OREGON DEPARTMENT OF EDUCATION
OFFICE OF STUDENT LEARNING & PARTNERSHIPS
RESPONSE TEAM 2010
OSEP Q&As
Questions Database
Updated January 2010
Includes Hyperlinks to OSEP WEBSITE
Table of Contents
DISCIPLINE – OSEP JUNE 2009 ......................................................................................................1
Safeguards ......................................................................................................................... 2
A-1.
When the parent(s) of a child and the school personnel are in agreement about the child’s
change of placement after the child has violated a code of student conduct, is it considered to be a
removal under the discipline provision?
A-2.
When a parent consents to the initial provision of some, but not all, of the proposed special
education and related services, do the discipline provisions apply if the child violates the school’s code of
student conduct?
A-3.
Do the discipline provisions apply if the child violates the school’s code of student conduct after a
parent revokes consent for special education and related services under §300.300(b)?
A-4.
In order to receive the protections for disciplinary purposes in 34 CFR §300.534, parents who are
concerned that their child may need special education and related services must first express their
concerns in writing. How are parents informed of this requirement?
A-5.
Under 34 CFR §300.534(b), a public agency is deemed to have knowledge that a child is a child
with a disability if a parent expressed in writing a concern that his or her child needs special education
and related services. What happens if a parent is unable to express this concern in writing?
A-6.
If a removal is for 10 consecutive school days or less and occurs after a student has been
removed for 10 school days in that same school year, and the public agency determines, under 34 CFR
§300.530(d)(4), that the removal does not constitute a change of placement, must the agency provide
written notice to the parent?
A-7.
If a teacher or other school personnel has specific concerns that a child may need special
education and related services due to a child’s pattern of behavior, must such concerns be submitted in
writing to school officials in order for the public agency to be deemed to have knowledge that the child is
a child with a disability?
Definitions ......................................................................................................................... 4
B-1.
What options are available for school personnel when a student with a disability commits a
serious crime, such as rape, at school or at a school function?
B-2.
What is the definition of “unique circumstances” as used in 34 CFR §300.530(a), which states that
“school personnel may consider any unique circumstances on a case-by-case basis when determining
whether a change in placement, consistent with the other requirements of this section, is appropriate for
a child with a disability who violates a code of student conduct?”
B-3.
May a public agency apply its own definition of “serious bodily injury?”
Interim Alternative Educational Setting (IAES) .................................................................... 5
C-1.
What constitutes an appropriate IAES?
C-2.
May a public agency offer “home instruction” as the sole IAES option?
C-3.
Do all services in the child’s IEP need to be provided in the IAES for a removal under 34 CFR
2
§300.530(c) or (g)?
Hearings ............................................................................................................................ 7
D-1.
Must a hearing officer make a sufficiency determination under 34 CFR §300.508(d) for an
expedited due process complaint? In other words, does the hearing officer need to determine if the
complaint meets the content standards listed in section 615(b)(7)(A) of the IDEA and 34 CFR §300.508(b)?
Functional Behavior Assessments (FBA) & Behavioral Intervention Plans (BIP) .................... 8
E-1.
Was the requirement for a “positive behavioral intervention plan” removed from the discipline
regulations?
E-2.
Under what circumstances must an IEP Team use FBAs and BIPs?
E-3.
How can an IEP address behavior?
E-4.
Is consent required to do an FBA for a child?
E-5.
If a parent disagrees with the results of an FBA, may the parent obtain an independent
educational evaluation (IEE) at public expense?
Manifest Determinations ................................................................................................. 10
F-1.
What occurs if there is no agreement on whether a child’s behavior was or was not a
manifestation of his or her disability?
F-2.
What recourse does a parent have if he or she disagrees with the determination that his or her
child’s behavior was not a manifestation of the child’s disability?
F-3.
Is the IEP Team required to hold a manifestation determination each time that a student is
removed for more than 10 consecutive school days or each time that the public agency determines that a
series of removals constitutes a change of placement?
F-4.
Does a school need to conduct a manifestation determination when there is a violation under 34
CFR §300.530(g), which refers to a removal for weapons, drugs, or serious bodily injury?
F-5.
What disciplinary procedures would apply in the case of a child who has been referred for a
special education evaluation and is removed for a disciplinary infraction prior to determination of
eligibility?
F-6.
Is there a conflict between 34 CFR §300.530(c), allowing school personnel, under certain
circumstances, to apply the relevant disciplinary procedures to a child with a disability in the same
manner and for the same duration as would be applied to children without disabilities, and the provision,
at 34 CFR §300.532 (b)(2), that the hearing officer may order a change in placement for not more than 45
school days if the hearing officer determines that maintaining the current placement of the child is
substantially likely to result in injury to the child or to others?
DISPROPORTIONALITY – OSEP JUNE 2009........................................................................... 13
Reporting Requirements .................................................................................................. 14
A-1.
Are States required to report data regarding significant disproportionality, collected and
examined pursuant to 34 CFR §300.646, in their Annual Performance Reports (APRs)?
A-2.
Are the reporting requirements under 34 CFR §300.646 different from the reporting
requirements under Indicators 9 and 10 in the SPP?
3
Exceptions for Significant Disproportionality .................................................................... 15
B-1.
Must a State include children placed in residential facilities or group homes in its calculation of
significant disproportionality under 34 CFR §300.646? Does it matter if the child is placed in a different
State?
Highly Qualified Teachers (HQT) – OSEP January 2007
................................................................................................................................................................... 17
New Teacher Designation ................................................................................................. 18
A-1:
What are the qualifications for a teacher to become highly qualified if the teacher is a “new
teacher” of special education teaching children who will be learning to alternate achievement standards
and taking alternate assessments?
A-2:
Is a veteran regular education teacher who continues to be employed by a district and is reassigned as a special education teacher after obtaining special education certification considered to be
“hired” as a special education teacher upon reassignment, and therefore eligible to demonstrate
competence in the core academic subjects he or she is teaching as a “new” special education teacher?
A-3:
If a teacher has taught special education in one State and begins teaching in a different State,
would the teacher be considered a “new” special education teacher under IDEA?
Enforcement and Sanctions .............................................................................................. 20
B-1:
What are the consequences for an SEA or an LEA for not meeting HQT under IDEA and how will
the HQT requirements be enforced under IDEA?
Due Process ..................................................................................................................... 20
C-1:
May a parent file a due process request with violations other than the school’s failure to provide
a HQT and then include the violation of failure to provide a HQT as a part of the due process? Or is the
failure to provide a HQT never allowed to be included in a due process hearing?
Charter Schools ................................................................................................................ 21
D-1:
What are the highly qualified teacher requirements for a teacher in a charter school?
Preschool ......................................................................................................................... 21
E-1: What are the HQT requirements for preschool teachers?
High Objective Uniform State Standards of Evaluation (HOUSSE) ...................................... 22
F-1:
Recently, the Department released guidance asking States to phase out the HOUSSE procedures.
What is the Department’s current guidance on HOUSSE, especially as it relates to special education
teachers?
F-2:
How does HOUSSE work for multi-subject teachers of special education students?
State Examinations/Qualifications/Certifications ............................................................. 23
G-1:
Does a resource special education teacher need to pass core academic subject tests to consult
with regular education teachers?
G-2:
My State does not have a special education teacher exam. How will I become highly qualified in
4
special education?
G-3:
If a qualified special education teacher provides direct student “supplemental” instruction in one
or more core academic subjects in support of the general education teacher’s instruction in the core
academic subject(s), does the special education teacher need to be highly qualified in the core subjects?
Highly Qualified Special Education Teachers and Private Schools ...................................... 24
H-1:
Do private school special education teachers who are providing special education to children
with disabilities have to have a bachelor’s degree and be fully certified?
H-2:
If a local educational agency sends a special education teacher (employed by the LEA) to a
private school to fulfill a student’s IEP, does that teacher have to be highly qualified?
H-3:
If an SEA or an LEA places a child with a disability in a private school, does the private school
teacher have to be highly qualified? Are there any certification or licensure requirements for private
school teachers when the SEA or LEA is placing students with disabilities in private schools?
General ............................................................................................................................ 25
I-1:
What are the requirements regarding paraprofessional qualifications needed to provide services
to children with disabilities?
I-2:
What are the core academic subjects?
IEPS, EVALUATIONS & REEVALUATIONS – OSEP JANUARY 2007.............................. 26
Secondary Transition........................................................................................................ 27
A-1:
Must an IEP include measurable postsecondary goals based on age appropriate transition
assessments for every 16-year-old student with a disability regardless of the student’s skill levels relating
to education, employment and training?
A-2:
May community access skills be included in the IEP as independent living skills?
A-3:
If an IEP Team chooses to address transition before age 16 (for example, at age 14) are the same
standards required?
A-4:
Section 300.320(b)(1) requires that appropriate postsecondary transition goals be measurable.
Must we measure goals once a student has graduated or has aged out?
Transfer of Students with IEPs from One Public Agency to a New Public Agency ............... 28
B-1:
What if a student whose IEP has not been subject to a timely annual review, but who continues
to receive services under that IEP, transfers to another public agency in the same State? Is the new public
agency required to provide FAPE from the time the student arrives?
B-2:
What options are available when an out-of-state transfer student cannot produce an IEP, and the
parent is the source for identifying “comparable” services?
B-3:
Is it permissible for a public agency to require that a student with a disability who transfers from
another State with a current IEP that is provided to the new public agency remain at home without
receiving services until a new IEP is developed by the public agency?
B-4:
What is the timeline for the receiving public agency to adopt an IEP from a previous public
agency or to develop and implement a new IEP?
IEP Team Membership & IEP Meetings ............................................................................. 31
5
C-1:
May the representative of the public agency be excused from an IEP Team meeting?
C-2:
Must the public agency receive consent from a parent to excuse multiple regular education
teachers if at least one regular education teacher will be in attendance?
C-3:
If the regular education teacher were excused from attending the IEP meeting, would an
alternate regular education teacher be required to attend?
C-4:
May a State establish additional regulations to ensure parents’ rights are protected with regard
to excusal of IEP Team members?
C-5:
May State law or regulations regarding IEP Team membership and IEP Team meeting attendance
requirements exceed those of IDEA?
C-6: Must an IEP Team document in writing that they considered all of the requirements of 34 CFR
§300.324, regarding the development, review, and revision of IEPs?
C-7:
How must a public agency document that IEP Team members have been informed of changes to
the IEP?
C-8
Who must participate when an IEP is amended without convening the IEP Team?
C-9
Must a public agency provide a parent with prior written notice when amending an IEP without
convening the IEP Team?
Consent for Initial Evaluation & Reevaluation ................................................................... 35
D-1:
What may a public agency do if a parent does not respond to the public agency’s request for the
parent’s consent to a reevaluation?
D-2:
The regulations provide, at 34 CFR §300.303(b)(2), that a reevaluation must occur at least once
every three years, unless the parent and the public agency agree that a reevaluation is unnecessary. What
options are available to a public agency if a parent refuses to consent to a three-year reevaluation under
34 CFR §300.303(b)(2)?
D-3:
IEP?
At an initial IEP meeting, may a parent give consent to provide some or all of the services in the
D-4:
May a foster parent provide consent for an initial evaluation even if the biological parent refuses
to provide such consent?
MONITORING, TECHNICAL ASSISTANCE, AND ENFORCEMENT – OSEP JUNE
2009 .......................................................................................................................................................... 37
State Performance Plan/Annual Performance Report (SPP/APR) ...................................... 39
A-1.
Are States required to report their determinations (meets requirements, needs assistance, needs
intervention, or needs substantial intervention) of each LEA’s performance in their APR submitted to
OSEP?
A-2.
What years are covered by the SPP submitted in December 2005?
A-3.
OSEP published a guidance document, entitled Part B SPP/APR Related Requirements, which
contains a detailed list of statutory and regulatory requirements related to each indicator.
Are States required to monitor the requirements related to each indicator included in this document for
every year that an LEA fails to meet a target in the SPP?
6
NOTE: See the SPP/APR Calendar website for most current SPP/APR documents, measurement tables
and other resources.
A-4.
If a State changes or updates its SPP, must the State resubmit the entire document or just those
portions that have changed?
A-5.
Where should a State report on correction of noncompliance identified by OSEP in its response
to the State’s SPP/APR?
A-6.... When the Department changes an indicator, or the measurement for an indicator, such as Indicator B-7
Preschool Early Childhood Outcomes, is it permissible for a State to change the baseline and targets for that
indicator in its SPP?
Public Reporting............................................................................................................... 40
B-1.
How does this reporting requirement relate to the requirement, contained in 34 CFR
§300.601(b)(2), that any data collected through monitoring or sampling be collected at least once during
the period of the SPP?
B-2.
When is a State required to report the status of each LEA regarding indicators in the SPP?
B-3.
May States report intermediate unit (or regional) information rather than LEA information for
LEAs where the N size (total population of children with disabilities measured by the indicator in the LEA)
is too small to report results for an LEA (e.g., the LEA’s one high school has two graduates with
disabilities)?
B-4.
Must State reports on LEA performance on SPP targets include actual data (i.e., percent scores)
or is it permissible for States to simply indicate whether or not the LEA met the State’s SPP targets?
Determinations & Enforcement ........................................................................................ 42
C-1.
When making determinations about an LEA’s performance, must States use the same
determination categories (i.e., meets requirements, needs assistance, needs intervention and needs
substantial intervention) that OSEP uses with States?
C-2.
Is the implementation of the enforcement actions related to the determinations categories
sequential? (That is, must a State be in two years of needs assistance before moving to three years of
needs intervention)?
C-3.
Must a State be in needs intervention for three years prior to OSEP implementing enforcement
actions (e.g., technical assistance, special conditions) or may OSEP impose enforcement earlier given a
State’s especially poor performance?
C-4.
Will OSEP provide an overall determination on each State’s performance, or will there be
separate determinations for each indicator?
C-5.
What action, if any, will OSEP take when a State’s determination status fluctuates between the
categories of needs assistance and needs intervention, but never remains in either category for two or
more consecutive years?
C-6.
If a State determines that an LEA cannot correct a monitoring finding within one year, may that
State take the same action available to the Secretary under section 457 of the GEPA (i.e., enter into a
compliance agreement between the State and the LEA)?
C-7.
States and LEAs may be in or out of compliance on specific compliance indicators throughout the
year. How will this process ensure that the determinations reflect the actual compliance status of LEAs
within a State?
C-8.
What are the opportunities for public input in the SPP/APR process?
7
C-9.
What factors must a State consider in making LEA determinations?
C-10.
What sanctions may be imposed and what enforcement actions may be taken by SEAs under Part
B of the IDEA or the Education Department General Administrative Regulations (EDGAR)?
C-11.
LEA?
Is a determination that the State makes about an LEA’s performance subject to appeal by the
C-12.
What are examples of special conditions?
NIMAS – OSEP JANUARY 2007 .................................................................................................... 46
NIMAS ............................................................................................................................. 47
A-1: What is the definition of NIMAS?
A-2: Will foreign language textbooks be available in NIMAS and through the National Instructional
Materials Access Center (NIMAC)? Is this issue addressed in the law or regulations?
A-3: Can NIMAS files be sent to individual students so that they can manipulate them and use them, for
example, on personal digital assistants (PDAs)?
A-4: May a file for an eligible student also be used for other students who may benefit from its use?
A-5: Can programs that serve 3 to 5 year olds under Part B, section 619 use NIMAS files sets and the
NIMAC repository?
A-6: Will the American Printing House for the Blind (APH) still provide texts to APH-eligible students? How
will APH textbooks interface with the NIMAC?
A-7: Is there a standard style guide for NIMAS? If so, where is it available?
A-8: What are the costs to an SEA when coordinating with the NIMAC?
A-9: Will States be allowed to access the graphic parts of texts? Are they required to obtain permission
from publishers, the artist, or the photographer?
A-10: Are IEP Teams authorized to determine if a student requires accessible instructional materials? Are
LEAs required to pay for additional medical certification to verify that a student’s print disabilities are
organic in nature?
A-11: Are outlying entities eligible to coordinate with the NIMAC?
A-12: The Department of Defense Education Activity (DODEA) is required to comply with the IDEA. Is it
eligible to access the NIMAC database to use NIMAS file sets?
A-13: What is the turnaround time from the NIMAC to the students receiving accessible materials?
A-14: Is there an estimated cost to implement these provisions?
A-15: How does NIMAS relate to curricula that are delivered in an on-line platform?
A-16: If an SEA does not convert NIMAS file sets in-house and uses APH, Recording for Blind & Dyslexic
(RFB&D), Bookshare, or some other AMP for conversion purposes, will there be additional costs to the
SEA or will licensing/contract agreements and fees be sufficient?
A-17: What does it mean to coordinate with NIMAC?
8
PARENTALLY PLACED PRIVATE SCHOOL CHILD WITH DISABILITIES – OSEP
JANUARY 2007 .................................................................................................................................... 52
Consultation with Private School Representative and Representative of Parents of
Parentally-Placed Private School Children with Disabilities ............................................... 53
A-1 What guidance is available on how to carry out the consultation process? Are there any consultation
models available?
Equitable Services ............................................................................................................ 53
B-1:Define equitable services.
Service Plans .................................................................................................................... 54
C-1:
How often must a services plan be written?
C-2:
Must the parent of a parentally-placed private school child participate in the development of a
services plan?
Due Process ..................................................................................................................... 54
D-1:
Under what circumstances may a parent file a complaint under the private school provisions?
Child Find and Individual Evaluations ............................................................................... 55
E-1:
Is it possible for a parent to request evaluations from the district where the private school is
located as well as the district where the child resides?
E-2:
Does the LEA where the private school is located have an obligation to make an offer of FAPE?
Highly Qualified Teachers in Private Schools ..................................................................... 56
F-1:
Who must meet the “highly qualified teacher” requirements? If an LEA hires a teacher to provide
special education services to children with disabilities placed by their parents in private schools, does the
teacher have to meet the “highly qualified teacher” requirements?
F-2:
Can States go beyond IDEA’s requirements and require teachers in private schools to hold certain
credentials or certifications?
Expenditures .................................................................................................................... 57
G-1:
Is the proportionate share that the LEA must expend to provide equitable services to children
with disabilities placed by their parents in private schools different from the calculation required in
previous years?
G-2:
Which children does an LEA use to make its proportionate share calculation?
G-3:
May an LEA expend more than the proportionate share of Part B funds on children with
disabilities placed by their parents in private schools?
G-4:
If an LEA does not expend the entire proportionate share of Part B funds on children with
disabilities placed by their parents in a private school that closes, what must the LEA do with those
unexpended funds?
G-5:
Can an LEA require another LEA to pay for the services of a parentally-placed private school child
with a disability from another State?
9
G-6:
How can the public find out the amount an LEA must expend to meet its proportionate share of
Part B funds?
G-7:
Will the Federal/State allocation of Part B funds have to be adjusted to include parentally-placed
private school children with disabilities receiving equitable services?
G-8:
How are the “Maintenance of Effort” requirements affected when equitable services are no
longer provided with State and local funds to children with disabilities placed by their parents in private
schools? How are the “Maintenance of Effort” requirements affected for an LEA that only used State and
local funds in previous years to provide equitable participation to children with disabilities placed by their
parents in a private school?
General ............................................................................................................................ 60
H-1:
When making a determination regarding the services that an LEA will provide a child with
disabilities placed by their parents in a private school, could an LEA decide to only provide services to
students from their LEA or their State?
H-2:
Section 300.139(a) states that services to parentally-placed private school children with
disabilities may be provided on the premises of the private school, including religious schools, to the
extent consistent with law. How is “the extent consistent with law” determined?
H-3:
What obligation, if any, do districts have to serve 3 through 5-year-old children who are
parentally-placed in private preschools?
PROCEDURAL SAFEGUARDS – OSEP JUNE 2009 .............................................................. 63
State Complaint Procedures ............................................................................................. 64
A-1.
May the State complaint procedures, including the remedies outlined in 34 CFR §300.151(b), be
used to address the problems of a group of children, i.e., a complaint alleging systemic noncompliance? If
so, please provide an example of a systemic complaint.
A-2.
What is an SEA’s responsibility to conduct a complaint investigation if the written complaint
submitted to the SEA does not include the content required in 34 CFR §300.153?
A-3.
What is an SEA’s responsibility to conduct a complaint investigation if the complainant does not
provide a copy of the complaint to the public agency/LEA serving the child at the same time the complaint
is filed with the SEA?
A-4.
May an SEA dismiss a complaint alleging systemic noncompliance because the complainant did
not include a proposed resolution to the problem?
A-5.
May a complaint be filed with an SEA over an alleged violation that occurred more than one year
prior to the date of the complaint if the violation is continuing or the complainant is requesting
compensatory services for failure to provide appropriate services?
A-6.
May an SEA choose to accept written complaints alleging violations of the IDEA that occurred
longer than one year prior to the SEA’s receipt of the written complaint? If such a procedure is permitted,
must the SEA widely disseminate the procedure pursuant to 34 CFR §300.151(a)(2)?
A-7.
What are the requirements related to extension of the timeline for resolving a State complaint
when the parties are engaged in mediation?
A-8.
If the complainant is a party other than a parent, may the parties use the mediation process to
attempt to resolve the issues in the State complaint?
10
Mediation ........................................................................................................................ 68
B-1.
Are discussions that occur in mediation automatically confidential or is the confidentiality of the
mediation session something that must be mediated and documented as a part of the mediation
agreement?
B-2.
Must a written mediation agreement be kept confidential?
B-3.
Do the regulations allow discussions that occur during the mediation process to be disclosed
during the investigation of a State complaint?
Due Process Complaints ................................................................................................... 69
C-1.
What happens if a parent files a due process complaint with the public agency but does not
forward a copy of the due process complaint to the SEA? When does the timeline for convening a
resolution meeting begin?
C-2.
May a parent file a due process complaint because their child’s teacher is not highly qualified?
C-3.
May an LEA file a due process complaint when a parent notifies the LEA that the parent intends
to unilaterally place his or her child in a private school because FAPE is at issue?
C-4.
What steps are available to the complaining party if a hearing officer rules that the due process
complaint is insufficient?
C-5.
If a due process complaint is amended and the 15-day timeline to conduct a resolution meeting
starts over, must the LEA conduct another resolution meeting?
C-6.
May a school district proceed directly to court for a temporary injunction to remove a student
from his or her current educational placement for disciplinary reasons or must the school district exhaust
administrative remedies by first filing a due process complaint?
C-7.
The regulations do not require a resolution meeting when an LEA files a due process complaint.
34 CFR §300.510. How does the absence of a resolution period when an LEA files a due process complaint
affect: (1) a parent’s right to challenge the sufficiency of the due process complaint; and (2) the parent’s
responsibility to send to the LEA a response that specifically addresses the issues raised in the LEA’s due
process complaint?
Resolution Process ........................................................................................................... 72
D-1.
Does the resolution process under 34 CFR §300.510 apply when a public agency files a due
process complaint? If not, what is the timeline for issuing a hearing decision on the matter?
D-2.
Why is a resolution meeting not required when an LEA files a due process complaint?
D-3.
Are there any provisions in the IDEA that require discussions that occur in resolution meetings to
remain confidential?
D-4.
Do the regulations allow information discussed at a resolution meeting to be introduced at a due
process hearing?
D-5.
In the event an agreement is not reached during the resolution meeting, must mediation
continue to be available?
D-6.
Does the 30-day resolution period apply if the parties elect to use mediation under 34 CFR
§300.506 rather than convene a resolution meeting?
D-7.
Must the LEA continue its attempts to convince a parent to participate in a resolution meeting
throughout the 30-day resolution period?
D-8.
If a party fails to participate in the resolution meeting, must the other party seek the hearing
11
officer’s intervention?
D-9.
If, at the conclusion of the 30-day resolution period, the LEA and parents wish to continue the
mediation process, must the hearing officer agree to the extension?
D-10. Must the SEA enforce the requirement that the LEA convene a resolution meeting within 15 days
of receiving notice of the parent’s due process complaint? If a resolution meeting is not convened, what
action may a parent take?
Expedited Due Process Hearings ....................................................................................... 75
E-1.
May the parties mutually agree to extend the resolution period to resolve an expedited due
process complaint?
RESPONSE TO INTERVENTION (RTI) & EARLY INTERVENING SERVICES – OSEP
JANUARY 2007 .................................................................................................................................... 76
General Education vs Special Education ............................................................................ 77
A-1:
A-2:
Please clarify how a child with a disability who is already receiving special education and related
services also would be eligible to receive services using response to intervention (RTI) strategies.
Why was RTI included in IDEA?
Funding............................................................................................................................ 78
B-1:
Is the use of funds for EIS required or permitted?
B-2:
What does it mean to “reserve” funds for EIS?
B-3:
Must the maximum amount of special education funds allowed for EIS be reserved only if
significant disproportionality is the result of inappropriate identification?
B-4:
If a State has identified significant disproportionality in an LEA can the IDEA funds the LEA must
use to address the issue be used to provide services to students who have already been found eligible for
special education and related services?
B-5:
What is the relationship between EIS funds and maintenance of effort (MOE) funds?
6
Evaluation & Eligibility Determinations ............................................................................ 79
C-1:
Must an LEA evaluate a child upon the request of the parent at any time during the RTI process?
May a parent request an initial special education evaluation at any time during the RTI process?
C-2:
May an LEA require that all children suspected of having a SLD first be assessed using an RTI
process before an eligibility determination may be made?
C-3:
Section 300.309(a)(2)(i) states that the eligibility group may determine that a child has a specific
learning disability if “the child does not make sufficient progress to meet age or State-approved gradelevel standards in one or more” identified areas. Section 300.309(a)(2)(ii) states that the group may
determine that a child has a specific learning disability if “the child exhibits a pattern of strengths and
weaknesses in performance, achievement, or both, relative to age, State-approved grade level standards,
or intellectual development” that the group determines is relevant to making an eligibility determination.
Please explain how these two criteria differ from one another.
C-4:
The regulations require an SEA to adopt criteria for determining if a child has a specific learning
12
disability (34 CFR §300.307(a)). Does this preclude the SEA from mandating RTI as the sole criterion used
to determine if a child has a specific learning disability? Must an LEA follow the State-developed criteria
for determining if a child has a specific learning disability?
C-5:
When implementing an evaluation process based on a child’s response to scientific, researchbased intervention, the regulations require that a “public agency must promptly request parental consent
to evaluate a child (34 CFR §300.309(c))” if the “child has not made adequate progress after an
appropriate period of time (34 CFR §300.309(c)(1)).” Please define “promptly” and “adequate” in this
context.
C-6:
May an eligibility determination be made using only information that was collected through an
RTI process?
