January 1998
Policy 97-09 (amended)

TO: District Superintendents
  Presidents of Boards of Education
  Superintendents of Schools
  Organizations, Parents & Individuals Concerned with Special Education
  Superintendents of State-Operated and State-Supported Schools
  Executive Directors of Approved Private Schools
  Directors of Approved Preschool Programs
  Principals of Public Schools
  Directors of Special Education
  Chairpersons of Committees on Special Education
  Chairpersons of Committees on Preschool Special Education
  Directors of Pupil Personnel Services
  Commissionerís Advisory Panel for Special Education Services
  Impartial Hearing Officers
  Community Dispute Resolution Centers
  SEALTA Project Directors
  SETRC Project Directors and Training Specialists
  State and Local Teacher Associations
  ECDC Project Directors and Coordinators
  Family Court Judges and Designees
  Chief Elected Officials of the Counties
  New York City Board of Education
  Independent Living Centers
  Colleges with Special Education and General Education Teacher Training
FROM: Rita D. Levay
SUBJECT:

Guidance on Implementation of the Reauthorization of the Individuals with Disabilities Education Act

On June 4, 1997, the Individuals with Disabilities Education Act (IDEA) was reauthorized and signed into law as Public Law 105-17. A June 1997 State Education Department memorandum provided an overview of the major provisions of the Act. This memorandum provides further guidance on the IDEA amendments and their implications for initial evaluations and reevaluations, the Individualized Education Program (IEP) Team, IEP content and considerations, procedural safeguards and children enrolled in private schools by their parents. Each section of the memorandum includes a summary of the IDEA requirements, a checklist for implementation, a question and answer section pertaining to that topic, and the statutory language. The questions were identified by participants in the recent Department training for Chairpersons of Committees on Special Education and other stakeholders. The complete text of the IDEA is available on the internet at http://www.ed.gov/offices/OSERS/IDEA.

The U.S. Department of Education is amending its regulations pursuant to the reauthorization of IDEA. Additional information regarding these and other areas of the special education process affected by PL 105-17 will be disseminated as we receive additional Federal guidance and as New York State law and regulations are amended. Information on the provisions of IDEA relating to discipline will be shared in a separate policy memorandum.

An increasing number of districts have established IDEA implementation teams that are composed of special and general education personnel. The purpose of the team is to guide the district in making necessary policy and procedural changes to implement the new provisions of the Act. Districts that have used this team approach have indicated that it has proven helpful. Therefore, we encourage you to consider establishing such a team in your district.

If you have questions about this information or have questions you would like included in future "question and answer" memoranda, please contact your Regional Associate or the Office of Vocational and Educational Services for Individuals with Disabilities Special Education Policy Unit at 518-473-2878.

Attachment


GUIDANCE ON IMPLEMENTATION OF THE
REAUTHORIZATION OF THE
INDIVIDUALS WITH DISABILITIES EDUCATION ACT

TABLE OF CONTENTS

TOPIC 

Introduction

Initial Evaluations and Reevaluations

Individualized Education Program Team

Individualized Education Program: Contents and Considerations

Children Enrolled in Private Schools by their Parents

Procedural Safeguards


INTRODUCTION

On June 4, 1997 President Clinton signed legislation to reauthorize the Individuals with Disabilities Education Act (IDEA). In 1975, when the original legislation was passed, the issue for students with disabilities was access to appropriate evaluations and programs. Thus, the law focused on procedures that would ensure that a childís educational rights were defined and protected. Over the past two decades, special education has been one of the real success stories in education in our country. Access to programs is no longer a major issue. The primary concern is the need to ensure the quality of a childís education. However, as we have already documented in New York, there are some disturbing trends that the original law failed to address. Congress has also realized that these problems are real and has taken dramatic action to rectify them. Congress states: "Improving educational results for children with disabilities is an essential element of our national policy of ensuring equality of opportunity, full participation, independent living, and economic self-sufficiency for individuals with disabilities."

Congress also recognized that the original Act, passed in 1975, fell short of its intent and stated: "The implementation of this Act has been impeded by low expectations, and an insufficient focus on applying replicable research on proven methods of teaching and learning for children with disabilities. Over 20 years of research and experience have demonstrated that the education of children with disabilities can be made more effective by:

New Yorkís special education reform effort, which was initiated a year before the reauthorization of IDEA, is remarkably similar in purpose. New Yorkís goals to reform special education are to:

    1. Eliminate unnecessary referrals to special education.

    2. Assure that students unnecessarily placed in special education or who no longer need special education services are returned to a supportive general education environment.

    3. Hold special education services to high standards of accountability to improve results for all students with disabilities.

    4. Assure that students with disabilities are educated in settings with their peers without disabilities to the maximum extent appropriate to their individual needs.

    5. Provide mechanisms for school districts to develop or expand support and prevention services.

    6. Assure that school personnel and families have the knowledge and skills which will enable them to effectively assist students with disabilities in attaining high standards.

These goals are, in many ways, identical to those of IDEA. The raising of standards for all students in New York State is consistent with the intent of the Act. It is important that you implement the IDEA amendments summarized in the following sections of this memorandum keeping in mind the overall Congressional intent and purpose to improve results for students with disabilities.


INITIAL EVALUATIONS AND REEVALUATIONS

[Section 614 of the IDEA]
EFFECTIVE JUNE 4, 1997

The provisions that were in Federal law and regulations relating to initial evaluations and reevaluations prior to IDEA reauthorization are consolidated into one section of the Act. As stated in the House Committee Report on the IDEA amendments of 1997, "one of the most significant changes in the bill relates to how the evaluation process should be viewed. For example, over the years, the required three-year reevaluation has become a highly paperwork-intensive process, driven as much by concern for compliance with the letter of the law, as by the need for additional evaluation information about a child. The committee believes that a child should not be subjected to unnecessary tests and assessments if the childís disability has not changed over the three-year time period, and the LEA (local educational agency) should not be saddled with associated expenses unnecessarily. If there is no need to collect additional information about a childís continuing eligibility for special education, any necessary evaluation activities should focus on collecting information about how to teach and assist the child in the way he or she is most capable of learning."

Bolded emphasis has been added to highlight new requirements to the evaluation process.

Procedures

Eligibility Determination

Additional Requirements

NOTE: Additional requirements relating to evaluations and reevaluations for a student with a disability are included in Section 614 of IDEA and in NYCRR 200.4(b).

 

INITIAL EVALUATION AND REEVALUATION
CHECKLIST FOR IMPLEMENTATION

  • Ensure that prior written notice is provided to parents that describes all evaluation procedures the school district proposes to conduct.

  • Ensure that informed parental consent is obtained prior to conducting any new tests or assessments as part of an evaluation or a reevaluation of a student with a disability, and document all measures taken to obtain such consent.

  • Ensure consent for evaluation is not construed as consent for placement for receipt of special education and related services.

  • Ensure that the district uses technically sound instruments that may assess the relative contribution of cognitive and behavioral factors, in addition to physical or developmental factors.

  • Ensure that evaluation materials are selected and administered so as not to be discriminatory on a racial or cultural basis and are administered in the childís native language or other mode of communication.

  • Ensure the district uses assessment tools and strategies that provide relevant information that directly assists persons in determining the educational needs of the student, including information to enable the student to participate and progress in general education, or in the case of preschool children, participate in appropriate activities.

  • Ensure that a copy of the evaluation report and the documentation of determination of eligibility are given to the parents.

  • Ensure that the Committee considers and reviews a studentís prior instruction in reading and math. No student may be determined eligible due to lack of instruction in reading and math.

  • Ensure that the Committee considers and reviews a studentís proficiency in the English language. No student may be determined eligible due to limited English proficiency.

  • Ensure that the Committee reviews existing evaluation data, including evaluations and information provided by parents, classroom assessments and observations and teacher and related services observations and reports.

  • Ensure that the Committee establishes a process to determine which evaluations, if any, are needed to determine, on an individual basis, whether the student continues to have a disability, the present levels of performance, continued need for special education and related services and modifications to the studentís program to meet annual goals, so that the student is not subject to unnecessary tests and assessments.

  • Ensure that if the Committee and other qualified professionals, as appropriate, determine that no additional data for a reevaluation are needed to determine whether the student continues to be a student with a disability, the district notifies the studentís parents of that determination and the reasons for it. Ensure the parents are notified of their right to request an assessment to determine whether the student continues to be a student with a disability.

