T F

UNITED STATES DEPARTMENT OF EDUCATION
z

OFFICE OF SPECIAL EDUCATION AND REHABILITATIVE SERVICES

*NM oo

March 1, 2004
Contact Persons
Name
: Ruth Ryder
Telephone : (202) 205-5547
E-Mail : Ruth. Ryder@ed .go v

I OSEP 04-07

I

MEMORANDUM

State Directors of Special Education

TO

:

FROM

: Stephanie Smith Lee, Director
""~
Office of Special Education Programs

SUBJECT:

Implementing the Funding Formula Under the IDEAYear of Age Cohorts for Which FAPE is Ensured

ACTION :

Due March 19, 2004

The Individuals with Disabilities Education Act (IDEA) funding formula for Section 611 of Part
B, first allocates base amounts to States that are equal to the amounts they received from Federal
Fiscal Year 1999 funds . Then 85 percent of any remaining funds are allocated among the States
on the basis of their relative populations of children aged 3 through 21, who are of the same age
as children with disabilities for whom the State ensures the availability of a free appropriate
public education (FAPE), and 15 percent of remaining funds are allocated on the basis of the
relative populations of those children who are living in poverty . See Section 611(e)(3)(A) ; see
also 34 CFR §300 .707.
At this point, all States are providing FAPE to all children with disabilities aged 3 through 17 .
State practice varies for children aged 18 through 21 . For example, some States ensure FAPE for
all children with disabilities through age 21 (and in some cases, even beyond that age) . Some
States ensure FAPE for all children who have not reached 21 by a date certain, such as
September 1, and continue to ensure FAPE for children who turn 21 after that date for the
remainder of the school year . Other States ensure FAPE for all children with disabilities through
age 18, but allow local education agencies to serve children with disabilities beyond that age .
In order to calculate State grants under Section 611 of Part B for Federal Fiscal Year 2004, we
need to determine the age cohort for which each State ensures the availability of FAPE for
school year 2004-2005 . Our rule for establishing the age cohort is quite simple -- all children
with disabilities, who are a particular number of years old, must be ensured the availability of
FAPE in order for that age year to be included in the State's relative population-age cohort . For
example, if a State ensures FAPE to children through the end of a school term or school year in
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Page 2 - State Directors of Special Education
which the child turns 21, the State is ensuring the availability of FAPE to all children with
disabilities through age 20 years old, but is not ensuring the availability of FAPE to all who are
21 years old . Therefore, the last age year to be included in their relative population-age cohort
would be 20 .
The attached chart identifies, in the second column, the year of age cohorts for which each State
ensures FAPE . The third column provides a description, taken from State documents, of how
each State determines the upper age for which it ensures FAPE .
We ask you to carefully review this information . If there are any errors, we need to be notified
immediately . Any unresolved problems will affect the grants to all States . If we do not hear
from your State by March 19, 2004, we will assume you agree with our determination . Please
e-mail any responses to Ruth Ryder at Ruth.Rvder@ed .gov.
If you have any questions about this memorandum, please contact Ms . Ryder at (202) 205-5547 .
Attachment

Age Cohort (for years of age 3 through 21) for which FAPE is Ensured (2/23/04)

State

Years of Age
Cohort

Description of Upper Age Limit

AL

3 through 20

Can complete school year in which turn 21 unless received a high school
diploma .

AK

3 through 21

At least 3 but less than 22 years of age .

A Sam

N/A

AZ

3 through 21

At least 3 but less than 22 .

AR

3 through 20

Aged 3 to 21 .

BIA

N/A

CA

3 through 18

CO

3 through 20

∎ Between 19 & 21 if enrolled in special ed PRIOR to age 19 .
∎ Turns 22 Jan-June inclusive can continue for remainder of fiscal year
including ESY.
∎ If turns 22 during Oct, Nov, or Dec can go until Dec 31 .
∎ If 22 during July, Aug or Sept not allowed to begin a new fiscal year unless
in a year round program can complete the term that crosses the fiscal year .
Between ages of 3 and 21 . If turn 21 during school year can complete that
semester .

CT

3 through 20

3 to end of school year when turns 21 .

CNMI

N/A

DE

3 through 20

DB, HI, VI & autistic : 0 through 20 . Other categories : 3 through 20 .

DC

3 through 21

End of semester in which turns 22.

FL

3 through 21

Between the ages of 3 and 21, inclusive .

GA

3 through 21

3 through 21 years of age .

Guam

N/A
Under 20 on the first instructional day . If turn 20 during school year can
complete year.

HI

3 through 19

ID

3 through 20

IL

3 through 20

3 through semester turns 21 .
Between the ages of 3 and 21 . If turns 21 after beginning of school year can
complete year and following summer if specified in the IEP .

IN

3 through 21

3 through 21 (less than 22) .

State

Years of Age
Cohort

Description of Upper Age Limit

IA

3 through 20

Under 21 years of age . LEAs can request to serve to 24 .

KS

3 through 20

Through school year in which reaches 21 .

KY

3 through 20

Under 21 years of age .

LA

3 through 21

3 to not more than 21 years, inclusive .

ME

3 through 19

Has not reached 20 at the start of the school year .

MD

3 through 20

As of October 1, 2000 end of school year in which child turns 21

MA

3 through 21

3 through 21 .

MI

3 through 21

Birth to 22 . State law to 26 .

MN

3 through 20

MS

3 through 20

Birth until July 1 after child turns 21 . (Effective July 1, 2002 .)
Not yet reached 21 years by September 1 . If turns 21 during school year,
finishes the year.

MO

3 through 20

MT

3 through 18

Between 3 and 21 years .
Between ages of 3 and 18, inclusive . Districts may serve through school year
child turns 21 .

NE

3 through 20

0 through school year reaches 21 .

NV

3 through 21

Under the age of 22 .

NH

3 through 20

3 years of age or older, but less than 21 years of age .

NJ

3 through 20

NM

3 through 21

3 through 20 .
Serves 2 if turns 3 during school year and will serve if turns 22 during school
year.

NY

3 through 20

Who has not attained the age of 21 prior to September 1 .

NC

3 through 20

2 through 20 ; permissive 0-2 and 21 .

ND

3 through 20

Has not reached 21 by midnight of August 31 st .

OH

3 through 21

Below age 22 .

OK

3 through 21

OR

3 through 20

Aged 3 through 21 .
Not yet reached 21 years by Sept . 1 . If turns 21 during school year finishes
year.
2

State

Years of Age
Cohort

PA

3 through 20

Age 3 to 21, or earlier graduation .

PR

3 through 21

RI

3 through 20

3 through 21 years .
If turns 21 during last semester of school year can finish the balance of the
school year ; however, LEAs are able to terminate services as soon as 21 is
attained.

SC

3 through 21

SD

3 through 20

Ages 3 through 21 .
Can complete school year during fiscal year in which turns 21 . Fiscal year
begins July 1 .

TN

3 through 21

3 through 21 . If turns 22 during school year can complete that school year .

TX

3 through 21

UT

3 through 21

3 through 21 (birth for VI and AI).
(b)
if a student with a disability turns 22 during the school year,
the entitlement extends to the :
(i)
beginning of the school's winter holiday for those who
turn 22 on or after the beginning of the school year and before December 31 ;
and
(ii)
end of the school year for those who turn 22 after
December 31 and before the end of the school year .

VT

3 through 21

VA

3 through 21

VI

N/A

WA

3 through 20

WV

3 through 20

WI

3 through 20

Between 3 and 21 years of age prior to Sept . 1 of the school year .
3 to 21 unless turns 21 during school term (i .e., school year) then can finish
the term . If 21 in Oct remains until June .

WY

3 through 20

Under the age of 21 .

Description of Upper Age Limit

3 up to 22nd birthday.
Children whose second birthday falls on or before Sept 30 and who have not
reached their 22nd birthday on or before Sept 30 .

Between 3 and 21 . If turns 21 after August 31 eligible for remainder of
school year.

