriate accommodations and individual modifications, the
State educational agency, or local educational agency, as appropriate, must develop
guidelines for the participation of children with disabilities in alternate assessments, and
must conduct those assessments beginning not later than July 1, 2000. 20 U.S.C.
§ 1412(a)(17)(A)(i)-(ii) and 34 CFR 3300.138(b). Each student's individualized
education program (IEP) must include "[a] statement of any individual modifications in
the administration of State or district-wide assessments of student achievement that are
needed in order for the child to participate in the assessment." 34 CFR §300.347(a)(5)(i).
If the IEP team determines that the child will not participate in a particular State or
district-wide assessment of student achievement (or part of an assessment), the IEP team
must include a statement of why that assessment is not appropriate for the child, and how
the child will be assessed. 34 CFR §300.347(a)(5)(ii).
In the situation you pose, it is our understa
has not been
permitted to use a calculator in the fourthn portion of the
Florida Comprehensive Assessment Test (FCAT). In our most recent communications
with you, we had suggested that you forward us a copy of
IEP to ascertain
what determinations
IEP team had made r e g a r d i n g participation in the fourth
grade mathematics computation portion of the FCAT, but we have not received this
information from you. Under Part B, the determination of whether a student should
participate in an assessment with or without accommodations or individual modifications,
and, if so, what accommodations or modifications are appropriate for the child generally
is the responsibility of the IEP team.
The State cannot limit the authority of the IEP team to select individual accommodations
and modifications in administration needed for a child to participate in an assessment.
However, a State may develop a comprehensive policy on the use of testing
accommodations (including the conditions and instructions for appropriate use of specific
accommodations and how scores are to be reported and used). The State needs to ensure
that its policy is consistent with the requirement at 34 CFR §300.347(a)(5)(i) that the IEP
team has the responsibility and authority to determine what, if any, individual
modifications in administration are needed for a particular child. The IEP teams need to
understand and consider the implications of State policies on the reporting and use of
scores in addressing what individual modifications and accommodations are appropriate
for an individual child with a disability.
In the situation that you describe, the State may conclude that the use of a calculator on
the specific portion of a test used for the express purpose of measuring a student's ability

Page 3
to perform mathematical computations would not preserve the integrity or validity of the
test. The State may determine that because the results of the test would measure only the
student's ability to perform mathematical computations with the use of a calculator,
which is not the skill that the test is intended to measure, the test results cannot be used
for certain purposes. However, as noted above, the State cannot limit the authority of the
IEP team to select individual accommodations and modifications in the administration
that are needed in order for the child to participate in a particular assessment.
As you have emphasized in your communications with OSEP, we also understand your
concern over the larger issue about the appropriate administration of State and districtwide assessments for all students with disabilities in Florida and how the issuance of a
special diploma impacts postsecondary opportunities for these students. As you know,
OSEP is involved in various activities to support positive results for children with
disabilities. In conjunction with these activities, OSEP recently completed a review of
FDE for the purpose of assessing compliance in the implementation of IDEA. We are in
the process of analyzing data gathered from the public input and on-site data collection
phases of the review. OSEP is examining the issue of the special diploma through its
continuous improvement monitoring process and will require appropriate corrective
action if violations are identified as a result of the most recent review of FDE.
Please be assured that the Department considers the issue of the participation of students
with disabilities in general State and district-wide assessment programs to be one of our
highest priorities. An important technical assistance and dissemination project that OSEP
funds is the National Center on Educational Outcomes (NCEO). NCEO's mission is to
work with Federal and State agencies to facilitate and enrich the development and use of
indicators of educational outcomes for students with disabilities. Recognizing that
students with disabilities have been inappropriately excluded from national and State data
collection programs, NCEO is exploring ways in which students with disabilities can be
appropriately included in these assessment programs. For more information about the
work that NCEO has done in the area of assessment accommodations, you may wish to
contact NCEO at the following address and telephone number:
Martha L. Thurlow, Director
University of Minnesota
350 Elliott Hall
75 East River Road
Minneapolis, MN 55455
(612) 626-1530
http://www.coled.umn.edu/nceo
Of relevance here is a recent NCEO paper (Policy Directions # 11, May 2000) that
discusses the issue of "non-approved accommodations" in assessment programs. NCEO
recommends that when non-approved accommodations are judged to compromise the
integrity or validity of an assessment, States can collect and use additional evidence that