QUESTIONS AND ANSWERS RELATING TO INITIAL EVALUATIONS, ELIGIBILITY DETERMINATIONS AND REEVALUATIONS

  1. What must a school district do if a parent does not provide consent for an initial evaluation?

In the event parental consent is not obtained within 30 days of the date of receipt of referral, the Chairperson of the Committee must document attempts made by the Chairperson or other representatives of the Committee to obtain parental consent. In accordance with section 200.4 of the Regulations of the Commissioner of Education, when the parent refuses consent, the Committee must request that the Board of Education initiate an impartial hearing to pursue the evaluation, or resolve the matter through mediation if agreed to by the parent.

  1. What must a school district do if a parent does not provide consent for reevaluation?

A school district must obtain informed parental consent prior to conducting any new test or assessment as part of a reevaluation of a student with a disability, except that such informed parental consent need not be obtained if the district can demonstrate that it had taken reasonable measures to obtain such consent and the studentís parent has failed to respond. In contrast, if a parent refuses consent for a reevaluation, as opposed to not responding to the consent request, then a district may pursue the reevaluation through mediation or due process proceedings. (see Question 1)

  1. Must a Committee on Preschool Special Education (CPSE) obtain parental consent for a reevaluation of a preschool student with a disability?

Although not usually necessary, in unique situations a CPSE may authorize a reevaluation of a preschool child after the CPSEís recommendation to the Board of Education regarding the childís eligibility as a preschool student with a disability and approval for special education programs and services. Parental consent must be obtained before any new test is administered as part of the reevaluation.

  1. When a preschool child with a disability is transitioning from the Committee on Preschool Special Education (CPSE) to the Committee on Special Education (CSE) process, must new consent be obtained from the parent?

If the CPSE believes the child will continue to need special education programs and services, the CPSE must refer the child to the CSE. The CSE must evaluate the child and develop the IEP. Therefore, the CSE must obtain informed parental consent before conducting the reevaluation for a preschool student who is making a transition to a school-age program.

  1. Must consent be obtained for any assessment or test administered to a student with a disability?

No. Tests or assessments administered on a regular basis to report progress on a studentís IEP would not require informed parental consent. Parental consent must be obtained only for initial evaluations and prior to conducting any new tests or assessments as part of a reevaluation of a student with a disability conducted to determine whether a student is or continues to be a student with a disability (eligibility or continuing eligibility determinations) and evaluations conducted to determine the educational needs of the student.

  1. NYS law and regulations require specific evaluations be conducted as part of an initial evaluation. Are those requirements still in effect?

Yes.

  1. How does lack of instruction in reading or math or limited English proficiency relate to determining eligibility for special education services?

Professionals involved in the evaluation of a child should give serious consideration upon completion of the evaluation process to other factors that might be affecting a childís performance. The House Committee Report states that substantial numbers of children are likely to be identified as having a disability because they have not previously received proper academic support or they have limited English proficiency. Therefore, in making the determination of a childís eligibility, the Act states that a child shall not be determined to be a child with a disability if the determinant factor for such a determination is lack of instruction in reading or math or limited English proficiency. The House Committee believes this provision will lead to fewer children being improperly included in special education programs when their actual difficulties stem from another cause and lead schools to focus greater attention on these subjects in the early grades.

The State Education Department is working with an advisory group to further develop guidelines for school districts on this issue.

  1. If a student is excessively absent from school, could this be construed to be "lack of instruction?"

A student would not be determined to require special education solely on the basis that the student has been excessively absent from school. However, the Committee must consider whether the reasons for the absences are related to a disability that adversely affects the studentís educational performance.

Statutory Language

SECTION. 614. EVALUATIONS, ELIGIBILITY DETERMINATIONS

(a) Evaluations and Reevaluations.

    (1) Initial evaluations.--

            (A) In general.--A State educational agency, other State agency, or local educational agency shall conduct a full and individual initial evaluation, in accordance with this paragraph and subsection (b), before the initial provision of special education and related services to a child with a disability under this part.

            (B) Procedures.--Such initial evaluation shall consist of procedures--

                (i) to determine whether a child is a child with a disability (as defined in section 602(3)); and
                (ii) to determine the educational needs of such child.

            (C) Parental consent.--

                (i) In general.--The agency proposing to conduct an initial evaluation to determine if the child qualifies as a child with a disability as defined in section 602(3) (A) or 602(3) (B) shall obtain an informed consent from the parent of such child before the evaluation is conducted. Parental consent for evaluation shall not be construed as consent for placement for receipt of special education and related services.
                (ii) Refusal.--If the parents of such child refuse consent for the evaluation, the agency may continue to pursue an evaluation by utilizing the mediation and due process procedures under section 615, except to the extent inconsistent with State law relating to parental consent.

(2) Reevaluations.--A local educational agency shall ensure that a reevaluation of each child with a disability is conducted--

            (A) if conditions warrant a reevaluation or if the child's parent or teacher requests a reevaluation, but at least once every 3 years; and

            (B) in accordance with subsections (b) and (c).

(b) Evaluation Procedures.--

    (1) Notice.--The local educational agency shall provide notice to the parents of a child with a disability, in accordance with subsections (b) (3) , (b) (4) , and (c) of section 615, that describes any evaluation procedures such agency proposes to conduct.

    (2) Conduct of evaluation.--In conducting the evaluation, the local educational agency shall-

            (A) use a variety of assessment tools and strategies to gather relevant functional and developmental information, including information provided by the parent, that may assist in determining whether the child is a child with a disability and the content of the child's individualized education program, including information related to enabling the child to be involved in and progress in the general curriculum or, for preschool children, to participate in appropriate activities;

            (B) not use any single procedure as the sole criterion for determining whether a child is a child with a disability or determining an appropriate educational program for the child; and

            (C) use technically sound instruments that may assess the relative contribution of cognitive and behavioral factors, in addition to physical or developmental factors.

    (3) Additional requirements.--Each local educational agency shall ensure that--

            (A) tests and other evaluation materials used to assess a child under this section--

                (i) are selected and administered so as not to be discriminatory on a racial or cultural basis; and
                (ii) are provided and administered in the child's native language or other mode of communication, unless it is clearly not feasible to do so; and

            (B) any standardized tests that are given to the child--

                (i) have been validated for the specific purpose for which they are used;
                (ii) are administered by trained and knowledgeable personnel; and
                (iii) are administered in accordance with any instructions provided by the producer of such tests;

            (C) the child is assessed in all areas of suspected disability; and

            (D) assessment tools and strategies that provide relevant information that directly assists persons in determining the educational needs of the child are provided.

    (4) Determination of eligibility. - Upon completion of administration of tests and other evaluation materials--

            (A) the determination of whether the child is a child with a disability as defined in section 602(3) shall be made by a team of qualified professionals and the parent of the child in accordance with paragraph (5); and

            (B) a copy of the evaluation report and the documentation of determination of eligibility will be given to the parent.

       (5) Special rule for eligibility determination.--In making a determination of eligibility under paragraph (4) (A), a child shall not be determined to be a child with a disability if the determinant factor for such determination is lack of instruction in reading or math or limited English proficiency.

(c) Additional Requirements For Evaluation and Reevaluations.-

    (1) Review of existing evaluation data.--As part of an initial evaluation (if appropriate) and as part of any reevaluation under this section, the IEP Team described in subsection (d) (1) (B) and other qualified professionals, as appropriate, shall--

            (A) review existing evaluation data on the child, including evaluations and information provided by the parents of the child, current classroom-based assessments and observations, and teacher and related services providers observation; and

            (B) on the basis of that review, and input from the child's parents, identify what additional data, if any, are needed to determine--

                (i) whether the child has a particular category of disability, as described in section 602(3), or, in case of a reevaluation of a child, whether the child continues to have such a disability;
                (ii) the present levels of performance and educational needs of the child;
                (iii) whether the child needs special education and related services, or in the case of a reevaluation of a child, whether the child continues to need special education and related services; and
                (iv) whether any additions or modifications to the special education and related services are needed to enable the child to meet the measurable annual goals set out in the individualized education program of the child and to participate, as appropriate, in the general curriculum.