3 to 5 Year Olds ................................................................................................................ 82
D-1:
Why don’t early intervening services apply to 3-5 year olds?
Service Delivery Models ................................................................................................... 83
E-1:
Is the use of RTI required or just permitted?
E-2:
Does each LEA have to select either RTI or a discrepancy model to determine if a child is a child
with a specific learning disability?
E-3:
What services can be defined as early intervening services? For example, are physical therapy,
occupational therapy, and assistive technology considered early intervening services?
General ............................................................................................................................ 84
F-1:
Please define “significant disproportionality” in the context of EIS.
F-2:
Will early intervening services data be reported in State Performance Plans (SPP) or Annual
Performance Reports (APRs)?
F-3:
For discipline purposes, would a student’s participation in an RTI process be considered a “basis
of knowledge” under 34 CFR §300.534(b)?
F-4:
When an RTI model is implemented, can an incremental process be used to train individual
schools so that over time the entire LEA is implementing the model or must all the schools in the entire
LEA be trained simultaneously?
F-5:
How might EIS funds be used to support a process determining whether a child has a specific
learning disability and to address the needs of students who need additional academic and behavioral
support to succeed in a general education environment?
F-6:
Should services supported with EIS funds be scientifically based?
SECONDARY TRANSITION – OSEP JUNE 2009 .................................................................... 87
Federal Activities ............................................................................................................. 88
A-1.
Are there activities at the Federal level to support secondary transition services?
Summary of Performance (SOP) ....................................................................................... 88
B-1.
What is the purpose of the SOP, “a summary of the child’s academic achievement and functional
performance, which shall include recommendations on how to assist the child in meeting the child’s
postsecondary goals”?
13
B-2.
What information is required and what information would be helpful to include in the SOP?
B-3.
Does a general educational development credential (GED) or alternate diploma trigger the
creation of an SOP?
B-4.
Is a public agency required to include in the SOP the documentation necessary to determine a
student’s eligibility for the Vocational Rehabilitation (VR) Services program and/or accommodations in
institutions of higher education?
B-5.
How can the SOP assist the VR Services program in the provision of transition services to eligible
VR students with disabilities?
TRANSPORTATION FOR ELIGIBLE CHILDREN WITH DISABILITIES – NOVEMBER
2009 .......................................................................................................................................................... 92
General ............................................................................................................................ 93
A-1. What transportation services are available for students eligible for special education and related
services under the IDEA?
A-2. Who determines whether transportation services are required and how those services should be
implemented?
A-3. If a child’s IEP identifies transportation as a related service to be provided to the child, what are
strategies that can be used to provide that service?
A-4. Do the transportation provisions in 34 CFR §300.34(c)(16) mean that an LEA is responsible for
transporting children with disabilities to and from the locations where the students receive special
education and related services, even if the LEA has to redirect the transportation routes or provide an
aide for safety?
Duration of Travel and Time on Learning .......................................................................... 95
B-1. If a child with a disability spends a significant amount of time being transported to and from school,
as well as to and from another location to receive special education and related services, is the child
entitled to receive additional school time to make up for the time lost in transportation?
Vehicle Requirements ...................................................................................................... 95
C-1.
When does the IDEA require climate-controlled transportation for children with disabilities?
Confidentiality ................................................................................................................. 96
D-1.
What information should an LEA give to school bus drivers to ensure that the drivers understand
the confidentiality protections of children who are transported?
Right to Transportation Outside of Normal School Hours .................................................. 96
E-1.
When does a child with a disability have a right to transportation to and from school-related
activities that occur outside of normal school hours, such as community service activities that are required
by the school?
Children in Preschools ...................................................................................................... 97
F-1.
When is an LEA obligated to provide transportation for a preschool child with a disability
between private day care and the child’s preschool?
14
Reimbursement ............................................................................................................... 97
G-1.
Must an LEA provide appropriate information and assistance to the parents of a child with a
disability who are seeking reimbursement for mileage expenses for transportation the IEP Team included
in the child’s IEP?
Discipline ......................................................................................................................... 97
H-1. If transportation is included in the IEP for a child with a disability who has documented behavioral
concerns on the bus, but not at school, when may a school district suspend the child from the bus for
behavioral issues and not provide some other form of transportation to and from school?
15
Questions and Answers
On Discipline Procedures
Revised June 2009
Regulations for Part B of the Individuals with Disabilities Education Act (IDEA) were published in the
Federal Register on August 14, 2006, and became effective on October 13, 2006. Additional regulations
were published on December 1, 2008, and became effective on December 31, 2008. Since publication
of the regulations, the Office of Special Education and Rehabilitative Services (OSERS) in the U.S.
Department of Education (Department) has received requests for clarification of some of these
regulations. This is one of a series of question and answer (Q&A) documents prepared by OSERS to
address some of the most important issues raised by requests for clarification on a variety of highinterest topics. Each Q&A document will be updated to add new questions and answers as important
issues arise or to amend existing questions and answers as needed.
OSERS issues this Q&A document to provide guidance on discipline policies enacted for school-age
students to personnel in State educational agencies (SEAs) and local educational agencies (LEAs), and
families. This Q&A document represents the Department’s current thinking on this topic. It does not
create or confer any rights for or on any person. This guidance does not impose any requirements
beyond those required under applicable law and regulations.
This Q&A document supersedes the Department’s guidance, entitled Questions and Answers on
Discipline Procedures, issued January 2007.
The 2004 amendments to section 615(k) of the IDEA were intended to address the needs expressed by
school administrators and teachers for flexibility in order to balance school safety issues with the need
to ensure that schools respond appropriately to a child’s behavior that was caused by, or directly and
substantially related to, the child’s disability. The reauthorized IDEA and its implementing regulations
include provisions that address important disciplinary issues such as: the consideration of unique
circumstances when determining the appropriateness of a disciplinary change in placement; expanded
authority for removal of a child from his or her current placement for not more than 45 school days for
inflicting a serious bodily injury at school or at a school function; the determination on a case-by-case
basis as to whether a pattern of removals constitutes a change of placement; and revised standards and
procedures related to the manifestation determination.
Generally, the questions, and corresponding answers, presented in this Q&A document required
interpretation of the IDEA and its implementing regulations and the answers are not simply a
restatement of the statutory or regulatory requirements. The responses presented in this document
generally are informal guidance representing the interpretation of the Department of the applicable
statutory or regulatory requirements in the context of the specific facts presented and are not legally
binding. The Q&As in this document are not intended to be a replacement for careful study of the IDEA
and its implementing regulations. The IDEA, its implementing regulations, and other important
documents related to the IDEA and the regulations are found at http://idea.ed.gov.
If you are interested in commenting on this guidance, please email your comments to
OSERSguidancecomments@ed.gov and include Discipline in the subject of your email or write us at the
following address: Patricia Guard, U.S. Department of Education, Potomac Center Plaza, 550 12th Street,
SW, room 4108, Washington, DC 20202.
Authority:
The requirements for discipline are found in the regulations at 34 CFR
§§300.530 – 300.536.
A. Safeguards
Question A-1:
When the parent(s) of a child and the school personnel are in agreement about
the child’s change of placement after the child has violated a code of student
conduct, is it considered to be a removal under the discipline provisions?
Answer:
No, if the parent(s) of a child and the school district agree to a specific change in
the current educational placement of the child.
Question A-2:
When a parent consents to the initial provision of some, but not all, of the
proposed special education and related services, do the discipline provisions
apply if the child violates the school’s code of student conduct?
Answer:
Yes. When a parent consents to the initial provision of some, but not all, of the
proposed special education and related services listed in a child’s initial
individualized education program (IEP), the child has been determined eligible
for services and is entitled to all the protections of the IDEA.
Question A-3:
Do the discipline provisions apply if the child violates the school’s code of
student conduct after a parent revokes consent for special education and
related services under §300.300(b)?
Answer:
No. Under §§ 300.9 and 300.300, parents are permitted to unilaterally
withdraw their children from further receipt of special education and related
services by revoking their consent for the continued provision of special
education and related services to their children. When a parent revokes
consent for special education and related services under §300.300(b), the
parent has refused services as described in §300.534(c)(1)(ii); therefore, the
public agency is not deemed to have knowledge that the child is a child with a
disability and the child will be subject to the same disciplinary procedures and
timelines applicable to general education students and not entitled to IDEA’s
discipline protections. It is expected that parents will take into account the
possible consequences under the discipline procedures before revoking consent
2
for the provision of special education and related services. 73 Federal Register
73012-73013.
Question A-4:
In order to receive the protections for disciplinary purposes in 34 CFR §300.534,
parents who are concerned that their child may need special education and
related services must first express their concerns in writing. How are parents
informed of this requirement?
Answer:
Neither the IDEA nor the regulations specifically address this issue. However, in
its child find policies and procedures, a State may choose to include ways to
provide information to the public regarding IDEA’s protections for disciplinary
purposes when a parent has expressed in writing to school personnel concerns
regarding the child’s need for special education and related services. Examples
of ways to provide such information include making the information available
on the State’s Web site, the LEA’s Web site, or in the State’s Procedural
Safeguards Notice or the school’s student handbook.
Question A-5:
Under 34 CFR §300.534(b), a public agency is deemed to have knowledge that a
child is a child with a disability if a parent expressed in writing a concern that his
or her child needs special education and related services. What happens if a
parent is unable to express this concern in writing?
Answer:
The requirement that a parent express his or her concern in writing is taken
directly from the IDEA. However, there is nothing in the IDEA or the regulations
that would prevent a parent from requesting assistance to communicate his or
her concerns in writing. The Department funds Parent Training and Information
Centers (PTIs) and Community Parent Resource Centers (CPRCs) to assist
parents of students with disabilities. Information about the PTIs and CPRCs is
found at http://www.taalliance.org/.
Question A-6:
If a removal is for 10 consecutive school days or less and occurs after a student
has been removed for 10 school days in that same school year, and the public
agency determines, under 34 CFR §300.530(d)(4), that the removal does not
constitute a change of placement, must the agency provide written notice to
the parent?
Answer:
No. Under Part B, a public agency’s determination that a short-term removal
does not constitute a change of placement is not a proposal or refusal to
initiate a change of placement for purposes of determining services under 34
CFR §300.530(d)(4). Therefore, the agency is not required to provide written
notice to the parent.
3
Question A-7:
If a teacher or other school personnel has specific concerns that a child may
need special education and related services due to a child’s pattern of behavior,
must such concerns be submitted in writing to school officials in order for the
public agency to be deemed to have knowledge that the child is a child with a
disability?
Answer:
No. Under 34 CFR §300.534(b)(3), teachers or other local educational agency
(LEA) personnel are not required to submit a written statement expressing
specific concerns about a pattern of behavior demonstrated by the child in
order for the public agency to be deemed to have knowledge that the child is a
child with a disability. Although a written statement is not necessary, the
teacher of the child or other LEA personnel must express their specific concerns
directly to the special education director or other supervisory personnel within
the agency. In addition, State child find policies and procedures may provide
guidelines regarding how teachers and other LEA personnel should
communicate their specific concerns regarding a child’s pattern of behavior. If
the State’s or LEA’s child find or referral procedures do not specify how such
communication should occur, the State or LEA is encouraged to change its
guidelines to provide a method for communicating direct expressions of specific
concerns regarding a child’s pattern of behavior. 71 Federal Register 46727.
B. Definitions
Question B-1:
What options are available for school personnel when a student with a disability
commits a serious crime, such as rape, at school or at a school function?
Answer:
Under most State and local laws, school personnel must report certain crimes
that occur on school grounds to the appropriate authorities. The IDEA
regulations, under 34 CFR §300.535(a), do not prohibit the school or public
agency from reporting crimes committed by students with disabilities. In
addition, where such crimes constitute a violation of the school’s code of
student conduct, school authorities may use the relevant discipline provisions
related to short-term and long-term removals, including seeking a hearing to
remove the student to an interim alternative educational placement if
maintaining the current placement is substantially likely to result in injury to the
child or others. To the extent that such criminal acts also result in an injury that
meets the definition of “serious bodily injury,” the removal provisions of 34 CFR
§300.530(g) would apply. The definition referenced in 34 CFR §300.530(i)(3)
currently reads:
As defined at 18 U.S.C. 1365(h)(3), the term serious bodily injury means bodily
injury that involves—
1. A substantial risk of death;
2. Extreme physical pain;
3. Protracted and obvious disfigurement; or
4
4. Protracted loss or impairment of the function of a bodily member, organ, or
mental faculty.
Certain Federal cases have held that rape met this definition of serious bodily
injury because the victim suffered protracted impairment of mental faculties.
The current definition of the term “serious bodily injury” in 18 U.S.C. 1365(h)(3)
can be found on the U.S. House of Representatives Web site at
http://uscode.house.gov/download/pls/18C65.txt.
Question B-2:
What is the definition of “unique circumstances” as used in 34 CFR §300.530(a),
which states that “school personnel may consider any unique circumstances on
a case-by-case basis when determining whether a change in placement,
consistent with the other requirements of this section, is appropriate for a child
with a disability who violates a code of student conduct?”
Answer:
The Department believes that “unique circumstances” are best determined at
the local level by school personnel who know the individual child and are
familiar with the facts and circumstances regarding a child’s behavior. “Factors
such as a child’s disciplinary history, ability to understand consequences,
expression of remorse, and supports provided … prior to the violation of a
school code [of student conduct] could be unique circumstances considered by
school personnel when determining whether a disciplinary change in placement
is appropriate for a child with a disability.” 71 Federal Register 46714.
Question B-3:
May a public agency apply its own definition of “serious bodily injury?”
Answer:
No. As specifically set out in the IDEA, the term “serious bodily injury” is
defined at 18 U.S.C. 1365(h)(3) and cannot be altered by States or local school
boards. The definition and a link to the current U.S. Code is included in the
answer to question B-1, and also in the Analysis of Comments and Changes that
accompanied the regulations published on August 14, 2006, and became
effective on October 13, 2006. 71 Federal Register 46723.
C. Interim Alternative Educational Setting (IAES)
Question C-1:
Answer:
What constitutes an appropriate IAES?
What constitutes an appropriate IAES will depend on the circumstances of each
individual case. An IAES must be selected so as to enable the child to continue
to participate in the general education curriculum, although in another setting,
5
and to progress toward meeting the goals set out in the child’s IEP. 71 Federal
Register 46722.
Question C-2:
May a public agency offer “home instruction” as the sole IAES option?
Answer:
No. For removals under 34 CFR §300.530(c), (d)(5), and (g), the child’s IEP Team
determines the appropriate IAES (34 CFR §300.531). Section 615(k)(1)(D) of the
IDEA and 34 CFR §300.530(d) are clear that an appropriate IAES must be
selected “so as to enable the child to continue to participate in the general
education curriculum, although in another setting, and to progress toward
meeting the goals set out in the child’s IEP.” Therefore, it would be
inappropriate for a public agency to limit an IEP Team to only one option when
determining the appropriate IAES. As noted in the Analysis of Comments and
Changes accompanying the regulations published on August 14, 2006, and
became effective on October 13, 2006, at 71 Federal Register 46722:
Whether a child’s home would be an appropriate interim
alternative educational setting under §300.530 would depend
on the particular circumstances of an individual case such as the
length of the removal, the extent to which the child previously
has been removed from his or her regular placement, and the
child’s individual needs and educational goals. In general,
though, because removals under §§300.530(g) and 300.532 will
be for periods of time up to 45 days, care must be taken to
ensure that if home instruction is provided for a child removed
under §300.530, the services that are provided will satisfy the
requirements for services for a removal under §300.530(d) and
section 615(k)(1)(D) of the Act.
Where the removal is for a longer period, such as a 45-day removal under 34 CFR
§300.530(g), special care should be taken to ensure that the services required under
34 CFR §300.530(d) can be properly provided if the IEP Team determines that a
child’s home is the appropriate IAES.
Question C-3:
Do all services in the child’s IEP need to be provided in the IAES for a removal
under 34 CFR §300.530(c) or (g)?
Answer:
It depends on the needs of the child. The LEA is not required to provide all
services in the child’s IEP when a child has been removed to an IAES. In general,
the child’s IEP Team will make an individualized decision for each child with a
6
disability regarding the type and intensity of services to be provided in the IAES.
34 CFR §300.530(d)(1) clarifies that a child with a disability who is removed from
his or her current placement for disciplinary reasons under 34 CFR §300.530(c)
or (g) must continue to receive educational services as provided in 34 CFR
§300.101(a), so as to enable the child to continue to participate in the general
education curriculum, although in another setting, and to progress toward
meeting his or her IEP goals. For removals that constitute a change of
placement, the child’s IEP Team determines the appropriate services under 34
CFR §300.530(d)(1). See 34 CFR §300.530(d)(5). If a student whose placement
has been changed under 34 CFR §300.530(c) or (g) is not progressing toward
meeting the IEP goals, then it would be appropriate for the IEP Team to review
and revise the determination of services and/or the IAES.
D. Hearings
Question D-1:
Must a hearing officer make a sufficiency determination under 34 CFR
§300.508(d) for an expedited due process complaint? In other words, does the
hearing officer need to determine if the complaint meets the content standards
listed in section 615(b)(7)(A) of the IDEA and 34 CFR §300.508(b)?
Answer:
No. The sufficiency provision does not apply to expedited due process
complaints. See 34 CFR §300.532(a). As noted in the Analysis of Comments and
Changes accompanying the regulations published on August 14, 2006, and
became effective on October 13, 2006 at 71 Federal Register 46725:
In light of the shortened timelines for conducting an expedited
due process hearing under §300.532(c), it is not practical to
apply to the expedited due process hearing the sufficiency
provision in §300.508(d), which requires that the due process
complaint must be deemed sufficient unless the party receiving
the due process complaint notifies the hearing officer and the
other party in writing, within 15 days of receipt of the due
process complaint, that the receiving party believes the due
process complaint does not include all the necessary content of
a complaint as required in §300.508(b).
7
E. Functional Behavior Assessments (FBAs) and Behavioral Intervention
Plans (BIPs)
Question E-1:
Was the requirement for a “positive behavioral intervention plan” removed
from the discipline regulations?
Answer:
No. Under 34 CFR §300.324(a)(2)(i), the use of positive behavioral interventions
and supports must be considered in the case of a child whose behavior impedes
his or her learning or that of others. The requirement in 34 CFR §300.530(f) that
a child with a disability receive, as appropriate, an FBA and a BIP and
modifications designed to address the child’s behavior now only applies to
students whose behavior is a manifestation of their disability as determined by
the LEA, the parent, and the relevant members of the child’s IEP Team under 34
CFR §300.530(e). However, FBAs and BIPs must also be used proactively, if the
IEP Team determines that they would be appropriate for the child. The
regulations in 34 CFR §300.530(d) require that school districts provide FBAs and
behavior intervention services (and modifications) “as appropriate” to students
when the student’s disciplinary change in placement would exceed 10
consecutive school days and the student’s behavior was not a manifestation of
his or her disability. See 34 CFR §300.530(c) and (d). Please see question E-2 in
this section for more information about the use and development of FBAs and
BIPs.
Question E-2:
Under what circumstances must an IEP Team use FBAs and BIPs?
Answer:
As noted above, pursuant to 34 CFR §300.530(f), FBAs and BIPs are required
when the LEA, the parent, and the relevant members of the child’s IEP Team
determine that a student’s conduct was a manifestation of his or her disability
under 34 CFR §300.530(e). If a child’s misconduct has been found to have a
direct and substantial relationship to his or her disability, the IEP Team will need
to conduct an FBA of the child, unless one has already been conducted.
Similarly, the IEP Team must write a BIP for this child, unless one already exists.
If a BIP already exists, then the IEP Team will need to review the plan and
modify it, as necessary, to address the behavior.
An FBA focuses on identifying the function or purpose behind a child’s behavior.
Typically, the process involves looking closely at a wide range of child-specific
factors (e.g., social, affective, environmental). Knowing why a child misbehaves
is directly helpful to the IEP Team in developing a BIP that will reduce or
eliminate the misbehavior.
8
For a child with a disability whose behavior impedes his or her learning or that
of others, and for whom the IEP Team has decided that a BIP is appropriate, or
for a child with a disability whose violation of the code of student conduct is a
manifestation of the child’s disability, the IEP Team must include a BIP in the
child’s IEP to address the behavioral needs of the child.
Question E-3:
How can an IEP address behavior?
Answer:
When a child’s behavior impedes the child’s learning or that of others, the IEP
Team must consider the use of positive behavioral interventions and supports,
and other strategies, to address that behavior (34 CFR §300.324(a)(2)(i)).
Additionally, the Team may address the behavior through annual goals in the
IEP (34 CFR §300.320(a)(2)(i)). The child’s IEP may include modifications in his
or her program, support for his or her teachers, and any related services
necessary to achieve those behavioral goals (34 CFR §300.320(a)(4)). If the child
needs a BIP to improve learning and socialization, the BIP can be included in the
IEP and aligned with the goals in the IEP.
Question E-4:
Is consent required to do an FBA for a child?
Answer:
Yes. An FBA is generally understood to be an individualized evaluation of a child
in accordance with 34 CFR §§300.301 through 300.311 to assist in determining
whether the child is, or continues to be, a child with a disability. The FBA
process is frequently used to determine the nature and extent of the special
education and related services that the child needs, including the need for a BIP.
As with other individualized evaluation procedures, and consistent with 34 CFR
§300.300(a) and (c), parental consent is required for an FBA to be conducted as
part of the initial evaluation or a reevaluation.
Question E-5:
If a parent disagrees with the results of an FBA, may the parent obtain an
independent educational evaluation (IEE) at public expense?
Answer:
Yes. The parent of a child with a disability has the right to request an IEE of the
child, under 34 CFR §300.502, if the parent disagrees with an evaluation
obtained by the public agency. However, the parent’s right to an IEE at public
expense is subject to certain conditions, including the LEA’s option to request a
due process hearing to show that its evaluation is appropriate. See 34 CFR
9
§300.502(b)(2) through (b)(5). The Department has clarified previously that an
FBA that was not identified as an initial evaluation, was not included as part of
the required triennial reevaluation, or was not done in response to a disciplinary
removal, would nonetheless be considered a reevaluation or part of a
reevaluation under Part B because it was an individualized evaluation conducted
in order to develop an appropriate IEP for the child. Therefore, a parent who
disagrees with an FBA that is conducted in order to develop an appropriate IEP
also is entitled to request an IEE. Subject to the conditions in 34 CFR
§300.502(b)(2) through (b)(5), the IEE of the child will be at public expense.
F. Manifestation Determinations
Question F-1:
What occurs if there is no agreement on whether a child’s behavior was or was
not a manifestation of his or her disability?
Answer:
If the parents of a child with a disability, the LEA, and the relevant members of
the child’s IEP Team cannot reach consensus or agreement on whether the
child’s behavior was or was not a manifestation of the disability, the public
agency must make the determination and provide the parent with prior written
notice pursuant to 34 CFR §300.503. The parent of the child with a disability has
the right to exercise his or her procedural safeguards by requesting mediation
and/or a due process hearing to resolve a disagreement about the
manifestation determination. 34 CFR §300.506 and §300.532(a). A parent also
has the right to file a State complaint alleging a violation of Part B related to the
manifestation determination. See 34 CFR §300.153.
Question F-2:
What recourse does a parent have if he or she disagrees with the determination
that his or her child’s behavior was not a manifestation of the child’s disability?
Answer:
The regulations, in 34 CFR §300.532(a), provide that the parent of a child with a
disability who disagrees with the manifestation determination under 34 CFR
§300.530(e) may appeal the decision by requesting a hearing. A parent also has
the right to file a State complaint alleging a denial of a free appropriate public
education and to request voluntary mediation under 34 CFR §300.506.
Question F-3:
Is the IEP Team required to hold a manifestation determination each time that a
student is removed for more than 10 consecutive school days or each time that
the public agency determines that a series of removals constitutes a change of
placement?
Answer:
Yes. 34 CFR §300.530(e) requires that “within 10 school days of any decision to
10
change the placement of a child with a disability because of a violation of a code
of student conduct” the LEA, the parent, and relevant members of the child’s
IEP Team must conduct a manifestation determination (emphasis added).
Under 34 CFR §300.536, a change of placement occurs if the removal is for more
than 10 consecutive school days, or if the public agency determines, on a caseby-case basis, that a pattern of removals constitutes a change of placement
because the series of removals total more than 10 school days in a school year;
the child’s behavior is substantially similar to the behavior that resulted in the
previous removals; and because of such additional factors as the length of each
removal, the total amount of time the child has been removed, and the
proximity of the removals to one another.
Question F-4:
Does a school need to conduct a manifestation determination when there is a
violation under 34 CFR §300.530(g), which refers to a removal for weapons,
drugs, or serious bodily injury?
Answer:
Yes. Within 10 school days of any decision to change the placement of a child
with a disability because of a violation of a code of student conduct, the LEA, the
parent, and relevant members of the child’s IEP Team conduct the
manifestation determination. 34 CFR §300.530(e). However, when the removal
is for weapons, drugs, or serious bodily injury under §300.530(g), the child may
remain in an IAES, as determined by the child’s IEP Team, for not more than 45
school days, regardless of whether the violation was a manifestation of his or
her disability. This type of removal can occur if the child: carries a weapon to or
possesses a weapon at school, on school premises, or to or at a school function
under the jurisdiction of the State educational agency (SEA) or LEA; knowingly
possesses or uses illegal drugs, or sells or solicits the sale of a controlled
substance, while at school, on school premises, or at a school function under
the jurisdiction of the SEA or LEA; or has inflicted serious bodily injury upon
another person while at school, on school premises, or at a school function
under the jurisdiction of the SEA or LEA.
Question F-5:
What disciplinary procedures would apply in the case of a child who has been
referred for a special education evaluation and is removed for a disciplinary
infraction prior to determination of eligibility?
Answer:
If a child engages in behavior that violates the code of student conduct prior to
a determination of his or her eligibility for special education and related services
and the public agency is deemed to have knowledge of the child’s disability, the
child is entitled to all of the IDEA protections afforded to a child with a disability,
unless a specific exception applies. In general, once the student is properly
referred for an evaluation under Part B of the IDEA, the public agency would be
deemed to have knowledge that the child is a child with a disability for purposes
of the IDEA’s disciplinary provisions. However, under 34 CFR §300.534(c), the
11
LEA is considered not to have knowledge that a child is a child with a disability if
the parent has not allowed the evaluation of the child under Part B of the IDEA,
the parent has refused services, or if the child is evaluated and determined not
to be a child with a disability under Part B of the IDEA. In these instances, the
child would be subject to the same disciplinary measures applicable to children
without disabilities.
