03-30633. Office of Special Education and Rehabilitative Services; List of Correspondence

AGENCY:

Department of Education.

ACTION:

List of correspondence from July 1, 2003, through September 30, 2003.

SUMMARY:

The Secretary is publishing the following list pursuant to section 607(d) of the Individuals with Disabilities Education Act (IDEA). Under section 607(d) of the IDEA, the Secretary is required, on a quarterly basis, to publish in the Federal Register a list of correspondence from the Department of Education received by individuals during the previous quarter that describes the interpretations of the Department of Education (Department) of the IDEA or the regulations that implement the IDEA.

FOR FURTHER INFORMATION CONTACT:

Melisande Lee or JoLeta Reynolds. Telephone: [phone] (press 3).

If you use a telecommunications device for the deaf (TDD), you may call the Federal Information Relay Service (FIRS) at 1-800-877-8339.

Individuals with disabilities may obtain a copy of this notice in an alternative format (e.g., Braille, large print, audiotape, or computer diskette) on request to the contact persons listed in the preceding paragraph.

SUPPLEMENTARY INFORMATION:

The following list identifies correspondence from the Department issued from July 1, 2003, through September 30, 2003.

Included on the list are those letters that contain interpretations of the requirements of the IDEA and its implementing regulations, as well as letters and other documents that the Department believes will assist the public in understanding the requirements of the law and its regulations. The date and topic addressed by a letter are identified, and summary information is also provided, as appropriate. To protect the privacy interests of the individual or individuals involved, personally identifiable information has been deleted, as appropriate.

Part A—General Provisions

Section 602—Definitions

Topic Addressed: Special Education and Related Services

• Letters dated August 22, 2003, to National School Transportation Association Regulatory Liaison Robin L. Leeds and National Association for Pupil Transportation Executive Director Michael J. Martin, regarding the obligations of local educational agencies (LEAs) under Part B of the IDEA toward related service providers, including transportation providers.
• OSEP memorandum 03-10 dated August 22, 2003, to State Directors of Special Education, regarding how to ensure safe and appropriate transportation for children with disabilities.

Section 603—Office of Special Education Programs

Topic Addressed: Responsibilities of the Office of Special Education Programs

• Letter dated August 15, 2003, to individual (personally identifiable information redacted), clarifying that Part B of the IDEA does not provide for the Office of Special Education Programs' review of individual State-level complaint decisions or due process hearings, clarifying the procedures for requesting and amending school records, and clarifying the Department's responsibility to monitor a State's compliance with the IDEA.

Part B—Assistance for Education of All Children With Disabilities

Section 611—Authorization; Allotment; Use of Funds; Authorization of Appropriations

Topic Addressed: Distribution of Funds

• OSEP memorandum 08-03 [sic] dated July 1, 2003, regarding implementation of the funding formula and funding formula distributions under section 611 of Part B of the IDEA and requesting that the States sign an Assurance Statement attesting to the accuracy of their funding formula distributions.

Section 612—State Eligibility

Topic Addressed: Free Appropriate Public Education

• Letter dated August 19, 2003, to Children's Advocacy Network of Florida Founder Beth Davis-Wellington, regarding: (1) The role of the individualized education program (IEP) team in implementing the State's policy for retention or promotion of students with disabilities, (2) the establishment of proficiency standards for a regular high school diploma as they relate to children with disabilities and the IDEA requirements; and (3) the timing of initial evaluations for students with disabilities.

Topic Addressed: Free Appropriate Public Education for Eligible Youth With Disabilities Incarcerated in Adult Prisons

• Letter dated August 19, 2003, to Vermont Department of Education Legal Counsel Geoffrey A. Yudien, clarifying that (1) The provisions in 20 U.S.C. 1414(d)(6) and 34 CFR 300.311(c)(1) apply to post-conviction incarcerations; (2) to the extent consistent with the age ranges established under State law, States and LEAs must include in their child find systems those incarcerated youth who would be eligible to receive a free appropriate public education (FAPE) and who do not fall into the exception to the FAPE requirement; (3) individuals in the Federal correctional system fall under the jurisdiction of the Federal Bureau of Prisons (BOP) and the IDEA makes no specific provision for funding educational services through the BOP; and (4) under Part B of the IDEA, if a youth with disabilities is referred or placed by the State into an out-of-State facility, the referring State is generally responsible for ensuring that FAPE is available during the course of the youth's placement in that facility.

Topic Addressed: Procedural Safeguards

• Letter dated September 9, 2003, to North Dakota State Director of Special Education Robert Rutten, clarifying that it is not inconsistent with the State complaint procedures required by 34 CFR 300.660-300.662 for a complainant to have an advocate present during an interview or for the complaint investigator to send a copy of the issues to be investigated to an advocate if requested to do so by the complainant.