Page 4
will allow a student to demonstrate competency in lieu of a single test score. This
recommendation is consistent with a standard set forth in a 1999 document entitled
Standards of Educational and Psychological Testing published jointly by the American
Educational Research Association, the American Psychological Association, and the
National Council on Measurement in Education. Standard 13.7 in that document states,
"In educational settings, a decision or characterization that will have major impact on a
student should not be made on the basis of a single test score. Other relevant information
should be taken into account if it will enhance the overall validity of the decision." This
standard is also consistent with the good testing practices set forth in the Office for Civil
Rights' recently released guidance entitled The Use of Tests when Making High-Stakes
Decisions for Students: A Resource Guide for Educators and Policymakers.
It is also anticipated that OSEP and the Department will be providing further guidance on
the participation of students with disabilities in general State and district-wide assessment
programs in the near future. In the meantime, please find enclosed for your information
the comments and responses on participation of students with disabilities in general State
and district-wide assessment programs contained in the final Part B regulations,
published in the Federal Register on March 12, 1999 at 64 Fed. Reg. 12406.
We hope that you find this explanation and the enclosed information helpful. If you
require further assistance, please contact Dr. JoLeta Reynolds in OSEP's Office of the
Director at (202) 205-5507, or Ms. Sheila Friedman, Florida State Contact at (202) 2059055.
Sincerely,

Kenneth R. Warlick
Director
Office of Special Education Programs

Enclosure
cc:

Shann Goff
Florida Department of Education


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

Contact Persons
Name:
Telephone:
Name:
Telephone:

JAN 17 2001

Dave Malouf
(202) 205-8111
JoLeta Reynolds
(202) 205-5507

OSEP

01-06 [

[

MEMORANDUM
TO:

State Directors of Special Education
Parent Training and Information Centers
Community Parent Resource Centers
Technical Assistance Alliance for Parent Centers

FROM:

Kenneth R. Warlick, Director
Office of Special Education Programs
SUBJECT:

Guidance on Including Students with Disabilities in Assessment Programs

This document is intended to present a more family-friendly version of the information originally
presented in OSEP memorandum 00-24 on the provisions of IDEA 97 related tO students with
disabilities and State and district-wide assessments. The intended audience is primarily parents
and family members of students with disabilities, but the document may also be useful to
teachers and members of the public who are interested in this topic. This document contains a
portion of the information presented in OSEP 00-24, selected for its relevance to parents and
families and presented in less technical language.
CC:

Chief State School Officers
Federal Resource Center
Independent Living Centers
Protection and Advocacy Agencies
Regional Resource Centers
RSA Regional Commissioners
National Disability Organizations

400 MARYLANDAVE., S.W. WASHINGTON, D.C. 2 0 2 0 2
Our mission is to ensure equal access to education and to promote educational excellence throughout the Nation.

Page 2 - Guidance on Including Students with Disabilities in Assessment

Federal Policies on Including Students
with Disabilities in Assessment Programs
High expectations for students mean high expectations
for teachers and schools.

Introduction
.

Why do federal laws require that children with disabilities be included in state and
district-wide assessment programs?