3


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

FEB 2 0 2004

Alice D . Parker, Ed .D.
Assistant Superintendent
California Department of Education
721 Capitol Mall
Sacramento, California 94244
Dear Dr . Parker:
This is a response to your letter to Larry Ringer, Associate Division Director, Monitoring
and State Improvement Planning, requesting guidance from the Office of Special
Education Programs (OSEP) regarding an independent educational evaluation (IEE)
under 34 CFR §300 .502 of the regulations implementing the Individuals with Disabilities
Education Act (IDEA) . Specifically, you ask whether it is permissible for a public
agency to restrict a parent's choice of an IEE to only the evaluators on a list provided the
parent by the public agency and whether the public agency has the ultimate authority to
choose the evaluator .
The current IDEA regulations specify that the right of a parent to obtain an IEE is
triggered if the parent disagrees with an evaluation initiated by a public agency . See
§300.502(b)(1). The regulations also require that on request for an IEE, a public agency
must provide the parent information about where an IEE may be obtained, and the agency
criteria applicable for IEEs . 34 CFR §§300 .502(a)(2) and (e)(1). The public agency must
set criteria under which an IEE can be obtained at public expense, including the location
of the evaluation and the qualifications of the examiner, which must be the same as the
criteria the public agency uses when it initiates an evaluation, to the extent those criteria
are consistent with the parent's right to an IEE. 34 CFR §300 .502(e)(1) . Other than
establishing these criteria, a public agency may not impose conditions or timelines related
to a parent obtaining an TEE at public expense . See §300 .502(e)(2).
It is not inconsistent with IDEA for a district to publish a list of the names and addresses
of evaluators that meet agency criteria, including reasonable cost criteria . This can be an
effective way for agencies to inform parents of how and where they may obtain an IEE .
In order to ensure the parent's right to an independent evaluation, it is the parent, not the
district, who has the right to choose which evaluator on the list will conduct the IEE . We
recognize that it is difficult, particularly in a big district, to establish a list that includes
every qualified evaluator who meets the agency's criteria . Therefore, when enforcing
IEE criteria, the district must allow parents the opportunity to select an evaluator who is
not on the list but who meets the criteria set by the public agency .
In addition, when enforcing IEE criteria, the district must allow parents the opportunity to
demonstrate that unique circumstances justify the selection of an evaluator that does not
meet agency criteria . In some instances, the only person qualified to conduct the type of
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Page 2 - Alice D . Parker, Ed.D.
evaluation needed by the child may be an evaluator who does not meet agency criteria.
For example, because children must be assessed in all areas related to the suspected
disability, there may be situations in which some children may need evaluations by an
evaluator who does not meet agency criteria . In such situations, the public agency must
ensure that the parent still has the right to the lEE at public expense and is informed
about where the evaluation(s) may be obtained .
Section 300 .502(b)(2) of the regulations states that "If a parent requests an independent
educational evaluation at public expense, the public agency must, without unnecessary
delay, either (i) initiate a hearing under §300 .507 to show that its evaluation is
appropriate; or (ii) ensure that an independent educational evaluation is provided at
public expense, unless the agency demonstrates in a hearing under §300.507 that the
evaluation obtained by the parent did not meet agency criteria ." Therefore, if a parent
elects to obtain an IEE by an evaluator not on the public agency's list of evaluators, the
public agency may initiate a due process hearing to demonstrate that the evaluation
obtained by the parent did not meet the public agency criteria applicable for IEEs or there
is no justification for selecting an evaluator that does not meet agency criteria . If the
public agency chooses not to initiate a due process hearing, it must ensure that the parent
is reimbursed for the evaluation .
At your request, we have reviewed the guidance provided by the California Department
of Education (CDE) . We recommend that CDE add to the guidance after the first
sentence that (1) the parent, not the district, has the right to choose which evaluator on the
list will conduct the IEE; and (2) when enforcing IEE criteria, the district must allow
parents the opportunity to select a qualified evaluator that meets agency criteria even if
that evaluator is not on the list of potential evaluators established by the district . In
addition, the district must allow parents the opportunity to demonstrate that unique
circumstances justify the selection of an evaluator that does not meet agency criteria . We
recommend revising the second sentence as follows : if a parent elects to obtain an IEE
by an evaluator not on the public agency's list of evaluators, and the public agency
believes the evaluator does not meet agency criteria or there is no justification for
selecting an evaluator that does not meet agency criteria, the district may file for due
process rather than pay for the IEE .
We hope that you find this explanation helpful . If you need further assistance, please call
Dale King at (202) 260-1156 .
Sincerely,

Stephanie Smith Lee
Director
Office of Special Education Programs


,KT OF

UNITED STATES DEPARTMENT OF EDUCATION
o

x
84TES Of

OFFICE OF SPECIAL EDUCATION AND REHABILITATIVE SERVICES
FEB

1 2

2004

I write to respond to your initial inquiry about the alleged disclosure of child find referral
information about
~by the
County Hospital to
County Child
Development Services (CDS) which is part of the Maine Department of Education's child
find system under Part C of the Individuals with Disabilities Education Act (Part C of
IDEA) . The information allegedly disclosed is information to enable the Part C agency
to determine whether a child aged birth to three is eligible for early intervention services
under Part C . You asked, and expressed concern, about the circumstances under which
such information about
ould be disclosed by the hospital to the child find
entity under Part C without prior parental consent under the IDEA .

Ift

Under Part C of the IDEA, the State lead agency must make available to eligible infants
and toddlers with disabilities and their families early intervention services to address their
developmental needs . 20 U .S .C . §§1432(4), 1434(1), and 1435(a)(2) . As part of the
mandate to make early intervention services available to eligible infants and toddlers and
their families, Part C of the IDEA requires the lead agency in each State to find such
children and have in place child-find policies and procedures to ensure that primary
referral sources (including hospitals) refer potentially eligible children to the Part C child
find program within two business days of identification . 20 U.S .C . §§1435(a)(5) ; 34
CFR §303 .321 . The specific information that can be included in the referral without prior
parental consent by the primary referral source for these limited child find purposes are
the child's name, date of birth, and sufficient parent contact information (as determined
by the lead agency) to the lead agency so that the lead agency can meet its child find
responsibilities . The purpose of child find is to ensure that potentially eligible children
with disabilities and their families are informed of the availability of services under the
IDEA by the agency or agencies responsible for administering the IDEA in the State .
In addition, under Part B of the IDEA, the State educational agency (SEA) is required to
have child find policies and procedures in place to identify children with disabilities from
birth through 21 . 20 U.S.C. §1412(a)(3) ; 34 CFR §300.125 . In many States where the
SEA and lead agency are different agencies, the SEA, through an interagency agreement
or other mechanism, may include the lead agency's participation in the SEA's child find
activities for birth to three children with disabilities . However, the lead agency has an
independent child find obligation for children with disabilities aged birth to three years
under Part C of the IDEA . 20 U.S .C . §1435(a)(5); 34 CFR §§303 .320 and 303 .321 . In
Maine, the Maine Department of Education serves as both the State educational agency

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Page 2
under Part B and the lead agency under Part C . Thus, the Maine Department of
Education is responsible for child find under both Parts B and C of the IDEA .
In lieu of the required disclosure under 34 CFR §303 .321(d)(2), the lead agency under
Part C may, but is not required to, meet its child find obligations for children birth to
three in other ways . The lead agency may require instead that the primary referral source
or any agency that makes referrals under the State's child find system notify the parent
that the child is being referred to the lead agency for child find purposes and allow the
parent an opportunity to object . If, under these circumstances, the parent objects during
the period provided for objection, then the IDEA does not require that the referral be
made (and, consequently in this situation, prior parental consent may be required under
other privacy laws before the referral can be made) . If, under these circumstances, the
parent objects to the referral, the lead agency may meet its child find obligations through
other procedures, such as general public awareness campaigns . In a State that has
adopted these notification procedures, if the parent objects to the referral, the IDEA does
not require the referral to be made to the lead agency . See, 20 U .S.C. §1435(a)(6) and 34
CFR §§303 .320 and 303 .321 . It is our understanding that Maine does not have such
notification procedures .
Your initial inquiry was directed to the Family Policy Compliance Office (FPCO), the
Office that administers the Family Educational Rights and Privacy Act (FERPA), 20
U.S.C. §1232g . The FPCO initially responded to your inquiry separately in a letter dated
and informed you that FERPA does not apply because, based on the
4
informs ion the Department had at that time, the M County Hospital was not an
"educational agency or institution" to which funds had been made available under a
program administered by the Secretary of Education . Your response letter dated
MOW
indicated that the ~ County Hospital has a financial relationship with the
County CDS (the Part C provider in
County) . This letter also responds to
your
letter to the FPCO . Since your
letter, the
Department has learned that the
County Hospital erves as a contractor to the
County CDS for some early intervention services . Although the
County
Hospital is an "educational agency or institution" under FERPA to the extent that it
provides Part C services under the IDEA, FERPA only applies to "education records" of
"students ." 20 U .S.C. §§1232g(a)(4)(A) and (a)(6) . The term "student" is defined to
include "any person with respect to whom an educational agency or institution maintains
education records, but does not include a person who has not been in attendance at such
agency or institution ." 20 U .S .C. §1232g(a)(6) . In this case,
at the time
of the alleged disclosure, was not a "student" under Part C of the IDEA because your
prior correspondence specifically indicated that had not received Part C services and
that you did not seek such services one behalf . Thus, FERPA does not apply to the
disclosure by the hospital as a primary referral source to
County CDS, which
implements the lead agency's child find responsibilities in
County .
You expressed two other concerns about Part C in your inquiry, namely that : (1) you
neither needed nor desired to seek early intervention services for
, and (2)
the referral was being made to allegedly increase the amount of funs that the lead

~~-

Page

3

agency would receive from the Federal Part C program . As to your first concern, while
the lead agency under Part C has an obligation to find infants and toddlers with
disabilities, parents have an unequivocal right under Part C of the IDEA to decline to
participate in the Part C early intervention program . Part C requires prior written parental
consent be obtained before an evaluation and assessment can be conducted or before the
provision of early intervention services . 20 U.S.C. §1436(e) ; 34 CFR §§303 .322(d)(2),
303.401(a)(1), and 303 .404 . Second, while lead agencies under Part C receive Part C
funds based in part on the State's Part C "child count", the only children the State and
lead agency are required to report on under 20 U .S.C. §1418(a)(1) are those infants and
toddlers with disabilities who are receiving early intervention services . This includes a
count of those infants and toddlers with disabilities whose parents have consented to their
child being evaluated for early intervention services and who are determined eligible and
have individualized family service plans (IFSPs) in place as of the December 1 st child
count deadline . Thus,
if iswas referred to Part C but is not receiving
services under Part C, is not eligible to be included in the State's child count data for
Federal funding purposes .
Finally, IDEA's procedural protections for parents include the right to file a State
complaint if there is an alleged violation of Part C . If, after reviewing the above
information, you believe that there is a violation of Part C of the IDEA, you may file a
State complaint with the lead agency in accordance with the Part C regulations at 34 CFR
§§303 .510 through 303 .512 and the lead agency is required to resolve the complaint and
issue its final decision within 60 calendar days of the complaint being filed . In Maine,
the contact for the lead agency is :
Laurie Bertulli, Part C & Section 619 Coordinator
Child Development Services
Department of Education
State House Station #146
Augusta, ME 04333
We trust this information is responsive to your inquiries . If you have further questions,
please contact Dr . JoLeta Reynolds of my office at (202) 205-5507 (press 3) .
Sincerely,