Question F-6:
Is there a conflict between 34 CFR §300.530(c), allowing school personnel,
under certain circumstances, to apply the relevant disciplinary procedures to a
child with a disability in the same manner and for the same duration as would
be applied to children without disabilities, and the provision, in 34 CFR
§300.532(b)(2), that the hearing officer may order a change in placement for
not more than 45 school days if the hearing officer determines that maintaining
the current placement of the child is substantially likely to result in injury to the
child or to others?
Answer:
No, there is no conflict between the two provisions. In addition to the specific
authority set out in 34 CFR §300.532, a hearing officer also has the authority to
uphold a disciplinary change of placement made by school personnel under 34
CFR §300.530(c). Where the parent brings a due process hearing to challenge a
disciplinary change of placement made by school personnel under 34 CFR
§300.530(c) and the hearing officer concludes that the disciplinary requirements
of Part B have been met, the hearing officer would properly uphold the
disciplinary change of placement. If the hearing officer concludes that the
child’s behavior was a manifestation of the child’s disability, but also determines
that returning the child to the prior placement is substantially likely to result in
injury to the child or to others, then the hearing officer, under 34 CFR
§300.532(b)(2), may change the placement to an appropriate IAES for not more
than 45 school days.
12
Questions and Answers
on Disproportionality
June 2009
Regulations for Part B of the Individuals with Disabilities Education Act (IDEA) were published in the
Federal Register on August 14, 2006, and became effective on October 13, 2006. Additional regulations
were published on December 1, 2008 and became effective on December 31, 2008. Since publication of
the regulations, the Office of Special Education and Rehabilitative Services (OSERS) in the U.S.
Department of Education (Department) has received requests for clarification of some of these
regulations. This is one of a series of question and answer (Q&A) documents prepared by OSERS to
address some of the most important issues raised by requests for clarification on a variety of highinterest topics. Each Q&A document will be updated to add new questions and answers as important
issues arise or to amend existing questions and answers as needed.
OSERS issues this Q&A document to provide States, State educational agencies (SEAs), and local
educational agencies (LEAs) with information regarding the IDEA requirements relating to
disproportionality determinations. This Q&A document represents the Department’s current thinking
on this topic. It does not create or confer any rights for or on any person. This guidance does not
impose any requirements beyond those required under applicable law and regulations. This Q&A
document supplements the Department’s guidance, entitled Disproportionality of Racial and Ethnic
Groups in Special Education, issued on April 24, 2007.
IDEA requires States and LEAs to take steps to address disproportionate representation of racial/ethnic
groups in special education. The statute, as amended in 2004, and the Part B regulations include
important changes in how States must monitor the LEAs in the State to determine disproportionate
representation of racial and ethnic groups in special education and related services that is the result of
inappropriate identification. 20 U.S.C. 1416(a)(3)(C); 34 CFR §300.600(d)(3).
States have a separate obligation, under 20 U.S.C. 1418(d) and 34 CFR §300.646, to collect and examine
data to determine whether significant disproportionality based on race and ethnicity is occurring in the
State and LEAs of the State with respect to the identification of children as children with disabilities,
including identification as children with particular impairments; the placement of children in particular
educational settings; and the incidence, duration, and type of disciplinary actions, including suspensions
and expulsions. Where significant disproportionality is occurring, the State must provide for the review,
and, if appropriate, revision of policies, procedures, and practices used in identification, placement, or
discipline to ensure that they comply with the requirements of IDEA; require the LEA to publicly report
on the revision of policies, practices, and procedures; and require the LEA to reserve 15 percent of its
Part B funds to provide comprehensive coordinated early intervening services to serve children in the
LEA, particularly, but not exclusively, children in those groups that were significantly over-identified.
13
Generally, the questions, and corresponding answers, presented in this Q&A document required
interpretation of IDEA and its implementing regulations and the answers are not simply a restatement of
the statutory or regulatory requirements. The responses presented in this document generally are
informal guidance representing the interpretation of the Department of the applicable statutory or
regulatory requirements in the context of the specific facts presented and are not legally binding. The
Q&As in this document are not intended to be a replacement for careful study of IDEA and its
implementing regulations. IDEA, its implementing regulations, and other important documents related
to IDEA and the regulations are found at http://idea.ed.gov.
If you are interested in commenting on this guidance, please email your comments to
OSERSguidancecomments@ed.gov and include Disproportionality in the subject of your email or write
us at the following address: Patricia Guard, U.S. Department of Education, Potomac Center Plaza, 550
12th Street, SW, room 4108, Washington, DC 20202.
A. Reporting Requirements
Authority:
The requirements for reporting on disproportionality are found in the
regulations at 34 CFR §§300.600(d) and 300.646.
Question A-1:
Are States required to report data regarding significant disproportionality,
collected and examined pursuant to 34 CFR §300.646, in their Annual
Performance Reports (APRs)?
Answer:
No, States are only required to report, in their APRs, on LEAs with
disproportionate representation of racial and ethnic groups in special education
that is the result of inappropriate identification as required by 34 CFR
§300.600(d)(3).
Question A-2:
Are the reporting requirements under 34 CFR §300.646 different from the
reporting requirements under Indicators 9 and 10 in the SPP?
14
Answer: Yes. In accordance with the requirements in 20 U.S.C. 1416(a)(3)(C) of the IDEA and 34
CFR §300.600(d)(3), an SPP and APR must address the percent of LEAs with disproportionate
representation of racial and ethnic groups in special education and related services (Indicator 9) and
in specific disability categories (Indicator 10) that is the result of inappropriate identification. As
stated in the Answer to Question A-1 above, States are not required to report on the collection and
examination of data to determine significant disproportionality, pursuant to 34 CFR §300.646, in the
APR. Although not required to report to the Department, if a State determines that significant
disproportionality based on race and ethnicity is occurring in a particular LEA with respect to
identification of children as children with disabilities, including identification as children with
particular impairments, placement in particular educational settings, or the incidence, duration, and
type of disciplinary actions including suspensions and expulsions, the State must require the LEA to
review and if appropriate revise its policies, procedures or practices and to publicly report on the
revision of its policies, practices, and procedures consistent with 34 CFR §300.646.
B. Exceptions for Significant Disproportionality
Authority:
The requirements for collecting and examining data to determine significant
disproportionality are found in the regulations at 34 CFR §300.646.
Question B-1:
Must a State include children placed in residential facilities or group homes in its
calculation of significant disproportionality under 34 CFR §300.646? Does it
matter if the child is placed in a different State?
Answer:
Whether a State must include or may exclude a child with a disability in its
calculation of significant disproportionality depends on the agency that places
the child in a residential facility or group home and the location of the
residential facility or group home, as described below:
(i) All children with disabilities placed in a residential facility or group home in
the same State by an educational agency must be included in the calculation of
significant disproportionality. For purposes of calculating significant
disproportionality, however, a State should assign responsibility for counting
children with disabilities placed in out-of-district placements to the LEA that is
responsible for providing FAPE for those children rather than the LEA in which
the child has been placed.
(ii) Children with disabilities placed in residential facilities or group homes in the
same State by a noneducational agency (e.g., court systems, Department of
Corrections, Department of Children, Youth and Families, Social Services, etc.)
may be excluded from a State’s calculation of significant disproportionality.
(iii) Children with disabilities placed in a residential facility or group home in a
different State by an educational agency should be included in a State’s
15
calculation of significant disproportionality in the LEA responsible for providing
FAPE for that child (the placing LEA).
(iv) Children with disabilities placed in a residential facility or group home in a
different State by a noneducational agency (e.g., court systems, Department of
Corrections, Department of Children, Youth and Families, Social Services, etc.)
may be excluded from the calculation of significant disproportionality by both
the State in which the child resides and the State where the residential facility
or group home is located.
16
Questions and Answers
On Highly Qualified Teachers
Serving Children With Disabilities
January 2007
The final regulations for the reauthorized Individuals with Disabilities Education Act (IDEA) were
published in the Federal Register on August 14, 2006, and became effective on October 13, 2006. Since
publication of the final regulations, the Office of Special Education and Rehabilitative Services (OSERS) in
the U.S. Department of Education has received requests for clarification of some of these regulations.
This is one in a series of question and answer documents prepared by OSERS to address some of the
most important issues raised by requests for clarification on a variety of high-interest topics. Generally,
the questions, and corresponding answers, presented in this Q&A document required interpretation of
IDEA and the regulations and the answers are not simply a restatement of the statutory or regulatory
requirements. The responses presented in this document generally are informal guidance representing
the interpretation of the Department of the applicable statutory or regulatory requirements in the
context of the specific facts presented and are not legally binding. The Q&As are not intended to be a
replacement for careful study of IDEA and the regulations. The statute, regulations, and other
important documents related to IDEA and the regulations are found at http://idea.ed.gov.
The Individuals with Disabilities Education Improvement Act of 2004 (IDEA 2004) requires that all public
elementary and secondary special education teachers be “highly qualified” as special education
teachers. The definition of “highly qualified special education teachers” in the IDEA [20 U.S.C. 1401(10)]
is aligned with No Child Left Behind's highly qualified requirements under that statute at section 9101 of
the Elementary and Secondary Education Act (ESEA) [20 U.S.C. 7801(23)] and the implementing
regulations at 34 CFR §200.56. Section 300.18(g)(1) of the IDEA regulations states that a teacher who is
highly qualified under section 602(10) [20 U.S.C. 1401(10)] of IDEA shall be considered highly qualified
for purposes of the ESEA. Section 300.18 of the IDEA regulations establishes requirements for special
education teachers in general, as well as those teaching core academic and multiple subjects and those
not teaching core academic subjects. In addition, it establishes requirements for special education
teachers teaching to alternate achievement standards and describes alternative routes to certification.
The regulations also clarify what it means to be a “new” special education teacher and that the highly
qualified teacher requirements do not apply to teachers hired by private elementary schools and
secondary schools. Section 300.156 of the IDEA regulations requires that each SEA establish and
maintain personnel qualifications.
17
A. “New Teacher” Designation
Authority:
The requirements for “new” special education teachers are found in the
regulations at 34 CFR §300.18(a) through (d) and (g)(2).
Question A-1:
What are the qualifications for a teacher to become highly qualified if the
teacher is a “new teacher” of special education teaching children who will be
learning to alternate achievement standards and taking alternate assessments?
Answer:
When used with respect to a special education teacher who teaches core
academic subjects exclusively to children who are assessed against alternate
achievement standards established under 34 CFR §200.1(d), highly qualified
means the teacher, whether new or not new to the profession, may either:

Meet the applicable requirements of section 9101 of the Elementary
and Secondary Education Act (ESEA) and 34 CFR
§200.56 for any elementary, middle, or secondary school teacher who is
new or not new to the profession; or

Meet the requirements of paragraph (B) or (C) of section 9101(23) of
the ESEA as applied to an elementary school teacher, or, in the case of
instruction above the elementary level, meet the requirements of
subparagraph (B) or (C) of section 9101(23) of the ESEA as applied to an
elementary school teacher and have subject matter knowledge
appropriate to the level of instruction being provided and needed to
effectively teach to those standards, as determined by the State.
The regulations promulgated under section 1111(b)(1) of the ESEA permit States
to use alternate achievement standards to evaluate the performance of a small
group of children with the most significant cognitive disabilities who are not
expected to meet grade-level standards even with the best instruction. An
alternate achievement standard sets an expectation of performance that differs
in complexity from a grade-level achievement standard. Section 602(10)(C)(ii) of
the Individuals with Disabilities Education Act (the Act or IDEA), therefore,
allows special education teachers teaching exclusively children who are
assessed against alternate achievement standards to meet the highly qualified
teacher standards that apply to elementary school teachers.
Section 300.18(c)(2) of the regulations requires that if a teacher (who is teaching
exclusively to alternate achievement standards) is teaching students who need
instruction above the elementary school level, the teacher must have subject
matter knowledge appropriate to the level of instruction needed to effectively
teach to those standards. The purpose of this requirement is to ensure that
teachers exclusively teaching children who are assessed based on alternate
academic achievement standards above the elementary level have sufficient
subject matter knowledge to effectively instruct in each of the core academic
18
subjects being taught, at the level of difficulty being taught. For example, if a
high school student (determined by the IEP Team to be assessed against
alternate achievement standards) has knowledge and skills in math at the 7th
grade level, but in all other areas functions at the elementary level, the teacher
would need to have knowledge in 7th grade math in order to effectively teach
the student to meet the 7th grade math standards.
Question A-2:
Is a veteran regular education teacher who continues to be employed by a
district and is re-assigned as a special education teacher after obtaining special
education certification considered to be “hired” as a special education teacher
upon reassignment, and therefore eligible to demonstrate competence in the
core academic subjects he or she is teaching as a “new” special education
teacher?
Answer:
Yes. A fully certified regular education teacher, who subsequently becomes fully
certified or licensed as a special education teacher, would be considered a new
special education teacher when first hired as a special education teacher. If the
teacher is teaching multiple subjects as a special education teacher and is highly
qualified to teach mathematics, language arts or science, he or she will have
two years from the date of hiring as a special education teacher to demonstrate
competence in the other core academic subjects he or she is teaching.
Question A-3:
If a teacher has taught special education in one State and begins teaching in a
different State, would the teacher be considered a “new” special education
teacher under IDEA?
Answer:
A special education teacher who has been teaching in one State and begins
teaching in a different State is not considered “new to the profession.” States
may choose to honor another State’s licensure or certification and
determination of competence in core academic subjects based on the other
State’s High Objective Uniform State Standards of Evaluation (HOUSSE)
procedures. On the other hand, a State may choose to require teachers from
other States to satisfy its own certification or licensure requirements, and to
demonstrate competency in the core academic subjects that they teach under
the new State’s standards and procedures.
19
B. Enforcement and Sanctions
Authority:
The requirements for ensuring that special education teachers are highly
qualified are found in the regulations at 34 CFR §300.156.
Question B-1:
What are the consequences for an SEA or an LEA for not meeting HQT under
IDEA and how will the HQT requirements be enforced under IDEA?
Answer:
The SEA must make sure that all special education teachers are highly qualified
and that the LEA is taking measurable steps to recruit, train, hire and retain
highly qualified special education teachers. If an LEA is failing to pursue these
actions, the SEA must take measures, appropriate to the situation, to bring the
LEA into compliance with the Act.
The Office of Elementary and Secondary Education (OESE) currently monitors
the implementation of the highly qualified teacher standards for teachers of
core academic subjects under the ESEA. This includes special education teachers
who teach core academic subjects.
The Office of Special Education Programs (OSEP) collects data about special education personnel
qualifications and requires that SEAs establish and maintain qualifications to ensure that personnel
who are essential to carry out Part B of the Act are appropriately and adequately prepared and
trained. Those personnel must also have the content knowledge and skills to serve children with
disabilities, consistent with 34 CFR §300.156.
C. Due Process
Authority:
The provisions regarding limiting access to due process for failure to comply
with the HQT requirements are found in the regulations at 34 CFR §§300.18(f)
and 300.156(e).
Question C-1:
May a parent file a due process request with violations other than the school’s
failure to provide a HQT and then include the violation of failure to provide a
HQT as a part of the due process? Or is the failure to provide a HQT never
allowed to be included in a due process hearing?
Answer:
Questions about whether a teacher is highly qualified are not ones on which
parents or students can get any relief through a due process hearing. See 34
CFR §§300.18(f) and 300.156(e). The language in the regulation that ‘nothing in
this part shall be construed to create a right of action’ means that a claim that a
teacher is not highly qualified may not serve as a basis for relief for an individual
student or class of students under IDEA.
20
If concerns arise about whether a special education teacher is highly qualified, the Department
encourages parents to try to resolve issues at the school level. It would make sense for them to talk
to their child’s principal first, before doing anything else, to find out what the school is doing to
ensure that the teacher gets the training that he or she needs to meet the highly qualified
standards. If they are not satisfied with the steps the LEA is taking, they could file a complaint with
the State educational agency (SEA). An organization or an individual other than a parent of a child
served under IDEA may also file a complaint about staff qualifications with the SEA, consistent with
the State complaint procedures in 34 CFR §§300.151 through 300.153.
D. Charter Schools
Authority:
The requirements regarding highly qualified special education teachers in
charter schools are found in the regulations at 34 CFR §300.18(a) through (h).
Question D-1:
What are the highly qualified teacher requirements for a teacher in a charter
school?
Answer:
To be highly qualified, a teacher in a charter school must meet the certification
and licensing requirements, if any, set forth in the State’s public charter school
law, hold at least a bachelor’s degree and, if the teacher is teaching core
academic subjects, demonstrate competency in the core academic areas he or
she teaches. The certification requirements for charter school teachers are
established in a State’s public charter school law, and may differ from the
requirements for full State certification for teachers in other public schools.
E. Preschool
Authority:
The definition of “highly qualified special education teachers” is at 34 CFR
§300.18.
Question E-1:
What are the HQT requirements for preschool teachers?
Answer:
The highly qualified special education teacher requirements apply to all public
elementary and secondary school special education teachers, including early
childhood or preschool teachers if a State includes the early childhood or
preschool programs as part of its elementary and secondary school system. If
the early childhood or preschool program is not a part of a State's public
elementary and secondary school system, the highly qualified special education
teacher requirements do not apply.
21
F. High Objective Uniform State Standards of Evaluation (HOUSSE)
Authority:
HOUSSE is specifically discussed in the regulations at 34 CFR §§300.18(d)(2) and
(3) and 300.18(e).
Question F-1:
Recently, the Department released guidance asking States to phase out the
HOUSSE procedures. What is the Department’s current guidance on HOUSSE,
especially as it relates to special education teachers?
Answer:
On September 5, 2006, the Secretary sent a letter to Chief State School Officers
noting that a number of States had proposed actions to limit the use of HOUSSE,
and further expressing the Department’s intent to pursue a phase-out of
HOUSSE procedures through the reauthorization of the No Child Left Behind Act
(NCLB). The Secretary also strongly encouraged States to eliminate the use of
HOUSSE procedures, to the extent practicable. In particular, she expressed
concern about the practice of allowing teachers assigned to new subjects to use
non-rigorous HOUSSE procedures to quickly demonstrate subject-matter
competency. However, the September 5 letter recognized continued use of
HOUSSE procedures in certain circumstances, including for special education
teachers teaching multiple subjects who were highly qualified in language arts,
mathematics, or science at the time of hire.
Question F-2:
How does HOUSSE work for multi-subject teachers of special education
students?
Answer:
Currently, special education teachers who are not new to the profession and
teach two or more core academic subjects exclusively to children with
disabilities are permitted to demonstrate competence in all the core academic
subjects that the teacher teaches in the same manner as other elementary,
middle, and secondary school teachers who are not new to the profession,
including through HOUSSE covering multiple subjects. A new special education
teacher who is highly qualified to teach math, language arts, or science has up
to two years from the date of employment to demonstrate competence in the
other core academic subjects he or she teaches, including through the use of a
HOUSSE. The State may develop a separate HOUSSE for special education
teachers, which may include a single HOUSSE evaluation for multiple subjects,
provided that it would not establish a lower standard for content knowledge
requirements for special education teachers
22
G. State Examinations/Qualifications/Certifications
Authority:
The provisions concerning State examinations, qualifications, and certifications
are found in the regulations at 34 CFR §300.18.
Question G-1:
Does a resource special education teacher need to pass core academic subject
tests to consult with regular education teachers?
Answer:
A special education resource teacher who only consults with regular education
teachers does not need to demonstrate competence in core academic subjects.
He or she must, however, hold special education certification. If the special
education resource teacher is also teaching core academic subjects, he or she
will need to demonstrate competence in those subjects.
Question G-2:
My State does not have a special education teacher exam. How will I become
highly qualified in special education?
Answer:
To be considered highly qualified, all special education teachers must hold full
certification or licensure in special education in the State where they are
teaching and have at least a bachelor’s degree. States determine what is
required for certification and licensure, which may or may not involve an exam.
In addition, if special education teachers are teaching core academic subjects,
they must demonstrate competency in the core academic subjects they teach.
Question G-3:
If a qualified special education teacher provides direct student “supplemental”
instruction in one or more core academic subjects in support of the general
education teacher’s instruction in the core academic subject(s), does the special
education teacher need to be highly qualified in the core subjects?
Answer:
All special educators need to be highly qualified as defined in IDEA, but special
educators are not required to demonstrate subject matter competence in any
core academic subject, if they are only (1) providing consultation services to
other teachers, such as adapting curricula, using behavioral supports and
interventions, or selecting appropriate accommodations for children with study
skills or organizational skills or (2) reinforcing instruction that the child has
already received from a highly qualified teacher in that core academic subject.
23
H. Highly Qualified Special Education Teachers and Private Schools
Authority:
The provisions regarding highly qualified special education teachers and private
schools are found in the regulations at 34 CFR §§300.18(h), 300.138, and
300.146(b).
Question H-1:
Do private school special education teachers who are providing special
education to children with disabilities have to have a bachelor’s degree and be
fully certified?
Answer:
The HQT requirements do not apply to special education teachers hired by
private elementary and secondary schools, including private school teachers
hired or contracted by LEAs to provide equitable services to parentally-placed
private school children with disabilities under 34 CFR §300.138.
Question H-2:
If a local educational agency sends a special education teacher (employed by the
LEA) to a private school to fulfill a student’s IEP, does that teacher have to be
highly qualified?
Answer:
Yes, any public elementary or secondary school teacher must meet the highly
qualified requirements under both NCLB and IDEA.
Question H-3:
If an SEA or an LEA places a child with a disability in a private school, does the
private school teacher have to be highly qualified? Are there any certification or
licensure requirements for private school teachers when the SEA or LEA is
placing students with disabilities in private schools?
Answer:
Each SEA must ensure that a child with a disability who is placed in, or referred
to, a private school or facility by a public agency is provided an education that
meets the standards that apply to education provided by the SEA and LEA.
However, the HQT requirements do not apply to teachers hired by private
elementary and secondary schools. This includes teachers hired by private
elementary schools and secondary schools who teach children with disabilities
placed in those schools by public agencies.
24
I. General
Authority:
The requirements for paraprofessional qualifications are found in the
regulations at 34 CFR §300.156(b).
Question I-1:
What are the requirements regarding paraprofessional qualifications needed to
provide services to children with disabilities?
Answer:
Qualifications for paraprofessionals must be consistent with any State-approved
or State-recognized certification, licensing, registration, or other comparable
requirements that apply to the professional discipline in which those personnel
are providing special education or related services. Paraprofessionals and
assistants may be used to assist in the provision of special education and related
services to children with disabilities if they are appropriately trained and
supervised, in accordance with State law, regulation, or written policy.
Authority:
The requirements for core academic subjects are found in the regulations at 34
CFR §300.10.
Question I-2:
What are the core academic subjects?
Answer:
“Core academic subjects” means English, reading or language arts,
mathematics, science, foreign languages, civics and government, economics,
arts, history and geography.
25
Questions and Answers
On Individualized Education Programs (IEPs),
Evaluations, and Reevaluations
January 2007
The final regulations for the reauthorized Individuals with Disabilities Education Act (IDEA) were
published in the Federal Register on August 14, 2006, and became effective on October 13, 2006. Since
publication of the final regulations, the Office of Special Education and Rehabilitative Services (OSERS) in
the U.S. Department of Education has received requests for clarification of some of these regulations.
This is one in a series of question and answer documents prepared by OSERS to address some of the
most important issues raised by requests for clarification on a variety of high-interest topics. Generally,
the questions, and corresponding answers, presented in this Q&A document required interpretation of
IDEA and the regulations and the answers are not simply a restatement of the statutory or regulatory
requirements. The responses presented in this document generally are informal guidance representing
the interpretation of the Department of the applicable statutory or regulatory requirements in the
context of the specific facts presented and are not legally binding. The Q&As are not intended to be a
replacement for careful study of IDEA and the regulations. The statute, regulations, and other
important documents related to IDEA and the regulations are found at http://idea.ed.gov.
The development and implementation of an individualized education program (IEP) that addresses the
unique needs of each child with a disability and that assists schools and parents in focusing instruction
are at the core of the IDEA. IDEA and the final Part B regulations include significant changes related to
the content of IEPs (including content related to secondary transition and State and districtwide
assessments), IEPs for children with disabilities who transfer from one public agency to another public
agency within the same school year, IEP meetings and participants in those meetings, and changes to
IEPs following the annual IEP meeting. The reauthorized IDEA also includes significant changes related
to parental consent for initial evaluations and reevaluations.
This Q & A document will be updated as further requests for clarification are received.
26
A. Secondary Transition
Authority:
The requirements for the content of the IEP related to secondary transition are
found in the regulations at 34 CFR §300.320(b).
Question A-1:
Must an IEP include measurable postsecondary goals based on age appropriate
transition assessments for every 16-year-old student with a disability regardless
of the student’s skill levels relating to education, employment and training?
Answer:
Yes. Under 34 CFR §300.320(b), the IEP for each child with a disability, must,
beginning not later than the first IEP to be in effect when the child turns 16, or
younger if determined appropriate by the IEP Team, and updated annually
thereafter, include: (1) appropriate measurable postsecondary goals based upon
age appropriate transition assessments related to training, education,
employment, and, where appropriate, independent living skills; and (2) the
transition services (including courses of study) needed to assist the child in
reaching those goals. This requirement applies, whether or not the child’s skill
levels related to training, education, and employment are age appropriate. The
IEP Team must, however, develop the specific postsecondary goals for the child,
in light of the unique needs of the child as determined based on age appropriate
transition assessments of the child's skills in these areas.
Question A-2:
May community access skills be included in the IEP as independent living skills?
Answer:
It depends. The IEP Team must determine whether it is necessary to include
appropriate measurable postsecondary goals related to independent living skills
in the IEP for a particular child, and – if so – what transition services are needed
to assist the child in reaching those goals. Under 34 CFR §300.43, "transition
services" are defined as "a coordinated set of activities for a child with a
disability" "to facilitate movement from school to post-school activities," and
include among other activities, "independent living, or community
participation." Based on the assessment of the student's independent living
skills, the IEP Team would need to determine whether transition services in the
form of community access skills are necessary for the child to receive a free
appropriate public education (FAPE). If so, those skills must be reflected in the
transition services in the child's IEP.
27
Question A-3:
If an IEP Team chooses to address transition before age 16 (for example, at age
14) are the same standards required?
Answer:
Yes. The regulations provide, at 34 CFR §300.320(b), that beginning not later
than the first IEP to be in effect when the child turns 16, or younger if
determined appropriate by the IEP Team, and updated annually, thereafter, the
IEP must include-- (1) Appropriate measurable postsecondary goals based upon
age appropriate transition assessments related to training, education,
employment, and, where appropriate, independent living skills; and (2) The
transition services (including courses of study) needed to assist the child in
reaching those goals. If the IEP Team for a particular child with a disability
determines that it is appropriate to address the requirements of 34 CFR
§300.320(b) for a child who is younger than age 16, then the IEP for that child
must meet the requirements of 34 CFR §300.320(b).