Requirements for including children with disabilities in assessments are base4 on a number of
federal laws. Some of the key laws are listed at the end of this memorandum. These laws
recognize that assessment is often connected to student benefits such as moving to the next grade
or graduating. These laws also view assessment as important in holding schools accountable for
the success of all children. Because assessments are linked to benefits, excluding children with
disabilities from assessments may violate these federal laws.
This memorandum focuses on two federal laws--The Individuals with Disabilities Education Act
("IDEA") and Title I of the Elementary and Secondary Education Act ("Title I"). These two
laws have specific requirements for including children with disabilities in assessments. Congress
added these requirements because it found that many students were not doing well enough in
school to be successful as adults. Students with disabilities, minority children, migrant and
homeless children, children with limited English proficiency, and children in poverty were
especially at risk. For many of these children, school programs were marked by low
expectations, limited accountability for results, and exposure to a poorer curriculum than was
offered to other children. Congress found that "the education of children with disabilities can be
made more effective by having high expectations for such children and ensuring their access in
the general curriculum to the maximum extent possible."
2.

How will participation in assessment programs benefit children with disabilities?

Participation of students with disabilities in state and local assessments is not participation just
for the sake of participation. These assessments should help improve teaching and learning by
creating high expectations and accountability for the success of all students. Participation in
assessments should also promote access to the general curriculum, allowing children with
disabilities to learn what other students are learning.
It is critically important that schools know how successful they are in preparing all students to
meet high standards. Parents need to know this as well.

Page 3 - Guidance on Including Students with Disabilities in Assessment

Parental Permission
.

Is parental permission required for children with disabilities to participate in state
and district-wide assessment programs?

In most states, parental permission is not required for students to participate in state and local
assessment programs. Whatever rules apply to non-disabled children in a state would also apply
to children with disabilities.
.

Can parents choose not to have their child participate in state or district-wide
assessments?

If a state lets parents of non-disabled children "opt out" of assessment programs, then parents of
children with disabilities would have the same right. However, parents and students should
know the consequences of opting out of state or local assessments. For example, parents should
know that state and district-wide assessments can improve accountability and promote better
services, while opting out may limit opportunities for moving to the next grade, graduating, or
benefiting from school programs.
The IEP Process
5.

What is the role of the IEP team in state or district-wide assessments?

Under IDEA, the IEP team, which always includes a parent or parent representative, determines
how the child participates in state and district-wide assessments of student achievement. The
IEP team cannot exempt children with disabilities from participating in these assessment
programs.
6.

What happens if a student with a disability cannot participate in an assessment in
the usual way?

The IEP team determines if any changes in administration are needed in order for the student to
participate in the assessment. These changes are called different things in different states, and
federal laws use several different terms such as "accommodations" and "modifications".
Basically, these terms mean changes in the way a test is presented, the way a student responds,
the setting in which a student takes a test, the timing and schedule for the test, or other similar
changes.
.

What happens if a student with a disability cannot participate in the assessment
even with an accommodation or modification?

IDEA requires that alternate assessments must be provided for students with disabilities who
cannot participate in state or district-wide assessments. Alternate assessments are discussed
more fully below. If the IEP team determines that the child will not participate in a state or local
assessment (or part of an assessment), the IEP team states why the assessment is not appropriate
for the child and how the child will be assessed.

Page 4 - Guidance on Including Students with Disabilities in Assessment

8.

What is "out-of-level" testing?

"Out-of-level" or "off-level" testing means testing students at one grade level using versions of
tests that were designed for students at other grade levels. For example, a student in the 8th grade
may be given a version of the test designed for the 5th grade. Some states allow out-of-level
testing as an accommodation or modification. IDEA does not ban the use of out-of-level testing,
but this approach has certain weaknesses. Out-of-level testing may lower expectations, prevent
students from showing their full abilities, and keep students in a lower-level curriculum with
limited opportunities. It may even limit opportunities for moving to the next grade or graduating
with a diploma. If out-of-level tests are used, IEP teams need to think carefully about these
issues. Also, if out-of-level tests are used, the scores should be converted to show the student's
performance at his or her actual grade level if possible, so expectations and standards will be
kept as high as possible for the student.
.