    (2) Source of data.--The local educational agency shall administer such tests and other evaluation materials as may be needed to produce the data identified by the IEP Team under paragraph (1) (B).

    (3) Parental consent.--Each local educational agency shall obtain informed parental consent, in accordance with subsection (a) (1) (C), prior to conducting any reevaluation of a child with a disability, except that such informed parent consent notice need not be obtained if the local educational agency can demonstrate that it had taken reasonable measures to obtain such consent and the child's parent has failed to respond.

    (4) Requirements if additional data are not needed.--If the IEP Team and other qualified professionals, as appropriate, determine that no additional data are needed to determine whether the child continues to be a child with a disability, the local educational agency--

            (A) shall notify the child's parents of-

                (i) that determination and the reasons for it; and
                (ii) the right of such parents to request an assessment to determine whether the child continues to be a child with a disability; and

            (B) shall not be required to conduct such an assessment unless requested to by the child's parents.

    (5) Evaluations before change in eligibility.--A local educational agency shall evaluate a child with a disability in accordance with this section before determining that the child is no longer a child with a disability.


INDIVIDUALIZED EDUCATION PROGRAM TEAM
(Committee on Special Education; Subcommittee on Special Education;
Committee on Preschool Special Education)

[Section 614 of the IDEA]
EFFECTIVE JULY 1, 1998

IDEA amended the membership of the IEP Team to strengthen the connection between special education and related services and the childís opportunity to experience and benefit from the general education curriculum. In New York State, the IEP Team is the Committee on Special Education, the Subcommittee on Special Education or the Committee on Preschool Special Education (hereafter referred to as the Committee).

IEP Team Membership

Effective July 1, 1998, Federal requirements for the membership of the Committee will include (new requirements appear in bold):

  • is qualified to provide, or supervise the provision of, specially designed instruction to meet the unique needs of children with disabilities;
  • is knowledgeable about the general curriculum; and
  • is knowledgeable about the availability of resources of the local educational agency.

Note: New York State law requires additional members on the CSE (a parent member, school psychologist, school physician if requested) and CPSE as specified in Question 1 of this section.

Roles and Responsibilities of Regular Education Teachers

The regular education teacher of the child, as a member of the Committee, must, to the extent appropriate:

Participate in the development of the IEP of the child, including the
  • determination of appropriate positive behavioral interventions and strategies.
  • determination of supplementary aids and services, program modifications, and support for school personnel that will be provided for the child to:
  • advance appropriately toward attaining the annual goals;
  • be included and progress in the general curriculum and to participate in extracurricular and other nonacademic activities; and
  • be educated and participate in activities with other children with disabilities and nondisabled children.
    • Participate in the review and the revision of the IEP of the child.

    IEP TEAM REQUIREMENTS
    CHECKLIST FOR IMPLEMENTATION

    • Establish administrative practices and procedures for appointing and training all Committee members on their roles and responsibilities on the Committee including their responsibilities to ensure that all interventions and services are provided to allow the student to be involved in and progress in the general curriculum.

    • Ensure all regular education teachers understand their role on the Committee.

    • Ensure that a regular education teacher of the student is a member of the Committee.

    • Ensure that one of the members on the Committee is qualified to interpret the instructional implications of evaluation results.

    • Ensure that the LEA representative on the Committee is qualified to provide, or supervise the provision of, specially designed instruction to meet the unique needs of children with disabilities; is knowledgeable about the general curriculum; and is knowledgeable about the availability of resources of the local educational agency.

    • Ensure others who have knowledge or special expertise regarding the child are invited to the IEP meetings at the request of the parent or Committee members.

    • Ensure the Board of Education establishes one or more Committee(s) and Subcommittees consistent with the IDEA and current NYS Education Law.

     

    QUESTIONS AND ANSWERS RELATING TO THE IEP TEAM MEMBERSHIP

    1. How do the IDEA amendments affect the required members of Committees in New York State?

    The following charts specify who will be the required members of the Committee on Special Education, the Subcommittee on Special Education and the Committee on Preschool Special Education.

    COMMITTEE ON SPECIAL EDUCATION (CSE) MEMBERSHIP

    • the parent of the child;

    • at least one regular education teacher of such child (if the child is, or may be, participating in the regular education environment);

    • at least one special education teacher, or where appropriate, at least one special education provider (i.e., related service provider) of such child;

    • a representative of the local educational agency who is qualified to provide, or supervise the provision of, specially designed instruction to meet the unique needs of children with disabilities who is knowledgeable about the general curriculum and about the availability of resources of the local educational agency;

    • an individual who can interpret the instructional implications of evaluation results, who may be a member of the team selected from the regular education teacher, the special education teacher or provider or the school district representative described above;

    • at the discretion of the parent or the agency, other individuals who have knowledge or special expertise regarding the child, including related services personnel as appropriate;

    • whenever appropriate, the student with a disability.

    PRESENTLY, NEW YORK STATE LAW ALSO REQUIRES:

    • a school psychologist;
    • a physician; and
    • a parent member.

     

    SUBCOMMITTEE ON SPECIAL EDUCATION

    • the parent of the child;

    • at least one regular education teacher of such child (if the child is, or may be, participating in the regular education environment);

    • at least one special education teacher, or where appropriate, at least one special education provider (i.e., related service provider) of such child;

    • a representative of the local educational agency who is qualified to provide, or supervise the provision of, specially designed instruction to meet the unique needs of children with disabilities who is knowledgeable about the general curriculum and about the availability of resources of the local educational agency;

    • an individual who can interpret the instructional implications of evaluation results, who may be a member of the team described above;

    • at the discretion of the parent or the agency, other individuals who have knowledge or special expertise regarding the child, including related services personnel as appropriate;

    • whenever appropriate, the child with a disability.

    PRESENTLY, NEW YORK STATE LAW ALSO REQUIRES:

    • A school psychologist, whenever a new psychological evaluation is reviewed or a change to a program option with a more intensive staff/student ratio, as set forth in section 200.6(f)(4) of the Regulations of the Commissioner, is considered.

     

    COMMITTEE ON PRESCHOOL SPECIAL EDUCATION
    MEMBERSHIP (CPSE)

    • The parent of the child;

    • At least one regular education teacher of such child (if the child is, or may be, participating in the regular education environment) [refer to Question 10 of this section];

    • At least one special education teacher, or where appropriate, at least one special education provider (i.e., related service provider) of such child;

    • a representative of the local educational agency who is qualified to provide, or supervise the provision of, specially-designed instruction to meet the unique needs of children with disabilities who is knowledgeable about the general curriculum and about the availability of resources of the local educational agency (who shall serve as chairperson of the committee);

    • an individual who can interpret the instructional implications of evaluation results, who may be a member of the team selected from the regular education teacher, the special education teacher or provider or the school district representative described above;

    • at the discretion of the parent or the agency, other individuals who have knowledge or special expertise regarding the child, including related services personnel as appropriate;

    • whenever appropriate, the student with a disability.

    PRESENTLY, NEW YORK STATE LAW ALSO REQUIRES:

    • a parent member;
    • for any meetings prior to the initial recommendation for a child for whom services are first being sought, a professional who participated in the evaluation of the child, or an appropriate professional employed by the school district as described in section 4410(3)(a) of the Education Law.
    • for a child in transition from early intervention programs and services (Infant and Toddler Programs), the appropriately licensed or certified professional from the Department of Healthís Early Intervention Program. This professional must attend all meetings of the CPSE conducted prior to the childís initial receipt of services.
    • an appropriately certified or licensed professional from the municipality. Attendance of the appointee of the municipality is not required for a quorum.

    1. How has the role of the parent of the student with a disability on the Committee changed?

    In addition to being invited to participate in all meetings to determine eligibility for special education and to develop, review and revise their childís Individualized Education Program (IEP), the parents of the student with the disability must be included directly in the decision-making process. Parents are expected to be equal participants along with school personnel in:

    1. What is the school districtís responsibility if it is not possible for the parents and other members of the Committee to reach consensus on the programs/services to be included in the childís IEP?

    Parents are to be equal partners with school personnel in making decisions about a childís educational program, and the Committee must consider parents concerns and information that they provide regarding their child in developing and reviewing the IEP. The Committee has ultimate responsibility to ensure that the IEP includes services that the child needs in order to receive a free appropriate public education (FAPE). If it is not possible to reach consensus, the Committee must, nevertheless, make a recommendation and provide the parents with a notice of its recommendation regarding the childís educational program and the parentsí due process rights.