Stephanie Smith Lee
Director
Office of Special Education Programs
cc :

LeRoy Rooker
Family Policy Compliance Office
David Stockford
Maine Department of Education


UNITED STATES DEPARTMENT OF EDUCATION
r
z

OFFICE OF SPECIAL EDUCATION AND REHABILITATIVE SERVICES

F F g 1 1 20,04

SIP4TES ON

Mary Elder
Executive Director
Texas Interagency Council on
Early Childhood Intervention
4900 N . Lamar Boulevard
Austin, Texas 78751-2399
Dear Ms . Elder :

This is in response to your letter to the Office of Special Education Programs (OSEP) and the
Family Policy Compliance Office (FPCO) requesting guidance concerning the disclosure of
referral information from a lead agency under Part C of the Individuals with Disabilities
Education Act (IDEA) to the State education agency (SEA) or the local education agency (LEA)
under Part B . The information being disclosed is about children who will shortly turn three and
transition from receiving early intervention services under Part C to potentially receiving special
education and related services under Part B . You specifically requested on behalf of Texas
Interagency Council on Early Childhood Intervention (TXECI), the lead agency in Texas under
Part C, clarification regarding the circumstances in which parental consent is required for
disclosure of this information by the lead agency. OSEP has consulted with the FPCO in
responding to your letter .
The IDEA requires each State to have policies and procedures to ensure a smooth transition for
toddlers receiving early intervention services under Part C to preschool or other appropriate
services, including a description of how the lead agency will notify the LEA for the area in
which such a child resides that the child will shortly reach the age of eligibility for preschool
services under Part B . 20 U.S .C . §1437(a)(8)(A) ; 34 CFR §303 .148 . Section
637(a)(8)(A)(ii)(II) of the IDEA also requires the lead agency to convene a conference, with the
approval of the parents of the child, among the lead agency, the family, and the LEA at least 90
days (and at the discretion of all such parties, up to 6 months) before the child is eligible for
preschool services under Part B, to discuss any such services that the child may be eligible to
receive .
To help ensure a smooth transition, Congress also included specific requirements under Part B of
the IDEA for LEAs regarding transition of children from Part C to Part B . Section 612(a)(9) of
the IDEA and 34 CFR §300 .132 require the SEA to ensure : that children served under Part C
who will participate in Part B preschool programs experience a smooth and effective transition to
those preschool programs in a manner consistent with section 637(a)(8) of the IDEA ; that by the
third birthday of a child eligible under Part B, an individualized education program (IEP) or an
individualized family service plan (IFSP) with appropriate content has been developed and is
being implemented for the child ; and that each LEA will participate in transition planning
conferences arranged by the Part C lead agency .

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Mary Elder - Page 2

Additionally, the SEA is responsible for ensuring that the child find responsibilities under its
program are met, even if the SEA, through an interagency agreement or other mechanism,
delegates to the lead agency or another agency the primary role in child find for the birth through
two population . 34 C .F .R. §300 .125 . Since the eligibility criteria under Parts B and C are
different, the child find and evaluation procedures under Part C must be followed when the
purpose is to locate, identify and evaluate infants and toddlers with disabilities who may be
eligible for early intervention services under Part C ; and the child find and evaluation procedures
under Part B must be followed when the purpose is to locate, identify and evaluate children with
disabilities who are in need of special education and related services under Part B . See 20 U .S .C .
§§1412(a)(3)(A) and 1435(a)(5) ; 34 CFR §§ 300 .125 and 303 .321 .
If an infant or toddler is determined eligible under Part C, that infant and toddler with a disability
and the family receive the early intervention services identified in the child's IFSP under Part C .
At least 90 days (or up to six months depending on the State) prior to a toddler reaching the age
of three (the age of initial eligibility for services under Part B), the Part C lead agency must
notify the LEA for the area where the child resides that the child will shortly reach the age of
eligibility for preschool services under Part B . 20 U .S .C . §1437(a)(8)(A)(ii)(I) . Both the SEA
under Part B and the lead agency under Part C are subject to their respective child find statutory
obligations under the IDEA . See 34 CFR §§300 .125 (Part B) and 34 CFR §303 .148(b)(1) (Part
C) .
The IDEA specifically provides that the protections of the Family Educational Rights and
Privacy Act (FERPA) at 20 U.S .C . § 1232g (FERPA) apply to both Part B and- Part C . 20 U .S .C .
§§ 1417(c) and 1442 . Specifically, IDEA sections 617 and 642 define "a State's lead agency" as
a "state educational agency," and an "early intervention service provider' as an "LEA" for
purposes of FERPA . In addition, FERPA defines "educational agency or institution" to include
"any public or private agency or institution which is the recipient of funds under any applicable
program ." 20 U .S .C . §1232g(a)(3) ; 34 CFR §99 .1 . "Applicable programs" means any program
for which the U .S . Department of Education has administrative responsibility, including Parts B
and C of the IDEA . 20 U .S .C . §1221(c)(1) . Thus records maintained for purposes of Parts B
and/or C by the lead agency, the SEA or the LEA on those children referred for, . or receiving,
services under the IDEA are covered as "education records" under FERPA, and must be
disclosed only in accordance with FERPA's requirements .
Under the IDEA, in States where the SEA, through an interagency agreement or other
mechanism, has included the lead agency's participation in the SEA's child find activities, the
SEA, with the lead agency, can establish procedures that allow the lead agency to refer a child to
the SEA without prior parent consent in order to meet the SEA's child find responsibilities under
34 CFR §300 .125 . The specific information that can be included in the referral without prior
parental consent by the lead agency for these limited child find purposes are the child's name,
date of birth, and sufficient parent contact information (as determined by the SEA) to the SEA
and/or LEA so that the SEA and LEA can meet their respective child find responsibilities .
However, the SEA may meet its child find obligations in other ways . The SEA may require
instead that the lead agency or any other agency that makes referrals under the State's child find
system notify the parent that the child is being referred to the SEA for child find purposes and

Mary Elder - Page 3
allow the parent an opportunity to object ; if the parent objects during the period provided for
objection, then the IDEA does not require that the referral be made and, consequently in this
situation, parental consent is required before the referral can be made . In a State that allows
parents an opportunity to object to the child find referral, the lead agency may meet its child find
referral obligations in other ways . For example, the lead agency may elect, but is not required, to
convene an IFSP meeting to explain to the parent the child find purposes of the referral . If the
parent continues to object to the referral, the lead agency may also require the parent to confirm
in writing at the IFSP meeting that the parent objects to the referral . If the parent objects to the
referral, the SEA and LEA may meet their respective child find obligations through other
procedures, such as general public awareness campaigns and, under these circumstances, the
IDEA does not require the referral to be made and the lead agency is no longer obligated to refer
the child to Part B .
In general under FERPA, personally identifiable information about a child cannot be disclosed
by a public agency without first obtaining parental consent unless there is a specific exception .
Specifically, you ask whether the "directory information" exception, under FERPA at 20 U .S .C.
§ § 1232g(a)(5) and (b)(1) might permit TXECI to disclose, without parental consent, certain
personally identifiable information to the SEA or LEA to meet the statutory child find duties .
While the directory information exception does not apply to this situation, we have concluded
that another FERPA exception does apply .
The "directory information" exception under FERPA at 20 U .S .C . §§1232g(a)(5) and (b)(1)
allows a public agency to disclose information designated as "directory information" to the
public without first obtaining parental consent . FERPA does not allow "directory information"
to be used to link to other categories of personally identifiable information, such as disability .
The disclosure of the child find referral information under the IDEA by the Part C lead agency to
the LEA or SEA is not disclosure of directory information because disclosing this information on
only Part C children would identify these children as infants and toddlers with disabilities, which
information is personally identifiable information not permitted to be released under FERPA .
Thus, the child find referral information under the IDEA by the lead agency to the Part B agency
does not fall under FERPA's directory information exception .
However, we have concluded that FERPA and its implementing regulations do not require the
lead agency to obtain parental consent when the IDEA requires the lead agency to make the
disclosure . As more fully explained above, the IDEA requires the lead agency to disclose some
limited personally identifiable information to the LEA and/or the SEA when the SEA, through an
interagency agreement or other mechanism, has included the lead agency's participation in the
SEA's child find activities under 34 CFR §300 .125 . The specific FERPA exception that allows
referral for child find purposes without prior parent consent is the exception to disclosure of
personally identifiable information to authorized representatives of state and local educational
authorities in connection with the enforcement of Federal legal requirements which relate to any
Federally-supported education programs . 20 U.S .C . §§1232g(b)(3) and (b)(5) ; 34 CFR
§99 .31(a)(3)(iv) and 34 CFR §99 .35(a) . In this case, the disclosure of child find referral
information by the lead agency to the SEA and/or LEA is required to meet the statutory child
find duties under Parts B and C of the IDEA . See 20 U.S.C. §§1232g(b)(3) and (b)(5) ; 34 CFR
§§99.31(a)(3)(iv) and 99 .35(a) ; 20 U.S.C §§1412(a)(3) and 1437(a)(8) ; 34 CFR §§300 .125 and