Can the IEP statement of how the child will participate in state and district-wide
assessments be changed without reconvening the IEP team?

No. If the IEP team wishes to change a provision of the IEP, it must meet again to make the
change.
10.

Why is it important to consider the consequences of decisions about
accommodations and modifications in assessments?

IDEA gives the IEP team the authority to determine what, if any, accommodations or
modifications are needed in order for a child with a disability to participate in an assessment.
However, state and local school agencies have the authority to determine how test scores are
reported and used, and they may limit the use of test scores if certain accommodations or
modifications are involved. When selecting individual accommodations and modifications,
parents, students, and other IEP team members must understand how their decisions will affect
the use of the scores. These decisions may affect the student's chances for such things as
moving to the next grade or graduating with a regular diploma.

Alternate Assessments
11.

What is an alternate assessment?

An alternate assessment is an assessment designed for students with disabilities who are unable
to participate in a general assessment, even when accommodations or modifications are
provided. The alternate assessment is a way for students, including those with the most
significant disabilities, to participate in and benefit from assessment programs.
12.

Which students should receive an alternate assessment?

The need for alternate assessments depends on the individual needs of the child, not the category
of the child's disability. The alternate assessment is not just appropriate for students with

Page 5 - Guidance on Including Students with Disabilities in Assessment
significant cognitive impairments. It is expected that only a relatively small number of students
will participate in alternate assessments.
In many instances, the alternate'assessment will lead to an IEP diploma or other special type of
certification. However, some states may decide that the alternate assessment can be given to the
very small number of difficult-to-assess students with disabilities who need the alternate
assessment to earn benefits such as a regular diploma.

13.

What should be the content of an alternate assessment?

Alternate assessments need to line up with the general curriculum standards set for all students.
This means that these assessments should test the same broad content areas (such as
communication, mathematics, social studies, science, etc.) covered in the general assessment.
Alternate assessments may test additional content, including functional skills..

Reporting and Accountability
14.

How are the results of assessments supposed to be reported and used?

IDEA and Title I both have requirements for how school systems must use the results of
assessment programs. IDEA requires that states must set goals for themselves, and these goals
must include the performance of students with disabilities on assessments, as well as drop-out
and graduation rates. States must report to the federal government and the public every two
years on their progress in meeting their goals.
Title I requires that states must use assessment systems to see if schools and school districts are
helping all students reach high standards. Title I requires that students with disabilities must be
included in these state systems, and that the scores from alternate assessments must be included.
IDEA requires states to report to the public on the performance of students with disabilities on
regular and alternate assessments. These reports must be as frequent and as detailed as reports
on nondisabled students. Scores for individual students with disabilities must not be revealed in
these public reports. But, individual scores can be revealed in private reports to teachers and
parents.
IEP teams can consider individual results from state and district-wide assessments as they
develop IEPs for students with disabilities. Parents can also check public reports to help hold
schools accountable for having high expectations for all students.

Key Federal Laws with Requirements Related to Assessment
Programs:
•
•
•
•

Section 504 of the Rehabilitation Act of 1973 ("Section 504")
Title II of the Americans with Disabilities Act of 1990 ("ADA")
Title I of the Elementary and Secondary Education Act ("Title I")
The Individuals with Disabilities Education Act ("IDEA").


