Some interesting tidbits from OSEP letters

[dihicks6]

"The list of required participants at an IEP Team meeting does not include attorneys. An attorney would not generally be invited to an IEP Team meeting unless the party inviting their attorney, the public agency or the parents, can demonstrate that their attorney possesses the requisite knowledge or special expertise regarding the child. If the public agency has invited someone with knowledge or special expertise about the child and failed to inform the parents of that person’s attendance, the parents may request that the meeting be rescheduled until the public agency provides the parent the required notice of “who will be in attendance.” Alternative, the public agency may choose to conduct the IEP team meeting without that individual/s attendance to avoid rescheduling the meeting."

From:
www.ed.gov/policy/speced/guid/idea/letters/2008-1/redactedb033108iep1q2008.doc



'"f a purpose of an IEP Team meeting will he the consideration of the postsecondary goals for the child and the transition services needed to assist the child in reaching those goals under §300.320(b)," the public agency "[t]o the extent appropriate, with the consent of the parents or a child who has reached the age of majority, . . . must invite a representative of any participating agency that is likely to be responsible for providing or paying for transition services." 34 CFR §300.321(b)(1) and (3) [emphasis added].'

from:
www.ed.gov/policy/speced/guid/idea/letters/2008-1/caplan031708transition1q2008.doc



'Whether a child's disability "adversely affects a child's educational performance" is considered for all disability categories in 34 CFR §300.8(c), because, to be eligible, a child must qualify as a child with a disability under 34 CFR §300.8 and need special education because of a particular impairment or condition. Although the phrase "adversely affects educational performance" is not specifically defined, the extent of the impact that the child's impairment or condition has on the child's educational performance is a decisive factor in a child's eligibility determination under Part B. We believe that the evaluation and eligibility determination processes described in our response to question 1 above are sufficient for the group of qualified professionals and the parent to ascertain how the child's impairment or disability affects the child's ability to function in an educational setting. A range of factors—both academic and nonacademic can be considered in making this determination for each individual child. See 34 CFR §300.306(c). Even if a child is advancing from grade to grade or is placed in the regular educational environment for most or all of the school day, the group charged with making the eligibility determination still could determine that the child's impairment or condition adversely affects the child's educational performance because the child could not progress satisfactorily in the absence of specific instructional adaptations or supportive services, including modifications to the general education curriculum. 34 CFR §300.101(c) (regarding requirements for individual eligibility determinations for children advancing from grade to grade).'

from:
www.ed.gov/policy/speced/guid/idea/letters/2007-4/redact112807eligibility4q2007.doc


'. In all cases, however, placement decisions must not be made solely on factors such as category of disability, severity of disability, availability of special education and related services, configuration of the service delivery system, availability of space, or administrative convenience. Historically, we have referred to “placement” as points along the continuum of placement options available for a child with a disability and “location” as the physical surrounding, such as the classroom, in which a child with a disability receives special education and related services. Public agencies are strongly encouraged to place a child with a disability in the school and classroom the child would attend if the child did not have a disability. However, a public agency may have two or more equally appropriate locations that meet the child’s special education and related services needs and school administrators should have the flexibility to assign the child to a particular school or classroom, provided that determination is consistent with the decision of the group determining placement.

With regard to your questions regarding staffing of placements and the placement of a child in a school that is not closest to the child’s home, the Department has consistently maintained that a child with a disability should be educated in a school as close to the child's home as possible, unless the services identified in the child's IEP require a different location. Although IDEA does not require that each school building in a local educational agency (LEA) be able to provide all the special education and related services for all types and severities of disabilities, the LEA has an obligation to make available a full continuum of alternative placement options that maximize opportunities for its children with disabilities to be educated with nondisabled peers to the maximum extent appropriate. '

from:
www.ed.gov/policy/speced/guid/idea/letters/2007-4/trigg113007lre4q2007.doc


'Under Part B regulations, no distinction is made between the personnel qualifications for special education and related services provided pursuant to a child's IEP as part of the regular school program and those provided pursuant to an IEP as ESY services. Personnel providing ESY services should meet the same requirements that apply to personnel providing the same types of services as a part of a regular school program.'