Mary Elder - Page 4
303 .148(b)(1) . Under this FERPA exception, the education records disclosed by the lead agency
to the SEA or LEA must be protected in a manner which will not permit the personal
identification of Part C children and their parents to anyone other than the SEA or LEA and must
be destroyed when no longer needed to enforce or to comply with the Federal legal requirements .
Further, the lead agency must maintain, with the child's Part C records, a record that there has
been a disclosure of personally identifiable information to the SEA and/or LEA from the child's
education records . See, 34 CFR §99 .32 .
As noted earlier, under the IDEA, a State may adopt a policy of allowing parents an opportunity
to object to the referral for child find purposes . Under such a policy, a parent may object during
the period provided for objection . If the parent objects under this circumstance, the IDEA does
not require referral of the child and, consequently in this situation, FERPA would require prior
written parental consent before the referral can be made for child find purposes .
Disclosure of the same information by TXECI to the SEA or LEA, without consent, for a
different purpose, however, is not permissible under either FERPA or Part C . Separate parental
consent is required prior to each of the following stages under the IDEA for the : (1) transmission
of other information about the child from the lead agency to the LEA ; (2) evaluation of the child
to determine eligibility under Part B ; and (3) if the child is determined eligible under Part B, for
the initial provision of special education and related services under Part B . 20 U .S .C . §§
1414(a)(1)(C)(i) and 1436(e) ; 34 CFR §§ 303 .342(e), 303 .344(h)(2)(iii) and 300 .505 .
You also ask if a State may allow parents to refuse the transmission of information by the Part C
agency if the parents do not want the SEA or LEA to contact them regarding a referral . The lead
agency under Part C and the SEA and LEA under Part B have a statutory responsibility under the
IDEA to ensure a smooth transition for each child and family and, under the IDEA's child find
provisions, to ensure the identification, location and evaluation of each child eligible for services
under Parts B and C of the IDEA . As discussed above, unless the SEA has adopted a procedure
allowing parents an opportunity to object, the Part C lead agency must provide the name of the
child, date of birth, and sufficient contact information, as determined by the SEA, to allow the
SEA and LEA to fulfill their child find responsibilities ; parental consent is not required for this
disclosure . However, as noted above, the parent has the right under the IDEA to refuse to
consent : (1) to having the child evaluated under Part B and (2) to the transfer of additional
information from the child's Part C records .
Finally, you ask whether notice must be provided to a Part C family that identifying information
will be sent to the LEA for child find purposes ; while there is no such specific notice
requirement under the IDEA or FERPA that applies to that situation, States may choose to do so .
Under Part C, parents are notified of the transition conference by the lead agency at least 90 days
prior to their child turning three and should be made aware of the referral by the lead agency to
the LEA at that conference (or earlier if the State chooses to do so) . Even if parents do not
attend the transition conference, they have the right to inspect and review under the IDEA and
FERPA their child's education records, which, as discussed above, contain a record that the SEA
and/or LEA received personally identifiable information from their child's education records
without parental consent .

Mary Elder - Page 5

I hope this information provides the clarification needed . If you need further assistance, please
contact Terese Lilly, the OSEP Part C contact for Texas, at (202) 205-0151 .
Sincerely,

Stephanie Smith Lee
Director
Office of Special Education Programs
cc :

Gene Lenz
Division of Special Education, TEA
LeRoy Rooker
Director, Family Policy Compliance Office


UNITED STATES DEPARTMENT OF EDUCATION
o

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OFFICE OF SPECIAL EDUCATION AND REHABILITATIVE SERVICES

FEB - 2 2004

4M91=This is in response to your letter of October 18, 2003 to Senator Olympia Snowe regarding the
use of grade discrepancy in Maine . Your letter has been forwarded to the Office of Special
Education Programs (OSEP) . OSEP is responsible for administering the Individuals with
Disabilities Education Act (IDEA) .
In your letter to Senator Snowe, you say that, "the State Government and several school districts
have interpreted the Federal regulations to say that a student does have to be grade discrepant to
require [special education and related] services ." It is our understanding that by "grade
discrepant" you mean that a student is not advancing from grade to grade .
Maine must ensure that a free appropriate public education (FAPE) is made available to all
children with disabilities . See 34 CFR §300 .121(a). The regulations further clarify at 34 CFR
§300.121(e) that, "(1) Each State shall ensure that FAPE is available to any individual child with
a disability who needs special education and related services, even though the child is advancing
from grade to grade . (2) The determination that a child described in paragraph (a)(1) of this
section is eligible under this part, must be made on an individual basis by the group responsible
within the child's LEA for making those determinations ."'
Thus, if a child is evaluated as having one of the disabilities specified in the definition of child
with a disability at 34 CFR §300 .7(a)(1), and, by reason of that disability, needs special
education and related services, a public agency may not deny the provision of FAPE to the child
because the child is advancing from grade to grade .
You will note from the enclosed letter that we have forwarded your complaint to the Maine
Department of Education (MDE), and have requested the agency take action to resolve the
complaint in accordance with the "State Complaint Procedures" applicable to Part B of the
Individuals with Disabilities Education Act . See 34 CFR §§300 .660-300.662 (copy enclosed) .

' At 34 CFR §300 .7(a)(1), the Part B regulations define "child with a disability" : "As used in this part, the term
child with a disability means a child evaluated in accordance with §§300 .530-300.536 as having mental retardation,
a hearing impairment including deafness, a speech or language impairment, a visual impairment including blindness,
serious emotional disturbance (hereafter referred to as emotional disturbance), an orthopedic impairment, autism,
traumatic brain injury, an other health impairment, a specific learning disability, deaf-blindness, or multiple
disabilities, and who, by reason thereof, needs special education and related services ."
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Page 2 In our letter, we have provided specific guidance to MDE as to the issues that it must address in
resolving the systemic issues that you raised in your letter to Senator Snowe .
The Part B complaint regulations require that, within 60 calendar days of receiving your
complaint, MDE must provide you with a written decision that addresses each allegation in the
complaint, and contains (1) findings of fact and conclusions, and (2) the reasons for the final
decision . We have asked MDE to provide us with a copy of the written decision that it sends to
you . Enclosed is a copy of an OSEP memorandum 00-20, which provides more information
about the complaint process .
To obtain more information about the resolution of your complaint, you should contact :
Mr. David Noble Stockford
Director, Special Services
Maine Department of education
23 State House Station
Augusta, Maine 04333
If this office can be of further assistance, please do not hesitate to contact Samara Goodman at
(202) 358-3298 .
Sincerely,

ivzv&~ ( .,
Stephanie Smith Lee
Director
Office of Special Education Programs
Enclosure
cc:

Senator Olympia Snowe
Mr. David Noble Stockford


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

JAN 2 8 2004

I am writing in response to the July 9, 10, and 12, 2003 letters you wrote to the
Department in response to my letter to you dated July 1, 2003 . I hope the following
information is helpful .
Initially, I would like to state that the Department has diligently tried to respond to your
questions . As we explained in our May 9, 2002 letter to you, we initially referred your
concerns to the Department's Office for Civil Rights (OCR) . OCR responded to your
issues on July 26, 2002, and upon your request for reconsideration, OCR responded again
on December 20, 2002 . In order to more fully respond to your issues, the Office of
Special Education Programs also responded to your issues on February 26, 2003, and on
July 1, 2003 .
Upon receipt of our July 1, 2003 letter, you sent three letters to the Department
requesting further clarification of our previous responses . Accordingly, I provide the
following responses to your specific questions .
Your July 9, 2003 letter states that you "have asked for a clarification of the meaning of
the school that he or she would attend if nondisabled" in the context of a school choice or
selection situation . If a nondisabled child may attend and receive public tuitioning at
school X as a result of parental choice or selection - and if my child meets all of the
requirements for public tuitioning at that school, except that my child has a disability-if I
also select school X for my child - should school X be considered the school that he or
she would attend if nondisabled for my child?
Your July 10 and 12, 2003 letters rephrases the question slightly by asking, "If a
nondisabled child can be publicly tuitioned as a result of parental school choice or
selection at school X - if a child with a disability meets the same qualification as the
nondisabled child, except that the child has a disability or qualifies for special education
under a certain category of disability - if the disabled child's parents also choose or select
school X - isn't the child with a disability entitled to be publicly tuitioned or placed at
school X unless the IEP of (the) child with a disability requires some other arrangement?"
Your July 12, 2003 letter further restates the question as : "If a child was not disabled, and
the child's parents could select high school X as the high school to which their local

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Page 2 -

district should pay tuition to for the child-then according to 34 CFR ยง300 .552 - if that
child did have a disability and the child's parents chose school X - isn't the child entitled
to have her tuition paid for at that school unless, and only unless, the IEP the child
requires some other arrangement ."
Your letters ask about the implications in school choice programs involving private
schools of the provision in 34 CFR ยง300 .552(c), which requires that each public agency
ensure that "unless the IEP of a child with a disability requires some other arrangements,
the child is educated in the school he or she would attend if nondisabled ." In response to
your specific questions, the facts you provide in your letters, namely that a noridisabled
child may attend private school X as a result of parental choice, and your childd meets all
of the requirements for payment of public tuition at that private school, except that your
child has a disability, do not mean that that private school must be considered "the school
that he or she would attend if nondisabled ." As I noted in my July 1, 2003 letter, 34 CFR
ยง300.552(c) was developed in the context of special education programs within local
education agency (LEA) schools, and not programs where tuition is paid for a child to
attend a private school . Under a choice program involving private schools, that provision
does not require that students with disabilities be offered the same choices of schools as
are offered to nondisabled students .
As I explained in my July 1, 2003 letter to you, the Individuals with Disabilities
Education Act does not require that private schools provide special education and related
services that meet the needs of all students with disabilities, and it does not require that
States certify all private schools to provide services to all students . See, St . Johnsbury
"d
Academy v . D .H.et .al., 240 F .3d 163 (2 Cir . 2001) (a private school was not required to
change its policy to ensure that a student with disabilities was able to receive a free
appropriate public education at that school) .
I hope this information answers your specific questions .