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

JAN I2 2001
Dear Colleagues:
This letter is being jointly issued by the U. S. Department of Education's Office of Special Education Programs
and the Compensatory Education Programs office. The purpose of the letter is to encourage local education
agencies (LEAs) implementing schoolwide programs under Section 1114 of Title I of the Elementary and
Secondary Education Act of 1965 (ESEA), as amended, to appropriately include students with disabilities in those
schoolwide reform efforts.
In 1994, through the reauthorization of ESEA, Congress gave states, school districts and schools more flexibility
in using Federal education dollars and other resources. Title I of the ESEA is entitled "Helping Disadvantaged
Children Meet High Standards." Section 1114 of Subpart I allows LEAs to use Title I funds, in combination with
other Federal, state and local funds, to upgrade the entire educational program in eligible schools. To help
facilitate the inclusion of students with disabilities in schoolwide reform efforts, the 1997 Amendments to the
Individuals with Disabilities Education Act (IDEA) under Section 613(a)(2)(D) and the regulations at ยง300.234(a)
authorize LEAs to use a portion of the funds received under Part B of IDEA for any fiscal year to carry out a
schoolwide program under the ESEA, as long as students with disabilities, included in such schoolwide programs,
receive services in accordance with a properly developed Individualized Education Program (IEP) and are
afforded all of the rights and services guaranteed to children with disabilities under IDEA. In other words, in a
schoolwide program, a portion of the Part B funds can be combined with funds from Title I and other Federal,
state, and local funds, allowing schools to plan for the entire school population, and more effectively integrate
programs, strategies and resources.
It has come to the attention of Deparlment of Education officials, however, that eligible schools participating in
schoolwide programs are not taking advantage of the flexibility provisions of Title I and IDEA to combine funds
from many sources into a single accounting fund. In particular, it appears that LEAs have been reluctant to blend
IDEA Part B funds with other funds into a schoolwide account for fear of violating audit and program reporting
requirements. Therefore, the intent of this letter is to reiterate the Department's position that blending a portion of
IDEA Part B funds, as authorized under IDEA, with other Federal, state and local funds is perfectly acceptable
under Federal law as long as students with disabilities, included in such schoolwide programs, receive services in
accordance with a properly developed IEP and are afforded all of the rights and services guaranteed to children
with disabilities under IDEA. Guidance issued by the Office of Elementary and Secondary Education with regard
to implementing this flexibility, which includes record keeping requirements, can be found on the Department of
Education's World Wide Web site at: http://www.ed.gov/legislation/ESEA/Title_I/swpguide.html.
The U.S. DeparUnent of Education is committed to assisting states and LEAs in utilizing the flexibility provided
through both the ESEA and IDEA to insure that students with disabilities are included in schoolwide reform
efforts. If you have further questions regarding the schoolwide provisions under IDEA, contact JoLeta Reynolds
at 202/205-5507. For more information about the schoolwide provisions under ESEA, contact Charles Laster at
202/205- 5531.
Sincerely,

Kenneth R. Warlick
Director
Office of Special Education
Programs

Mary Jean LeTendre
Director
Compensatory Education
Programs


UNITED STATES DEPARTMENT OF EDUCATION
O F F I C E OF S P E C I A L E D U C A T I O N AND REHABILITATIVE S E R V I C E S

JAN

2 2001

Dear Colleagues:
One of the founding precepts of the Federal Interagency Coordinating Council (FICC) was and
continues to be the meaningful involvement of family members at all levels of policy and service
delivery planning. The FICC is also deeply committed to the intrinsic role that families play in
assuring that services and supports for young children with disabilities and their families are of
the highest quality. The FICC developed the attached set of Principles of Family Involvement by
which public and private organizations can assess their efforts in involving family members in
the development, implementation and evaluation of policies and practices. As such, these
Family Involvement Benchmarks are intended as suggested standards of practice.
The FICC endorses these principles and encourages their use in:
•
•
•
•
•

assessing the degree to which your own organizations' policies and programs conform;
building awareness among staff and stakeholders of these concepts and their importance;
facilitating individual and collective dialogue among staff and stakeholders about the
importance of these standards to your organization mission;
exploring the specific changes which these benchmarks imply within your organization
and scope of work; and
encouraging the dissemination of these benchmarks across the early childhood field.