Question A-4:
Section 300.320(b)(1) requires that appropriate postsecondary transition goals
be measurable. Must we measure goals once a student has graduated or has
aged out?
Answer:
There is no requirement for public agencies to measure postsecondary goals
once a child is no longer eligible for FAPE under Part B of the Act. Under 34 CFR
§300.101, FAPE must be made available to all children residing in the State in
mandatory age ranges. However, the obligation to make FAPE available does
not apply to children who have graduated from high school with a regular high
school diploma (34 CFR §300.102(a)(3)) or to children who have exceeded the
mandatory age range for provision of FAPE under State law (34 CFR
§300.102(a)(2)). When a child's eligibility for FAPE pursuant to Part B
terminates under these circumstances, in accordance with 34 CFR
§300.305(e)(3), the local educational agency (LEA) must provide a "summary of
the child's academic achievement and functional performance, which shall
include recommendations on how to assist the child in meeting the child's
postsecondary goals." However, this provision does not require the LEA to
provide services to the child to meet these goals.
B. Transfer of Students with IEPs from One Public Agency to a New Public
Agency
Authority:
The requirements for IEPs for students who transfer from one public agency to
another public agency within the same school year are found in the regulations
at 34 CFR §300.323(e), (f), and (g).
28
Question B-1:
What if a student whose IEP has not been subject to a timely annual
review, but who continues to receive services under that IEP, transfers to
another public agency in the same State? Is the new public agency
required to provide FAPE from the time the student arrives?
Answer:
If a child with a disability was receiving special education and related
services pursuant to an IEP in a previous public agency (even if that public
agency failed to meet the annual review requirements at 34 CFR
§300.324(b)(1)(i)), and transfers to a new public agency in the same State
and enrolls in a new school within the same school year, the new public
agency (in consultation with the parents) must, pursuant to 34 CFR
§300.323(e) provide FAPE to the child (including services comparable to
those described in the child’s IEP from the previous public agency), until
the new public agency either - (1) Adopts the child’s IEP from the
previous public agency; or (2) Develops, adopts, and implements a new
IEP that meets the applicable requirements in 34 CFR §§300.320 through
300.324.
Question B-2:
What options are available when an out-of-state transfer student cannot
produce an IEP, and the parent is the source for identifying “comparable”
services?
Answer:
The regulations require, at 34 CFR §300.323(g), that, to facilitate the
transition for a child described in 34 CFR §300.323(e) and (f) - (1) the new
public agency in which the child enrolls must take reasonable steps to
promptly obtain the child’s records, including the IEP and supporting
documents and any other records relating to the provision of special
education or related services to the child, from the previous public
agency in which the child was enrolled, pursuant to 34 CFR §99.31(a)(2);
and (2) The previous public agency in which the child was enrolled must
take reasonable steps to promptly respond to the request from the new
public agency.
If, after taking reasonable steps to obtain the child’s records from the
public agency in which the child was previously enrolled, including the IEP
and any other records relating to the provision of special education or
related services to the child, the new public agency is not able to obtain
29
the IEP from the previous public agency or from the parent, the new
public agency is not required to provide services to the child pursuant to
34 CFR §300.323(f). This is because the new public agency, in
consultation with the parents, would be unable to determine what
constitutes comparable services for the child, since that determination
must be based on the services contained in the child's IEP from the
previous public agency. However, the new public agency must place the
child in the regular school program and conduct an evaluation pursuant
to 34 CFR §§300.304 through 300.306, if determined to be necessary by
the new public agency. If there is a dispute between the parent and the
new public agency regarding whether an evaluation is necessary or
regarding what special education and related services are needed to
provide FAPE to the child, the dispute could be resolved through the
mediation procedures in 34 CFR §300.506 or, as appropriate, the due
process procedures in 34 CFR §§300.507 through 300.516. Once a due
process complaint notice requesting a due process hearing is filed, under
34 CFR §300.518(b), the child would remain in the regular school
program during the pendency of the due process proceedings.
Question B-3:
Is it permissible for a public agency to require that a student with a
disability who transfers from another State with a current IEP that is
provided to the new public agency remain at home without receiving
services until a new IEP is developed by the public agency?
Answer:
Under 34 CFR §300.323(f), if a child with a disability (who had an IEP that was in
effect in a previous public agency in another State) transfers to a public agency
in a new State, and enrolls in a new school within the same school year, the new
public agency (in consultation with the parents) must provide the child with
FAPE (including services comparable to those described in the child’s IEP from
the previous public agency), until the new public agency - (1) Conducts an
evaluation pursuant to 34 CFR §§300.304 through 300.306 (if determined to be
necessary by the new public agency); and (2) Develops, adopts, and implements
a new IEP, if appropriate, that meets the applicable requirements in 34 CFR
§§300.320 through 300.324.
30
Thus, the public agency must provide FAPE to the child when the child
enrolls in the school in the public agency in the new State, and may not
deny services to the child pending the development of a new IEP.
Question B-4:
What is the timeline for the receiving public agency to adopt an IEP from
a previous public agency or to develop and implement a new IEP?
Answer:
Neither the Act nor the regulations establish timelines for the new public
agency to adopt the child’s IEP from the previous public agency; or to
develop, adopt, and implement a new IEP. However, consistent with 34
CFR §300.323(e) and (f), the new public agency must take these steps
within a reasonable period of time to avoid any undue interruption in the
provision of required services.
C. IEP Team Membership and IEP Meetings
Authority:
The requirements for IEP Team membership are found in the regulations at 34
CFR §300.321. The requirements for IEP meetings are found in the regulations
at 34 CFR §300.323(c)(1), and §300.324(a), (b) and (c).
Question C-1:
May the representative of the public agency be excused from an IEP Team
meeting?
Answer:
Under 34 CFR §300.321(e)(1), the public agency representative is not required
to attend an IEP Team meeting in whole or in part, if the parent of the child with
a disability and the public agency agree, in writing, that the attendance of the
member is not necessary because the meeting will not be dealing with
curriculum or related services about which this member is knowledgeable.
As provided at 34 CFR §300.321(e)(2) (see also §300.321(a)(4)), a representative
of the public agency may be excused from an IEP meeting, in whole or in part,
when the meeting does involve a modification to or discussion of the member's
area of the curriculum or related services, if-- (i) The parent, in writing, and the
public agency consent to the excusal; and (ii) The member submits, in writing to
the parent and the IEP Team, input into the development of the IEP prior to the
meeting.
Allowing IEP Team members to be excused from attending an IEP Team meeting
is intended to provide additional flexibility to parents in scheduling IEP Team
31
meetings and to avoid delays in holding an IEP Team meeting when an IEP Team
member cannot attend due to a scheduling conflict. Although the public
agency, not the parent, determines the specific personnel to fill the roles of the
public agency's required participants at the IEP Team meeting, the public agency
remains responsible for conducting IEP meetings that are consistent with the
IEP requirements of the Act and the regulations. Accordingly, it may not be
reasonable for a public agency to agree or consent to the excusal of the public
agency representative if that individual is needed to ensure that decisions can
be made at the meeting about commitment of agency resources that are
necessary to implement the child's IEP that would be developed, reviewed, or
revised at the IEP Team meeting.
Question C-2:
Must the public agency receive consent from a parent to excuse multiple regular
education teachers if at least one regular education teacher will be in
attendance?
Answer:
No. As provided in 34 CFR §300.321(a)(2), the public agency must ensure that
the IEP Team includes “[n]ot less than one regular education teacher of the child
(if the child is, or may be, participating in the regular education environment) …”
Neither the Act nor the regulations require that an IEP Team include more than
one regular education teacher. Therefore, if the IEP Team includes not less than
one regular education teacher of the child, the excusal provisions of 34 CFR
§300.321(e)(2) would not apply to additional regular education teachers.
Question C-3:
If the regular education teacher were excused from attending the IEP meeting,
would an alternate regular education teacher be required to attend?
Answer:
If the public agency designates a particular regular education teacher as the
person who will participate in the IEP Team meeting pursuant to 34 CFR
§300.321(a)(2), and that individual is excused from the meeting consistent with
the requirements of 34 CFR §300.321(e)(1)-(2), the public agency is not required
to include a different regular education teacher in the IEP Team meeting.
Question C-4:
May a State establish additional regulations to ensure parents’ rights are
protected with regard to excusal of IEP Team members?
Answer:
Yes, but with certain caveats. A State may establish additional requirements to
ensure that parents’ rights are protected with regard to excusal of IEP Team
members, so long as those additional requirements are consistent with the
requirements of 34 CFR §300.321(e)(1) and (2), and do not diminish the right of
32
parents to agree in writing or consent in writing to such excusal. Further, if a
State establishes requirements that exceed those required by Part B of the Act
and the Federal regulations, the State would be required by 34 CFR
§300.199(a)(2), to identify in writing to the local educational agencies (LEAs)
located in the State and to the Secretary that such rule, regulation or policy is a
State-imposed requirement, which is not required by Part B of the Act and
Federal regulations. However, a State must allow a parent and a public agency
to agree in writing or consent in writing to excuse a member of the IEP Team,
and this provision cannot be made optional for States. A State may not restrict,
or otherwise determine, when an IEP Team member can be excused from
attending an IEP Team meeting, or prohibit the excusal of an IEP Team member
when the public agency and parent agree or consent to the excusal.
Question C-5:
May State law or regulations regarding IEP Team membership and IEP Team
meeting attendance requirements exceed those of IDEA?
Answer:
Yes, but with certain caveats. A State may establish laws or regulations for IEP
Team membership and IEP Team meeting attendance, but must ensure that in
doing so it does not establish provisions that reduce parent rights or are
otherwise in conflict with the requirements of Part B of the Act and the Federal
regulations. Further, as required by 34 CFR §300.199(a), each State that
receives funds under Part B of the Act must-(1)
Ensure that any State rules, regulations, and policies conform to the
purposes of this part; (2) Identify in writing to LEAs located in the State and the
Secretary any such rule, regulation, or policy as a State-imposed requirement
that is not required by Part B of the Act and Federal regulations; and (3)
Minimize the number of rules, regulations, and policies to which the LEAs and
schools located in the State are subject under Part B of the Act.
Question C-6: Must an IEP Team document in writing that they considered all of the requirements
of 34 CFR §300.324, regarding the development, review, and revision of IEPs?
Answer:
Section 300.112 requires that the State ensure that an IEP, or an individualized
family service plan (IFSP) that meets the requirements of section 636(d) of the
Act, is developed, reviewed, and revised for each child with a disability. Section
300.201 requires public agencies to have in effect policies and procedures
established under 34 CFR §§300.101 through 300.163 and §§300.165 through
300.174, which include the requirements related to developing, reviewing, and
revising an IEP for each child with a disability in 34 CFR §300.324. While the Act
and these regulations generally do not specify what documentation must be
maintained consistent with the requirements of 34 CFR §300.324, States and
33
public agencies are required to maintain records to show compliance with the
Act and the regulations, in accordance with 34 CFR §76.731 of the Education
Department General Administrative Regulations (EDGAR).
Question C-7:
How must a public agency document that IEP Team members have been
informed of changes to the IEP?
Answer:
The regulations provide, at 34 CFR §300.324(a)(4)(i), that, in making changes to
a child’s IEP after the annual IEP Team meeting for a school year, the parent of a
child with a disability and the public agency may agree not to convene an IEP
Team meeting for the purposes of making those changes, and instead may
develop a written document to amend or modify the child’s current IEP. The
regulations require, at 34 CFR §300.324(a)(4)(ii), that if changes are made to the
child’s IEP in accordance with 34 CFR §300.324(a)(4)(i), the public agency must
ensure that the child’s IEP Team is informed of those changes. While the Act
and the regulations do not specify the manner in which public agencies must
document compliance with the requirements of 34 CFR §300.324(a)(4)(ii), they
must maintain records to show compliance with the requirements of the Act
and regulations, in accordance with 34 CFR §76.731 of EDGAR.
Question C-8
Who must participate when an IEP is amended without convening the IEP
Team?
Answer:
The regulations provide, at 34 CFR §300.324(a)(4)(i) that, in making changes to a
child’s IEP after the annual IEP Team meeting for a school year, the parent of a
child with a disability and the public agency may agree not to convene an IEP
Team meeting for the purposes of making those changes, and instead may
develop a written document to amend or modify the child’s current IEP. The
Act and the regulations are silent as to which individuals must participate in
making changes to the IEP where there is agreement between the parent and
the public agency not to convene a meeting for the purpose of making the
changes.
Question C-9
Must a public agency provide a parent with prior written notice when
amending an IEP without convening the IEP Team?
Answer:
The regulations require, at 34 CFR §300.503(a), that written notice that meets
the requirements of 34 CFR §300.503(b) must be given to the parents of a child
with a disability a reasonable time before the public agency-- (1) Proposes to
34
initiate or change the identification, evaluation, or educational placement of the
child or the provision of FAPE to the child; or (2) Refuses to initiate or change
the identification, evaluation, or educational placement of the child or the
provision of FAPE to the child. This provision applies, even if the IEP is revised
without convening an IEP Team meeting, pursuant to 34 CFR §300.324(a)(4).
D. Consent for Initial Evaluation and Reevaluation
Authority:
The requirements for consent for initial evaluations and reevaluations are found
in the regulations at 34 CFR §300.300(a), (c), and (d)(4). The requirements for
reevaluations are found in the regulations at 34 CFR §300.303.
Question D-1:
What may a public agency do if a parent does not respond to the public
agency’s request for the parent’s consent to a reevaluation?
Answer:
Under 34 CFR §300.300(c)(2), the public agency need not obtain informed
parent consent for the reevaluation if the public agency can demonstrate that it
made reasonable efforts to obtain consent for the reevaluation, and the child’s
parent has failed to respond to the request for such consent. Thus, under this
regulation, a public agency may conduct a reevaluation of a child with a
disability if the public agency can demonstrate that it made reasonable efforts
to obtain parent consent for the reevaluation, and the child’s parent has failed
to respond to the request for consent.
Question D-2:
The regulations provide, at 34 CFR §300.303(b)(2), that a reevaluation must
occur at least once every three years, unless the parent and the public agency
agree that a reevaluation is unnecessary. What options are available to a public
agency if a parent refuses to consent to a three-year reevaluation under 34 CFR
§300.303(b)(2)?
Answer:
The regulations provide, at 34 CFR §300.300(c)(1), that subject to 34 CFR
§300.300(c)(2), each public agency-- (i) Must obtain informed parental consent,
in accordance with 34 CFR §300.300(a)(1), prior to conducting any reevaluation
of a child with a disability. (ii) If the parent refuses to consent to the
reevaluation, the public agency may, but is not required to, pursue the
reevaluation by using the consent override procedures described in 34 CFR
§300.300(a)(3). (iii) The public agency does not violate its obligation under 34
CFR §300.111 and §§300.301 through 300.311 if it declines to pursue the
evaluation or reevaluation.
If a parent refuses to consent to a three-year reevaluation under 34 CFR
§300.303(b)(2), the public agency has the following options:
35
1. The public agency and the parent may, as provided at 34 CFR
§300.303(b)(2), agree that the reevaluation is unnecessary. If such an
agreement is reached, the three-year reevaluation need not be conducted.
However, the public agency must continue to provide FAPE to the child.
2. If the public agency and the parent do not agree that the reevaluation is
unnecessary, and the parent refuses to consent to the reevaluation, the
public agency may, but is not required to, pursue the reevaluation by using
the consent override procedures described in 34 CFR §300.300(a)(3) (the
procedural safeguards in subpart E of Part B, including the mediation
procedures under 34 CFR §300.506 or the due process procedures under 34
CFR §§300.507 through 300.516), if appropriate, except to the extent
inconsistent with State law relating to such parental consent.
3. If the public agency chooses not to pursue the reevaluation by using the
consent override procedures described in 34 CFR §300.300(a)(3), and the
public agency believes based on existing data that the child does not
continue to have a disability or does not continue to need special education
and related services, the public agency may determine that it will not
continue to provide special education and related services to the child. If
the public agency determines that it will not continue to provide special
education and related services to the child, the public agency must provide
the parent with prior written notice of its proposal to discontinue the
provision of FAPE to the child consistent with 34 CFR §300.503(a)(2).
Question D-3:
At an initial IEP meeting, may a parent give consent to provide some or all of the
services in the IEP?
Answer:
If a public agency has provided prior written notice, consistent with 34 CFR
§300.503(a)(1), of its proposal to initiate the provision of FAPE, the parent may
provide informed consent to the initial provision of special education and
related services, consistent with 34 CFR §300.300(b).
Question D-4:
May a foster parent provide consent for an initial evaluation even if the
biological parent refuses to provide such consent?
Answer:
If the biological parent of the child refuses consent for an initial evaluation of
the child, and the parental rights of the biological parent have not been
terminated in accordance with State law or a court has not designated a foster
parent to make educational decisions for the child in accordance with State law,
a foster parent may not provide consent for an initial evaluation. See 34 CFR
§300.30(b)(1).
36
Questions and Answers
on Monitoring, Technical Assistance, and Enforcement
Revised June 2009
Regulations for Part B of the Individuals with Disabilities Education Act (IDEA) were published in the
Federal Register on August 14, 2006, and became effective on October 13, 2006. Additional regulations
were published on December 1, 2008 and became effective on December 31, 2008. Since publication of
these regulations, the Office of Special Education and Rehabilitative Services (OSERS) in the U.S.
Department of Education (Department) has received requests for clarification of some of these
regulations. This is one of a series of question and answer (Q&A) documents prepared by OSERS to
address some of the most important issues raised by requests for clarification on a variety of highinterest topics. Each Q&A document will be updated to add new questions and answers as important
issues arise or to amend existing questions and answers as needed.
OSERS issues this Q&A document to provide States, State educational agencies (SEAs), and local
educational agencies (LEAs) with information regarding the IDEA requirements relating to monitoring,
technical assistance, and enforcement. This Q&A document represents the Department’s current
thinking on this topic. It does not create or confer any rights for or on any person. This guidance does
not impose any requirements beyond those required under applicable law and regulations.
The 2004 amendments to the IDEA included significant changes related to monitoring that placed an
emphasis on improving educational results and functional outcomes for children with disabilities by
focusing monitoring activities in certain priority areas and measuring performance using quantifiable
indicators and qualitative indicators as needed to adequately measure performance. These changes
affect the responsibilities of the Secretary and States in the area of monitoring, technical assistance, and
enforcement under the IDEA.
Requirements related to monitoring, technical assistance, and enforcement are found in 34 CFR
§§300.600 through 300.609 and include: (1) the Secretary’s responsibility to establish and enforce
particular procedures for monitoring, technical assistance, and enforcement actions; and (2) the State’s
responsibility to monitor including implementing, enforcing, and annually reporting on the performance
of LEAs under the IDEA through a State performance plan (SPP) and annual performance reports (APRs)
under that SPP.
Changes in the Secretary’s responsibilities include the requirements for the Secretary to: (1) review and
approve the SPP (34 CFR §300.601(a)(1)); (2) review States’ APRs (34 CFR §300.603(a)); (3) determine
whether the States meet the requirements and purposes of Part B of the IDEA, need assistance, need
intervention, or need substantial invention in implementing the requirements of Part B of the IDEA (34
CFR §300.603(b)); and (4) take certain enforcement actions (34 CFR §300.604).
37
Changes in the State’s responsibilities include the requirements to: (1) submit an SPP to the Secretary
that includes measurable and rigorous State-established targets for indicators established by the
Secretary (34 CFR §300.601(a)); (2) monitor its LEAs under the priority areas related to the provision of a
free appropriate public education (FAPE) in the least restrictive environment (LRE), exercise of general
supervision (including child find, effective monitoring, the use of resolution meetings, mediation and a
system of transition services), and disproportionate representation of racial and ethnic groups in special
education and related services, to the extent the representation is the result of inappropriate
identification (34 CFR §300.600(d)); (3) collect valid and reliable data to report annually to the Secretary
on the State’s performance on the indicators in the SPP (34 CFR §300.601(b)); (4) report to the public on
the performance of each of its LEAs on the targets in the SPP (34 CFR §300.602(b)(1)(i)(A)); and (5) carry
out enforcement actions against those LEAs not meeting the requirements of Part B of the IDEA (34 CFR
§§300.600(a) and 300.608).
Generally, the questions and corresponding answers presented in this Q&A document required
interpretation of the IDEA and its implementing regulations and the answers are not simply a
restatement of the statutory or regulatory requirements. The responses presented in this document
generally are informal guidance representing the interpretation of the Department of the applicable
statutory or regulatory requirements in the context of the specific facts presented and are not legally
binding. The Q&As in this document are not intended to be a replacement for careful study of the IDEA
and its implementing regulations. The IDEA, its implementing regulations, and other important
documents related to the IDEA and the regulations are found at. http://idea.ed.gov.
If you are interested in commenting on this guidance, please email your comments to
OSERSguidancecomments@ed.gov and include Monitoring, Technical Assistance, and Enforcement in
the subject of your email or write us at the following address: Patricia Guard, U.S. Department of
Education, Potomac Center Plaza, 550 12th Street, SW, room 4108, Washington, DC 20202.
38
A. State Performance Plan/Annual Performance Report (SPP/APR)
Authority:
The requirements for the State performance plan and annual performance
report are found in the regulations at 34 CFR §§300.601 and 300.602(b)(2).
Question A-1:
Are States required to report their determinations (meets requirements, needs
assistance, needs intervention, or needs substantial intervention) of each LEA’s
performance in their APRs submitted to OSEP?
Answer:
No. A State is not required to report in the State’s APR the determinations the
State made about each LEA.
Question A-2:
What years are covered by the SPP submitted in December 2005?
Answer:
For the SPP submitted in December 2005, States must annually report on
performance for the academic years 2005-2006 through 2010-2011. The first
APR, due February 1, 2007, was for the 2005-2006 year. Therefore, the six years
began with the data for the 2005-2006 year. Under this schedule, the last APR
under this SPP will be for the 2010-2011 academic year and will be due February
1, 2012.
Question A-3:
OSEP published a guidance document, entitled Part B SPP/APR Related
Requirements, which contains a detailed list of statutory and regulatory
requirements related to each indicator. NOTE: for most current information see
SPP/APR Calendar website.
Are States required to monitor the requirements related to each indicator
included in this document for every year that an LEA fails to meet a target in the
SPP?
Answer:
No. The “Related Requirements” guidance document, which OSEP distributes to
Chief State School Officers, State Directors of Special Education, and State Data
Managers, with the Part B SPP/APR materials, includes a list of the Part B
monitoring priorities and indicators and the requirements from statutes (Part B
of the IDEA and the General Education Provisions Act) and regulations that are
related to each priority and indicator. The purpose of this document is to
inform States of the statutory and regulatory requirements related to each
indicator that will be reviewed by OSEP as part of Focused Monitoring. That is,
if OSEP determines that it will do Focused Monitoring in a State because that
State is low performing or in noncompliance with a specific indicator, OSEP will
review the related requirements for that indicator as part of the Focused
Monitoring. OSEP encourages States to examine their general supervision
39
systems to determine how they address the related requirements, but States
are not required to do so.
Question A-4:
If a State changes or updates its SPP, must the State resubmit the entire
document or just those portions that have changed?
Answer:
The decision to resubmit the entire SPP or just those portions that have been
changed or updated is left to the State.
Question A-5:
Where should a State report on correction of noncompliance identified by OSEP
in its response to the State’s SPP/APR?
Answer:
States should report on the correction of any noncompliance identified by OSEP
in the same section of the APR for which noncompliance was originally
identified in the prior year’s SPP/APR response table. For example, if, in its
Federal fiscal year (FFY) 2006 APR, OSEP identified noncompliance for Indicator
B-12, Early Childhood Transition, the State would report on correction of
noncompliance related to early childhood transition in the APR section for
Indicator B-12 in its FFY 2007 APR. In addition, the State should provide data in
Indicator B-15 in its FFY 2007 APR on the status of timely correction of
noncompliance identified in the FFY 2006 APR for Indicator B-15.
Question A-6:
When the Department changes an indicator, or the measurement for an
indicator, such as Indicator B-7 Preschool Early Childhood Outcomes, is it
permissible for a State to change the baseline and targets for that indicator in its
SPP?
Yes. It is permissible for a State to change baseline and targets for an SPP
indicator when the Department changes an indicator or measurement, unless
the target is for a compliance indicator. Targets for compliance indicators are
always 100 percent. Any State that considers revising a baseline or target
should involve stakeholders in the process and include a justification for the
change in the APR.
Answer:
B. Public Reporting
Authority:
Section 300.602(b)(1) of the regulations requires each State to report annually
to the public on the performance of each LEA located in the State on meeting
the targets in the SPP.
40
Question B-1:
Answer:
Question B-2:
Answer:
Question B-3:
Answer:
Question B-4:
Answer:
How does this reporting requirement relate to the requirement, contained in 34
CFR §300.601(b)(2), that any data collected through monitoring or sampling be
collected at least once during the period of the SPP?
For those indicators for which the Secretary permits States to collect data
through monitoring or sampling, data must be collected for each LEA at least
once during the period of the SPP. States are also required to report to the
public annually on the performance of each LEA in meeting the targets in the
SPP. In meeting this annual reporting requirement, if a State collects
performance data through monitoring or sampling, the State must include the
most recently available performance data on each LEA as required under 34 CFR
§300.602(b)(1)(i) and the date these data were obtained.
When is a State required to report the status of each LEA regarding indicators in
the SPP?
Following the submission of the APR to OSEP on February 1, 2007, each State
was required to report to the public on the status of each of its LEAs in meeting
the 2005-2006 targets identified in the State’s SPP for the indicators that apply
to LEAs. (Some indicators, such as the indicator regarding timely resolution of
State complaints, deal with State functions.) Pursuant to 34 CFR
§300.602(b)(1)(i)(A) of the Part B regulations published on December 1, 2008
and in effect on December 31, 2008, States must complete this reporting as
soon as practicable and no later than 120 days following the State’s submission
of its APR to the Department.
May States report intermediate unit (or regional) information rather than LEA
information for LEAs where the N size (total population of children with
disabilities measured by the indicator in the LEA) is too small to report results
for an LEA (e.g., the LEA’s one high school has two graduates with disabilities.)?
Yes. States may report information for intermediate units (or regions) rather
than for LEAs in situations where the N size is too small to report results without
revealing personally identifiable information.