Sincerely,

Stephanie Smith Lee
Director
Office of Special Education Programs

cc :

Vermont Department of Education
U.S. Department of Education, Office for Civil Rights


UNITED STATES DEPARTMENT OF EDUCATION
o

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OFFICE OF SPECIAL EDUCATION AND REHABILITATIVE SERVICES

JAN

2 0

2004

Mr. Keith Neves
Special Education Director
Bureau of Indian Affairs
Office of Indian Education Programs
Center for School Improvement
500 Gold Avenue, SW, Room 7202
Albuquerque, New Mexico 87103-1088
Dear Mr . Neves :
I am writing regarding a conference call on September 24, 2003 that Ms. Gloria Yepa,
who was, at that time, Special Education Director for the Bureau of Indian Affairs (BIA),
and Ms . Sharon Wells, Chief of the BIA Center of School Improvement, participated in
with members of my staff concerning BIA's request to allocate $2 .7 million of Federal
fiscal year (FFY) 2001 funds under Part B of the Individuals with Disabilities Education
Act (IDEA) that were going to expire on September 30, 2003 to the Navajo Nation for its
preschool program . We denied that request for the reasons explained below .
The Secretary reserves 1 .226% of funds allocated under section 611 of IDEA to provide
assistance to the Secretary of the Interior . 20 U.S .C . ยง1411 (c) . In FFY 2002 and 2003,
the amount allocated to the Secretary of the Interior was set in appropriations language at
the prior year's funding level plus inflation . Eighty percent of these funds are allocated
to the Secretary of Interior to provide special education and related services to children
with disabilities on reservations aged 5 through 21 enrolled in elementary and secondary
schools for Indian children operated or funded by the Secretary of Interior .
20 U .S .C.ยง1411(i)(1)(A) . Twenty percent of these funds are allocated to the Secretary of
Interior to be distributed based on a statutory formula to tribes and tribal organization to
provide for the coordination of assistance for special education and related services for
children with disabilities aged 3 through 5 on reservations served by elementary and
secondary schools for Indian children operated or funded by the Department of Interior .
20 U.S.C . ยง1411(i)(3)(A) . Every fiscal year, the grant award letter to the BIA specifies
these amounts .
Initially, Ms . Wells requested that the $2 .7 million of FFY 2001 funds that were about to
lapse be transferred to the Navajo Nation's infant and toddler program . The funds
allocated to the BIA under section 611 (c) of IDEA must be used in accordance with
section 611(i) of IDEA, which does not authorize use of funds for infants and toddlers
with disabilities . When we explained this, Ms . Wells clarified that BIA was requesting
that the funds be transferred to the Navttjo Nation's preschool program . However, BIA
was unable to assure OSEP that this transfer of funds would not result in more than 20%
of the BIA's FFY 2001 funds being distributed to the tribes to coordinate with the States
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Page 2 - Mr. Keith Neves
in the provision of special education and related services for preschool aged children with
disabilities . As noted above, tribes and tribal organizations are only eligible for the 20%
of each fiscal year's grant allocated for the coordination of services to preschool children.
Based on the information provided during the conference call, we were unable to approve
the transfer of funds .
During the course of the conference call, Ms . Yepa and Ms . Wells explained that the BIA
is always a year behind in disbursing its funds . For instance, it disburses its FFY 2001
Part B funds (which became available on July 1, 2001) in the summer of 2002 . Ms . Yepa
and Ms . Wells indicated that $2 .7 million of FFY 2001 Part B funds that were about to
lapse on September 30, 2003 were left unexpended . So that these funds would not lapse,
BIA wanted to transfer this $2 .7M to the Navajo Nation's preschool program, subtracting
the equivalent amount from what the Navajo Nation would otherwise receive for this
year. It is our understanding that during the conversation Ms . Yepa and Ms . Wells
indicated that all the IDEA monies went into the same "pot" and that the BIA was unable
to track what year's money they were using and had no way of determining what
constitutes "80% money" and "20% money ." Because of that BIA was unable to confirm
that the $2 .7 million of FFY 2001 funds were from the 80% amount or the 20% amount .
We are writing to clarify that in order to comply with the requirements of section 611(i)
of IDEA, the BIA must be able to demonstrate that for each FFY as specified in its grant
award letter, 80% of its section 611(c) funds are used to provide special education and
related services to children with disabilities aged 5 through 21 enrolled in BIA operated
or funded schools and 20% of its section 611 (c) funds are distributed to the tribes or
tribal organizations for the coordination of services for children with disabilities aged 3
through 5 . Within 60 days of receipt of this letter, the BIA must send OSEP its
procedures for distributing the funds that it receives under section 611(c) of IDEA and
the methods it uses to ensure those procedures have been properly implemented . OSEP
will review those procedures to ensure that the funds the BIA receives under section
611(c) are distributed in accordance with the requirements in section 611(i) of IDEA .
Sincerely,

Stephanie Smith Lee
Director
Office of Special
Education Programs


NT OF

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

JAN 1 4 2004

'ATES ON

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Your letter to Secretary of Education Rod Paige has been forwarded to me to respond .
Thank you for your comments concerning captioning or video description activities of the
Department of Education . As you may know, funds from an award made under the
Individuals with Disabilities Education Act (IDEA) may only be used for video
description and captioning of educational, news, and informational television, videos, or
materials .
The 1997 Amendments to the Individuals with Disabilities Education Act (IDEA)
specified that after September 30, 2001, only educational, informational, and news
programming could be captioned with IDEA funds . Since the 1997 amendments did not
define the terms "education" and "informational", OSEP published a public request for
comments . More than 3000 respondents from the deaf community responded, stating that
all programming on TV was informational because it provided access to the popular
culture . Since it was clear that Congress intended to limit what could be captioned or
described with IDEA funds, these comments did not provide a basis for regulating further
on the statutory terms .
To help identify appropriate programming, OSEP asked five external experts to conduct
independent reviews of all programming submitted for IDEA funding . These five
individuals included individuals with disabilities, individuals with expertise in children's
television, individuals conducting research in video description and in captioning, and
individuals with expertise in literacy . We provided the experts with a list of television
programming for grants that were subject to renewal (continuation awards) for activities
to provide captioning or video description .
The experts were given the following examples of educational, informational, and news
programming to guide their decision-making :
1) Children's programming which is likely to produce an educational benefit,
including educational programs appropriate for use in a classroom setting and
programs of high interest (exception : programs that contain excessive violence or
adult content)

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Page 2 2) News and news magazines (exception : entertainment or sports news magazines)
3) Adult informational or documentary programs (exceptions : non-documentary
feature films and television movies unless they are appropriate for use in the
classroom; documentaries that profile entertainment personalities, sports figures, or
criminals .)
The experts reviewed a list of programs subject to approval for continuation funding .
OSEP used the tabulation of this review process to develop a list of recommended
programs . The Office of the Assistant Secretary for Special Education and Rehabilitative
Services reviewed the recommendations . A Dear Colleague Letter and the list of
approved and non-approved programs were provided to all grantees . Grantees were
given the opportunity to submit alternative programming so there was no reduction in the
total amount of programming provided .
Congress has already addressed the need to expand media access for individuals who are
deaf or hard of hearing in non-classroom settings . The Television Decoder Circuitry Act
of 1990, requires all new television sets to contain a decoder chip that is capable of
displaying closed captioned television transmissions . The Telecommunications Act of
1996 (along with a 1997 FCC rulemaking) also contains extensive requirements for the
provision of closed captioning, mandating that most television programming be closed
captioned by 2006, and requiring captioning of gradually increasing percentages of
programming before that date . Given this legislation, most programs no longer captioned
with IDEA funds will continue to be accessible through the efforts of the private sector .
Thank you for your continued support of programs serving individuals with disabilities .
Sincerely

Stephanie Smith Lee
Director
Office of Special Education Programs


T

UNITED STATES DEPARTMENT OF EDUCATION
W

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OFFICE OF SPECIAL EDUCATION AND REHABILITATIVE SERVICES

v

L•

1 O

DEC (

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Dr. Susan Barnes
Associate Commissioner for
Standards and Programs
Texas Education Agency
1701 N. Congress Avenue, Room 3-121Q
W.B . Travis Building
Austin, TX 78701-1494
Dear Dr . Barnes :
This letter is in response to your question to Dean Kern, Director of the Charter School
Program at the U .S . Department of Education regarding students with disabilities and
virtual charter schools . You ask whether there is any federal guidance specifically for
students with disabilities enrolled in virtual charter schools or other types of virtual
education developed by states and/or their districts . By "virtual education," I assume that
you mean education that uses information and communication technologies to deliver
traditional educational programs (e .g., via the Internet, teleconferencing, tele-video
conferencing) .
The Office of Special Education Programs has not developed guidance specific to virtual
charter schools or other types of virtual education. The Individuals with Disabilities
Education Act (IDEA) requires that each State make available a free appropriate public
education to all children with disabilities (as defined by the IDEA) aged 3 through 21
residing in the State (20 U .S .C 1412(a)(1)) . This includes the identification and
evaluation of children with disabilities (20 U .S .C 1412(a)(3)), the development of an
individualized educational program (20 U .S .C 1412(a)(4)), the provision of special
education and related services in the least restrictive environment (20 U .S .C 1412(a)(5)),
and the provision of procedural safeguards to children with disabilities and their families
(20 U.S.C 1412(a)(6)) .
The IDEA statute and its corresponding regulations do not make any exceptions to these
requirements or allow States to waive or relax these requirements for virtual schools .