    1. Is it permissible to hold a Committee meeting without the childís parent being present?

    Consistent with Federal and State laws and regulations, parents are to be active participants in the discussion and decision making about their childís need for special education and participate with the Committee in developing their childís Individualized Education Program (IEP). A telephone conference involving the parent(s) and Committee is a permissible strategy to involve parents in the IEP development process. The Committee has the responsibility to fully inform parents, in their dominant language or other mode of communication, of their right to participate in all Committee meetings where their child is being discussed, and to notify them of all actions proposed or refused by the Committee. The Committee is required to:

    A meeting may be conducted without a parent in attendance, if the school district or other responsible educational agency is unable to convince the parents that they should attend. The agency must have a record of its attempts to arrange a mutually agreed on time and place for the meeting, such as detailed records of telephone calls, copies of correspondence and detailed records of visits to parents.

    1. Must all other required members be in attendance at all Committee meetings to develop and/or review a childís IEP?

    Yes.

    1. Must the Committee include the new required members for all meetings conducted on or after July 1, 1998?

    Yes. However, it is strongly encouraged that school districts begin to implement these new requirements as soon as possible for all students. This will help in shifting the focus of IEP meetings to emphasize a studentís participation in general education curriculum and to learning and teaching.

    1. Must a regular education teacher be a member of the Committee for all students?

    A childís individual needs and prospects will determine whether a regular education teacher would need to attend a Committee meeting. A vast majority of students with disabilities would be expected to participate in regular classrooms, therefore requiring the participation of a regular education teacher. Further guidance on this will be provided once the Federal regulations are finalized.

    1. Must the regular education teacher be one of the childís teachers?

    Yes. IDEA requires that the regular education teacher on the Committee be the regular education teacher of the child. The Committee should ensure the participation of at least one regular education teacher of the child who can identify appropriate positive behavioral supports and modifications for the child, and necessary support for school personnel, to enable the student to participate in the general education class and curriculum. If the student is currently in full-time special education and is being considered for participation in general education classes, the regular education teacher may be a teacher who is likely to be providing general education instruction to that student.

    1. Can the regular education teacher be "appropriately certified regular education staff?" (i.e., guidance counselor, curriculum specialist, principal).

    No. The regular education teacher must be a certified teacher who is or may be providing general education instruction to the student.

    1. How do the requirements for a regular education teacher pertain to the Committee on Preschool Special Education?

    Draft U.S. Department of Education guidance on this issue indicates that, if a school district provides regular education preschool services to nondisabled children, then the regular education teacher would be the teacher who is, or may be, responsible for implementing the IEP. If the school district makes kindergarten available to nondisabled children, then a regular education kindergarten teacher could appropriately be the regular education teacher who would participate in an IEP meeting for a kindergarten-age child who is, or may be, participating in the regular education environment. If the school district does not provide regular preschool education services to nondisabled children, the school district would designate an individual who, under State standards, is qualified to serve nondisabled children of the same age. (Appendix C Ė Notice of Interpretation to the draft Federal Regulations).

    1. Must the regular education teacher participate in all of the Committee functions?

    The IDEA provides that the regular education teacher participate on the Committee for students who are or may be participating in general education classes and that the regular education teacher, to the extent appropriate, participate in the development, review and revision of the IEP of the child to identify necessary support for the child and for the teacher that will assist a child to progress in the general education curriculum. School district administrators should schedule Committee meetings in a manner which would minimize the extent to which it affects a regular education teacherís instructional responsibility to all students in the regular education class.

    1. Must the Board of Education appoint each regular education teacher of the child to the Committee?

    No. The Board of Education should establish procedures to ensure that the Committee include at least one regular education teacher of the student (if the student is, or may be, participating in the regular education environment). This individual, similar to the previous requirements that the studentís teacher attend all meetings, would vary based on the specific student to be discussed by the Committee If the student has more than one regular education teacher, the Committee is encouraged to seek input from teachers who will not be attending the Committee meetings and ensure that they are informed about the results of the meeting.

    1. Can one member of the Committee serve more than one required membership role?

    A member of the Committee may not serve more than one role, except that, consistent with the Act, the individual who can interpret the instructional implications of evaluation results may be a member of the Committee serving one of the other required roles. The Chairperson of the Committee on Special Education may be selected from any of the required members. (The Chairperson of the CPSE is always the school district representative.)

    1. What individuals would be qualified to interpret the instructional implications of evaluations?

    The individual on the Committee qualified to interpret the instructional implications of evaluations may be the school psychologist, the school district representative, the special education teacher or the regular education teacher or it may also be, for example, a curriculum specialist or a related service provider such as a speech and language therapist.

    1. Do school districts and parents have the option of bringing any individual to a studentís IEP meetings?

    IEP meetings are the vehicles for school personnel and parents to reach consensus and make joint and informed decisions regarding a studentís needs. While the parent or school personnel may request other individuals to attend a Committee meeting, only those individuals with knowledge or special expertise regarding the student may participate as members of the Committee in the evaluation process and the development, review and revision of the studentís IEP.

    Statutory Language

    SECTION 614(d)(1)(B). INDIVIDUALIZED EDUCATION PROGRAM TEAM

    (B) Individualized education program team.óThe term 'individualized education program team' or 'IEP Team' means a group of individuals composed of--

                (i) the parents of a child with a disability;
                (ii) at least one regular education teacher of such child (if the child is, or may be, participating in the regular education environment);
                (iii) at least one special education teacher, or where appropriate, at least one special education provider of such child;
                (iv) a representative of the local educational agency who--

                    (I) is qualified to provide, or supervise the provision of, specially designed instruction to meet the unique needs of children with disabilities;
                    (II) is knowledgeable about the general curriculum; and
                    (III) is knowledgeable about the availability of resources of the local educational agency;

                (v) an individual who can interpret the instructional implications of evaluation results, who may be a member of the team described in clauses (ii) through (vi);
                (vi) at the discretion of the parent or the agency, other individuals who have knowledge' or special expertise regarding the child, including related services personnel as appropriate; and
                (vii) whenever appropriate, the child with a disability.

    Section 614(d)(3)(c)

    (C) Requirement with respect to regular education teacher.--The regular education teacher of the child, as a member of the IEP Team, shall, to the extent appropriate, participate in the development of the IEP of the child, including the determination of appropriate positive behavioral interventions and strategies and the determination of supplementary aids and services, program modifications, and support for school personnel consistent with paragraph (1) (A) (iii).

    Section 614(d)(4)(B)

    (B) Requirement with respect to regular education teacher.--The regular education teacher of the child, as a member of the IEP Team, shall, to the extent appropriate, participate in the review and revision of the IEP of the child.


    INDIVIDUALIZED EDUCATION PROGRAM
    CONTENTS AND CONSIDERATIONS

    [Section 614 of the IDEA]
    EFFECTIVE JULY 1, 1998*

    * Section 330.342(d) of the draft Federal regulations (10/97) indicate that all IEP's in effect on July 1, 1998 must meet the new requirements.

    The IDEA codified all provisions relating to the Individualized Education Programs (IEP). IDEA defines an IEP and requires that the Committee specifically consider certain factors to ensure that the IEP of each child addresses the unique needs of the child that arise from his or her disability and must be addressed in order for the child to progress in the general education curriculum. As previously stated, in making a decision on eligibility a child may not be identified as a child with a disability if the determinant factor is lack of instruction in reading or math or limited English proficiency. The House Committee Report emphasizes that the majority of children identified as eligible for special education and related services are capable of participating in the general education curriculum to varying degrees with necessary adaptations and modifications. This provision is intended to ensure that special education and related services provided to students are in addition to and are affected by the general education curriculum, not separate from it. (emphasis added).

    IEP DEVELOPMENT (new requirements appear in bold).

    In General: In developing each childís IEP, the Committee must consider:

    Consideration of Special Factors in Developing a Studentís IEP

    1. In the case where a child's behaviors impede learning, the Committee must consider strategies, including positive behavior interventions, strategies and supports, to address those behaviors.