Must State reports on LEA performance on SPP targets include actual data (i.e.,
percent scores) or is it permissible for States to simply indicate whether or not
the LEA met the State’s SPP targets?
The State’s report for each LEA must include actual LEA data (for example, a
specific percentage) that shows whether or not the LEA has met the State’s
targets for each indicator that applies to LEAs.
41
C. Determinations and Enforcement
Authority:
Question C-1:
The requirements for determinations and enforcement are found in the
regulations at 34 CFR §§300.600(a), 300.603 and 300.604.
When making determinations about an LEA’s performance, must States use the
same determination categories (i.e., meets requirements, needs assistance,
needs intervention and needs substantial intervention) that OSEP uses with
States?
Answer:
Yes. Pursuant to section 616(a) of the IDEA, States must use the same four
determination categories that the Department is required to use, which are as
follows: meets requirements, needs assistance, needs intervention, and needs
substantial intervention as indicated in 34 CFR §300.603(b).
Question C-2:
Is the implementation of the enforcement actions related to the determinations
categories sequential? (That is, must a State be in two years of needs assistance
before moving to three years of needs intervention?)
Answer:
No. The enforcement actions are not sequential.
Question C-3:
Must a State be in needs intervention for three years prior to OSEP
implementing enforcement actions (e.g., technical assistance, special
conditions) or may OSEP impose enforcement earlier given a State’s especially
poor performance?
Answer:
No. OSEP may impose enforcement earlier given a State’s especially poor
performance. Under section 616(g) of the IDEA, the Department may use, at
any time, any authority under the General Education Provisions Act (GEPA) to
monitor and enforce the requirements of the IDEA, regardless of the
determinations made of the State’s status under section 616(d) of the IDEA.
Question C-4:
Will OSEP provide an overall determination on each State’s performance, or will
there be separate determinations for each indicator?
Answer:
OSEP makes a single determination about the State’s performance in
implementing the requirements of Part B of the IDEA based on the State’s
performance on all of the indicators, information obtained through monitoring
visits, and any other public information.
42
Question C-5:
What action, if any, will OSEP take when a State’s determination status
fluctuates between the categories of needs assistance and needs intervention,
but never remains in either category for two or more consecutive years?
Answer:
In such a situation, OSEP would be required to take the actions outlined in 34
CFR §300.604 based on the most recent determination category assigned by
OSEP. For example, if in year 1, a State is in “needs assistance,” and in year 2 is
in “needs intervention,” and in year 3, is in “needs assistance,” OSEP would not
be required to take any of the enforcement actions listed in 34 CFR §300.604(a)
under “needs assistance” because the State would not have been in “needs
assistance” for two consecutive years. Moreover, OSEP would not be required
to take any of the enforcement actions listed in 34 CFR §300.604(b) under
“needs intervention” because the State would not have been in “needs
intervention” for three or more consecutive years.
However, under section 616(g) of the Act, the Department may at any time
utilize any authority available to it under GEPA to monitor and enforce the
requirements of the IDEA, regardless of the Department’s determination of the
State’s status. The Department may use this authority to implement an
enforcement action, as it determines appropriate.
Question C-6:
If a State determines that an LEA cannot correct a monitoring finding within one
year, may that State take the same action available to the Secretary under
section 457 of the GEPA (i.e., enter into a compliance agreement between the
State and the LEA)?
Answer:
The authority to enter into a compliance agreement provided for under section
457 of the GEPA applies only to agreements between the Department and
States. The authority of a State to enter into a compliance agreement with an
LEA is controlled by State law.
Question C-7:
States and LEAs may be in or out of compliance on specific compliance
indicators throughout the year. How will this process ensure that the
determinations reflect the actual compliance status of LEAs within a State?
Answer:
The Secretary’s determinations are based on the totality of the State’s data in its
APR and other publicly available information, including any compliance issues.
The Department considers a variety of factors, including whether the State has
provided valid and reliable data, and for compliance indicators, whether the
State demonstrated compliance or timely correction of noncompliance. In
instances where the State did not demonstrate compliance, the Department
considers whether the State had nonetheless made progress in ensuring
compliance over prior performance in that area. The Department considers
whether the State has prior IDEA compliance issues, the State’s progress in
43
resolving those issues, and whether the State provided any additional
information requested by the Department in the prior year’s response to the
State’s APR. In addition, the Department considers whether the State has
publicly reported on the performance of each LEA on the State’s SPP targets.
Determinations are made annually; therefore the determination about the
State’s status is reviewed each year. As part of the APR, each State submits data
for the past fiscal year and may also choose to submit additional, more recent
data if such data would provide a better representation of the State’s current
status.
Question C-8:
What are the opportunities for public input in the SPP/APR process?
Answer:
As noted in the conference report to HR 1350, it is Congress’ expectation that
SPPs, indicators and targets will be developed with broad stakeholder input. As
part of States’ SPP and APR submissions, OSEP requires States to provide
information in the overview section of the SPP, clarifying how the State
obtained broad input from stakeholders on the SPP.
Question C-9:
What factors must a State consider in making LEA determinations?
Answer:
When making an annual determination on the performance of each LEA under
Part B of the IDEA, consistent with sections 616(a) and (e) of the IDEA, a State
must consider the following factors: (1) performance on compliance indicators;
(2) valid and reliable data; (3) correction of identified noncompliance; and (4)
other data available to the State about the LEA’s compliance with the IDEA,
including relevant audit findings. In addition, States may consider results on
performance indicators and other information. States must utilize the four
categories in section 616(d) of the IDEA. OSEP’s guidance to States regarding
how to make LEA determinations can be found at the following Web site:
http://www.rrfcnetwork.org/content/view/283/47/
Question C-10:
Answer:
What sanctions may be imposed and what enforcement actions may be taken
by SEAs under Part B of the IDEA or the Education Department General
Administrative Regulations (EDGAR)?
A State may impose sanctions and enforcement actions consistent with the
regulations in 34 CFR §§300.600(a) and 300.608. Specifically: (1) the State must
enforce Part B of the IDEA in accordance with 34 CFR §§300.604(a)(1) and (a)(3),
(b)(2)(i) and (b)(2)(v), and (c)(2); and (2) if a State determines that an LEA is not
meeting the requirements of Part B of the IDEA, including the targets in the SPP,
the State must prohibit the LEA from reducing its maintenance of effort under
34 CFR §300.203 for any fiscal year; and (3) a State is not restricted from
44
utilizing any other authority available to it to monitor and enforce the
requirements of Part B of the IDEA.
Question C-11:
Is a determination that the State makes about an LEA’s performance subject to
appeal by the LEA?
Answer:
Whether a State’s determination about an LEA’s performance may be appealed
is a State decision.
Question C-12:
What are examples of special conditions?
Answer:
Special conditions are authorized in 34 CFR §80.12 of EDGAR and are restrictions
placed on a grant or subgrant. The regulations specify a number of examples of
special conditions, such as payment on a reimbursement basis; requiring
additional, more detailed reporting; requiring the grantee to obtain technical or
management assistance; or requiring additional project monitoring.
45
Questions and Answers
On the National Instructional Materials Accessibility Standards
(NIMAS)
January 2007
The final regulations for the reauthorized Individuals with Disabilities Education Act (IDEA) were
published in the Federal Register on August 14, 2006, and became effective on October 13, 2006. Since
publication of the final regulations, the Office of Special Education and Rehabilitative Services (OSERS) in
the U.S. Department of Education has received requests for clarification of some of these regulations.
This is one in a series of question and answer documents prepared by OSERS to address some of the
most important issues raised by requests for clarification on a variety of high-interest topics. Generally,
the questions, and corresponding answers, presented in this Q&A document required interpretation of
IDEA and the regulations and the answers are not simply a restatement of the statutory or regulatory
requirements. The responses presented in this document generally are informal guidance representing
the interpretation of the Department of the applicable statutory or regulatory requirements in the
context of the specific facts presented and are not legally binding. The Q&As are not intended to be a
replacement for careful study of IDEA and the regulations. The statute, regulations, and other
important documents related to IDEA and the regulations are found at http://idea.ed.gov.
NIMAS is the National Instructional Materials Accessibility Standard, established under sections
612(a)(23)(A) and 674(e)(4) of the IDEA. The standard is a file set that includes all information typically
prepared for publishing, including metadata, images and text, and is used to produce accessible
instructional materials for students who are blind or who have other print disabilities. Under IDEA, all
State educational agencies (SEAs) must adopt NIMAS; however, SEAs and local education agencies
(LEAs) may choose whether to coordinate with the National Instructional Materials Access Center
(NIMAC), a national repository authorized under section 674(e) of IDEA for NIMAS files received from
publishers, SEAs, and LEAs.
Because implementing NIMAS and NIMAC is a very complex process, is developmental in nature, and
involves the integration of two Federal laws (IDEA Parts B and D, and the Chafee Amendment of 1996 to
section 121 of the Copyright Act), the Office of Special Education Programs funded two national centers,
the NIMAS Development Center and the NIMAS Technical Assistance (TA) Center, to help facilitate the
timely implementation of NIMAS by SEAs and LEAs.
46
A. NIMAS
Authority:
Question A-1:
The requirements for NIMAS are found in the regulations at 34 CFR §300.172,
§300.210, and Appendix C to Part 300.
What is the definition of NIMAS?
Answer:
NIMAS means the standard established by the Secretary of Education to be used
in the preparation of electronic files suitable and used solely for efficient
conversion into specialized formats for students who are blind or print disabled.
Question A-2:
Will foreign language textbooks be available in NIMAS and through the National
Instructional Materials Access Center (NIMAC)? Is this issue addressed in the
law or regulations?
Answer:
IDEA specifies that NIMAS applies to printed textbooks and related printed core
materials that are written and published primarily for use in elementary school
and secondary school instruction and are required by an SEA or LEA for use by
students in the classroom. Thus, all foreign language textbooks that meet this
requirement are subject to the NIMAS. This applies both to textbooks for
foreign language classes and textbooks translated into a foreign language for
use by students with limited English proficiency.
Question A-3:
Can NIMAS files be sent to individual students so that they can manipulate them
and use them, for example, on personal digital assistants (PDAs)?
NIMAS file sets are source files and are designed to be converted by software or
accessible media producers (AMPs) into specialized formats (Braille, audio text,
digital format or large print) to produce accessible print instructional materials
for eligible students. While NIMAS file sets cannot be sent directly to students,
an SEA or LEA could convert a NIMAS file set into a specialized format and place
the specialized format onto an eligible student’s PDA. However, each SEA or
LEA must take appropriate steps under applicable copyright laws to ensure that
only NIMAS eligible students receive these specialized formats.
Answer:
Question A-4:
May a file for an eligible student also be used for other students who may
benefit from its use?
Answer:
Eligible students are “blind or other persons with print disabilities,” which
means children served under IDEA who qualify to receive books and other
publications produced in specialized formats in accordance with the Act entitled
“An Act to Provide Books for the Adult Blind,” approved March 3, 1931, 2 U.S.C.
135a. If students are NIMAS eligible, an SEA or LEA can use the specialized
47
format already derived from NIMAS file sets for other NIMAS eligible students.
However, SEAs and LEAs may not share these specialized formats with students
who are not NIMAS eligible, even though they may benefit.
Question A-5:
Can programs that serve 3 to 5 year olds under Part B, section 619 use NIMAS
files sets and the NIMAC repository?
Answer:
It would depend on the State’s definition of elementary school. If a State
considers 3 to 5 year olds who are blind or have other print disabilities and are
attending preschool programs to be attending elementary schools, then those
students are NIMAS eligible. NIMAS file sets can be used to make specialized
formats only for use in elementary and secondary classroom instruction for
students who are blind or who have print disabilities.
Question A-6:
Will the American Printing House for the Blind (APH) still provide texts to APHeligible students? How will APH textbooks interface with the NIMAC?
Answer:
The APH will continue to offer their products to APH-eligible students. The APH
is considered an accessible media producer (AMP) and is eligible to access
NIMAS file sets from the NIMAC if an SEA or LEA designates them, as an
authorized user, to convert NIMAS file sets into specialized formats. NIMAC was
established through a separate grant from the Department of Education as a
stand-alone center housed and administered by APH. It does not affect the
existing programs at APH.
Question A-7:
Is there a standard style guide for NIMAS? If so, where is it available?
Answer:
The NIMAS Technical Assistance Center will develop a best practices Web page
with exemplars and a style guide. This technical assistance resource is available
at: http://www.nimas.cast.org.
Question A-8:
What are the costs to an SEA when coordinating with the NIMAC?
Answer:
There is no additional cost to use NIMAC. SEAs can access the NIMAC database
at no cost.
Question A-9:
Will States be allowed to access the graphic parts of texts? Are they required to
obtain permission from publishers, the artist, or the photographer?
Answer:
NIMAS file sets include some specifications for graphics. Separate permissions
are not necessary if the publisher submits NIMAS files to the NIMAC for eligible
48
students. These uses are authorized under section 674(e) of IDEA, as well as
under the Chafee Amendment to the Copyright Act (17 U.S.C. Sec. 121(c)).
However, portions of mathematics, science, geography, and other textbooks
that do not use literary Braille are not fully accessible using NIMAS because
translation software that provide accessible formats of graphical material do not
currently exist. To the extent that the NIMAS files do not cover the graphs,
pictures, and other visual elements in the textbooks, accessible media
producers may have to use alternative measures to produce a completely
accessible version of a textbook. However, this responsibility should be
addressed in the agreement between the SEA or LEA and the AMP.
Question A-10:
Are IEP Teams authorized to determine if a student requires accessible
instructional materials? Are LEAs required to pay for additional medical
certification to verify that a student’s print disabilities are organic in nature?
Answer:
The IEP Team determines the instructional program, modifications, and
accommodations needed for students with disabilities, including the need for
accessible instructional materials. However, according to the Library of
Congress regulations (36 CFR §701.6(b)), only a competent authority can certify
students eligible to use instructional materials produced in specialized formats
from NIMAS files. In the case of a reading disability from organic dysfunction,
these regulations define a competent authority as doctors of medicine who may
consult with colleagues in associated disciplines. In the case of an individual who
is blind, has a visual disability, or has physical limitations, other medical
professionals and school officials such as social workers and counselors are
included among those who are competent authorities. LEAs have the
responsibility, including the assumption of any costs, to obtain the appropriate
certification for the students. The complete Library of Congress regulations for
certifying students who are blind or who have print disabilities can be found on
footnote 2 of the OSEP Topical Brief on NIMAS. This information is available at
http://nimas.cast.org/downloads/OSEP.NIMAS.Summary.doc.
Question A-11:
Are outlying entities eligible to coordinate with the NIMAC?
Answer:
Yes, outlying entities are eligible to coordinate with the NIMAC.
Question A-12:
The Department of Defense Education Activity (DODEA) is required to comply
with the IDEA. Is it eligible to access the NIMAC database to use NIMAS file
sets?
Answer:
Yes, if the DODEA decides to coordinate with the NIMAC, it will designate
authorized users who may access NIMAS files. The authorized users will, in turn,
designate AMPs to convert NIMAS file sets into specialized formats for eligible
49
students in the DODEA.
Question A-13:
What is the turnaround time from the NIMAC to the students receiving
accessible materials?
Answer:
After the NIMAC receives NIMAS file sets from the publisher, the file sets will be
checked to confirm that they are valid NIMAS files, and the files will be
cataloged in a web-based database. The NIMAC expects that, if the quality
conforms to NIMAS, the files will be available almost immediately for authorized
users and AMPs to download and convert into specialized formats. The time
from the NIMAC download to the student receiving accessible materials will
vary by the type of specialized format and the efficiency of the AMP.
Question A-14:
Is there an estimated cost to implement these provisions?
Answer:
There is no cost to the educational agencies to download NIMAS files from
NIMAC. The cost to provide the materials depends on the system that SEAs and
LEAs choose to use to convert the NIMAS files into accessible formats and the
type of format desired. It is expected that SEAs and LEAs with a developed
infrastructure for conversion and delivery of accessibility instructional materials
will have limited, if any, implementation expenses.
Question A-15:
How does NIMAS relate to curricula that are delivered in an on-line platform?
Answer:
NIMAS is a source file for converting print instructional materials into
specialized formats and does not apply to on-line material.
Question A-16:
If an SEA does not convert NIMAS file sets in-house and uses APH, Recording for
Blind & Dyslexic (RFB&D), Bookshare, or some other AMP for conversion
purposes, will there be additional costs to the SEA or will licensing/contract
agreements and fees be sufficient?
Answer:
There is no cost to use the NIMAC. The contractual agreement between the
agency and the AMP will determine any additional costs for an SEA or LEA that
uses an AMP, such as APH, RFB&D, or Bookshare.
Question A-17:
What does it mean to coordinate with NIMAC?
Answer:
Coordinating with NIMAC means that the SEA or LEA signed a user agreement
with the NIMAC, is directing publishers to provide NIMAS files of materials they
50
order to the NIMAC, and has designated authorized users who will have access
to the NIMAC database. These authorized users can search the NIMAC
database and directly download the NIMAS files they need to convert into
specialized formats for use by NIMAS-eligible students in elementary and
secondary schools.
51
Questions and Answers
On Serving Children With Disabilities
Placed by Their Parents in Private Schools
January 2007
The final regulations for the reauthorized Individuals with Disabilities Education Act (IDEA) were
published in the Federal Register on August 14, 2006, and became effective on October 13, 2006. Since
publication of the final regulations, the Office of Special Education and Rehabilitative Services (OSERS) in
the U.S. Department of Education has received requests for clarification of some of these regulations.
This is one in a series of question and answer documents prepared by OSERS to address some of the
most important issues raised by requests for clarification on a variety of high-interest topics. Generally,
the questions, and corresponding answers, presented in this Q&A document required interpretation of
IDEA and the regulations and the answers are not simply a restatement of the statutory or regulatory
requirements. The responses presented in this document generally are informal guidance representing
the interpretation of the Department of the applicable statutory or regulatory requirements in the
context of the specific facts presented and are not legally binding. The Q&As are not intended to be a
replacement for careful study of IDEA and the regulations. The statute, regulations, and other
important documents related to IDEA and the regulations are found at http://idea.ed.gov.
IDEA and its implementing regulations contain a number of significant changes from the preexisting law
and regulations for parentally-placed private school children with disabilities. Section 612(a)(10)(A) of
IDEA and 34 CFR §§300.130 through 300.144 now require that the local educational agency (LEA), after
timely and meaningful consultation with private school representatives, conduct a thorough and
complete child find process to determine the number of parentally-placed children with disabilities
attending private schools located in the LEA. These requirements make clear that the obligation to
spend a proportionate amount of IDEA Part B funds to provide services to children with disabilities
enrolled by their parents in private schools now refers to children enrolled by their parents in private
elementary schools and secondary schools “in the school district served by a local education agency.”
Other key changes relate to the consultation process, calculation of the proportionate share, and
standards applicable to personnel providing equitable services.
52
A. Consultation With Private School Representatives and Representatives of
Parents of Parentally-Placed Private School Children With Disabilities
Authority:
The requirements for consultation are found in the regulations at 34 CFR
§300.134.
Question A-1:
What guidance is available on how to carry out the consultation process? Are
there any consultation models available?
Answer:
In March 2006, OSEP issued a document entitled “Questions and Answers on
Serving Children With Disabilities Placed by Their Parents at Private Schools.”
This document provides guidance on the requirements for the consultation
process. In addition, the website http://idea.ed.gov provides a topic brief and a
video clip describing specific changes in the requirements in the Individuals with
Disabilities Education Improvement Act of 2004 (IDEA 2004) for parentallyplaced private school children with disabilities. There are a number of ways to
carry out the consultation process. OSEP, however, does not endorse any
specific consultation model.
B. Equitable Services
Authority:
The requirements for equitable services are found in the regulations at 34 CFR
§§300.132 and 300.137-300.138.
Question B-1:
Define equitable services.
Answer:
Equitable services are services provided to parentally-placed private school
children with disabilities in accordance with the provisions in IDEA and its
implementing regulations at 34 CFR §§300.130 through 300.144.
The regulations at 34 CFR §300.137(a) explicitly provide that children with
disabilities enrolled in private schools by their parents do not have an individual
right to receive some or all of the special education and related services they
would receive if enrolled in the public schools. Under the Act, LEAs only have an
obligation to provide parentally-placed private school children with disabilities
an opportunity for equitable participation in the services funded with Federal
Part B dollars that the LEA has determined, after consultation, to make available
to its population of parentally-placed private school children with disabilities.
The consultation process is important to ensure the provision of equitable
services. Consultation among the LEA, private school representatives, and
parent representatives must address how the consultation will occur
throughout the school year so that parentally-placed children with disabilities
identified through child find can meaningfully participate in special education
and related services. How, where, and by whom special education and related
53
services will be provided for parentally-placed private school children with
disabilities is determined during the consultation process.
Equitable services for a parentally-placed private school child with disabilities
must be provided in accordance with a services plan. A services plan must
describe the specific special education and related services that will be
provided to a parentally-placed private school child with disabilities designated
to receive services.
C. Services Plans
Authority:
The requirements for services plans are found in the regulations at 34 CFR
§§300.132(b) and 300.138(b).
Question C-1:
How often must a services plan be written?
Answer:
IDEA and its implementing regulations do not specify how often a services plan
must be written. As provided in 34 CFR §300.138(b)(2)(ii), a services plan must,
to the extent appropriate, be developed, reviewed and revised in accordance
with the IEP requirements in 34 CFR §§300.321 through 300.324. The
regulations at 34 CFR §300.324(b)(1) require that a child’s IEP be reviewed
periodically and not less than annually, to determine whether the annual goals
for the child are being achieved; and to be revised as appropriate. The
Department, therefore, believes that generally a services plan should be
reviewed annually and revised, as appropriate.
Question C-2:
Must the parent of a parentally-placed private school child participate in the
development of a services plan?
As provided in 34 CFR §300.138(b)(2)(ii), a services plan must, to the extent
appropriate, be developed, reviewed and revised in accordance with the
requirements in 34 CFR §§300.321 through 300.324. Therefore, to the extent
appropriate, the meeting to develop a services plan should be conducted in
accordance with 34 CFR §300.321. Under 34 CFR §300.321(a)(1), the parents of
the child are required participants. Given the emphasis on parent involvement
in IDEA, the Department believes that parents should participate in the meeting
to develop the services plan for their child.
Answer:
D. Due Process
Authority:
The requirements for how due process and State complaints apply to children
parentally-placed in private schools are found in the regulations at 34 CFR
§300.140.
54
Question D-1:
Answer:
Under what circumstances may a parent file a complaint under the private
school provisions?
As provided in 34 CFR §300.140(b), a parent of a child enrolled by that parent in
a private school has the right to file a due process complaint regarding the child
find requirements in 34 CFR §300.131, including the requirements in 34 CFR
§§300.300 through 300.311. Such a complaint must be filed with the LEA in
which the private school is located and a copy forwarded to the SEA. The due
process provisions in section 615 of the Act and 34 CFR §§300.504 through
300.519 of the regulations do not apply to issues regarding the provision of
services to a particular parentally-placed private school child with disabilities an
LEA has agreed to serve, because there is no individual right to services for
parentally-placed private school children under IDEA. Disputes that arise about
equitable services are, however, properly subject to the State complaint
procedures in 34 CFR §§300.151 through 300.153. As provided in 34 CFR
§300.140(c), a parent may file a signed written complaint in accordance with the
State complaint procedures alleging that an SEA or LEA has failed to meet the
private school provisions, such as failure to properly conduct the consultation
process.
E. Child Find and Individual Evaluations
Authority:
The requirements for child find for parentally-placed private school children
with disabilities are found in the regulations at 34 CFR §300.131.
Question E-1:
Is it possible for a parent to request evaluations from the district where the
private school is located as well as the district where the child resides?
Answer:
The Department recognizes that there could be times when parents request
that their parentally-placed child be evaluated by different LEAs if the child is
attending a private school that is not in the LEA in which they reside. For
example, because most States generally assign the responsibility for making
FAPE available to the LEA in which the child’s parents reside, and because that
could be an LEA that is different from the LEA in which the child’s private school
is located, parents could ask two different LEAs to evaluate their child for
different purposes at the same time. Although there is nothing in IDEA that
prohibits parents from requesting that their child be evaluated by the LEA
responsible for FAPE for purposes of having a program of FAPE made available
to the child at the same time that the parents request that the LEA where the
private school is located evaluate their child for purposes of considering the
child for equitable services, the Department does not encourage this practice.
Note that a new requirement at 34 CFR §300.622(b)(3) requires parental
consent for the release of information about parentally-placed private school
children between LEAs. Therefore, as a practical matter, one LEA may not know
that a parent also requested an evaluation from another LEA. However, the
Department does not believe that the child’s best interests would be served if
55
parents request evaluations of their child by the resident school district and the
LEA where the private school is located, even though these evaluations are
conducted for different purposes. Subjecting a child to repeated testing by
separate LEAs in close proximity of time may not be the most effective or
desirable way to ensure that the evaluations are meaningful measures of
whether a child has a disability or of obtaining an appropriate assessment of the
child’s educational needs.
Question E-2:
Does the LEA where the private school is located have an obligation to make an
offer of FAPE?
Answer:
The LEA where a child attends private school is responsible for ensuring
equitable participation. If a parentally-placed private school child also resides
in that LEA, then the LEA would generally be responsible for making FAPE
available to the child, unless the parent makes clear his or her intent to keep the
child enrolled in the private elementary or secondary school located in the LEA.
If a parentally-placed private school child resides in a different LEA, the district
in which the private elementary or secondary school is located is not
responsible for making FAPE available to that child.
If a determination is made through the child find process by the LEA where the
private school is located that a child needs special education and related
services and a parent makes clear his or her intent to keep the child enrolled in
the private elementary or secondary school located in another LEA, the LEA
where the child resides need not make FAPE available to the child.
F. Highly Qualified Teachers in Private Schools
Authority:
The requirements for highly qualified teachers in private schools are found in
the regulations at 34 CFR §§300.18(h) and 300.138(a).
Question F-1:
Who must meet the “highly qualified teacher” requirements? If an LEA hires a
teacher to provide special education services to children with disabilities placed
by their parents in private schools, does the teacher have to meet the “highly
qualified teacher” requirements?
The regulations at 34 CFR §300.138(a) clarify that personnel providing equitable
services required by IDEA to children enrolled in private schools by their parents
must meet the same standards as personnel providing services in the public
schools, except that private elementary and secondary school teachers who are
providing equitable services to parentally-placed private school children with
disabilities do not have to meet the highly qualified special education teacher
requirements in 34 CFR §300.18. If the responsible LEA contracts with private
school teachers to provide equitable services to children with disabilities
enrolled by their parents in private schools, those private school teachers do not
Answer:
56
have to meet the highly qualified special education teacher requirements.