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Page 2 - Dr. Susan Barnes

I hope this information is useful . If you have any questions, please do not hesitate to
contact Dr. Wendy Tada (202-205-9094) or Mr . Dale King (202-260-1156) of my staff.
Sincerely,

Stephanie Smith Lee
Director
Office of Special Education
Programs
cc: Dean Kern


I

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UNITED STATES DEPARTMENT OF EDUCATION
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19M

OFFICE OF SPECIAL EDUCATION AND REHABILITATIVE SERVICES

of

DEC 1 0 2003

This letter is in response to your September 4 ; 2003 e-mail and your numerous e-mails sent
thereafter to the Office of Special Education Programs (OSEP), U .S . Department of Education
regarding allegations against the State of New Hampshire's Department of Education (NHDOE)
in its administration of the Individuals with Disabilities Education Act (IDEA) . In your
September 4, 2003 e-mail, you allege that NHDOE has failed to provide
with a free appropriate public education (FATE) and that there is a lack of accounta I ty
from the State agencies that oversee education in New Hampshire . In a letter dated September
25, 2003, sent via e-mail on or about October 2, 2003, you allege that NHDOE violated the
requirements under 34 CFR §300 .508(c) by failing to maintain a copy of the hearing officer
qualifications on file . In that same letter, you ask OSEP to investigate NHDOE's failure to
provide a properly qualified hearing officer, failure to hold
School District accountable
for carrying out
EP, and you ask OSEP to investigate a pattern of harassment by
the School District and the District's attorney and failure to conform
individualized education plan (IEP) with the January due process hearing decision . In a letter
dated September 30, 2003, sent via e-mail on or about October 2, 2003, you allege that the
"NHDOE is violating the terms of its agreement with the U .S. Department of Education, 34 CFR
§300 .2 by failing to : 1) exercise general supervisory authority, 20 U .S.C. 1412(a)(11) and 34
CFR §300 .600 ; and 2) enforce the complaint provisions at 20 U .S .C. 1221(e)(3) and 34 CFR
§§300.660-300.662 ." I will address your concerns below .
OSEP is responsible for administering Part B of the IDEA, which provides financial assistance to
State educational agencies (SEAs) and, through the SEA, to local educational agencies to assist
them in making available a FAPE to eligible children and youth with disabilities . An SEA is
responsible for ensuring that the requirements of Part B are carried out and that each educational
program administered in the state meets the requirements of Part B . (34 CFR §300 .141) .
Under the Part B regulations, the State is required to have a dispute resolu .ion system that
includes : 1) State complaint procedures (34 CFR §§300 .660-300.662) ; and 2) due process
procedures (34 CFR §§300 .500-300 .513) . Under the due process procedures, each public agency
is required to have mediation available, at a minimum, when a due process hearing is requested .
(34 CFR §300 .506 .) Under the state complaint resolution system, each SEA is required to have
written procedures to resolve any complaint, including a complaint filed by an organization or
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Page 2 individual from another State . (34 CFR §300 .660 .) An organization or individual must file a
signed, written complaint alleging that a public agency violated a requirement under Part B not
more than one year prior to the date the complaint is received . The complaint must also include
a statement of facts on which the allegation is based . (34 CFR §300 .662 .) The regulations do
not include a provision for OSEP's review of the State's decision . I have enclosed a
memorandum on complaint resolution procedures under Part B for your reference .
Under the due process hearing system, a parent of a child with a disability or the public agency
may initiate a hearing on any matters relating to the identification, evaluation or educational
placement of a child with a disability, or the provisions of FAPE to the child . (34 CFR
§300 .507 .) Under the Part B regulations, an impartial hearing officer must conduct the due
process hearing . (34 CFR §300 .508.) The hearing officer cannot be an employee of the public
agency that is involved with the education or care of the child, nor can the hearing officer have a
personal or professional interest that would conflict with his or her objectivity in the hearing .
(34 CFR §300 .508(a) .) Each public agency is required to keep a list of persons who serve as
hearing officers that includes a statement of each person's qualifications . (34 CFR §300 .508(c) .)
A decision made in a due process hearing is final, except that any party involved may appeal the
decision to the SEA, if the hearing was conducted by a public agency other than the SEA .
(34 CFR §300 .510(b) .) Additionally, any party aggrieved by the findings and decision made by
a due process hearing officer and who does not have the right to appeal to the SEA, and any
party aggrieved by the findings and decision under 34 CFR §300 .510(b), has a right to bring a
civil action with respect to the complaint in a state court of competent jurisdiction or in a district
court of the United States . (34 CFR §300 .512.)
According to your e-mails, you have exercised your rights to both the state complaint process
and the due process hearing process in an attempt to resolve your concerns . As stated above, the
Part B regulations do not provide for OSEP's review of state complaint decisions and therefore,
we cannot review NHDOE's decision regarding your complaint . With regard to the other issues
that you asked OSEP to investigate, i .e ., violations of 34 CFR §300 .508 and NHDOE's failure to
hold the school district accountable, you may avail yourself of the state complaint process to
address these allegations . Further, if you continue to have specific concerns about
education, you may use the due process procedures, including mediation, to address your
concerns.
To the extent that your allegation of a pattern of harassment is based on
disability,
this may be a violation of Section 504 of the Rehabilitation Act of 1973 (Section 504) and Title
II of the Americans With Disabilities Act of 1990 (Title II) . The Department's Office for Civil
Rights (OCR) enforces Section 504 and Title II . Section 504 and Title II prohibit discrimination
on the basis of disability . Specifically, Section 504 requires that a FAPE be provided to qualified
persons with disabilities in a school district's jurisdiction, regardless of th -; severity of the
person's disability . 34 CFR §104 .4, 28 CFR §35 .130 and 34 CFR §104 .33-104 .36. For more
information about Section 504 and Title II or to file a complaint, you should contact the OCR
enforcement office serving New Hampshire, which is located at :

Page 2 Boston Office
Office for Civil Rights
U.S . Department of Education
J.W . McCormack Post Office and Courthouse
Room 701,01-0061
Boston, MA 02109-4557
Telephone : 617-223-9662
FAX: 617-223-9669
Email : OC R Boston aed .go v
With regard to the SEA's general supervision requirements, as Mr. Rex Shipp indicated to you
during a telephone conversation, OSEP is currently working with the State of New Hampshire,
through the Continuous Improvement and Focused Monitoring System (CIFMS), to improve the
State's provision of services under Part B . Specifically, in April 2001 during the self-assessment
phase of CIFMS the State of New Hampshire self-identified its Dispute Resolution System as
being an area of non-compliance . This area of non-compliance was placed in the State's
Improvement Plan . Since April 2001, OSEP has consistently worked with the SEA staff to help
bring this area into compliance . For more information in regard to the State's ongoing
improvement planning in this area, please contact :
Dr. Mary J . Ford
Director of Special Education
New Hampshire Department of Education
101 Pleasant Street
Concord, NH 03301-3860
(603) 271-3741 Phone
(603) 271-1953 Fax
mford@a, ed.state .nh.us
I hope this information is helpful . Thank you for sharing your concerns with us .
Sincerely,

Stephanie Smith Lee
Director
Office of Special Education Programs
Enclosure
cc: Dr . Mary J . Ford


4,

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

DEC 10 2003

This is in response to your letter dated September 16, 2003 to Secretary Rod Paige, which
was referred to the Office of Special Education Programs (OSEP) for reply . In your
letter, you expressed your continued concern over what you believe to be "non answers"
to the questions you posed in previous correspondence with the U .S. Department of
Education with regard to the Florida Department of Education's (FDE) compliance with
the Individuals With Disabilities Education Act (IDEA) .
As stated in OSEP's response to you on September 25, 2002, staff members from the
U.S. Department of Education have carefully and extensively examined the issues you
raised and provided you with clarification . While we regret that you are not satisfied
with the responses that you received, we continue to believe that we have addressed your
questions concerning Florida's due process system .
Our conclusion that Florida operates a one-tier due process system is not based solely on
the assurance that the State provided in its Eligibility Document . As part of our review of
Florida's Eligibility Document submission in 2000, we reviewed the Florida Statute and
State Board of Education Rules and concluded that Florida operates a one-tier due
process system . As we noted in our letter to you dated April 2, 2002, section 6A6 .03311(5) of the Florida Statute and State Board of Education Rules outlines the
requirements for due process hearings in Florida . Section 6A-6 .03311(5)(a)-(b) describes
certain responsibilities to be carried out by school districts, such as keeping a list of
persons who serve as hearing officers, including a statement of their qualifications .
Section 6A-6 .03311(5)(e) states, "A hearing shall be conducted by a hearing officer from
the Division of Administrative Hearings, Department of Administration ." IDEA does not
preclude the State Educational Agency (SEA) from assigning the responsibility to
conduct hearings to an entity other than the SEA, as long as the due process requirements
of IDEA are met. Several States transfer responsibility for conducting due process
hearings to another agency, such as the State's Office of Administrative Hearings, to
avoid a conflict of interest . This structure does not alter the State's status as a one-tier
due process hearing system . The SEA, as part of its general supervAmy authority under
section 612(a)(11) of IDEA, is ultimately responsible for ensuring that the due process
requirements are met, including the requirement that hearing officer decisions are reached
no later than 45 days after the receipt of a request for a hearing .