from:
www.ed.gov/policy/speced/guid/idea/letters/2007-4/copenhaver110707personnel4q2007.doc



All of the letters from OSEP came from this site. Have fun perusing!

www.ed.gov/policy/speced/guid/idea/index.html

[socalgal]

Di: Your timing is impeccable (as always). I needed a bit of language which I will explain in another post.

[Mayleng]

Thanks di, I am going to sticky this so that it stays on top and is easily found.

[m00mma]

dihicks~
I can't thank you enough for this!!!!! I have just found myself in need of one of these and it has come in so handy!!!! How on earth do you run into all of this? do you just scour these sites? Please share with me how you get all this wonderful info! I must know! Thanks for this again! I can't even begin to tell you the idiot people i just came across that needed to get thumped with one of these references! (not the people i helped...the school that tried it! lol!)

[dihicks6]

Momma, I do read the OSEP letters every few months or so -- sometimes for laughs, but mostly to keep up on how OSEP interprets the laws. I have found that OSEP usually interprets the laws correctly and the school districts don't. Such a big surprise.

[cnoe]

dihicks6 makes an important to remember. OSEP is constantly writing letters, so you need to review new letters periodically.

Unfortunately, OSEP is a bureaucracy so their answers can change as the leadership changes. Also in typical bureaucratic hedging fashion each letter says that "Based on section 607(e) of the IDEA, we are informing you that our response is provided as informal guidance and is not legally binding, but represents an interpretation by the U.S. Department of Education of the IDEA in the context of the specific facts presented."

[socalgal]

Cnoe: point taken.

The good news is that these letters (especially recent ones) work as terrific documents for quotes during an IEP meeting as a basis for a parental point of view. I bring copies for every member of the team.

I've found that it is the rare IEP team member, including high-level district officials are conversant with these letters, or even the fact that they exist and are readily available via the Internet.

[cnoe]

Unfortunately, you are right many school administrators who should be aware of these letters & hearing officer & court decisions are not aware of them. However, as a special ed administrator in TX, I was exposed to this information from a number of sources. The special ed directors association sponsored a number of legal conferences each year. Not that all directors attend or use this information, but it seems more available in TX that it appears to be in other states.

Now that I am working for the state Parent Training & Information center, I am still attending these conferences. In fact I am attending one this coming Tues.

[dihicks6]

Here is a letter to Hilary Clinton regarding the district inviting their attorney to IEP meetings.

www.ed.gov/policy/speced/guid/idea/letters/2001-3/clinton072301iep.doc

ezinearticles.com/?4-Parenting-Tips-to-Avoid-School-Districts-Attorney-at-Special-Education-IEP-Meetings&id=1546559

[kewpie]

>Unfortunately, you are right many school administrators who should be aware of these letters & hearing officer & court decisions are not aware of them. <

My favorite example of that was when a school psycologist who saw these letters, said "They really have nothing to do with California law". I didn't realize Ca had seceeded from the union!
happy*

[Mayleng]

Don't you sometimes feel like CA has seceeded, the way your schools admins act?

[cnoe]

To me part of the problem here is that states have more ability to impact IDEA than many realize. At the legal conference I went to last week it was mentioned that as part of the eligibility criteria for students with LD, CA law includes a provision which limits eligibility to situations where the student's "discrepancy cannot be corrected through other regular or categorical services offered within the regular instruction program." In other words, if services & opportunities available in regular education are sufficient to meet the student's education needs, there is no need for special ed. I have never heard of this approach being used. Only in CA!!!

[Mayleng]

cnoe, therein lies the problem in CA.