However, if public school personnel provide equitable services to private school
children on or off the premises of the private school, those public school
personnel must meet the highly qualified teacher requirements.
Question F-2:
Can States go beyond IDEA’s requirements and require teachers in private
schools to hold certain credentials or certifications?
Answer:
The regulations at 34 CFR §§300.18(h) and 300.138(a) make clear that private
school teachers do not have to meet the same highly qualified teacher
requirements as teachers who are employed by public agencies. IDEA is silent
regarding additional credentials or certifications that each State may require
under State law.
Therefore, States may go beyond IDEA requirements and require teachers in private schools to hold
certain credentials or certifications. If a State establishes requirements that exceed those required
by Part B of the Act or the Federal regulations, the State is required by 34 CFR §300.199(a)(2) to
identify in writing to the LEAs located in the State and to the Secretary that such rule, regulation, or
policy is a State imposed requirement, which is not required by Part B of the Act or the Federal
regulations.
G. Expenditures
Authority:
The expenditure requirements are found in the regulations at 34 CFR §300.133.
Question G-1:
Is the proportionate share that the LEA must expend to provide equitable
services to children with disabilities placed by their parents in private schools
different from the calculation required in previous years?
Yes, the revisions to IDEA in 2004 made a significant change in the manner in
which the proportionate share is calculated. The major change is that the
calculation is based on the total number of children with disabilities who are
enrolled in private schools located in the LEA whether or not the children or
their parents reside in the LEA.
Answer:
The proportionate share is now calculated as follows: (1) For children aged three
through 21, an amount that is the same proportion of the LEA's total subgrant
under section 611(f) of the Act as the number of private school children with
disabilities aged three through 21 who are enrolled by their parents in private,
including religious, elementary schools and secondary schools located in the
school district served by the LEA, is to the total number of children with
disabilities in its jurisdiction aged three through 21.
(2) For children aged three through five, an amount that is the same proportion
of the LEA's total subgrant under section 619(g) of the Act as the number of
parentally-placed private school children with disabilities aged three
57
through five who are enrolled by their parents in a private, including
religious, elementary school located in the school district served by the LEA,
is to the total number of children with disabilities in its jurisdiction aged
three through five.
Appendix B of the regulations provides a helpful example of how to make this
calculation.
Question G-2:
Which children does an LEA use to make its proportionate share calculation?
Answer:
Children who have been evaluated and found eligible for special education and
related services, not just those children who receive services through an IEP or
services plan, should be included in the calculation. As discussed at 34 CFR
§300.133(a), an LEA needs to know the total number of private school children
with disabilities who are enrolled by their parents in private elementary schools
and secondary schools located in the LEA and the total number of children with
disabilities enrolled in public and private elementary schools and secondary
schools located in the LEA.
Question G-3:
May an LEA expend more than the proportionate share of Part B funds on
children with disabilities placed by their parents in private schools?
Answer:
As discussed above, each LEA is required to spend a minimum amount of its
subgrant under Part B for children with disabilities placed by their parents in
private schools. As long as the LEA meets all the other requirements of the Act,
including providing FAPE to children with disabilities, it is permissible for an LEA
to spend more than the minimum amount of Part B funds. In addition, as
provided in 34 CFR §300.133(d), State and local funds may be used to
supplement, but not supplant, the proportionate share of Federal funds
required to be expended on children with disabilities placed by their parents in
private schools.
Question G-4:
If an LEA does not expend the entire proportionate share of Part B funds on
children with disabilities placed by their parents in a private school that closes,
what must the LEA do with those unexpended funds?
Answer:
Under 34 CFR §300.133(a), each LEA is required to spend a minimum amount of
its subgrant under Part B on children with disabilities placed by their parents in
private elementary and secondary schools.
As provided in 34 CFR
§300.133(a)(3), if an LEA has not expended all of the proportionate share of its
Part B subgrant by the end of the fiscal year for which Congress appropriated
the funds, the LEA must obligate the remaining funds for special education and
related services to children with disabilities placed by their parents in private
58
schools during a carry-over period of one additional year. A reduction in the
number of children, for example, when a school closes after the start of the
school year, does not excuse the LEA from spending its proportionate share to
provide equitable services to children with disabilities placed by their parents in
private schools.
Question G-5:
Can an LEA require another LEA to pay for the services of a parentally-placed
private school child with a disability from another State?
Answer:
Section 300.133(a) clarifies that the LEA where a private school is located is
responsible for spending a proportionate amount of its subgrant under Part B
on special education and related services for children enrolled by their parents
in private elementary and secondary schools located in the LEA. There is no
exception for out-of-State children with disabilities attending a private school
located in the LEA. Therefore, out-of-State children with disabilities must be
included in the group of parentally-placed children with disabilities whose needs
are considered in determining which parentally-placed private school children
with disabilities will be served and the types and amounts of services to be
provided. Another LEA may not be charged for child find and equitable services
even if the child with a disability resides in another State.
Nothing in IDEA precludes an LEA from contracting with a third party to fulfill its
obligations to ensure equitable participation. This includes contracting with a
student’s LEA of residence as a third party provider.
Question G-6:
How can the public find out the amount an LEA must expend to meet its
proportionate share of Part B funds?
Answer:
This information should be readily available from the LEA or SEA. As required by
34 CFR §300.134(b), the consultation process must include a determination of
the proportionate share of Federal funds available to serve parentally-placed
private school children with disabilities, including how the proportionate share
of funds will be calculated.
Question G-7:
Will the Federal/State allocation of Part B funds have to be adjusted to include
parentally-placed private school children with disabilities receiving equitable
services?
Answer:
Federal Part B funds are allocated under the Grants to States and Preschool
Grants for Children with Disabilities programs to States, and from States to LEAs,
based on a statutory formula that considers the amount of program funds
received in a prior year (the base year) and population and poverty allocations
(see 34 CFR §§300.703, 300.705, 300.807 and 300.816). Each LEA calculates the
59
proportionate share it must spend on parentally-placed private school children
with disabilities based on the LEA’s subgrant. Because Part B funds are
allocated to States and LEAs using a statutory formula that is not based on a
child count, the amount of Part B funds allocated to States and LEAs cannot be
adjusted to include the number of private school students with disabilities
receiving equitable services. Adjustments in State funding could be made
depending on each State’s laws and funding mechanisms.
Question G-8:
How are the “Maintenance of Effort” requirements affected when equitable
services are no longer provided with State and local funds to children with
disabilities placed by their parents in private schools? How are the
“Maintenance of Effort” requirements affected for an LEA that only used State
and local funds in previous years to provide equitable participation to children
with disabilities placed by their parents in a private school?
Answer:
In accordance with the regulations at 34 CFR §300.133(d), State and local funds
may supplement, and in no case supplant, the proportionate share of Federal
funds required to be expended for children with disabilities placed by their
parents in private schools. This is a new requirement in IDEA. Prior to the
reauthorization of IDEA, if an LEA spent more than the Federal proportionate
share of funds using State and local funds, the LEA was not required to spend
any Federal Part B funds on parentally-placed private school children. This is no
longer permissible.
An LEA that previously used only State and local funds to provide equitable
services to children with disabilities placed by their parents in a private school
and now uses Federal Part B funds to provide equitable services must meet the
maintenance of effort requirements in 34 CFR §300.203. The exceptions to the
maintenance of effort requirements in 34 CFR §300.204 do not apply to funds
used for equitable participation of parentally-placed private school children with
disabilities. Therefore, the total or per capita amount of State and local funds
expended for the education of children with disabilities, including the amount
previously expended for equitable services to children with disabilities placed by
their parents in private schools, would have to be maintained, unless
adjustments are permitted as discussed in 34 CFR §300.205.
H. General
Question H-1:
When making a determination regarding the services that an LEA will provide a
child with disabilities placed by their parents in a private school, could an LEA
decide to only provide services to students from their LEA or their State?
60
Answer:
LEAs have discretion to determine how the proportionate share of Federal Part
B funds will be expended so long as the consultation requirements in 34 CFR
§300.134 are followed for all parentally-placed private school children. LEAs
cannot determine, outside of the consultation process, that the proportionate
share of Federal Part B funds for equitable services can only be expended to
meet the needs of children who are residents of that LEA or State.
Question H-2:
Section 300.139(a) states that services to parentally-placed private school
children with disabilities may be provided on the premises of the private school,
including religious schools, to the extent consistent with law. How is “the extent
consistent with law” determined?
Answer:
Services offered to parentally-placed private school children with disabilities
may be provided on-site at a child’s private school, including a religious school,
to the extent consistent with law, or at another location. The Department
believes that, in the interests of the child, LEAs should provide services on-site
at the child’s private school so as not to unduly disrupt the child’s educational
experience, unless there is a compelling rationale for these services to be
provided off-site. The phrase “to the extent consistent with law” is in section
612(a)(10)(A)(i)(III) of the Act. The Department interprets this to mean that the
provision of services on the premises of a private school must take place in a
manner that would not violate the Establishment Clause of the First
Amendment of the U.S. Constitution and would not be inconsistent with
applicable State constitutions or laws.
Question H-3:
What obligation, if any, do districts have to serve 3 through 5-year-old children
who are parentally-placed in private preschools?
Answer:
An LEA’s obligation to provide equitable services to three through five- year-old
parentally-placed private school children with disabilities depends on whether a
child is enrolled in a private school or facility that meets the definition of
“elementary school” in IDEA and the final regulations. “Elementary school” is
defined at 34 CFR §300.13 as a nonprofit institutional day or residential school,
including a public elementary charter school, that provides elementary
education, as determined under State law. Accordingly, three through fiveyear-old children with disabilities that are enrolled by their parents in a private
school or facility that meets the State’s definition of “elementary school” would
be considered parentally-placed and the equitable participation provisions
would apply. A child aged three through five enrolled by his or her parents in a
private school or facility that does not meet the State’s definition of
“elementary school” would not be eligible to be considered for equitable
services. However, the State’s obligation to make FAPE available to such
children remains. Section 612(a)(1) of IDEA requires that States make FAPE
61
available to eligible children with disabilities aged three through twenty-one in
the State’s mandated age range (34 CFR §300.101). Because many LEAs do not
offer public preschool programs, particularly for three- and four-year-olds, LEAs
often make FAPE available to eligible preschool children with disabilities in
private schools or facilities in accordance with 34 CFR §§300.145-300.147. In
these circumstances, there is no requirement that the private school or facility
be an “elementary school” under State law.
In some instances, an LEA may make FAPE available in the private preschool program that the
parent has selected. If there is a public preschool program available, the LEA of residence may
choose to make FAPE available to a preschool child in that program. If the group of persons making
the placement decision, as specified in 34 CFR §300.116(a)(1), places the child in a public or private
preschool program and the parents reject the public agency’s offer of FAPE because they want their
child to remain in the private preschool program they have selected, the public agency is not
required to provide FAPE to that child. The parent may challenge the public agency’s determination
of what constitutes FAPE for their child using the State complaint and due process procedures
available under IDEA.
62
Questions and Answers
on Procedural Safeguards and Due Process Procedures
For Parents and Children with Disabilities
Revised June 2009
Regulations for Part B of the Individuals with Disabilities Education Act (IDEA) were published in the
Federal Register on August 14, 2006, and became effective on October 13, 2006. Additional regulations
were published on December 1, 2008 and became effective on December 31, 2008. Since publication of
the regulations, the Office of Special Education and Rehabilitative Services (OSERS) in the U.S.
Department of Education (Department) has received requests for clarification of some of these
regulations. This is one of a series of question and answer (Q&A) documents prepared by OSERS to
address some of the most important issues raised by requests for clarification on a variety of highinterest topics. Each Q&A document will be updated to add new questions and answers as important
issues arise or to amend existing questions and answers as needed.
OSERS issues this Q&A document to provide parents, parent training and information centers, school
personnel, State educational agencies (SEAs), local educational agencies (LEAs), advocacy organizations,
and other interested parties with information to facilitate appropriate implementation of the IDEA due
process procedures. This Q&A document represents the Department’s current thinking on this topic. It
does not create or confer any rights for or on any person. This guidance does not impose any
requirements beyond those required under applicable law and regulations.
This Q&A document supersedes the Department’s guidance, entitled Questions and Answers on
Procedural Safeguards and Due Process Procedures for Parents and Children with Disabilities issued in
January 2007.
As a result of the 2004 amendments to the IDEA, the Department has made several changes in the Part
B regulations regarding the procedures States must adopt for resolving written complaints filed with the
SEA. These changes include a new requirement to forward a copy of the State complaint to the public
agency serving the child, new content requirements for complaints, and a revised time period for filing
complaints. The regulations expand the availability of mediation to resolve disputes and include a new
provision for the enforcement of mediation agreements. The regulations also revise due process
hearing procedures to: specify a timeline for filing a due process complaint; require either party to
provide notice of the due process complaint to the other party; provide the parties with the opportunity
to resolve the dispute through a new resolution process with specific timelines whenever a parent files
such a complaint; specify the time period for requesting a due process hearing and bringing a civil
action; and include new guidelines on the substantive or procedural basis of the hearing officer’s
decision concerning the provision of a free appropriate public education (FAPE).
Generally, the questions, and corresponding answers, presented in this Q&A document required an
interpretation of the IDEA and its implementing regulations and the answers are not simply a
restatement of the statutory or regulatory requirements. The responses presented in this document
63
generally are informal guidance representing the interpretation of the Department of the applicable
statutory or regulatory requirements in the context of the specific facts presented and are not legally
binding. The Q&As in this document are not intended to be a replacement for careful study of the IDEA
and its implementing regulations. The IDEA, its implementing regulations, and other important
documents related to the IDEA and the regulations are found at http://idea.ed.gov.
If you are interested in commenting on this guidance, please email your comments to
OSERSguidancecomments@ed.gov and include Procedural Safeguards in the subject of your email or
write us at the following address: Patricia Guard, U.S. Department of Education, Potomac Center Plaza,
550 12th Street, SW, room 4108, Washington, DC 20202.
A. State Complaint Procedures
Authority:
The requirements for State complaint procedures are found in the regulations at
34 CFR §§300.151 through 300.153.
Question A-1:
May the State complaint procedures, including the remedies outlined in 34 CFR
§300.151(b), be used to address the problems of a group of children, i.e., a
complaint alleging systemic noncompliance? If so, please provide an example of
a systemic complaint.
Answer:
Yes. An SEA is required to resolve any complaint that meets the requirements
of 34 CFR §300.153, including a complaint alleging that a public agency failed to
provide FAPE to a group of children with disabilities. The Department views the
State complaint procedures as an important tool for a State to use to fulfill its
general supervision responsibilities to monitor implementation of the
requirements in Part B of the IDEA by LEAs in the State. These responsibilities
extend to both systemic and child-specific issues.
An example of a complaint alleging systemic noncompliance could include a
complaint alleging that an LEA has a policy, practice, or procedure that results in
not providing occupational therapy to children in a specific disability category,
which if true, would be inconsistent with the requirements of the IDEA.
Question A-2:
What is an SEA’s responsibility to conduct a complaint investigation if the
written complaint submitted to the SEA does not include the content required
in 34 CFR §300.153?
Answer:
The regulations do not specifically address an SEA’s responsibility when it
receives a complaint that does not include the content required in 34 CFR
64
Question A-3:
Answer:
§300.153. Under that section, a complaint must include a statement that a
public agency has violated a requirement of Part B of the Act or the regulations;
the facts on which the statement is based; and the signature and contact
information for the complainant. If the complaint alleges a violation with
respect to a specific child the complaint also must include the name and address
of the residence of the child; the name of the school the child is attending; in
the case of a homeless child or youth, available contact information for the child
and the name of the school the child is attending; a description of the problem
of the child, including facts relating to the problem; and a proposed resolution
of the problem to the extent known and available to the party at the time the
complaint is filed. However, in the Analysis of Comments and Changes
accompanying the regulations, the Department indicated that when an SEA
receives a complaint that is not signed or does not include contact information,
the SEA may choose to dismiss the complaint. 71 FR 46540, 46606 (August 14,
2006). In general, an SEA should adopt proper notice procedures for such
situations. For example, an SEA could provide notice indicating that the
complaint will be dismissed for not meeting the content requirements or that
the complaint will not be investigated and timelines not commence until the
missing content is provided.
What is an SEA’s responsibility to conduct a complaint investigation if the
complainant does not provide a copy of the complaint to the public agency/LEA
serving the child at the same time the complaint is filed with the SEA?
The regulations do not address this specific question. It would be appropriate
for an SEA, when establishing its complaint procedures, to include the actions
that will be taken under such circumstances and provide proper notice of these
procedures. An SEA’s complaint procedures may address how the
complainant’s failure to provide the required copy to the public agency/LEA will
affect the initiation of an investigation and/or the timeline for completing the
investigation.
For example, an SEA could adopt procedures that include advising the
complainant in writing that the investigation will not proceed and the 60-day
timeline will not begin until the complainant provides the public agency/LEA
with a copy of the complaint as required by the regulations.
Question A-4:
May an SEA dismiss a complaint alleging systemic noncompliance because the
complainant did not include a proposed resolution to the problem?
Answer:
No. The requirement, in 34 CFR §300.153(b)(4)(v), that the complaint must
include “…a proposed resolution of the problem to the extent known and
available to the party at the time the complaint is filed” only applies to
complaints alleging violations with respect to a specific child.
65
Question A-5:
Answer:
May a complaint be filed with an SEA over an alleged violation that occurred
more than one year prior to the date of the complaint if the violation is
continuing or the complainant is requesting compensatory services for failure to
provide appropriate services?
No, unless the State chooses to accept and resolve complaints regarding alleged
violations that occurred outside the one-year timeline as described in Question
A-6. The regulations in 34 CFR §300.153(c) stipulate that a complaint must
allege a violation that occurred not more than one year prior to the date that
the complaint is received. The Analysis of Comments and Changes
accompanying the regulations notes that the previous regulations allowed
complaints to be filed for continuing violations and for compensatory services
claims using a longer time period. 71 FR 46606. The references to these
circumstances were removed from the current regulations to expedite the
resolution of complaints. It is the Department’s position that limiting a
complaint to a violation that occurred not more than one year prior to the date
that the complaint is received will help ensure that problems are raised and
addressed promptly so that children receive FAPE.
Question A-6:
May an SEA choose to accept written complaints alleging violations of the IDEA
that occurred longer than one year prior to the SEA’s receipt of the written
complaint? If such a procedure is permitted, must the SEA widely disseminate
the procedure pursuant to 34 CFR §300.151(a)(2)?
Answer:
As with other procedural protections, a State may elect to provide more
protections for children with disabilities and their parents than those specifically
required by the IDEA. Therefore, an SEA may adopt a policy or procedure to
accept and resolve complaints regarding alleged violations that occurred
outside the one-year timeline set out in 34 CFR §300.153(c), because this would
constitute greater protection for children with disabilities. Stakeholders,
including parents, parent training and information centers, protection and
advocacy agencies, independent living centers, and other appropriate entities,
must be informed of the State’s complaint resolution procedures pursuant to 34
CFR §300.151(a)(2). Therefore, if an SEA adopts a policy or procedure to accept
complaints alleging violations that occurred outside of the one-year timeline,
stakeholders must be informed of the policy or procedure so that they will be
able to make informed decisions about how and when they may access the
State complaint procedures. Additionally, pursuant to 34 CFR §300.504(c)(5), an
SEA must ensure that the procedural safeguards notice provided to parents
includes a full explanation of the procedural safeguards, including the time
period in which a parent may file a State complaint and relevant procedures.
Question A-7:
What are the requirements related to extension of the timeline for resolving a
State complaint when the parties are engaged in mediation?
66
Answer:
As provided in 34 CFR §300.152(b)(1)(ii), the parent (or individual or
organization, if mediation or other alternative means of dispute resolution is
available to the individual or organization under State procedures) and the
public agency involved may agree to extend the time limit to engage in
mediation to resolve a complaint.
If the parties involved voluntarily agree to engage in mediation once the State
complaint is filed, and the mediation is not successful in resolving the dispute,
the entity responsible for resolving the complaint at the State level must ensure
that the complaint is resolved within the applicable timeline in 34 CFR §300.152.
Question A-8:
If the complainant is a party other than a parent, may the parties use the
mediation process to attempt to resolve the issues in the State complaint?
Answer:
The regulations in 34 CFR §300.152(a)(3)(ii) require an SEA to offer the parent
and the public agency the opportunity to voluntarily engage in mediation (or
other alternative methods of dispute resolution if available in the State to
resolve the issues in a State complaint) to resolve the issues in a State
complaint. The regulations do not require an SEA to provide mediation when an
organization or individual other than the child’s parent files a State complaint.
As set out in the Analysis of Comments and Changes accompanying the
regulations:
[T]he statute does not require that mediation be available to
other parties, and we believe it would be burdensome to
expand, through regulation, new [34 CFR] §300.152(a)(3)(ii)
(proposed [34 CFR] §300.152(a)(3)(B)) to require that States
offer mediation to non-parents. Although we do not believe we
should regulate to require that mediation be offered to nonparents, there is nothing in the Act or these regulations that
would preclude an SEA from permitting the use of mediation, or
other alternative dispute resolution mechanisms, if available in
the State, to resolve a State complaint filed by an organization
or individual other than a parent, and we will add language to
[34 CFR] §300.152(b)(1)(ii) to permit extensions of the timeline
if the parties are voluntarily engaged in any of these dispute
resolution procedures. In fact, we encourage SEAs and their
public agencies to consider alternative means of resolving
disputes between the public agency and organizations or other
individuals, at the local level, consistent with State law and
administrative procedures. It is up to each State, however, to
determine whether non-parents can use mediation or other
alternative means of dispute resolution. 71 FR 46604.
67
B. Mediation
Authority:
The requirements for mediation are found in the regulations at 34 CFR
§300.506.
Question B-1:
Are discussions that occur in mediation automatically confidential or is the
confidentiality of the mediation session something that must be mediated and
documented as a part of the mediation agreement?
Answer:
Discussions that occur during the mediation process pursuant to 34 CFR
§300.506(b)(8) are automatically confidential and may not be used as evidence
in any subsequent due process hearing or civil proceeding of any Federal court
or State court of a State receiving assistance under Part B of the IDEA regardless
of whether the parties resolve a dispute. If the parties resolve a dispute
through the mediation process, the parties must execute a legally binding
agreement that includes a statement that all discussions that occurred during
the mediation process will remain confidential, as stated in 34 CFR
§300.506(b)(6)(i).
Question B-2:
Must a written mediation agreement be kept confidential?
Answer:
Neither the IDEA nor the regulations specifically address whether the mediation
agreement, itself, must remain confidential. However, the confidentiality
provisions in the Part B regulations in 34 CFR §300.610 and the Family
Educational Rights and Privacy Act (FERPA) and its regulations apply. Further,
there is nothing in the IDEA or the regulations that would prohibit the parties
from agreeing voluntarily to include in their mediation agreement a provision
that limits disclosure of the mediation agreement, in whole or in part, to third
parties.
Question B-3:
Do the regulations allow discussions that occur during the mediation process to
be disclosed during the investigation of a State complaint?
Answer:
No. As noted above, the regulations require that discussions that occur during
the mediation process must remain confidential. 34 CFR §300.506(b)(8).
Neither the IDEA nor the regulations specifically address exceptions to the
confidentiality requirement for mediation discussions when the State conducts
a complaint investigation.
68
C. Due Process Complaints
Authority:
The requirements for due process complaints are found in the regulations at 34
CFR §§300.507 through 300.509.
Question C-1:
What happens if a parent files a due process complaint with the public agency
but does not forward a copy of the due process complaint to the SEA? When
does the timeline for convening a resolution meeting begin?
Answer:
The regulations do not address this specific question. When establishing its
procedures for administering the due process complaint system, a State may
address how the failure to provide the required copy to the public agency/LEA
and SEA will affect the resolution process and impartial hearing timeline.
However, such procedures must be consistent with the due process
requirements of Part B of the IDEA.
For example, a State could adopt procedures that include a requirement that an
LEA or SEA, as appropriate, advise the parent in writing that the timeline for
starting the resolution process will not begin until the complainant provides the
LEA and SEA with a copy of the due process complaint as required by the
regulations.
Question C-2:
May a parent file a due process complaint because their child’s teacher is not
highly qualified?
Answer:
No. The regulations in 34 CFR §300.18(f) state that there is no right of action on
behalf of an individual student or class of students for the failure of a particular
SEA or LEA employee to be highly qualified. However, a parent may file a State
complaint about staff qualifications with the SEA.
Question C-3:
May an LEA file a due process complaint when a parent notifies the LEA that the
parent intends to unilaterally place his or her child in a private school because
FAPE is at issue?
Answer:
Yes. The regulations in 34 CFR §300.507 provide that a public agency may file a
due process complaint on matters relating to the identification, evaluation, or
educational placement of a child with a disability or the provision of FAPE to the
child. This question was addressed in at least one Federal court case, Yates v.
Charles County, 212 F. Supp. 2d 470 (D. Md. 2002). In that case, the court
determined that the public agency had the right to initiate a hearing to
demonstrate that the public agency’s proposed program offered the child FAPE.
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Question C-4:
What steps are available to the complaining party if a hearing officer rules that
the due process complaint is insufficient?
Answer:
As set out in the Analysis of Comments and Changes accompanying the
regulations:
If the hearing officer determines the notice [complaint] is not
sufficient, the hearing officer’s decision will identify how the
notice is insufficient, so that the filing party can amend the
notice, if appropriate. 71 FR 46698.
A party may amend its due process complaint only if the other party consents in
writing to the amendment and is given the opportunity to resolve the due
process complaint through a meeting held pursuant to 34 CFR §300.510 (i.e.,
resolution meeting or if the parties choose to use mediation); or the hearing
officer grants permission to amend the complaint at any time not later than five
days before the due process hearing begins. 34 CFR §300.508(d)(3). If a party
files an amended due process complaint, the timelines for the resolution
meeting and resolution period begin again with the filing of the amended due
process complaint. 34 CFR §300.508(d)(4). If the hearing officer determines that
the complaint is insufficient and the complaint is not amended, the complaint
may be dismissed. 71 FR 46698.
A party may re-file a due process complaint if the complaint remains within the
applicable timelines for filing under 34 CFR §§300.507(a)(2) and 300.511(f) -generally, within two years or an explicit timeline established under State law,
unless an exception applies.
Question C-5:
If a due process complaint is amended and the 15-day timeline to conduct a
resolution meeting starts over, must the LEA conduct another resolution
meeting?