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Page 2 Your February 7, 2003 letter suggests that your position that Florida is a two-tier system
is based, in part, on the language in 34 CFR ยง300 .510(b)(1) that states that if a due
process hearing "is conducted by a public agency other than the SEA, any party
aggrieved by the .findings and decision in the hearing may appeal to the SEA ." Public
agency is defined at 34 CFR ยง300 .22 as the SEA, local educational agencies (LEAs),
educational service agencies (ESAs), public charter schools that are not otherwise
included as LEAs or ESAs and are not a school of an LEA or ESA, and any other
political subdivisions of the State that are responsible for providing education to children
with disabilities . A State's Office of Administrative Hearings is not a public agency
under IDEA. Therefore, the fact that a State's Administrative Office conducts due
process hearings does not mean that a party aggrieved by the decision in the hearing has
the right to appeal to the SEA .
Under section 615(f)-(i) of IDEA, hearing officers are required to conduct hearings and
issue decisions in accordance with the requirements of IDEA . Nothing in IDEA
precludes the hearing officer from citing State law, including the State's Administrative
Procedures Act, which in Florida is Chapter 120 of Title X of the 2003 Florida Statutes,
as long as the State law is not inconsistent with IDEA . Under section 615(i)(2), 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 in controversy . The court must
receive the records of the administrative proceedings and hear additional evidence at the
request of a party.
There is no requirement in IDEA that a State must enact a State statute waiving its
sovereign immunity . Section 604(a) of IDEA states that a State shall not be immune
under the Eleventh Amendment of the Constitution of the United States from suit in
Federal court for a violation of the IDEA . You state that OSEP has not explained how, as
a one-tiered State, the SEA can argue that it is not a proper party at due process hearings
or in court . The fact that the SEA operates a one-tier system does not automatically make
the State a proper party to an administrative or judicial proceeding . The hearing officer
or the judge makes the decision about whether the SEA is a proper party based on the
particular facts in the case . To respond to your question regarding whether or not
children receiving vouchers are receiving a free appropriate public education (FAPE), we
are enclosing our April 2, 2002 letter to you, which addresses this issue .
In order to improve services for children with disabilities, OSEP is continuing to work
with Florida on a number of major activities as described below .
Eligibility Document Submissions - On July 7, 2003, OSEP issued a grant award letter to
Florida indicating that the U .S . Department of Education had conditionally approved
Florida's Eligibility Document Submission for Federal Fiscal Year 2003 under Part B of
IDEA . As part of its review of Florida's Eligibility Documents, OSEP required that FDE
revise several sections of the State Board of Education Rules and other related narrative
describing the State's policies and procedures to ensure that the docurients are consistent
with IDEA . As stated in the letter, Florida has provided an assurance that by December

I
Page 3 30, 2003 the State Board of Education Rules and other related narrative describing the
State's policies and procedures will be finalized . At this time, we understand that Florida
has completed public hearings, which are part of the rulemaking process, and expects to
meet the December 30 deadline .
Part B Improvement Plan - Florida is in the process of implementing the Improvement
Plan written in response to Florida's 2001 Monitoring Report and must provide
documentation to OSEP by December 2003 that it has corrected all of the noncompliance
identified in the Report . OSEP's Monitoring Report identified several areas of
noncompliance including the State's failure to implement an effective monitoring system,
to resolve Part B complaints within the required timeline, and to ensure that speech and
language pathology and psychological counseling are provided as a related service to all
students with disabilities who need them to benefit from special education . The areas of
noncompliance identified in OSEP's 2001 Florida Monitoring Report are also contained- ,,-"-in the priority goals of the Florida State Improvement Plan for Students with Disabilities .
Verification Reviews - During the week of September 8, 2003, OSEP conducted a
verification visit to Florida as part of OSEP's Continuous Improvement and Focused
Monitoring System for ensuring compliance and improving performance under Parts B
and C of IDEA . The purposes of the verification visits were to : (1) understand how the
State's general supervision, State-reported data collection, and State-wide assessment
systems work at the State level ; (2) determine how the State collects and uses data to
make monitoring decisions ; and (3) determine the extent to which the State's systems are
designed to identify and correct noncompliance . Currently, OSEP is in the process of
developing a letter explaining the results of OSEP's recent verification visit to Florida .
We believe that we have fully responded to the questions you asked in your February 7,
2003 and September 16, 2003 letters . We hope you find this information helpful .
Sincerely,

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


UNITED STATES DEPARTMENT OF EDUCATION
0

OFFICE OF SPECIAL EDUCATION AND REHABILITATIVE SERVICES
oR

NOV

1 8

2003

Ms. Shan Goff
Chief
Bureau of Instructional Support and Community Services
Florida Department of Education
325 West Gaines Street, Suite 614
Tallahassee, Florida 32399-0400
Dear Ms . Goff:
The Office of Special Education Programs received the enclosed letter from Ms .
Ms.
requests that we forward her letter to the Florida
Department of Education as a complaint . Please resolve this complaint in accordance
with the complaint requirements in the regulations applicable to Part B of the Individuals
with Disabilities Education Act (IDEA) at 34 CFR §§300.660-300 .662 . Consistent with
these regulations, your agency, among other duties, must do the following within 60
calendar days of receiving this complaint :
Conduct an independent on-site investigation if your agency determines such an
investigation is necessary ;
Give the complainant the opportunity to submit additional information, either
orally or in writing, about the allegations in the complaint ;
Review all relevant information and make an independent determination as to
whether the public agency is violating a requirement of Part B ; and
Issue a written decision to the complainant that addresses each allegation in the
complaint and contains findings of fact, conclusions, and the reasons for your
agency's final decision .
In your resolution of this complaint, it may be helpful to note that under Part B of the
IDEA, 20 U .S .C. 1415(i)(3)(B)-(G) and its implementing regulations at 34 C .F.R.
§300 .513, the court, in its discretion, may award reasonable attorneys' fees as part of the
costs to the parents of a child with a disability who is the prevailing party in a due process
hearing . The statute specifically authorizes attorneys' fees for the parents of children
with disabilities and does not provide a reciprocal right under the IDEA for a local
educational agency (LEA) or State educational agency (SEA) . While the IDEA does not
afford an LEA the right to recover attorneys' fees under the IDEA, it may be permissible
for an LEA or SEA to recover fees under other applicable federal or State laws . Where,
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Page 2 - Ms. Shan Goff
for example, under applicable State or federal law, an LEA has the ability to seek
recovery of attorneys' fees if a complaint is filed in bad faith, under the notice provisions
of the IDEA, it would be permissible for the LEA to state the provisions of such laws . It
would, of course, be impermissible to misstate the provisions of the law in an effort to
dissuade, deny or delay a parent from exercising their right to a due process hearing or
any other rights afforded under the IDEA .
Please send a copy of your agency's final decision to Ms- . Crum-Norris and to :
Ms. Sheila Friedman
U.S . Department of Education
Office of Special Education Programs
Room 3633, Switzer Building
400 Independence Avenue
Washington, D .C. 20202-2640
Thank you in advance for your attention to this matter . If you have questions or
concerns, you can contact Dale King at 202-260-1156 or Sheila Friedman at 202-2059055.
Sincerely,

Stephanie Smith Lee
Director
Office of Special Education Programs
CC :

Enclosures


T F

UNITED STATES DEPARTMENT OF EDUCATION
N

OFFICE OF SPECIAL EDUCATION AND REHABILITATIVE SERVICES

NOV

1 0

2003

Mr. David Nordyke
Executive Director
Harmony Community School
1580 Summit Road
Cincinnati, Ohio 45237
Dear Mr . Nordyke :
This is in response to your letter to the Office of Special Education Programs (OSEP)
requesting a review of the Ohio Department of Education's (ODE's) policies and
interpretation of Ohio law regarding allocation of State special education funds for
community schools (Section 3314 .08, Ohio Revised Code) . In your letter you indicate
that you disagree with the ODE's interpretation of the formula and allege that this
interpretation does not permit a student with disabilities to "receive full benefit of his or
her basic aid amount and receive full benefit from the additional monies needed to fulfill
the requirements of the [individualized education program, or] IEP ;" you also allege that
the State's special education funding mechanism discourages the identification of
students with disabilities in that the funding mechanism appears to penalize community
schools for identifying such students . Based upon telephone conversations with Dale
King of our office, it also is our understanding that your concerns are about State special
education funds allocated to the Harmony Community School (a public charter school),
and not the allocation of federal funds provided under Part B of the Individuals with
Disabilities Education Act (IDEA).
OSEP is aware of the Ohio Supreme Court's decisions in DeRolph v . State of Ohio, that
impact the State's methods of funding public education . OSEP also is mindful of the
fiscal difficulties currently facing States and local educational agencies (LEAs) in
ensuring the education of all children, including children with disabilities . However, as
long as the provisions of the IDEA are met, issues regarding a State's public school
funding formula, including State funding of special education and related services, are
matters to be resolved at the State level .
We note that in OSEP's March 2001 report of its 1999 monitoring of the ODE, OSEP
instructed ODE to review its funding mechanism to determine whether it results in
placements that violate the requirement for the provision of services in the least
restrictive environment (LRE) and to ensure that policies and procedures are developed to
ensure compliance with the requirements of 34 CFR §§300 .550-556. Ohio's current
special education funding formula indicates that State special education funds are