    2. In the case of a child with limited English proficiency, the Committee must consider the language needs of the child as such needs relate to the child's IEP.

    3. In the case of a child who is blind or visually impaired, the Committee must provide instruction in Braille and the use of Braille unless the Committee determines, after an evaluation of the child's reading and writing skills, needs, and appropriate reading and writing media (including an evaluation of the child's future needs for instruction in Braille or the use of Braille), that instruction in Braille or the use of Braille is not appropriate for the child.

    4. For children who are deaf or hard of hearing, the Committee must consider the language and communication needs of the child and opportunities for direct communication with peers and professional personnel in the child's language and communication mode. The Committee must also consider the childís academic level and full range of needs, including the childs social, emotional and cultural needs.

    5. For all students, the Committee must consider the provision of assistive technology devices and services when developing the child's IEP.

    Components of the Individualized Education Program (IEP)

    The term "individualized education program" means a written statement for each child with a disability that is developed, reviewed and revised in accordance with section 614 of IDEA and that includes (new requirements appear in bold):

    1. A statement of the childs present levels of educational performance, including:

    2. A statement of measurable annual goals, including benchmarks or short-term objectives, related to:

    3. A statement of the special education and related services and supplementary aids and services to be provided to the child, or on behalf of the child, and a statement of the program modifications or supports for the child:

    4. An explanation of the extent, if any, to which the child will not participate with nondisabled children in the regular class and in other activities.

    5. A statement of any individual modifications in the administration of State or districtwide assessments of student achievement that are needed in order for the child to participate in such assessment; and

    If the Committee determines that the child will not participate in a particular State or districtwide assessment of student achievement (or part of such an assessment), a statement of:

    6. The projected date for the beginning of the services and modifications and the anticipated frequency, location, and duration of those services and modifications.

    7. Beginning at age 14, and updated annually, a statement of the transition service needs of the child under the applicable components of the childs IEP that focuses on the childs courses of study (such as participation in advanced-placement courses or a vocational education program).

    Beginning at age 16* (or younger, if determined appropriate by the Committee) a statement of needed transition services for the child, including, when appropriate, a statement of the interagency responsibilities or any needed linkages; and

    *NYCRR 200.4(c)(2)(v) requires a statement of transition services be included on a student's IEP beginning at age 15 or younger if determine appropriate.

    8. At the discretion of the states, beginning at least one year before the child reaches the age of majority under State law, a statement that the child has been informed of his or her rights under this title, if any, that will transfer to the child on reaching the age of majority. (Currently, under New York State law, no transfer of rights is permitted.) Refer to question 11.

    9. A statement of how the childs progress toward the annual goals described above will be measured; and

    How the childís parents will be regularly informed (by such means as periodic progress reports), at least as often as parents are informed of their nondisabled childrens progress, of their childs progress toward the annual goals; and the extent to which that progress is sufficient to enable the child to achieve the goals by the end of the year.

    IEP REQUIREMENTS
    CHECKLIST FOR IMPLEMENTATION

    • Amend the IEP document to ensure all the required components are included.

    • Establish administrative policies and practices to ensure training on these requirements is provided to all parents and members of the Committee on Special Education, Subcommittee on Special Education, and Committee on Preschool Special Education.

    • Ensure that the Committee reviews a studentís prior instruction, and lack thereof, in reading and math and limited English Proficiency in relation to the studentís eligibility for special education and related services.

    • Ensure that least restrictive environment considerations are thoroughly discussed and documented at the IEP meeting and the IEP document includes an explanation of the extent, if any, to which the student will not participate with nondisabled children in the regular class and in other activities.

    • Develop a process to ensure all appropriate special education services, related services and supplementary aids and services, program modifications and supports are considered to enable the student to be involved in and progress in the general curriculum and in extracurricular and nonacademic activities.

    • Ensure all the transition services are addressed under appropriate components of a student's IEP, including, for students beginning at the age of 14, transition services that focus on a studentís courses of study and the transition planning requirement for students, beginning at age 15, which are currently required by the Act.

    • Ensure that behaviors that impede learning are identified along with appropriate strategies and supports.

    • Ensure that the use of Braille is provided to a student who is blind or visually impaired unless the Committee determines otherwise.

    • Ensure that the language and communication needs of a student who is deaf or hard of hearing are considered.

    • Ensure that the language needs of a student with limited English proficiency are considered.

    • Ensure that the use of assistive technology devices and services are considered for all students.

    • Ensure a mechanism exists to regularly inform the parents of students with disabilities of their child's progress toward the annual goals; and the extent to which that progress is sufficient to enable the child to achieve the goals by the end of the year.

    QUESTIONS AND ANSWERS RELATING TO THE IEP DEVELOPMENT AND CONSIDERATONS

    1. How would the requirement that the IEP include "a statement of how the childís disability affects the childís involvement and progress in the general curriculum" be implemented for a preschool child with a disability?

      For a preschool child with a disability, the IEP should include a statement of how the childís disability affects the childís involvement in developmentally appropriate activities. Draft U.S. Department of Education guidance on this issue indicates "appropriate activities" are those "milestones that typically developing children of the same age would be performing or would have achieved." (Appendix C Ė Notice of Interpretation to the draft Federal regulations).
       

    2. What is required in the explanation of the extent to which the child will not participate in the regular class or in other activities with nondisabled peers?

      The IDEA presumes that all children with disabilities are to be educated in regular classes. Therefore, the IEP requires an explanation of the extent, if any, to which a student with a disability will not participate with nondisabled children in the regular class and in the general education curriculum including extracurricular and nonacademic activities. The explanation should identify the regular classes, general curriculum, extracurricular and nonacademic activities in which the student will not participate and explain why the Committee made those decisions based on the unique needs of the individual child.
       

    3. What is meant by the requirement that the location at which the special education and related services and modifications are provided be documented on the IEP?

      The location where special education and related services will be provided to a student may influence decisions about the nature and amount of these services and when they should be provided to a child. For example, the appropriate location for the related service to be provided may be the regular classroom, so that the child does not have to choose between a needed service and the regular education program. Therefore, for each special education service recommended, the location where the service will be provided should be indicated on the IEP.

    4. What methods may be used to keep the parent informed about their childís progress? How should this be indicated on the IEP?

      Parents of a student with a disability must be informed, as often as parents of nondisabled students are informed, of their childís progress. This consistent and ongoing reporting will facilitate more useful feedback on their childís performance. An example might be to provide parents with an IEP progress report along with the general education report card. An IEP progress report should include information that would enable parents and the studentís teacher to review and judge the performance of the students in reaching annual goals or benchmarks (For example, this information could be reported as "no progress," "some progress," "good progress," "almost complete," or "completed".) This example is not intended to indicate a preference for a single means of meeting this requirement.

      The IEP document should specify the method that will be used (e.g., IEP Progress Report attached to general education report card) and the frequency (e.g., quarterly).
       

    5. What is meant by "consideration of special factors" and how should this be documented?

      The purpose of the IEP is to tailor the education to the child; not tailor the child to the education. Considerations of special factors will assist the student in the general education program by providing necessary modifications and supports. A number of considerations are essential to the process of creating a studentís IEP. The IDEA requires the Committee to specifically consider a studentís behaviors, language needs for a student with limited English proficiency, instruction in Braille for a student who is blind or visually impaired, language and communication needs of a student who is deaf or hard of hearing and a studentís need for assistive technology devices and services. Discussion on each of the special considerations, where appropriate, must occur at the IEP meeting and should be reflected in the notes taken at the IEP meeting. When the consideration of special factors results in a recommendation for supports, services or modifications, it must be documented on the IEP.
       

    6. Must all students who are blind or visually impaired receive instruction in Braille?

      Instruction in Braille and use of Braille must be provided to a student who is blind or visually impaired unless the Committee determines, after an evaluation of the studentís reading and writing skills, needs and appropriate reading and writing media (including an evaluation of the studentís future needs for instruction in Braille or the use of Braille), that instruction in Braille or the use of Braille is not appropriate for the student at this time.
       

    7. Must the IEP include all of the general education curriculum goals the student will be expected to achieve?

      IDEA is unclear on this issue. However, the House Committee Report indicates that the new emphasis on participation in the general education curriculum is not intended to result in major expansions in the size of the IEP or dozens of pages of detailed goals and benchmarks or objectives in every curricular content standard or skill. The new focus is intended to bring attention to the accommodations and adjustments necessary for a student with a disability to access the general education curriculum and the special services that may be necessary for appropriate participation in particular areas of the curriculum due to the nature of the disability.
       