[jw]

Hi! The law in California has changed, so they no longer have the language about eligibility depending on proof that the student's discrepancy cannot be corrected in regular or categorical services in the reg instruction program, etc. That was part of the old "severe discrepancy" language for SLD eligibility.

The new language refer to RTI, and says:

"Educ Code 56337(c) In determining whether a pupil has a specific learning
disability, a local educational agency may use a process that
determines if the pupil responds to scientific, research-based
intervention as a part of the assessment procedures described in
Section 1414(b)(2) and (3) of Title 20 of the United States Code and
covered in Sections 300.307 to 300.311, inclusive, of Title 34 of the
Code of Federal Regulations."

They amended the law after IDEA was amended to say that states no longer had to take severe discrepancy into account.

jw

[cnoe]

Thanks for the update. The changes should simplify things. IDEA still talks about the "need" for special ed. How does CA address the "need" issue, if they took the "corrected in" language out?

[dihicks6]

I was perusing again tonight and decided to keep this one that describes how sped kids cannot be denied access to accelerated courses:

www.ed.gov/about/offices/list/ocr/letters/colleague-20071226.pdf

[not4fun]

I just finished going thru the REGS, reading comments intended to provide clarification.

Also going thru (ed.gov)...training manual. ( Power point slides)
All sources are very clear about the requirement of the person SD invites being someone with knowledge or special expertise regarding the child. Samples provided are service provider's.

SD will need to demonstrate the attorney possesses the requisite knowledge or special expertise regarding the child.

OSEP letter , March 31, 2008 is a perfect example.

" The list of required participants at an IEP Team meeting does not include an attorney!! "

Thanks D

[sld123]

participating and being in attendance to avise a client are not the same

the min. they participate, it can come under retaliation definition , interference sec 504

[zippity]

CA law can not supercede Federal Law. CA Dept of Ed has not handed an edict down regarding the severe discrepancy allowing districts to use it if it fits. It fits some gifted 2e kids so push it. How can a kid with a high ability and low performance not be affected in the classroom if the scores are so discrepant? Parents must remember this is one explanation, or criteria so be prepared to raise concerns and look for other indicators in the work product, grades, state testing (individual areas may show loss), teacher input, parent concerns, etc.


At some time I hope to know which OSEP letters in particular our attorney has in hand for our case that blows the use of this meeting the child's needs in the classroom bul. It's widely stated at IEPs now 2 years after the legal defs have changed.

In addition, I need to remind parents, RTI is a process not a program. If the process is not going to correct the issues then request eligibility. State Dept of Ed told me to look at RTI as "what teachers should be teaching all along". So if the delivery of instruction is faulty then it needs to be corrected and that's what changes, not your child. If your child then learns great, if not, then request eligibility and do not accept a "wait and see" for longer than you or your child's private professional deem appropriate.

[dihicks6]

In this letter, my great state of NY is trying like hell to force parents to allow the school to bill Medicaid for services, under threat of losing their Medicaid benefits. Too bad, they lost (for now):

www.ed.gov/policy/speced/guid/idea/letters/2008-3/kinney072308medicaid3q2008.doc

And, not to leave out our friends in NJ, this letter states that the IEP can be used "in part" to provide PWN, as long as the documents the parents receive cover the required areas of PWN.

www.ed.gov/policy/speced/guid/idea/letters/2008-3/lieberman081508notice3q2008.doc

In this letter, they talk about students that have had disciplinary actions taken against them during the process of being evaluated for sped. However, there is also good info regarding the fact that even if a child is receiving RTI, once consent is given for a full educational evaluation, it must be done within 60 days, i.e.,

www.ed.gov/policy/speced/guid/idea/letters/2008-3/combs081508rtieval3q2008.doc

'Regardless of whether an RTI model is used, once parental consent is obtained, an evaluation of a child suspected of having an SLD must be conducted within the 60-day timeline or the State-established timeframe, unless the timeline is extended by mutual written agreement of the parent and the group of qualified professionals responsible for making the eligibility determination.'