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Page 2 - Mr. David Nordyke

distributed based on type of disability and not placement . Further, the State is subject to
the requirements of, and has provided an assurance under, the maintenance of effort
provisions of 34 CFR §300 .154. The State is also responsible for ensuring that the
requirements of 34 CFR §300 .231, relating to maintenance of effort by LEAs, are met . It
is our understanding that community schools in Ohio are recognized as LEAs under the
State's charter school law for purposes of Part B of IDEA . However, it is not clear from
your submission whether these federal requirements are relevant to your dispute .
It also is important to stress that, regardless of the funding mechanism adopted by the
State, the ODE must ensure that all children with disabilities residing in the State who are
in need of special education and related services are identified, located, and evaluated .
See 34 CFR §300 .125(a)(i) . The ODE has responsibility for general supervision under
34 CFR §300 .600, and must ensure that all LEAs (which, in Ohio, include public charter
schools) meet the education standards of the State and the requirements of IDEA-Part B
and its implementing regulations, including the requirements for provision of a free
appropriate public education (FAPE) to eligible students with disabilities who are in the
LEA's jurisdiction . The Part B regulations clarify that, if a public charter school is an
LEA, then that charter school is responsible for ensuring that the requirements of Part B
of the IDEA are met, unless State law assigns that responsibility to some other entity .
See 34 CFR §300 .312(b) .
Under the IDEA, there are additional ways to resolve disputes regarding the provision of
FAPE . Under 34 CFR §§300 .660-300 .662, an individual or organization may file a State
complaint alleging violations of Part B . In addition, the parents of students with
disabilities may request a due process hearing and LEAs must ensure that mediation is
available whenever a due process hearing is requested under the provisions of 34 CFR
§300 .506 through §300 .514 .
Finally, the Department's Office for Civil Rights enforces Section 504 of the
Rehabilitation Act of 1973 (Section 504) and Title II of the Americans with Disabilities
Act (Title II), two federal laws that prohibit discrimination on the basis of disability . If
you believe that ODE's implementation of the State funding formula may violate these
laws, you also may wish to contact the Office for Civil Rights at :
Cleveland Office
Office for Civil Rights
U.S. Department of Education
Bank One Center, Suite 750
600 Superior Avenue, East
Cleveland, OH 44114-2611
Telephone : 216-522-4970
FAX: 216-522-2573 ; TDD : 216-522-4944
Email : OCR Cleveland@ed.gov

Page 3 - Mr. David Nordyke

We hope this provides you with helpful information . If we can be of further assistance
please do not hesitate to contact Mr . Dale King of the Office of Special Education
Programs at (202) 260-1156 .
Sincerely,

Stephanie Smith Lee
Director
Office of Special Education Programs
cc: Mike Armstrong, Director, Office of Exceptional Children
John Mills, Director, Finance and Management Services


.
A

UNITED STATES DEPARTMENT OF EDUCATION
r

D

OFFICE OF SPECIAL EDUCATION AND REHABILITATIVE SERVICES

r4OV

- 6

2003

Linda Goodman, Director
Connecticut Birth to Three System
460 Capitol Avenue
Hartford, Connecticut 06106
Dear Ms . Goodman :
This letter is in response to your letter to the Office of Special Education Programs (OSEP)
seeking clarification on behalf of the State of Connecticut on the responsibility of a lead agency
under Part C of the Individuals with Disabilities Education Act (IDEA) to provide audiological
evaluations to an infant or toddler referred to Part C . Specifically, you ask if an audiology
evaluation is a required Part C service and whether the Part C lead agency is a payor of last
resort for such services .
Your question focuses on infants and toddlers referred to Part C with delays in speech and
language whose parents have not had their children's hearing tested, sometimes because the
family and/or physician feel that such testing is not warranted . Further, you state your agency's
belief that "the very fact that they have a speech delay means that further audiological testing is
warranted to rule out any late-onset hearing loss ."
Under Part C, appropriate early intervention services must be available to all eligible infants and
toddlers with disabilities and their families . See, 20 U.S.C. §§1434 and 1435(a)(2) ; 34 CFR
§303 .140(b) . Under 20 U .S .C . §1432(4), early intervention services are defined as
developmental services that(A) are provided under public supervision ;
(B) are provided at no cost except where Federal or State law provides for a system of
payments by families, including a schedule of sliding fees ;
(C) are designed to meet the developmental needs of an infant or toddler with a disability
in any one or more of the following areas(i) physical development ;
(ii) cognitive development ;
(iii) communication development;
(iv) social or emotional development; or
(v) adaptive development ;
(D) meet the standards of the State in which they are provided, including the
requirements of this part . . . .
20 U.S.C. § 1432(4) .
The Part C regulations at 34 CFR §303 .12(d)(2) identify audiology as an example of "early
intervention services" and specifically define audiology services to include the following :
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Page 2 - Linda Goodman

"(i) Identification of children with auditory impairment, using at risk criteria and
appropriate audiologic screening techniques ;
(ii) Determination of the range, nature, and degree of hearing loss and communication
functions, by use of audiological evaluation procedures ;
(iii) Referral for medical and other services necessary for the habilitation or rehabilitation
of children with auditory impairment ;
(iv) Provision of auditory training, aural rehabilitation, speech reading and listening
device orientation and training, and other services ;
(v) Provision of services for prevention of hearing loss ; and
(vi) Determination of the child's need for individual amplification, including selecting,
fitting, and dispensing appropriate listening and vibrotactile devices, and evaluating the
effectiveness of those devices ."
The Part C regulations at 34 CFR §303 .322(c) require that the evaluation and assessment of an
infant or toddler be based on informed clinical opinion, and include the following :
(i) A review of pertinent records related to the child's current health status and medical
history.
(ii) An evaluation of the child's level of functioning in each of the following
developmental areas :
(A) Cognitive development .
(B) Physical development, including vision and hearing .
(C) Communication development .
(D) Social or emotional development .
(E) Adaptive development.
(iii) An assessment of the unique needs of the child in terms of each of the developmental
areas, including the identification of services appropriate to meet those needs .
34 CFR §303 .322(c) (emphasis added) .
In addition, for a child who has been evaluated for the first time and determined eligible under
Part C, an individualized family service plan (IFSP) meeting must be convened within 45 days
from the initial referral to Part C to develop an IFSP for the child . 34 CFR §303 .342(a) . The
IFSP must include "a statement of the child's present level of physical development (including
vision, hearing, and health status), cognitive development, communication development, social
or emotional development, and adaptive development . . . . This statement must be based on
professionally acceptable objective criteria ." 34 CFR §303 .344(a) .
Thus, you ask if an infant or toddler is referred to Part C with delays in speech and language and
the parents have not had their child's hearing tested whether audiology services are available and
required under Part C . You note, "the very fact that they have a speech delay means that further
audiological testing is warranted to rule out any late-onset hearing loss ." Under such
circumstances, under Part C, an infant or toddler suspected of a communication delay, whose
hearing has not been tested and for whom an audiology evaluation is determined needed, must
receive an audiology evaluation as part of the evaluation required to be conducted under 34 CFR
§303 .322(c)(ii)(B) . This evaluation is needed in order to reflect the child's present level of

Page 3 - Linda Goodman
functioning on the IFSP as required under 34 CFR §303 .344(a)(1) and also to enable the lead
agency under 34 CFR §303 .344(d)(1) to identify on the IFSP the "specific early intervention
services necessary to meet the unique needs of the child and the family to achieve the outcomes ."
The infant or toddler may also receive additional audiology services if the IFSP identifies
audiology as a needed early intervention service . 34 CFR §303 .344(d)(1).
If an audiology evaluation is required under 34 CFR §303 .322(c)(ii)(B) in order to reflect the
child's present level of functioning on the IFSP as required under 34 CFR §303 .344(a)(1), then
the evaluation must be provided at no cost to the child and family under 34 CFR §303 .521(b)(2).
If audiology services are identified as an early intervention service on the IFSP, the services must
be provided at no cost, except where Federal or State law provides for a system of payments by
families, including a schedule of sliding fees . The State law must be on file with the Secretary
under 34 CFR §303 .520. Consistent with the "payor of last resort" requirements outlined in the
IDEA at 20 U.S .C. § 1440 and the Part C regulations at 34 CFR §303 .527, Part C funds may be
used to provide early intervention services including audiology but may not be used "to satisfy a
financial commitment for services that would otherwise have been paid for from another public
or private source, but for the enactment of Part C . . . . Therefore, funds under this part may be
used only for early intervention services that an eligible child needs but is not currently entitled
to under any other Federal, State, local, or private source ." 34 CFR §303 .527.
You indicated that Connecticut (like many States) has a statute mandating early hearing
screening . Specifically, Conn . Gen . Stat . §19a-59 requires certain health care institutions to
include a universal newborn hearing screening as part of its standard of care . The newborn
hearing screening, however, is not conducted on all infants and may not be sufficient to
determine the infant or toddler's present level of functioning as required under Part C . To the
extent that the evaluation required is a newborn hearing screening already covered under State
law, Part C funds may not be used to conduct the State-required newborn screening .
I hope this information provides the clarification needed . If you need further assistance, please
contact Dr. Wendy Tada at 202-205-9094 or Jackie Twining-Martin, OSEP State Contact for
Connecticut, at 202-205-8258 .
Sincerely,

Stephanie Smith Lee
Director
Office of Special Education Programs
cc: George P . Dowaliby
Chief, Bureau of Special Education and Pupil Services