Answer:
Yes. As set out in the Analysis of Comments and Changes accompanying the
regulations:
Section 300.508(d)(3) [of the regulations] and section
615(c)(2)(E) of the Act allow the party filing the due process
complaint an opportunity to amend the complaint to ensure
that the complaint accurately sets out their differences with the
other party. The complaint can be amended only if the parties
mutually agree in writing to the amendment and are given the
opportunity for a resolution meeting (emphasis added), or the
hearing officer grants permission to amend the complaint at any
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time not later than five days before the due process hearing
begins. This process ensures that the parties involved
understand and agree on the nature of the complaint before
the hearing begins…. Section 300.508(d)(4) [of the regulations]
and section 615(c)(2)(E)(ii) of the Act provide that when a due
process complaint is amended, the timelines for the resolution
meeting and the time period for resolving the complaint begin
again with the filing of the amended due process complaint.
71 FR 46698.
Question C-6:
May a school district proceed directly to court for a temporary injunction to
remove a student from his or her current educational placement for disciplinary
reasons or must the school district exhaust administrative remedies by first
filing a due process complaint?
Answer:
Yes. While this situation is not addressed specifically by the regulations, the
Department’s position, in the context of discipline, continues to be that a school
district may seek judicial relief through measures such as a temporary
restraining order when necessary and legally appropriate. In addition, there is
extensive case law addressing circumstances where exhaustion of
administrative remedies is not required or where the failure to exhaust
administrative remedies may be excused.
Question C-7:
The regulations do not require a resolution meeting when an LEA files a due
process complaint. 34 CFR §300.510. How does the absence of a resolution
period when an LEA files a due process complaint affect: (1) a parent’s right to
challenge the sufficiency of the due process complaint; and (2) the parent’s
responsibility to send to the LEA a response that specifically addresses the
issues raised in the LEA’s due process complaint?
Answer:
A parent’s rights and obligations, as outlined above, are not affected by the
absence of a resolution meeting time period when an LEA files a due process
complaint. In such situations the parent retains the right to challenge the
sufficiency of the due process complaint within 15 days of receipt of the
complaint, consistent with 34 CFR §300.508(d), and the parent remains
obligated to send a response to the LEA that addresses the issues raised in the
due process complaint within 10 days of receiving the complaint under 34 CFR
§300.508(f).
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D. Resolution Process
Authority:
The requirements for the resolution process are found in the regulations at 34
CFR §300.510.
Question D-1:
Does the resolution process under 34 CFR §300.510 apply when a public agency
files a due process complaint? If not, what is the timeline for issuing a hearing
decision on the matter?
Answer:
The IDEA and the regulations do not require a public agency to convene a
resolution meeting when the public agency files a due process complaint.
However, the public agency and parent may choose to voluntarily engage in
mediation to resolve the issue. Since the resolution process is not required
under the regulations when a public agency files a complaint, the 45-day
timeline for issuing a written decision begins the day after the public agency’s
due process complaint is received by the other party and the SEA. If the
complaint is determined to be insufficient under 34 CFR §300.508(d)(2) and is
not amended, the complaint could be dismissed.
Question D-2:
Why is a resolution meeting not required when an LEA files a due process
complaint?
Answer:
The IDEA does not require a resolution meeting in this situation. The
resolution meeting provides an opportunity for the parents of the child to
discuss their complaint and the facts that form the basis of the complaint, so
that the LEA has an opportunity to resolve the complaint. The Department
expects that LEAs will attempt to resolve disputes with parents prior to filing a
due process complaint. This includes communicating with a parent about the
disagreement and convening an IEP Team meeting, as appropriate, to discuss
the matter and attempt to reach a solution.
Question D-3:
Are there any provisions in the IDEA that require discussions that occur in
resolution meetings to remain confidential?
Answer:
In general, no. Unlike mediation, the IDEA and the regulations do not prohibit
or require discussions that occur during a resolution meeting to remain
confidential. However, the confidentiality provisions in the Part B regulations at
34 CFR §300.610 and FERPA and its regulations apply.
Question D-4:
Do the regulations allow information discussed at a resolution meeting to be
introduced at a due process hearing?
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Answer:
In general, yes. Unlike mediation, the IDEA and the regulations do not require
that discussions in resolution meetings remain confidential. Therefore, absent
an agreement by the parties to the contrary, either party may, at a due process
hearing, introduce information discussed during the resolution meeting when
presenting evidence and confronting or cross-examining witnesses consistent
with 34 CFR §300.512(a)(2). Nothing in the IDEA or the regulations would
prevent the parties from voluntarily agreeing that the resolution meeting
discussions will remain confidential, including prohibiting the introduction of
those discussions at any subsequent due process hearing. However, neither an
SEA nor an LEA can require the parties to enter into such an agreement as a
condition of participation in the resolution meeting. 71 FR 46704.
Question D-5:
In the event an agreement is not reached during the resolution meeting, must
mediation continue to be available?
Answer:
Yes. The regulations at 34 CFR §300.506 require that the public agency ensure
mediation is available “to allow parties to disputes involving any matter under
this part, including matters arising prior to the filing of a due process complaint,
to resolve disputes through a mediation process.” It is important to note that
mediation is voluntary and must be agreed to by both parties.
Question D-6:
Does the 30-day resolution period apply if the parties elect to use mediation
under 34 CFR §300.506 rather than convene a resolution meeting?
Answer:
Yes. If the parties choose to use mediation rather than participate in a
resolution meeting, the 30-day resolution period is still applicable. Under 34
CFR §300.510(c), the resolution period applies to the use of mediation after the
filing of a complaint requesting a due process hearing.
Question D-7:
Must the LEA continue its attempts to convince a parent to participate in a
resolution meeting throughout the 30-day resolution period?
Answer:
Yes. If a parent fails to participate in a resolution meeting, an LEA must
continue to make reasonable efforts throughout the remainder of the 30-day
resolution period to convince the parent to participate in a resolution meeting.
The regulations permit an LEA, at the conclusion of the 30-day resolution
period, to request that a hearing officer dismiss the complaint when an LEA is
unable to obtain the participation of a parent in a resolution meeting despite
making reasonable efforts to do so and has documented its efforts using the
procedures in 34 CFR §300.322(d).
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Question D-8:
If a party fails to participate in the resolution meeting, must the other party seek
the hearing officer’s intervention?
Answer:
Yes. The regulations at 34 CFR §300.510(b)(4) provide that an LEA may request
a hearing officer to dismiss a complaint when the LEA has been unable to obtain
the participation of the parent in a resolution meeting despite making
reasonable efforts to do so. Under 34 CFR §300.510(b)(5), if an LEA fails to hold
a resolution meeting within the required timelines or fails to participate in a
resolution meeting, the parent may seek the intervention of a hearing officer to
begin the due process hearing timeline. The hearing officer’s intervention will
be necessary to either dismiss the complaint or to commence the hearing,
depending on the circumstances.
Question D-9:
If, at the conclusion of the 30-day resolution period, the LEA and parents wish to
continue the mediation process, must the hearing officer agree to the
extension?
Answer:
In general, no. The regulations contemplate that the parties may agree in
writing to continue the mediation at the end of the 30-day resolution period
pursuant to 34 CFR §300.510(c)(3). Therefore, such agreements would not
require hearing officer involvement or approval.
Under 34 CFR §300.515, each hearing and review involving oral arguments must
be conducted at a time and place that is reasonably convenient to the parents
and child involved, and a hearing officer may grant specific extensions of time at
the request of either party. Therefore, to the extent that the hearing officer
already has established a hearing schedule that is inconsistent with the
extension agreed upon by the parties, it would be appropriate to notify the
hearing officer of the agreement and any scheduling conflicts in order to revise
the hearing schedule.
Question D-10:
Must the SEA enforce the requirement that the LEA convene a resolution
meeting within 15 days of receiving notice of the parent’s due process
complaint? If a resolution meeting is not convened, what action may a parent
take?
Answer:
Yes. Where the LEA fails to convene resolution meetings as required under 34
CFR §300.510(a)(1), and the failure is not the result of an agreement by the
parties to use mediation or a written agreement by the parties to waive the
meeting, consistent with §300.510(a)(3), the SEA must enforce the requirement
and may use appropriate enforcement actions consistent with its general
supervisory responsibilities under 34 CFR §§300.600 and 300.608 to ensure that
the LEA complies. Additionally, if the LEA fails to hold the resolution meeting
within 15 days of receiving notice of the parent’s due process complaint or fails
74
to participate in the resolution meeting, the parent may seek the intervention of
a hearing officer to begin the due process hearing timeline.
E. Expedited Due Process Hearings
Authority:
The requirements for expedited due process hearings are found in the
regulations at 34 CFR §300.532.
Question E-1:
May the parties mutually agree to extend the resolution period to resolve an
expedited due process complaint?
Answer:
No. The regulations for expedited due process hearings, in 34 CFR §300.532(c),
do not specifically provide for adjustments to the 15-day resolution period. The
purpose of expediting the due process hearing related to a disciplinary decision
is to ensure that the matter is resolved promptly and that the child’s
educational program is not adversely affected by undue delays. Therefore,
when the parties have participated in a resolution meeting or mediation and the
dispute has not been resolved to the satisfaction of both parties within 15 days
of the receipt of the due process complaint, the due process hearing may
proceed. 34 CFR §300.532(c)(3)(ii).
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Questions and Answers
On Response to Intervention (RTI)
and
Early Intervening Services (EIS)
January 2007
The final regulations for the reauthorized Individuals with Disabilities Education Act (IDEA) were
published in the Federal Register on August 14, 2006, and became effective on October 13, 2006. Since
publication of the final regulations, the Office of Special Education and Rehabilitative Services (OSERS) in
the U.S. Department of Education has received requests for clarification of some of these regulations.
This is one in a series of question and answer documents prepared by OSERS to address some of the
most important issues raised by requests for clarification on a variety of high-interest topics. Generally,
the questions, and corresponding answers, presented in this Q&A document required interpretation of
IDEA and the regulations and the answers are not simply a restatement of the statutory or regulatory
requirements. The responses presented in this document generally are informal guidance representing
the interpretation of the Department of the applicable statutory or regulatory requirements in the
context of the specific facts presented and are not legally binding. The Q&As are not intended to be a
replacement for careful study of IDEA and the regulations. The statute, regulations, and other
important documents related to IDEA and the regulations are found at http://idea.ed.gov.
The final regulations incorporate new requirements regarding identifying children with specific learning
disabilities (SLD) and early intervening services (EIS). With regard to identifying children with SLD, the
regulations: (1) allow a local educational agency (LEA) to consider a child’s response to scientific,
research-based intervention as part of the SLD determination process; (2) allow States to use other
alternative research-based procedures for determining whether a child has a SLD; (3) provide that States
may not require the use of a severe discrepancy between intellectual ability and achievement to
determine whether a child has a SLD; and (4) require a public agency to use the State criteria in
determining whether a child has a SLD and discuss the role that response to scientific research-based
interventions plays in a comprehensive evaluation process.
The regulations regarding EIS permit an LEA to use not more than 15% of its IDEA Part B funds to
develop and implement EIS. The regulations also indicate how EIS funds can be expended; on whom the
EIS funds can be spent; the reporting requirements for EIS; special provisions regarding
disproportionality based on race and ethnicity and how that affects an LEA’s use of EIS funds; and the
relationship of EIS to maintenance of effort. The purpose of the questions and answers that follow is to
provide additional guidance to States and LEAs in complying with the requirements regarding EIS and
response to scientific research-based interventions to identify students with a SLD.
Authority:
The requirements for using a process based on a child’s response to scientific,
research-based intervention when determining that the child is a child with a
specific learning disability are found in the regulations at 34 CFR §§300.307,
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300.309 and 300.311.
The requirements for early intervening services are found in the regulations at 34 CFR
§§300.205(d), 300.208(a)(2), 300.226 and 300.646(b)(2).
A. General Education vs. Special Education
Question A-1:
Please clarify how a child with a disability who is already receiving special
education and related services also would be eligible to receive services using
response to intervention (RTI) strategies.
Answer:
Response to intervention (RTI) strategies are tools that enable educators to
target instructional interventions to children’s areas of specific need as soon as
those needs become apparent. There is nothing in IDEA that prohibits children
with disabilities who are receiving special education and related services under
IDEA from receiving instruction using RTI strategies unless the use of such
strategies is inconsistent with their individualized education programs (IEPs).
Additionally, under IDEA, a public agency may use data gathered through RTI
strategies in its evaluations and reevaluations of children with SLD. However,
children with disabilities who are currently identified as needing special
education and related services may not receive RTI services that are funded
with IDEA funds used for EIS pursuant to 34 CFR §300.226. This is because EIS is
“… for students in kindergarten through grade 12 (with a particular emphasis on
students in kindergarten through grade three) who are not currently identified
as needing special education or related services, but who need additional
academic and behavioral support to succeed in a general education
environment.”
Question A-2:
Why was RTI included in IDEA?
Answer:
The reports of both the House and Senate Committees accompanying the IDEA
reauthorization bills reflect the Committees’ concerns with models of
identification of SLD that use IQ tests, and their recognition that a growing body
of scientific research supports methods, such as RTI, that more accurately
distinguish between children who truly have SLD from those whose learning
difficulties could be resolved with more specific, scientifically based, general
education interventions. Similarly, the President’s Commission on Excellence in
Special Education recommended that the identification process for SLD
incorporate an RTI approach.
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B. Funding
Question B-1:
Is the use of funds for EIS required or permitted?
Answer:
Generally, the use of funds an LEA receives under Part B of the Act for EIS is
discretionary on the part of the LEA, except when an LEA has significant
disproportionality based on race and ethnicity. Under 34 CFR §300.226, an LEA
may not use more than 15% of the amount the LEA receives under Part B of the
Act for any fiscal year, less any amount reduced by the LEA pursuant to 34 CFR
§300.205, if any, in combination with other amounts (which may include
amounts other than education funds), to develop and implement coordinated
EIS. If a State identifies an LEA as having significant disproportionality based on
race and ethnicity with respect to the identification of children with disabilities,
the placement of children with disabilities in particular educational settings, or
the incidence, duration, and type of disciplinary actions taken against children
with disabilities, including suspensions and expulsions, the SEA must require the
LEA to reserve the maximum amount of funds available to the LEA to provide
EIS to children in the LEA, particularly, but not exclusively, to children in those
groups that were significantly overidentified.
Question B-2:
What does it mean to “reserve” funds for EIS?
Answer:
The Department interprets “reserve” to mean that these funds can only be
spent on EIS. The statute does not authorize LEAs to use the funds they must
“reserve” for EIS for any other purpose.
Question B-3:
Must the maximum amount of special education funds allowed for EIS be
reserved only if significant disproportionality is the result of inappropriate
identification?
Answer:
No. The reservation of funds must occur whether or not the significant
disproportionality was the result of inappropriate identification. In addition to
identification, funds also would have to be reserved if significant
disproportionality was found with respect to discipline or placement in
particular educational settings.
Question B-4:
If a State has identified significant disproportionality in an LEA can the IDEA
funds the LEA must use to address the issue be used to provide services to
students who have already been found eligible for special education and related
services?
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Answer:
No. Section 300.226(a) states that EIS is “ … for students in kindergarten
through grade 12 (with a particular emphasis on students in kindergarten
through grade three) who are not currently identified as needing special
education or related services, but who need additional academic and behavioral
support to succeed in a general education environment.”
Question B-5:
What is the relationship between EIS funds and maintenance of effort (MOE)
funds?
Answer:
LEAs that seek to reduce their local maintenance of effort in accordance with 34
CFR §300.205(d) and use some of their Part B funds for early intervening
services under 34 CFR §300.226 must do so with caution because the local
maintenance of effort reduction provision and the authority to use Part B funds
for early intervening services are interconnected. The decisions that an LEA
makes about the amount of funds it uses for one purpose affect the amount
that it may use for the other. Appendix D of the Part B regulations [71 FR
46817] provides examples of how 34 CFR §300.205(d), regarding local
maintenance of effort, and 34 CFR §300.226(a), regarding EIS funds, affect one
another.
C. Evaluation and Eligibility Determinations
Question C-1:
Must an LEA evaluate a child upon the request of the parent at any time during
the RTI process? May a parent request an initial special education evaluation at
any time during the RTI process?
Answer:
If the LEA agrees with the parent that the child may be a child who is eligible for
special education services, the LEA must evaluate the child. The Federal
regulations at 34 CFR §300.301(b) allow a parent to request an evaluation at any
time. If an LEA declines the parent’s request for an evaluation, the LEA must
issue a prior written notice as required under 34 CFR §300.503(a)(2) which
states, “written notice that meets the requirements of paragraph (b) of this
section must be given to the parents of a child with a disability a reasonable
time before the public agency refuses to initiate or change the identification,
evaluation, or educational placement of the child or the provision of FAPE to the
child.” The parent can challenge this decision by requesting a due process
hearing to resolve the dispute regarding the child’s need for an evaluation.
Question C-2:
May an LEA require that all children suspected of having a SLD first be assessed
using an RTI process before an eligibility determination may be made?
Answer:
If an LEA is using RTI for all its students, it may require the group established
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under 34 CFR §300.306(a)(1) and 34 CFR §300.308 for the purpose of
determining the eligibility (eligibility group) of students suspected of having a
SLD to review data from an RTI process in making an eligibility determination.
Models based on RTI typically evaluate the child’s response to instruction prior
to the beginning of the evaluation time period described in 34 CFR
§300.301(c)(1), and generally do not require as long a time to complete an
evaluation because of the amount of information already collected on the
child’s achievement, including observation data. If the eligibility group
determines that additional data are needed and cannot be obtained within the
evaluation time period described in 34 CFR §300.301(c)(1), the parent and
eligibility group can agree to an extension of the timeframe. However, as
explained in Question C-1, parents can request an evaluation at any time, and
the public agency must either obtain consent to evaluate and begin the
evaluation, or, if the public agency declines the parent’s request, issue a prior
written notice as required by 34 CFR §300.503(a)(2).
Question C-3:
Section 300.309(a)(2)(i) states that the eligibility group may determine that a
child has a specific learning disability if “the child does not make sufficient
progress to meet age or State-approved grade-level standards in one or more”
identified areas. Section 300.309(a)(2)(ii) states that the group may determine
that a child has a specific learning disability if “the child exhibits a pattern of
strengths and weaknesses in performance, achievement, or both, relative to
age, State-approved grade level standards, or intellectual development” that
the group determines is relevant to making an eligibility determination. Please
explain how these two criteria differ from one another.
Answer:
Section 300.309(a)(2)(i) reflects the use of the criterion that the child has not
made sufficient progress in at least one of the following areas when using
response to intervention as an aspect of the SLD identification process: oral
expression, listening comprehension, written expression, basic reading skills,
reading comprehension, mathematics calculation, and mathematics problem
solving. Alternatively, based on 34 CFR §300.309(a)(2)(ii), the group could
consider variation in a child's performance, achievement, or both relative to
age, State-approved grade-level standards, or intellectual development that is
determined by the eligibility group to be relevant to identification of a SLD using
appropriate assessments. Under this criterion, a pattern of strengths and
weaknesses in performance, achievement, or both relative to age, Stateapproved grade-level standards or intellectual development would be part of
the evidence that a child has a learning disability.
Question C-4:
The regulations require an SEA to adopt criteria for determining if a child has a
specific learning disability (34 CFR §300.307(a)). Does this preclude the SEA
from mandating RTI as the sole criterion used to determine if a child has a
specific learning disability? Must an LEA follow the State-developed criteria for
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determining if a child has a specific learning disability?
Answer:
An SEA must include a variety of assessment tools and may not use any single
measure or assessment as the sole criterion for determining whether a child is a
child with a disability, as required under 34 CFR §300.304(b). However, an SEA
could require that data from an RTI process be used in the identification of all
children with SLD.
An LEA must comply with the criteria adopted by their SEA regarding this
requirement. The requirements at 34 CFR §300.307(a) require that a State
adopt criteria for determining whether a child has a specific learning disability.
The Analysis of Comments and Changes accompanying the final Part B
regulations, page 46649, clarifies, “… the Department believes that eligibility
criteria must be consistent across a State to avoid confusion among parents and
school district personnel. The Department also believes that requiring LEAs to
use State criteria for identifying children with disabilities is consistent with the
State's responsibility under section 612(a)(3) of the Act to locate, identify, and
evaluate all eligible children with disabilities in the State.”
Question C-5:
When implementing an evaluation process based on a child’s response to
scientific, research-based intervention, the regulations require that a “public
agency must promptly request parental consent to evaluate a child (34 CFR
§300.309(c))” if the “child has not made adequate progress after an appropriate
period of time (34 CFR §300.309(c)(1)).” Please define “promptly” and
“adequate” in this context.
Answer: The Federal regulations under 34 CFR §300.309(c) require that if a child has not made
adequate progress after an appropriate period of time, a referral for an
evaluation must be made. However, the regulations do not specify a timeline
for using RTI or define “adequate progress.” As required in 34 CFR §300.301(c),
an initial evaluation must be conducted within 60 days of receiving consent for
an evaluation (or if the State establishes a timeframe within which the
evaluation must be completed, within that timeframe). Models based on RTI
typically evaluate a child's response to instruction prior to the onset of the 60day period, and generally do not require as long a time to complete an
evaluation because of the amount of data already collected on the child's
achievement, including observation data. A State may choose to establish a
specific timeline that would require an LEA to seek parental consent for an
evaluation if a student has not made progress that the district deemed
adequate.
We do not believe it is necessary to define the phrase “promptly” because the
meaning will vary depending on the specific circumstances in each case. There
may be legitimate reasons for varying timeframes for seeking parental consent
to conduct an evaluation. However, the child find requirements in 34 CFR
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§300.111 and section 612(a)(3)(A) of the Act require that all children with
disabilities in the State who are in need of special education and related services
be identified, located, and evaluated. Therefore, it generally would not be
acceptable for an LEA to wait several months to conduct an evaluation or to
seek parental consent for an initial evaluation if the public agency suspects the
child to be a child with a disability. If it is determined through the monitoring
efforts of the Department or a State that there is a pattern or practice within a
particular State or LEA of not conducting evaluations and making eligibility
determinations in a timely manner, this could raise questions as to whether the
State or LEA is in compliance with the Act.
Question C-6:
May an eligibility determination be made using only information that was
collected through an RTI process?
Answer:
Section 300.304 (b) states that in conducting an evaluation, a public agency
must use a variety of assessment tools and strategies to gather relevant
functional, developmental, and academic information about the child, including
information provided by the parent, that may assist in determining eligibility
and not use any single measure or assessment as the sole criterion for
determining whether a child is a child with a disability and for determining an
appropriate educational program for the child.
The Department provided additional clarification regarding this issue in the
Analysis of Comments and Changes section of the regulations, page 46648. This
section states, “an RTI process does not replace the need for a comprehensive
evaluation. A public agency must use a variety of data gathering tools and
strategies even if an RTI process is used. The results of an RTI process may be
one component of the information reviewed as part of the evaluation
procedures required under 34 CFR §§300.304 and 300.305. As required in 34
CFR §300.304(b), consistent with section 614(b)(2) of the Act, an evaluation
must include a variety of assessment tools and strategies and cannot rely on any
single procedure as the sole criterion for determining eligibility for special
education and related services.”
D. 3-5 Year Olds
Question D-1:
Why don’t early intervening services apply to 3-5 year olds?
Answer:
Section 300.226(a) tracks the statutory language in section 613(f)(1) of the Act,
which states that early intervening services are for children in kindergarten
through grade 12, with a particular emphasis on children in kindergarten
through grade 3. Thus, LEAs may not use Part B funds to provide EIS to nondisabled preschool children.
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E. Service Delivery Models
Question E-1:
Is the use of RTI required or just permitted?
Answer:
Section 300.307(a)(2)-(3) requires that a State’s criteria for identification of
specific learning disabilities:
 Must permit the use of a process based on the child's response to scientific,
research-based intervention; and
 May permit the use of other alternative research-based procedures for
determining whether a child has a specific learning disability.
Section 300.307(b) states that a public agency must use the State’s criteria in
identifying children with specific learning disabilities. Thus, the State’s criteria
must permit the use of RTI and may require its use, in addition to other
assessment tools and strategies, for determining whether the child has a
specific learning disability.
Question E-2:
Does each LEA have to select either RTI or a discrepancy model to determine if a
child is a child with a specific learning disability?
Answer: No. The State agency must adopt criteria regarding the determination of SLD eligibility.
An SEA must include a variety of assessment tools and may not use any single
measure or assessment as the sole criterion for determining whether a child is a
child with a disability, as required under 34 CFR §300.304(b). An LEA must
comply with the criteria adopted by its SEA. Section 300.307(a) requires a State
to adopt criteria for determining whether a child has a specific learning
disability.
The Analysis of Comments and Changes section accompanying the Federal
regulations, page 46649, clarifies, “… the Department believes that eligibility
criteria must be consistent across a State to avoid confusion among parents and
school district personnel. The Department also believes that requiring LEAs to
use State criteria for identifying children with disabilities is consistent with the
State's responsibility under section 612(a)(3) of the Act to locate, identify, and
evaluate all eligible children with disabilities in the State. We believe this
provides the Department with the authority to require a public agency to use its
State’s criteria in determining whether a child has an SLD, consistent with
§§300.307 through 300.311.”
Question E-3:
What services can be defined as early intervening services? For example, are
physical therapy, occupational therapy, and assistive technology considered
early intervening services?
83
Answer:
State and local officials are in the best position to make decisions regarding the
provision of early intervening services, including the specific personnel to
provide the services and the instructional materials and approaches to be used.
Nothing in the Act or regulations prevents States and LEAs from including
related services personnel in the development and delivery of educational and
behavioral evaluations, services, and supports for teachers and other school
staff to enable them to deliver coordinated, early intervening services.
F. General
Question F-1:
Please define “significant disproportionality” in the context of EIS.
Answer:
Each State has the discretion to define the term “significant disproportionality,”
in the context of EIS, for the LEAs and for the State in general. In identifying
significant disproportionality, a State may determine how much
disproportionality is significant. However, the State’s definition of “significant”
must be based only on a numerical analysis, and may not consider factors such
as the extent to which an LEA’s policies and procedures comply with the IDEA or
the compliance history of an LEA. Establishing a national standard for significant
disproportionality is not appropriate because there are multiple factors at the
State level to consider in making such determinations. For example, States need
to consider the population size, the size of individual LEAs, and composition of
the State’s population. States are in the best position to evaluate those factors.
The Department has provided guidance to States on methods for assessing
disproportionality.
This
guidance
is
found
at:
http://www.ideadata.org/docs/Disproportionality%20Technical%20Assistance%
20Guide.pdf.