Here is what it says about evaluating during disciplinary procedures:

'However, if a request for an evaluation of a child is made during the time period in which the child is subjected to disciplinary measures under 34 CFR §300.530, 34 CFR §300.534(d)(2)(i) specifies that the evaluation must be conducted in an expedited manner. Therefore, following the request for the evaluation, and once parental consent has been obtained, a local educational agency (LEA) may not refuse to conduct the evaluation of a child during the time period in which disciplinary measures are used because the RTI process is ongoing. Note also that, although the Department has not specified a precise timeline for an expedited evaluation because the need for collecting additional information may vary, the Department's position is that the expedited evaluation "should be conducted in a shorter period of time than a typical evaluation conducted pursuant to section 614 of the Act." 71 Fed. Reg. 46540, 46728 (Aug. 14, 2006).'

[dihicks6]

Here's one that talks about RTI and the district's responsibilities:

www.ed.gov/policy/speced/guid/idea/letters/2008-2/zirkel040808rti2q2008.doc

"3. Amount and nature of student performance data collected

Question: Must state special education law concerning SLD identification include provisions "regarding the amount and nature of student performance data that would be collected and the general education services that would be provided" (§300.311(a)(7))?

Response: The Part B regulations require state special education policy concerning identification of SLD through an RTI process to address the amount and nature of student performance data that would be collected and the general education services that would be provided in the RTI process. If a child suspected of having a SLD has participated in a process that assesses the child's response to scientific, research-based intervention, under 34 CFR §300.311(a)(7), the documentation of the determination of eligibility, as required in 34 CFR §300.306(a)(2), must contain a statement of the instructional strategies used and the student-centered data collected; and the documentation that the child's parents were notified about the State's policies regarding the amount and nature of student performance data that would be collected and the general education services that would be provided, the strategies for increasing the child's rate of learning and the parents' right to request an evaluation."

This one is very interesting reading regarding whether or not a parent must give consent for re-evaluations, i.e.,

www.ed.gov/policy/speced/guid/idea/letters/2008-2/zirkel040808rti2q2008.doc


"You also ask the following question:

If written consent has been given by a parent to an initial evaluation which included a
functional behavioral assessment and consent has not been revoked, and if a school district
wishes to do a subsequent evaluation or functional behavioral assessment which by definition is not an evaluation because it is not being done to determine the student's continuing eligibility for special education services, is written consent necessary for such subsequent testing?

As noted above, your conclusion that a subsequent evaluation or functional behavioral assessment, conducted after written consent has been given by a parent to an initial evaluation, is not an "evaluation" because it is not being done to determine the student's continuing eligibility for special education services" is incorrect."

This one talks about having qualified personnel perform FBA's:

www.ed.gov/policy/speced/guid/idea/letters/2008-2/janssen060508fba2q2008.doc

'Schools are expected to have properly trained professionals available to conduct FBAs and to provide positive behavioral interventions and supports. It is the LEA's responsibility, working with the state department of education, to provide professional development, in-service training, and technical assistance, as needed, for school staff members to be able to conduct an FBA and provide positive behavioral interventions and supports.'

This one emphasizes that SEA's must take action if:

www.ed.gov/policy/speced/guid/idea/letters/2008-2/loose060308disprop2q2008.doc

'In the Analysis of Comments and Changes section in the preamble to the final regulations (71 FR 46540), we indicated that the "State's review of its constituent LEAs' policies, practices, and procedures for identifying and placing children with disabilities would occur in LEAs with significant disproportionality in identification, placement, or discipline, based on the examination of the data." In that analysis, we took the position that disciplinary actions
are a type of placement in an educational setting, and that the requirements in 34 CFR §300.646(b) should cover disproportionality with respect to disciplinary actions. OSEP continues to explore whether additional guidance may be necessary and will take your comments into consideration.'