I invite you to partner with the FICC in disseminating and adopting these Principles of Family
Involvement and fostering stronger relationships with family members to improve results for
young children with disabilities and their families.
Sincerely,

dith E. Heumann
sistant Secretary
,Office of Special Education and
Rehabilitative Services
Chair, FICC
Attachment

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

Our mission is to e n s u r e equal a c c e s s to e d u c a t i o n a n d to p r o m o t e educational e x c e l l e n c e throughout the Nation.

PRINCIPLES OF FAMILY INVOLVEMENT
DEMONSTRATE FAMILY INDEPENDENCE AND CONTRIBUTION"
Develop a plan for identifying a diverse, representative group of families to participate.
During and after meetings, specifically recognize the value of the family's participation.
Recognize individual family strengths while respecting the different methods of coping
and adjustment..
Demonstrate how Federal programs support families to attend national conferences.

PROVIDE FAMILY IDENTIFIED SUPPORTS TO ASSIST THE FAMILY'S
PARTICIPATION:
Provide convenient meeting times and locations for family members.
Compensate families for their time, expertise, and expenses.
Clearly identify a staff person to be the primary contact person for reimbursement and
other issues. Be sure she/he understands that timely reimbursement and contacts are
essential.
Develop provisions that ensure that parents are present to participate in policy related
activities including direct staff support, stipends, travel expenses, and childcare.
Identify these supports in Request for Proposals (RFP), grants, and policy.
Provide complete, appropriate information prior to meetings in a timely manner.
Match veteran parents with inexperienced family members to ensure that new members
feel supported in their roles as advisors and have the opportunity to share their ideas.
Consider incorporating a "family leave" policy so family members can choose an inactive
role but maintain their membership should family circumstances require some time off.

Recognize that some family members may require more and different kinds of support
than other to participate in a meaningful way.
Encourage and facilitate family-to-family support and networking. 2

PROVIDE FORMAL ORIENTATION FOR FAMILIES AND PROVIDE INFORMATION FOR
INVOLVING THEM:

Provide orientation to both family members and staff about the issues, participants, and
process.
Provide informational support for parents to be prepared to participate as equal partners
on a "level playing field" with their professional counterparts.
Provide technical assistance, leadership mentoring, training, and other parent leadership
teaming.

ENSURE DIVERSITY AMONG FAMILY MEMBERS:

Honor the racial, ethnic, cultural, and socioeconomic diversity of families)
Provide all materials in the families' preferred language.
Recruit broadly from the community and the population the program serves.
Bring in new families.
Adapt collaborative models to diverse cultures. Manage changing distribution of power
and responsibility. Incorporate principles of collaboration into professional education. 4
Insure broad representation among parent groups based upon the community(s) in
question.
Be particularly careful to include members of traditionally underserved groups.
Avoid any appearance of tokenism.

BE READY TO HEAR WHAT FAMILIES SAY:

Encourage and support family members to find their voice.
Ensure that parent perspectives are not considered a separate c o m p o n e n t o f the
policymaking process, but instead are infused throughout.
Always consider an individual parent's story as being valid.

RESPECT THE PASSION FAMILIES HAVE FOR CHANGE.

CELEBRATE THE PARTNERSHIPS OF WORKING TOGETHER FOR CHANGE:

Support staff in developing an understanding o f the value o f family participation.
Provide clear information about the goals o f the board, task force, or committee and the
role o f individual m e m b e r s and the roles o f family members.
Balance m e m b e r s h i p on committees between families and professionals.
Consider shared leadership--parent and professional co-chairs or teaming.

Early Childhood Comer. (2000 Spring). Principles of Family-Centered Care. Newsline, The Federation for
Children with Special Needs.
2 ibid.
3 ibid.
4 Epstein, M., Kutash, K., & Ductmowski, A. (Eds.) Outcomes for Children and Youth with Behavioral and
Emotional Disorders and Their Families. (pp.233-234). Austin: PRO-ED.
Primarily adapted from Essential Allies: Families as Advisors. Bethesda, MD: Institute for Family Centered Care.