    8. To what extent must a childís behavior plan be included as a component of the IEP?

    In developing a studentís IEP, the Committee must consider any behaviors that impede the learning of the child or others and must consider strategies, including positive behavior interventions strategies and supports, to address that behavior. The intent of this requirement is to ameliorate the behaviors of the student that may interfere with achievement and learning which takes place in the general education classroom. Focusing on preventative/early intervention strategies should effectively reduce or minimize the behavior needs of the student. For a student whose behavior impedes learning, the studentís behavior needs must be addressed on the IEP under the following sections:

    Additional information on behavioral plans for students subject to disciplinary action will be provided in a subsequent guidance document.

    1. Must teaching and related services methodologies be included on a studentís IEP?

    No. While teaching and related services methodologies or instructional approaches are an appropriate topic for discussion and consideration by the Committee during IEP development or annual reviews, specific methodologies are not required to be included on a studentís IEP.

    1. Does the requirement to include a statement, beginning at age 14, of the transition service needs of the child that focuses on the childís course of study mean that all the transition planning requirements should begin at age 14 instead of age 15?

    No. The purpose of this requirement is to focus attention on how the childís educational program can be planned to help the child make a successful transition to his or her goals for life after secondary school. This provision is designed to augment, not replace, the separate transition services requirement, under which children with disabilities in New York State receive transition services beginning no later than age 15, including instruction, community experiences, the development of employment and other post-school objectives and, when appropriate, independent living skills and functional vocational evaluation.

    1. Will a "transfer of rights" statement be a required component of the studentís IEP in New York State?

    No. IDEA permits states to decide whether to transfer procedural rights from the parents to students with disabilities who reach the age of majority. Currently, under New York State law, no such transfer of rights is permissible. Since an amendment to current Education Law is required prior to allowing the transfer of rights to the student, the IEPs of students in New York State will not require the transfer of rights statement on the IEP.

     

    Statutory Language

    SECTION 614. INDIVIDUALIZED EDUCATION PROGRAMS, AND EDUCATIONAL PLACEMENTS.

    (d) Individualized Education Programs.-

        (1) Definitions.-- used in this title:

                (A) Individualized education program.--The term 'individualized education program' or 'IEP' means a written statement for each child with a disability that is developed, reviewed, and revised in accordance with this section and that includes--

                    (i) a statement of the child's present levels of educational performance, including-

                        (I) how the child's disability affects the child's involvement and progress in the general curriculum; or

                    (II) for preschool children, as appropriate, how the disability affects the child's participation in appropriate activities;

                    (ii) a statement of measurable annual goals, including benchmarks or short-term objectives, related to--

                        (I) meeting the child's needs that result from the child's disability to enable the child to be involved in and progress in the general curriculum; and

                        (II) meeting each of the child's other educational needs that result from the child's disability;

                    (iii) a statement of the special education and related services and supplementary aids and services to be provided to the child, or on behalf of the child, and a statement of the program modifications or supports for school personnel that will be provided for the child--

                        (I) to advance appropriately toward attaining the annual goals;

                        (II) to be involved and progress in the general curriculum in accordance with clause (i) and to participate in extracurricular and other nonacademic activities; and

                        (III) to be educated and participate with other children with disabilities and nondisabled children in the activities described in this paragraph;

                    (iv) an explanation of the extent, if any, to which the child will not participate with nondisabled children in the regular class and in the activities described in clause (iii);

                    (v) (I) a statement of any individual modifications in the administration of State or districtwide assessments of student achievement that are needed in order for the child to participate in such assessment; and

                        (II) if the IEP Team determines that the child will not participate in a particular State or districtwide assessment of student achievement (or part of such an assessment), a statement of--

                                (aa) why that assessment is not appropriate for the child; and

                                (bb) how the child will be assessed;

                    (vi) the projected date for the beginning of the services and modifications described in clause (iii), and the anticipated frequency, location, and duration of those services and modifications;

                    (vii) (I) beginning at age 14, and updated annually, a statement of the transition service needs of the child under the applicable components of the child's IEP that focuses on the child's courses of study (such as participation in advanced-placement courses or a vocational education program);

                        (II) beginning at age 16 (or younger, if determined appropriate by the IEP Team), a statement of needed transition services for the child, including, when appropriate, a statement of the interagency responsibilities or any needed linkages; and

                        (III) beginning at least one year before the child reaches the age of majority under State law, a statement that the child has been informed of his or her rights under this title, if any, that will transfer to the child on reaching the age of majority under section 615(m); and

                    (viii) a statement of--

                        (I) how the child's progress toward the annual goals described in clause (ii) will be measured; and

                        (II) how the child's parents will be regularly informed (by such means as periodic report cards), at least as often as parents are informed of their nondisabled children's progress, of--

                            (aa) their child's progress toward the annual goals described in clause (ii); and

                            (bb) the extent to which that progress is sufficient to enable the child to achieve the goals by the end of the year.

        (3) Development of IEP.-

            (A) In general.--In developing each child's IEP, the IEP Team, subject to subparagraph (C), shall consider--

                (i) the strengths of the child and the concerns of the parents for enhancing the education of their child; and
                (ii) the results of the initial evaluation or most recent evaluation of the child.

            (B) Consideration of special factors.--The IEP Team shall--

                (i) in the case of a child whose behavior impedes his or her learning or that of others, consider, when appropriate, strategies, including positive behavioral interventions, strategies, and supports to address that behavior;
                (ii) in the case of a child with limited English proficiency, consider the language needs of the child as such needs relate to the child's IEP;
                (iii) in the case of a child who is blind or visually impaired, provide for instruction in Braille and the use of Braille unless the IEP Team determines, after an evaluation of the child's reading and writing skills, needs, and appropriate reading and writing media (including an evaluation of the child's future needs for instruction in Braille or the use of Braille), that instruction in Braille or the use of Braille is not appropriate for the child;
                (iv) consider the communication needs of the child, and in the case of a child who is deaf or hard of hearing, consider the child's language and communication needs, opportunities for direct communications with peers and professional personnel in the child's language and communication mode, academic level, and full range of needs, including opportunities for direct instruction in the child's language and communication mode; and
                (v) consider whether the child requires assistive technology devices and services.

            (C) Requirement with respect to regular education teacher.--The regular education teacher of the child, as a member of the IEP Team, shall, to the extent appropriate, participate in the development of the IEP of the child, including the determination of appropriate positive behavioral interventions and strategies and the determination of supplementary aids and services, program modifications, and support for school personnel consistent with paragraph (1) (A) (iii).


    CHILDREN ENROLLED IN PRIVATE SCHOOLS BY THEIR PARENTS

    [Section 612 of the IDEA]
    EFFECTIVE JUNE 4, 1997

    IDEA clarifies the responsibility of public school districts to children with disabilities who are placed by their parents in private schools. These requirements are intended to resolve a number of issues that have been the subject of litigation in recent years. The following pertains to situations in which (1) parents enroll their child in a nonpublic school and the student is eligible to receive special education programs and services from the public school district; and (2) parents unilaterally place their child in a private school for special education services and request reimbursement for the cost of their childís education.

    Requirements for the Provision of Special Education Services by Public Schools to Students Enrolled in Private Schools by their Parents (Section 612(10)(A))

    As of the date of this publication, New York State Education Law requires boards of education must, upon written request, provide students with disabilities enrolled in nonpublic schools with the special education services required by their IEP (Ed.L., 3602-c). This issue is currently before the Second Circuit Court of Appeals in Russman v. Board of Education of the Enlarged City School District of the City of Watervliet, Docket No. 95-7756. If necessary, the Department will provide further guidance on this issue at a later date.

    School District Responsibility for Reimbursement of Tuition when Parents Unilaterally Place Their Child in a Private School for Special Education Services (Section 612(10)(C))

    CHILDREN PLACED IN PRIVATE SCHOOLS BY THEIR PARENTS
    CHECKLIST FOR IMPLEMENTATION

    • Ensure that the school districtís child-find procedures apply with respect to children with disabilities in the State who are enrolled in private (including religiously-affiliated) elementary and secondary schools.