[dihicks6]

Here's a document on where the USDOE stands on including info on report cards re modified grades, classes, etc.:

www.ed.gov/about/offices/list/ocr/letters/colleague-qa-20081017.html

Letter clarifying how IDEA applies to the awful FCAT exam in Florida:

www.ed.gov/policy/speced/guid/idea/letters/2003-3/davis081903fape3q2003.doc

This one rejects Arizona's state test for science and lists what they must do to correct it. Lots of it has to do with disabled students. Looks like AZ tried to dumb-down the test. Pretty recent (2009).

www.ed.gov/admins/lead/account/nclbfinalassess/az3.pdf

Decision Letters on Each State's Final Assessment System Under No Child Left Behind (NCLB)

www.ed.gov/admins/lead/account/nclbfinalassess/index.html

This one discusses who is responsible for providing rehabilitive technology -- Vocational Rehab or the employer (for adults).

www.ed.gov/policy/speced/guid/rsa/tac-98-04.doc

Dear Parent Letter-Transition of Students With Disabilities

www.ed.gov/about/offices/list/ocr/letters/parent-20070316.pdf

Lots of interesting questions in this one concerning members of IEP team, authority of IEP team to make decisions, state complaints, alternative assessments of OOD placements, completeness of complaint investigations.

www.ed.gov/policy/speced/guid/idea/letters/2003-2/redact062603assess2q2003.doc

[dihicks6]

Here's another excellent reference for OSEP letters, by subject:

www.dmselpa.org/osepltrs.html

[invisibleink]

I know this thread is older, but the OSEP has a site where these letters are posted by date:

www2.ed.gov/policy/speced/guid/idea/memosdcltrs/index.html#2018

I've also noticed a change in these letters, starting in 2018. The OSEP letters now BEGIN with the following statement:

"We note that section 607(d) of the Individuals with Disabilities Education Act (IDEA) prohibits the Secretary from issuing policy letters or other statements that establish a rule that is required for compliance with, and eligibility under, IDEA without following the rulemaking requirements of section 553 of the Administrative Procedure Act. Therefore, based on the requirements of IDEA section 607(e), this response is provided as informal guidance and is not legally binding. This response represents an interpretation by the Department of the requirements of IDEA in the context of the specific facts presented, and does not establish a policy or rule that would apply in all circumstances."

Previously, letters ENDED with a similar, but more relaxed disclosure:

"Based on section 607(e) of the IDEA, we are informing you that our response is provided as informal guidance and is not legally binding, but represents an interpretation by the Department of the IDEA in the context of the specific facts and questions presented."

In addition, the last letter posted by the OSEP in 2017 included the following statement, tacked on to the end of a letter related to parent placement of students in private schools. The final paragraph of this letter states the following:

"Finally, on February 24, 2017, President Donald J. Trump signed Executive Order 13777, “Enforcing the Regulatory Reform Agenda,” in order to lower regulatory burdens on the American people by implementing and enforcing government-wide regulatory reform. Each Federal agency is required to establish a Regulatory Reform Task Force and conduct a thorough review of existing policy in an effort to alleviate unnecessary regulatory burdens. To comply with the Executive Order, the U.S. Department of Education (Department) has formed a Regulatory Reform Task Force to review existing non-regulatory guidance and existing regulations. Most recently, on June 22, 2017, the Secretary announced the release of the Department’s first progress report of the Task Force, as required by Executive Order 13777. One of the duties of the Task Force is to evaluate existing regulations and make recommendations to the agency head regarding their repeal, replacement or modification. In addition to conducting an agency-wide regulatory review, the Department is seeking public comment concerning whether regulations and non-regulatory policy guidance should be repealed, replaced or modified."

What this means down the road is still very much TBD...

[healthy11]

I don't think anyone knows what the future of education in this country means, much less special education...

millermom.proboards.com/thread/14403/betsy-devos-education-secretary-proposals