Question F-2:
Will early intervening services data be reported in State Performance Plans
(SPP) or Annual Performance Reports (APRs)?
Answer:
No. Section 300.226 directs LEAs to report EIS data to their SEA. It is not a part
of the information that an SEA must report to the Department in its SPP or
APRs.
Question F-3:
For discipline purposes, would a student’s participation in an RTI process be
considered a “basis of knowledge” under 34 CFR §300.534(b)?
Answer:
Generally, no. Participation in an RTI process, in and of itself, would not appear
to meet the “basis of knowledge” standards in 34 CFR §300.534. The standards
for whether a public agency has a “basis of knowledge” are laid out in the
Federal regulations at 34 CFR §300.534.
Question F-4:
When an RTI model is implemented, can an incremental process be used to
84
train individual schools so that over time the entire LEA is implementing the
model or must all the schools in the entire LEA be trained simultaneously?
Answer:
If the State or LEA requires the use of a process based on the child's response to
scientific, research-based intervention, in identifying children with SLD, then all
children suspected of having a SLD, in all schools in the LEA, would be required
to be involved in the process. However, research indicates that implementation
of any process, across any system, is most effective when accomplished
systematically in an incremental manner over time. If the LEA chose to “scale
up” the implementation of the RTI model gradually over time, as would be
reasonable, the LEA could not use RTI for purposes of identifying children with
SLD until RTI was fully implemented in the LEA. Therefore, it is unwise for a
State to require the use of a process based on the child's response to scientific,
research-based intervention before it has successfully scaled up
implementation.
Question F-5:
How might EIS funds be used to support a process determining whether a child
has a specific learning disability and to address the needs of students who need
additional academic and behavioral support to succeed in a general education
environment?
Answer:
If EIS funds are used to support a process to determine whether a child has a
specific learning disability there are three interacting identification/instructional
dynamics that need to be considered: (1) identification of learning disabilities;
(2) early intervening services; and (3) response to intervention (RTI). While the
Department does not subscribe to a particular RTI model, the core
characteristics that underpin all RTI models are: (1) students receive high
quality research-based instruction in their general education setting; (2)
continuous monitoring of student performance; (3) all students are screened for
academic and behavioral problems; and (4) multiple levels (tiers) of instruction
that are progressively more intense, based on the student’s response to
instruction.
For example, an RTI model with a three-tier continuum of school-wide support
might include the following tiers and levels of support: (1) Tier one (Primary
Intervention), for all students using high quality scientific research-based
instruction in their general education setting. It would not be appropriate to
use EIS funds for these activities since these students do not need additional
academic and behavioral support to succeed in a general education
environment. (2) Tier two (Secondary Intervention), for specialized small group
instruction of students determined to be at risk for academic and behavioral
problems. It would be appropriate to use EIS funds to support these activities.
(3) Tier three (Tertiary Intervention) for specialized individualized
instructional/behavioral support for students with intensive needs. EIS funds
could not be used if these students were currently receiving special education
85
or related services.
Question F-6:
Should services supported with EIS funds be scientifically based?
Answer:
The No Child Left Behind Act and IDEA call on educational practitioners to use
scientifically based research to guide their decisions about which interventions
to implement. IDEA states that in implementing coordinated early intervening
services an LEA may carry out activities that include-(1) Professional development (which may be provided by entities other than
LEAs) for teachers and other school staff to enable such personnel to deliver
scientifically based academic and behavioral interventions, including
scientifically based literacy instruction, and, where appropriate, instruction on
the use of adaptive and instructional software; and
(2) Educational and behavioral evaluations, services, and supports, including
scientifically based literacy instruction.
86
Questions and Answers
on Secondary Transition
Revised June 2009
Regulations for Part B of the Individuals with Disabilities Education Act (IDEA) were published in the
Federal Register on August 14, 2006, and became effective on October 13, 2006. Additional regulations
were published on December 1, 2008 and became effective on December 31, 2008. Since publication of
the regulations, the Office of Special Education and Rehabilitative Services (OSERS) in the U.S.
Department of Education (Department) has received requests for clarification of some of these
regulations. This is one of a series of question and answer (Q&A) documents prepared by OSERS to
address some of the most important issues raised by requests for clarification on a variety of highinterest topics. Each Q&A document will be updated to add new questions and answers as important
issues arise or to amend existing questions and answers as needed.
OSERS issues this Q&A document to provide State educational agencies (SEAs), local educational
agencies (LEAs), parents, advocacy organizations, and other interested parties with information
regarding secondary transition for students with disabilities. This Q&A document represents the
Department’s current thinking on this topic. It does not create or confer any rights for or on any person.
This guidance does not impose any requirements beyond those required under applicable law and
regulations.
The IDEA and its implementing regulations continue to address transition services for children with
disabilities. Transition services may be special education, if provided as specially designed instruction, or
a related service, if required to assist a child with a disability to benefit from special education. See 34
CFR §300.43(b). The term “transition services” means a coordinated set of activities for a child with a
disability that: (a) is designed to be within a results-oriented process that is focused on improving the
academic and functional achievement of the child with a disability to facilitate the child’s movement
from school to post-school activities, including postsecondary education, vocational education,
integrated employment (including supported employment), continuing and adult education, adult
services, independent living, and community participation; (b) is based on the individual child’s needs,
taking into account the child’s strengths, preferences, and interests; and (c) includes instruction, related
services, community experiences, the development of employment and other post-school adult living
objectives, and, if appropriate, acquisition of daily living skills and functional vocational evaluation. See
20 U.S.C. 1401(34) and 34 CFR §300.43(a).
Generally, the questions, and corresponding answers, presented in this Q&A document required
interpretation of the IDEA and its implementing regulations and the answers are not simply a
restatement of the statutory or regulatory requirements. The responses presented in this document
generally are informal guidance representing the interpretation of the Department of the applicable
statutory or regulatory requirements in the context of the specific facts presented and are not legally
binding. The Q&As in this document are not intended to be a replacement for careful study of the IDEA
87
and its implementing regulations. The IDEA, its implementing regulations, and other important
documents related to the IDEA and the regulations are found at http://idea.ed.gov.
If you are interested in commenting on this guidance, please email your comments to
OSERSguidancecomments@ed.gov and include Secondary Transition in the subject of your email or
write us at the following address: Patricia Guard, U.S. Department of Education, Potomac Center Plaza,
550 12th Street, SW, room 4108, Washington, DC 20202.
A. Federal Activities
Authority: The requirements for transition services are found in the regulations
at 34 CFR §§300.43 and 300.320(b).
Question A-1:
Are there activities at the Federal level to support secondary transition services?
Answer:
Yes. There are State Performance Plan/Annual Performance Report (SPP/APR)
indicators that address secondary transition. In the SPP/APR, a State is required
to set measurable and rigorous targets and annually report data on: graduation
rates; competitive employment rates; postsecondary school enrollment rates;
and percent of eligible IEPs that contain the required secondary transition
elements. The Office of Special Education Programs (OSEP) funds three centers
to provide technical assistance for the collection and analysis of data for these
indicators: the National Secondary Transition Technical Assistance Center
(NSTTAC); the National Dropout Prevention Center for Students with Disabilities
(NDPC-SD); and the National Post-School Outcomes Center (NPSO).
Additionally, OSEP is involved in collaborative activities with other Federal
agencies with a focus on improving the academic and functional achievement of
students with disabilities. These collaborative activities include the MatrixMapping Federal Resources for Technical Assistance and Information Services;
the Interagency Committee on Disability Research/Interagency Subcommittee
on Employment; the Federal Partners in Transition Workgroup; and the Youth
Vision Federal Collaborative Partnership. The agencies involved in these and
other activities include the Departments of Education, Labor, Health and Human
Services, Transportation, Justice, Housing and Urban Development, and the
Equal Employment Opportunity Commission.
B. Summary of Performance (SOP)
Authority:
The requirements for the SOP are found in the regulations at 34 CFR
§300.305(e)(3).
88
Question B-1:
What is the purpose of the SOP, “a summary of the child’s academic
achievement and functional performance, which shall include recommendations
on how to assist the child in meeting the child’s postsecondary goals”?
Answer:
The purpose of the SOP is to provide the child with a summary of the child’s
academic achievement and functional performance in order to assist the child
to transition beyond high school.
Question B-2:
What information is required and what information would be helpful to include
in the SOP?
Answer:
The SOP must include recommendations on how to assist the child in meeting
his or her postsecondary goals. The IDEA does not otherwise specify the
information that must be included in the SOP; rather, State and local officials
have the flexibility to determine the appropriate content to be included in a
child’s SOP, based on the child’s individual needs and postsecondary goals.
Question B-3:
Does a general educational development credential (GED) or alternate diploma
trigger the creation of an SOP?
Answer:
No. A public agency, pursuant to 34 CFR §300.305(e)(3), must provide a
child whose eligibility for services under Part B of the IDEA terminates due to
graduation from secondary school with a regular diploma, or due to exceeding
the age of eligibility for a free appropriate public education (FAPE) under State
law, with a summary of the child's academic achievement and functional
performance. This Part B requirement does not apply to the group of children
who leave secondary school with a GED credential or alternate diploma and
whose eligibility for services under Part B has not terminated. See 34 CFR
§300.102(a)(3)(iv), which clarifies that a regular high school diploma does not
include alternate degrees, such as a GED credential.
Public agencies are not required to provide an SOP for students who leave
secondary school with a GED credential or alternate diploma; however, there is
nothing in the IDEA or the Part B regulations that would prevent a State from
doing so. If a State establishes a policy or practice requiring LEAs to provide an
SOP to students with disabilities who leave high school with a GED credential or
an alternate diploma, we recommend that, to avoid any confusion, the LEA
notify the student and his or her parents that the student's eligibility for FAPE
under Part B does not terminate until the student is awarded a regular high
school diploma or the student exceeds the age of eligibility for FAPE under State
law, whichever occurs first. States that require their LEAs to provide children
who leave secondary school with a GED credential or alternate diploma with an
SOP must comply with 34 CFR §300.199. Each State, under 34 CFR
§300.199(a)(1), must ensure that any State rules, regulations, and policies
89
conform to the purposes of Part B. Further, 34 CFR §300.199(a)(2) requires
States to identify in writing to OSEP and to their LEAs any State-imposed
requirement that is not required by Part B of the IDEA or the implementing
regulations, such as one requiring their LEAs to provide children who leave
secondary school with a GED or credential or alternate diploma with an SOP.
Question B-4:
Is a public agency required to include in the SOP the documentation necessary
to determine a student’s eligibility for the Vocational Rehabilitation (VR)
Services program and/or accommodations in institutions of higher education?
Answer:
No. Section 614(c)(5) of the IDEA does not require the LEA to include in the SOP
the documentation necessary to determine a child’s eligibility for another
program or service, such as the State VR Services program, or the child’s need
for accommodations in college or in other postsecondary educational settings.
However, the SOP may include information that may assist another program to
determine a student’s eligibility for services or accommodations. For example,
section 102(a)(4) of the Rehabilitation Act of 1973, as amended, requires the
State VR Services program to use information submitted by education officials
to assist in making eligibility determinations for students with disabilities. The
SOP is one of the educational records that may be used to provide information
to determine a student’s eligibility for VR services.
A postsecondary student who has identified him or herself as an individual with
a disability and has requested academic adjustments, auxiliary aids or
modifications of policies, practices or procedures from an institution of
postsecondary education may, consistent with an institution’s documentation
requirements, provide the institution with the SOP as part of the documentation
to be used by the institution to determine whether the student has an
impairment that substantially limits a major life activity, as defined under
Section 504 of the Rehabilitation Act (Section 504) and/or the Americans with
Disabilities Act (ADA), and requires academic adjustments as defined in the
Section 504 regulations at 34 CFR §104.44. Institutions may set their own
requirements for documentation so long as they are reasonable and comply
with Section 504 and the ADA.
Question B-5:
How can the SOP assist the VR Services program in the provision of transition
services to eligible VR students with disabilities?
Answer:
In addition to providing information that may be used to determine a student’s
eligibility for VR services, the SOP serves as a functional document that provides
the VR Services program with information describing a student’s vocational,
employment, academic and personal achievements as well as vocational and
employment supports needed by the student.
90
If determined to be eligible to receive VR services, the student, with the
assistance of a VR counselor, develops an individualized plan for employment
(IPE) to achieve a specific employment outcome. An SOP may facilitate the
development of a meaningful IPE by providing information that describes the
student’s secondary and postsecondary goals, career interests, levels of
academic performance, need for reasonable accommodations for work, and the
functional levels of the student’s social and independent living skills, at the time
of completion of secondary education.
In general, an SOP that informs the State VR Services program of the student’s
academic and vocational functional performance may minimize delays in the
transition service delivery system and better prepare the student for a
successful career.
91
Questions and Answers
on Serving Children with Disabilities
Eligible for Transportation
November 2009
Regulations for Part B of the Individuals with Disabilities Education Act (IDEA) were published in the
Federal Register on August 14, 2006, and became effective on October 13, 2006. Additional regulations
were published on December 1, 2008 and became effective on December 31, 2008. Since publication of
the regulations, the Office of Special Education and Rehabilitative Services (OSERS) in the U.S.
Department of Education (Department) has received requests for clarification of some of these
regulations. This is one of a series of question and answer (Q&A) documents prepared by OSERS to
address some of the most important issues raised by requests for clarification on a variety of highinterest topics. Each Q&A document will be updated to add new questions and answers as important
issues arise or to amend existing questions and answers as needed.
OSERS issues this Q&A document to provide State educational agencies (SEAs), local educational
agencies (LEAs), parents, advocacy organizations, and other interested parties with information
regarding the requirements for serving children with disabilities eligible for transportation. This Q&A
document represents the Department’s current thinking on this topic. It does not create or confer any
rights for or on any person. This guidance does not impose any requirements beyond those required
under applicable law and regulations.
The IDEA and its implementing regulations continue to address the transportation needs of children
with disabilities. Transportation is a related service as defined by 34 CFR §300.34(c)(16) of the IDEA
regulations and can include travel to and from school and between schools; travel in and around school
buildings; and specialized equipment such as special or adapted buses, lifts, and ramps. A child’s
individualized education program (IEP) Team is responsible for determining both if transportation is
required to assist a child with a disability to benefit from special education and related services, and
how the transportation services should be implemented. The IDEA and the implementing regulations
also include travel training in the definition of special education. Travel training is instruction that
enables children with disabilities to develop an awareness of the environment in which they live, and to
learn the skills necessary to move effectively and safely from place to place within that environment.
Both transportation and travel training are important services IEP Teams should continue to consider
when they plan for a child’s postsecondary transition needs.
Generally, the questions, and corresponding answers, presented in this Q&A document required
interpretation of the IDEA and its implementing regulations and the answers are not simply a
restatement of the statutory or regulatory requirements. The responses presented in this document
generally are informal guidance representing the interpretation of the Department of the applicable
statutory or regulatory requirements in the context of the specific facts presented and are not legally
binding. The Q&As in this document are not intended to be a replacement for careful study of the IDEA
and its implementing regulations. The IDEA, its implementing regulations, and other important
documents related to the IDEA and the regulations are found at http://idea.ed.gov.
92
If you are interested in commenting on this guidance, please email your comments to
OSERSguidancecomments@ed.gov and include Transportation in the subject of your email or write us at
the following address: Patricia Guard, U.S. Department of Education, Potomac Center Plaza, 550 12th
Street, SW, room 4108, Washington, DC 20202.
A. General
Authority:
Transportation is included as a related service under the regulations in 34 CFR
§300.34(a) and (c)(16). Travel training is included in the definition of special
education in 34 CFR §300.39(a)(2)(ii), and is specifically defined in §300.39(b)(4).
Question A-1:
What transportation services are available for students eligible for special
education and related services under the IDEA?
Answer:
Transportation is a related service and is defined in 34 CFR §300.34(c)(16).
Transportation includes travel to and from school and between schools; travel
in and around school buildings; and specialized equipment such as special or
adapted buses, lifts and ramps, if required to provide special transportation for
a child with a disability.
Question A-2:
Who determines whether transportation services are required and how those
services should be implemented?
Answer:
The IEP Team is responsible for determining if transportation is required to
assist a child with a disability to benefit from special education and related
services, and how the transportation services should be implemented. The IEP
should describe the transportation services to be provided, including
transportation to enable a child with disabilities to participate in nonacademic
and extracurricular activities in the manner necessary to afford the child an
equal opportunity for participation in those services and activities to the
maximum extent appropriate to the needs of that child. 34 CFR §§300.107 and
300.117.
The IDEA does not require LEAs to transport children with disabilities in separate
vehicles, isolated from their peers. In fact, many children with disabilities can
receive the same transportation provided to non-disabled children, consistent
with the least restrictive environment requirements in 34 CFR §§300.114
through 300.120.
Additionally, special education can include travel training. Travel training is
instruction that enables children with significant cognitive disabilities, and any
other children with disabilities who require this instruction, to develop an
awareness of the environment in which they live, and to learn the skills
necessary to move effectively and safely from place to place within that
environment. 34 CFR §§300.39(a)(2)(ii) and 300.39(b)(4).
93
These services can be a fundamental component of the provision of a free
appropriate public education (FAPE) that will assist children in preparing for
employment and independent living in their communities. Therefore, IEP Teams
should consider the need for both transportation and travel training when
planning for a child’s postsecondary transition needs.
The Federal Transit Administration funds and Easter Seals administers Project
ACTION (Accessible Community Transportation in Our Nation), a national
technical assistance center on accessible transportation, which provides training
for schools, parents, and other service providers on the implementation of
travel training (http://www.projectaction.org; 800-659-6428).
Question A-3:
If a child’s IEP identifies transportation as a related service to be provided to the
child, what are strategies that can be used to provide that service?
Answer:
Transportation as a related service may be provided through a variety of
strategies. A child’s IEP Team should consider the strategies that are most
appropriate given each individual child’s disability and needs.
The following examples of appropriate strategies may be helpful when IEP
Teams consider how to provide transportation for children with disabilities:
1. Expanding the Ridership of Small Bus Routes and Integrating Children
with Disabilities into General Education Bus Routes. School districts
often provide door-to-door service for children with disabilities in a
“small bus” vehicle that is separate from the school transportation used
for other students. While this might be an appropriate strategy for
supporting some children with disabilities, districts should explore
options for integrating children with disabilities with nondisabled
students, especially when the children with disabilities are in the same
location and have the same schedule as children without disabilities.
This option may require the utilization of a lift-equipped vehicle for the
regular routes or the addition of a monitor or aide.
2. Using Aides on Buses. Many children with disabilities are able to ride the
regular school bus with support provided by an aide who may be an
instructional assistant or volunteer, based on State and local policy.
Some LEAs also use other students to provide this service through a
buddy system, based on State and local policy.
3. Bus Stop Monitors. For students who may need assistance with “going”
to the bus stop or “waiting” at the bus stop independently, adding a bus
stop monitor can be considered. Based on State and local policy, bus
stop monitor positions may be filled by parents or community
volunteers. Bus stop monitors will facilitate safe travel for all students.
4. Positive Behavioral Support. Recognizing that the school day begins at
the bus stop is an important first step to ensuring that all students have
94
a safe and positive experience. Many schools implement “positive
behavioral support programs” that include the integration of behavioral
strategies on the bus.
Question A-4:
Do the transportation provisions in 34 CFR §300.34(c)(16) mean that an LEA is
responsible for transporting children with disabilities to and from the locations
where the students receive special education and related services, even if the
LEA has to redirect the transportation routes or provide an aide for safety?
Answer:
Yes. If an IEP Team determines that a child with a disability requires special
transportation arrangements or accommodations, including an aide for safety,
the LEA must provide these services.
B. Duration of Travel and Time on Learning
Authority:
The term “school day” is defined in the regulations in 34 CFR §300.11(c).
Question B-1:
If a child with a disability spends a significant amount of time being transported
to and from school, as well as to and from another location to receive special
education and related services, is the child entitled to receive additional school
time to make up for the time lost in transportation?
Answer:
Neither Part B of the IDEA nor the regulations address the issue of the length of
a school day. Determining the length of a school day is a decision left to the SEA.
However, the IDEA defines school day as any day, including a partial day, that
children are in attendance at school for instructional purposes. Additionally,
school day has the same meaning for all children in school, including both those
with and without disabilities. In general, a school day for a child with a disability
should not be longer or shorter than a school day for general education
students. However, if a child’s IEP Team determines a child needs a shorter or
extended school day in order to receive FAPE, then appropriate modifications
should be incorporated into the IEP. However, these modifications must be
based on the unique needs of the child, as determined by the IEP team, and not
solely based on the child’s transportation time.
C. Vehicle Requirements
Authority:
Question C-1:
Answer:
Transportation is included as a related service under the regulations in 34 CFR
§300.34(a) and (c)(16).
When does the IDEA require climate-controlled transportation for children
with disabilities?
Climate-controlled transportation is not explicitly required under the IDEA.
However, if an IEP team determines that a child needs climate- controlled
transportation to receive special education services, related services, or both,
95
and the child’s IEP specifies that such transportation is necessary, the LEA must
provide this special transportation at no cost to the parents. Similarly, climatecontrolled transportation is not required under section 504 of the Rehabilitation
Act of 1973, as amended (Section 504) unless a child with a disability has an
identified need for this transportation. See 34 CFR Part 104. However, the
transportation of nondisabled children in climate-controlled buses, while
children with disabilities are transported in separate buses that are not climatecontrolled, might raise issues of disability discrimination under Section 504.
D. Confidentiality
Authority:
Transportation is included as a related service under the regulations in 34 CFR
§300.34(a) and (c)(16).
Question D-1:
What information should an LEA give to school bus drivers to ensure that the
drivers understand the confidentiality protections of children who are
transported?
Answer:
Each person, including a school bus driver, who collects or uses personally
identifiable information concerning a child with a disability, must receive
training or instruction about the State’s policies and procedures protecting the
confidentiality of such information under 34 CFR §300.123 and 34 CFR part 99.
Transportation providers play an integral role in the school lives of many
children, including children with disabilities. Effective communication between
schools and transportation providers is essential, including communication
about transportation needs and potential problems of children with disabilities.
To the extent appropriate, school personnel in LEAs should ensure that school
bus drivers or other transportation providers are well informed about protecting
the confidentiality of student information related to (1) the special needs of
individual children with disabilities who ride on school buses with their general
education peers, and (2) possible strategies and assistance that may be available
to drivers (including the use of aides on buses).
E. Right to Transportation Outside of Normal School Hours
Authority:
Transportation is included as a related service under the regulations at 34 CFR
§300.34(a) and (c)(16).
Question E-1:
When does a child with a disability have a right to transportation to and from
school-related activities that occur outside of normal school hours, such as
community service activities that are required by the school?
Answer:
When a child with a disability has a right to transportation to and from schoolrelated activities that occur outside of normal school hours depends on whether
the IEP Team has included transportation as a related service in the child’s IEP
to enable the child to benefit from special education and related services. If the
96
IEP Team has made that determination, then it should include transportation for
required after-school activities, such as community service activities that are
required by the school, as well as for activities necessary to afford the child an
equal opportunity to participate in extracurricular activities.
F. Children in Preschools
Authority:
Transportation is included as a related service under the regulations in 34 CFR
§300.34(a) and (c)(16).
Question F-1:
When is an LEA obligated to provide transportation for a preschool child with a
disability between private day care and the child’s preschool?
Answer:
If the IEP Team determines that transportation is required to assist the
preschool child to benefit from special education, and includes transportation as
a related service on the child’s IEP, the LEA would be responsible for providing
the transportation to and from the setting where the special education and
related services are provided.
G. Reimbursement
Authority:
Transportation is included as a related service under the regulations in 34 CFR
§300.34(a) and (c)(16).
Question G-1:
Must an LEA provide appropriate information and assistance to the parents of a
child with a disability who are seeking reimbursement for mileage expenses for
transportation the IEP Team included in the child’s IEP?
Answer:
Yes. If a child with a disability is receiving special education and related services
and transportation is included in the child’s IEP, the LEA must provide assistance
needed by the parents to be reimbursed in a timely manner for the costs
incurred in providing transportation.
H. Discipline
Authority:
Transportation is included as a related service under the regulations in 34 CFR
§300.34(a) and (c)(1). Discipline procedures are found in the regulations in 34
CFR §§300.530 through 300.537.
Question H-1:
If transportation is included in the IEP for a child with a disability who has
documented behavioral concerns on the bus, but not at school, when may a
school district suspend the child from the bus for behavioral issues and not
provide some other form of transportation to and from school?
97
Answer:
If transportation is included in the child’s IEP, a bus suspension must be treated
as a suspension under 34 CFR §300.530 and all of the discipline procedures
applicable to children with disabilities would apply. An LEA is not required to
provide alternative transportation to a child with a disability who has been
suspended from transportation for 10 school days or less unless the LEA
provides alternative transportation to children without disabilities who have
been similarly suspended from bus service. 34 CFR §300.530(d)(3).
If a child with a disability is suspended from transportation for more than 10
school days in the same school year, and transportation is included in the child’s
IEP, during any subsequent suspensions the LEA must provide services to the
child to the extent required in 34 CFR §300.530(d). Generally, this means that
the child must (1) continue to receive educational services so as to enable the
child to continue to participate in the general education curriculum, although in
another setting, and to progress toward meeting the goals set out in the child’s
IEP, and (2) receive as appropriate a functional behavioral assessment, and
behavioral intervention services and modifications that are designed to address
the behavior violation(s) so that they do not recur.
Additionally, the suspension of a student with a disability from transportation
may constitute a change of placement if a district has been transporting the
student, suspends the student from the transportation as a disciplinary
measure, and provides no other form of transportation. If a student is
suspended from transportation for more than 10 consecutive school days, or is
repeatedly suspended, and such suspensions constitute a pattern under 34 CFR
§300.536(a)(2), a change of placement has occurred. In such situations, the LEA,
parent, and relevant members of the IEP Team must determine whether the
conduct was a manifestation of the child’s disability, using the process described
in 34 CFR §300.530(e). If the conduct is a manifestation of the child’s disability,
the IEP Team must take the steps outlined in 34 CFR §300.530(f)(1), and also
must return the child to the placement from which the child was removed,
unless the parent and the LEA agree to a change of placement as part of the
modification of the behavioral intervention plan. 34 CFR §300.530(f).
Regardless of the procedures discussed above, school personnel may remove a
student to an interim alternative educational setting for not more than 45
school days without regard to whether the behavior is determined to be a
manifestation of the child’s disability, if the child has taken any of the actions
specified in 34 CFR §300.530(g) regarding weapons, illegal drugs, or the
infliction of serious bodily injury.
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