    • Revise the procedural safeguards notice to include requirements for parents if they intend to request reimbursement for the cost of tuition for unilateral placement in private schools. (See "Procedural Safeguards" section of this memorandum).

    • Ensure that the district has a procedure to document when parents participate in an IEP meeting and communicate their intent to remove their child from the public school.

    • If appropriate, ensure that the school district, prior to parental removal of the child from the public school, informs the parents, through the notice requirements, of its intent to evaluate or reevaluate the child (including a statement of the purpose of the evaluation that is appropriate and reasonable).

    • Document whether the parents were fully informed concerning the request to make their child available for such evaluation.

    QUESTIONS AND ANSWERS RELATED TO CHILDREN PLACED IN PRIVATE SCHOOLS BY THEIR PARENTS.

    1. What actions should be taken if parents inform the Committee that they intend to place their child in a private school and request reimbursement through the district?

    The Committee should meet to discuss the parentsí concerns regarding the childís program, services and placement. The Committee may wish to request parental consent for further evaluations of the student. If the Committee refuses to provide the program, services or placement requested by the parent, the Committee must provide written notice of its refusal. The notice must include notice of procedural safeguards. The Committee should also make sure that the parents, especially those parents whose language is other than English or are illiterate, fully understand the law with regard to their rights and obligations when they unilaterally place a student.

    2. Would a school district be required to provide tuition reimbursement to a parent for a private school placement of a student who has not previously been identified as a student with a disability or offered a free appropriate public education by the school district?

    IDEA provides that reimbursement for private school placements may be awarded by a court or a hearing officer if the child previously received special education and related services under the authority of a public agency and if the court or hearing officer finds that the agency did not made a free appropriate public education available to the child in a timely manner prior to that enrollment. However, case law may expand eligibility for such reimbursement in certain other circumstances (e.g., school district failed to fulfill its child-find obligations and did not previously identify the child).

    STATUTORY LANGUAGE

    Section 612. Child Find

    (3) Child find.-

        (A) In general.--All children with disabilities residing in the State, including children with disabilities attending private schools, regardless of the severity of their disabilities, and who are in need of special education and related services, are identified, located, and evaluated and a practical method is developed and implemented to determine which children with disabilities are currently receiving needed special education and related services.

    Section 612. Children in Private Schools

    (10) Children in private schools.--

        (A) Children enrolled in private schools by their parents . --

                (i) In general.--To the extent consistent with the number and location of children with disabilities in the State who are enrolled by their parents in private elementary and secondary schools, provision is made for the participation of those children in the program assisted or carried out under this part by providing for such children special education and related services in accordance with the following requirements, unless the Secretary has arranged for services to those children under subsection (f):

                    (I) Amounts expended for the provision of those services by a local educational agency shall be equal to a proportionate amount of Federal funds made available under this part.

                    (II) Such services may be provided to children with disabilities on the premises of private, including parochial, schools, to the extent consistent with law.

                (ii) Child-find requirement . --The requirements of paragraph (3) of this subsection (relating to child find) shall apply with respect to children with disabilities in the State who are enrolled in private, including parochial, elementary and secondary schools.

    Section 612. Payment for Children Enrolled in Private Schools without Consent of or Referral by the Public Agency

    (A) Payment for education of children enrolled in private schools without consent of or referral by the public agency.ó

                (i) In general.--Subject to subparagraph (A) , this part does not require a local educational agency to pay for the cost of education, including special education and related services, of a child with a disability at a private school or facility if that agency made a free appropriate public education available to the child and the parents elected to place the child in such private school or facility.

                (ii) Reimbursement for private school placement.--If the parents of a child with a disability, who previously received special education and related services under the authority of a public agency, enroll the child in a private elementary or secondary school without the consent of or referral by the public agency, a court or a hearing officer may require the agency to reimburse the parents for the cost of that enrollment if the court or hearing officer finds that the agency had not made a free appropriate public education available to the child in a timely manner prior to that enrollment.

                (iii) Limitation on reimbursement.--The cost of reimbursement described in clause (ii) may be reduced or denied--

                    (I) if--

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

                        (bb) 10 business days (including any holidays that occur on a business day) prior to the removal of the child from the public school, the parents did not give written notice to the public agency of the information described in division (aa);

                    (II) if, prior to the parents' removal of the child from the public school, the public agency informed the parents, through the notice requirements described in section 615(b) (7), of its intent to evaluate the child (including a statement of the purpose of the evaluation that was appropriate and reasonable), but the parents did not make the child available for such evaluation; or

                    (III) upon a judicial finding of unreasonableness with respect to actions taken by the parents.

                (iv) Exception.--Notwithstanding the notice requirement in clause (iii) (I) , the cost of reimbursement may not be reduced or denied for failure to provide such notice if--

                    (I) the parent is illiterate and cannot write in English;

                    (II) compliance with clause (iii) (I) would likely result in physical or serious emotional harm to the child;

                    (III) the school prevented the parent from providing such notice; or

                    (IV) the parents had not received notice, pursuant to section 615, of the notice requirement in clause (iii) (I).

    Section 615(d)(2). Procedural Safeguards Notice

    (2) Contents.-The procedural safeguards notice shall include a full explanation of the procedural safeguards, written in the native language of the parents, unless it clearly is not feasible to do so, and written in an easily understandable manner, available under this section and under regulations promulgated by the Secretary relating to--

            (A) independent educational evaluation;
            (B) prior written notice;
            (C) parental consent;
            (D) access to educational records;
            (E) opportunity to present complaints;
            (F) the child's placement during pendency of due process proceedings;
            (G) procedures for students who are subject to placement in an interim alternative educational setting;
            (H) requirements for unilateral placement by parents of children in private schools at public expense;
            (I) mediation;
            (J) due process hearings, including requirements for disclosure of evaluation results and recommendations;
            (K) State-level appeals (if applicable in that State);
            (L) civil actions; and
            (M) attorneys' fees.


    PROCEDURAL SAFEGUARDS

    [Section 615 of the IDEA]
    EFFECTIVE JUNE 4, 1997

    The procedural safeguards in the IDEA have provided the foundation for ensuring access to a free appropriate public education for students with disabilities. The Act retains the "stay put" provisions and all provisions concerning the administrative procedures associated with an impartial due process hearing, and appeals through State-level reviews and the courts.

    The Act specifies the instances when the procedural safeguards notice must be provided to parents and revises the content of notices to parents about their childís rights. The Congressional intent in these amendments is to promote more user-friendly information that parents can understand. In addition, to encourage early resolution of problems between parents and school districts, the Act requires States to offer mediation as a voluntary option to parents and school districts. (New Federal requirements appear in bold).

    TYPES OF PROCEDURES

    IDEA retains the requirements of prior law regarding the right of parents to:

    IDEA also includes the following changes from prior law:

    * A MODEL FORM FOR THIS NOTICE IS INCLUDED IN THIS SECTION.

    CONTENT OF WRITTEN NOTICE [Sec. 615(c)]

    This section retains the requirements of prior law regarding the content of written notice to the parents, and adds the following modifications:

    PROCEDURAL SAFEGUARDS NOTICE [Sec. 615(d)]

    The requirements relating to procedural safeguards notice include:

    Presently, New York State Regulations (Section 200.5) requires that the procedural safeguard notice must also include the following:

    Procedural Safeguards Notice Requirements for Students Involved in Discipline Proceedings

    The information in the procedural safeguards notice relating to students who are subject to interim alternative placements must be provided to parents no later than the date on which the decision is made and must include:

    * Draft Federal regulations (section 330.528) specify that an expedited hearing is a hearing which results in a decision within 10 business days of the request for the hearing, unless the parents and school officials otherwise agree.

    Procedural Safeguards Notice Requirements Concerning Parents Who Reject Placement Offered by the District and Unilaterally Place Their Child with a Disability in a Private School (refer to pages 31 Ė 37 of this memorandum).

    NOTICE AND PROCEDURAL SAFEGUARDS REQUIREMENTS
    CHECKLIST FOR IMPLEMENTATION

    • Ensure parents are included as decision-makers of any group making evaluation, program and placement recommendations for their child.

    • Ensure the notice includes information where the parent can obtain a copy of the procedural safeguards rights if they are not attached to the notice.

    • Identify sources for parents to contact for assistance in understanding the special education process and their due process rights. Include a list of these sources on the notices sent to parents whenever the school proposes or refuses to initiate a childís educational program, upon reevaluation and upon registration of a due process complaint.

    • Ensure that an individual assigned as a surrogate parent is not an employee of the State Education Department, the school district, or any other agency involved in the education or care of the child.

    • Establish and maintain procedures regarding mutual disclosure of evaluation results and recommendations for any due process proceeding (mediation or impartial hearing).

    • Revise the contents of the procedural safeguards notice to include procedures for students who are subject to placement in an interim alternative educational setting and requirements for unilateral placement by parents of children in private schools at public expense. (NOTE: SED will be issuing a model procedural safeguards notice under a separate cover in the near future.)

    • Ensure that parents also receive a copy of their procedural safeguards rights upon receipt of a request for due process proceedings.

    • Ensure parents are provided with the model form "Request for Due Process Proceedings" whenever parents notify the school district that they are requesting a due process proceeding (see following page of this section).

    • Ensure the procedural safeguards notice includes information relating to mediation.

    District Letterhead

     

    Request for Due Process Proceedings

    Federal law requires that a parent or attorney representing a child provide notice to the school district if the parents have a disagreement regarding the referral, evaluation, or placement or their child or regarding the provision of special education services. (This notice will remain confidential.) This form has been developed to assist you in describing your disagreement and accessing the due process procedures to which you are entitled. Please complete the entire form. Failure to do so may result in it being returned for additional information. According to Federal law, failure to provide information may result in a reduction in the award of any attorneysí fees.

    Studentís Name: ____________________________ Date of Birth:________________

    Parent or Legal Guardian: ________________________________________________

    Legal Residence: Street ________________________________________________

    City or Town ______________________ Zip Code ____________

    Telephone: ( ) ______________________

    Current School: _______________________ Address: Street ________________

    City or Town __________

    School district of attendance, if different from district of residence: _________________________________
    Zip Code _____________

    Fully describe the nature of the problem including all specific facts relating to the disagreement (Attach additional pages or documents as necessary):

     

    State your proposed solution to the problem or the reason why you are unable to suggest a solution at this time. (Attach additional pages or documents as necessary):

     

     

     

    Upon receipt of this form, you will be contacted to establish a mutually agreeable time to participate in mediation with an outside mediator and representative(s) of the district to attempt to resolve this disagreement. If mediation is unsuccessful, an impartial hearing will be conducted unless you inform the district in writing that you do not wish to proceed with a hearing. Participation in mediation will not delay or preclude your right to a due process hearing.

    If you do not wish to attempt to resolve this problem through mediation prior to a hearing, please check the box below:

    Name of Person Completing this Form: ______________________________________

    Signature: _____________________________________ Date: __________________

    Relationship to Student: ū Parent ū Legal Guardian ū Surrogate Parent ū Attorney

    Date of Receipt of Form: _____________________________

    QUESTIONS AND ANSWERS RELATING TO WRITTEN NOTICE AND PROCEDURAL SAFEGUARDS

    1. In what instances may a district send written notice to a childís parents without attaching a complete list of all the procedural safeguards?

    The Act limits the instances in which the full list of procedural safeguard rights must be provided to parents. However, the district must include a statement in the written notice that the parents have protection under the procedural safeguards of IDEA and how a copy the procedural safeguards notice can be obtained. The procedural safeguards must be included in the notice whenever the district is notifying the parents (or the student) of:

    Currently, New York State regulations also require a list of procedural safeguards accompany notice when:

    2. Is there a sample form for parents to complete to request a due process impartial hearing or mediation proceedings if they disagree with the school district regarding the identification, evaluation or educational placement of their child or regarding the provision of a free appropriate public education?

    School districts are strongly encouraged to disseminate to parents the attached form, developed by the State Education Department, which would be used by parents to request mediation or an impartial hearing. This form could be provided to parents, along with a copy of their procedural safeguards, upon registration of a complaint pursuant to section 614 of IDEA. While failure of the parent to provide the required information as noted on this form will not preclude a parentís right to pursue due process, it may result in a reduction in the award of any attorneysí fees.

     

    Statutory Language

    SECTION 615. PROCEDURAL SAFEGUARDS

        (a) Establishment of Procedures.--Any State educational agency, State agency, or local educational agency that receives assistance under this part shall establish and maintain procedures in accordance with this section to ensure that children with disabilities and their parents are guaranteed procedural safeguards with respect to the provision of free appropriate public education by such agencies.

            (b) Types of Procedures.--The procedures required by this section shall include--

                (1) an opportunity for the parents of a child with a disability to examine all records relating to such child and to participate in meetings with respect to the identification, evaluation, and educational placement of the child, and the provision of a free appropriate public education to such child, and to obtain an independent educational evaluation of the child;

                (2) procedures to protect the rights of the child whenever the parents of the child are not known, the agency cannot, after reasonable efforts, locate the parents, or the child is a ward of the State, including the assignment of an individual (who shall not be an employee of the State educational agency, the local educational agency, or any other agency that is involved in the education or care of the child) to act as a surrogate for the parents;

                (3) written prior notice to the parents of the child whenever such agency--

                    (A) proposes to initiate or change; or

                    (B) refuses to initiate or change; the identification, evaluation, or educational placement of the child, in accordance with subsection (c), or the provision of a free appropriate public education to the child;

                (4) procedures designed to ensure that the notice required by paragraph (3) is in the native language of the parents, unless it clearly is not feasible to do so;

                (5) an opportunity for mediation in accordance with subsection (e);

                (6) an opportunity to present complaints with respect to any matter relating to the identification, evaluation, or educational placement of the child, or the provision of a free appropriate public education to such child;

                (7) procedures that require the parent of a child with a disability, or the attorney representing the child, to provide notice (which shall remain confidential)--

                    (A) to the State educational agency or local educational agency, as the case may be, in the complaint filed under paragraph (6); and

                    (B) that shall include--

                        (i) the name of the child, the address of the residence of the child, and the name of the school the child is attending;

                        (ii) a description of the nature of the problem of the child relating to such proposed initiation or change, including facts relating to such problem; and

                        (iii) a proposed resolution of the problem to the extent known and available to the parents at the time; and

            (8) procedures that require the State educational agency to develop a model form to assist parents in filing a complaint in accordance with paragraph (7).

        (c) Content of Prior Written Notice. --The notice required by subsection (b) (3) shall include--

            (1) a description of the action proposed or refused by the agency;

            (2) an explanation of why the agency proposes or refuses to take the action;

            (3) a description of any other options that the agency considered and the reasons why those options were rejected;

            (4) a description of each evaluation procedure, test, record, or report the agency used as a basis for the proposed or refused action;

            (5) a description of any other factors that are relevant to the agency's proposal or refusal;

            (6) a statement that the parents of a child with a disability have protection under the procedural safeguards of this part and, if this notice is not an initial referral for evaluation, the means by which a copy of a description of the procedural safeguards can be obtained; and

            (7) sources for parents to contact to obtain assistance in understanding the provisions of this part.

        (d) Procedural Safeguards Notice.--

            (1) In general.--A copy of the procedural safeguards available to the parents of a child with a disability shall be given to the parents, at a minimum-

                (A) upon initial referral for evaluation;
                (B) upon each notification of an individualized education program meeting and upon reevaluation of the child; and
                (C) upon registration of a complaint under subsection (b)(6).

        (2) Contents.~~The procedural safeguards notice shall include a full explanation of the procedural safeguards, written in the native language of the parents, unless it clearly is not feasible to do so, and written in an easily understandable manner, available under this section and under regulations promulgated by the Secretary relating to--

                (A) independent educational evaluation;
                (B) prior written notice;
                (C) parental consent;
                (D) access to educational records;
                (E) opportunity to present complaints;
                (F) the child's placement during pendency of due process proceedings;
                (G) procedures for students who are subject to placement in an interim alternative educational setting;
                (H) requirements for unilateral placement by parents of children in private schools at public expense;
                (I) mediation;
                (J) due process hearings, including requirements for disclosure of evaluation results and recommendations;
                (K) State-level appeals (if applicable in that State);
                (L) civil actions; and
                (M) attorneys' fees.