Topic Addressed: Least Restrictive Environment

• Letter dated July 23, 2003, to individual (personally identifiable information redacted), clarifying that neither the IDEA nor its implementing regulations define the term “regular classes” nor do they limit the number, or percentage, of students with disabilities that may be placed into a specific regular classroom in order to provide FAPE in the least restrictive environment, consistent with the requirements of 34 CFR 300.550-300.556.
• Letter dated July 1, 2003, to individual (personally identifiable information redacted), clarifying that, under the IDEA, private schools are not subject to the same admission policies which apply to public schools and services plans are prepared only for private school children with disabilities who are designated to receive services.

Topic Addressed: Maintenance of Effort

• Letter dated August 1, 2003, to Washington State Audit Manager Brad White, clarifying that an LEA is not permitted to reduce its level of expenditures under Part B of the IDEA below the level of expenditures for the preceding fiscal year if the decrease is attributed to a reduction in the LEA's retirement rates for its staff.

Topic Addressed: Participation of Children with Disabilities in State and District-Wide Assessments

• Letter dated July 14, 2003, to New Hampshire Disabilities Rights Center Executive Director Dr. Richard Cohen, regarding the requirements for the disaggregation and reporting of assessment and performance indicator data to the public and the Secretary under the IDEA and Title I of the Elementary and Secondary Education Act of 1965, as amended.

Section 613—Local Educational Agency Eligibility

Topic Addressed: Charter Schools

• Letter dated August 8, 2003, to New York State Education Department Deputy Commissioner Lawrence C. Gloeckler, regarding the status of charter schools under New York law for the purposes of Part B of the IDEA and requesting clarification on how the State is ensuring that the requirements for charter schools under the IDEA are being met.

Section 614—Evaluations, Eligibility Determinations, Individualized Education Programs, and Educational Placements

Topic Addressed: Evaluations and Reevaluations

• Letter dated September 5, 2003, to Hofstra University Professor Frank G. Bowe, clarifying that an agency may not use the due process procedures under the IDEA to override the requirement that informed parental consent be obtained before the initial provision of special education and related services.
• Letter dated September 3, 2003, to U.S. Senator Ben Nighthorse Campbell, regarding the use of intelligence quotient tests to determine the eligibility of students with disabilities for special education under section 504 of the Rehabilitation Act of 1973 and under the IDEA.

Topic Addressed: Individualized Education Programs

• Letter dated August 28, 2003, to Fort Thomas Kentucky Independent Schools Assistant Superintendent Rita Byrd, clarifying that Federal regulations do not address the public agency's responsibility to make an employee of the agency, including a student's former teacher, available for IEP meetings.
• Letter dated August 28, 2003, to individual (personally identifiable information redacted), clarifying that whether an employee who is not required by 34 CFR 300.344(a) to be part of an IEP team may be required to attend or be charged leave to attend an IEP meeting is a matter of State and/or local policy.
• Letter dated July 25, 2003, to individual (personally identifiable information redacted), regarding which parties are responsible under the IDEA for developing, reviewing, and, if appropriate, revising the IEP and clarifying that the decision as to who is responsible for putting IEP team decisions in writing is made by the public agency.

Section 615—Procedural Safeguards

Topic Addressed: Surrogate Parents

• Letter dated July 10, 2003, to New Hampshire State Director of Special Education Mary J. Ford, regarding the distinction between a surrogate parent under 34 CFR 300.515 and a person acting as a parent under 34 CFR 300.20.

Part C—Infants and Toddlers With Disabilities

Section 635—Requirements for Statewide System

Topic Addressed: Procedural Safeguards

• Letter dated August 19, 2003, to individual (personally identifiable information redacted), regarding (1) the Office for Civil Rights' authority over complaints related to discrimination based on disability, (2) the resolution of individual complaints and the award of compensatory services under Part C of the IDEA, and (3) the lead agency's responsibility for general supervision of all Part C programs and activities, including the monitoring of agencies carrying out Part C services.

Other Letters That Do Not Interpret the IDEA But May Be of Interest to Readers

Topic Addressed: Free Appropriate Public Education

• Letter dated August 28, 2003, to Chief State School Officers, regarding implementation of the Title I choice and supplemental educational services provisions of the No Child Left Behind Act of 2001 (NCLB).

Topic Addressed: Confidentiality of Education Records

• Letter dated July 2, 2003, to Chief State School Officers, regarding (1) release of student information to military recruiters under the National Defense Authorization Act for Fiscal Year 2002 and (2) the process by which parents are notified and have an opportunity to request that this information not be disclosed without their consent, similar to the “directory information” provisions under the Family Educational Rights and Privacy Act.

Topic Addressed: Personnel Standards

• Letter dated July 28, 2003, to Chief State School Officers, regarding provisions in NCLB, the Teacher Assistance Corps, and efforts to share ideas about improvements in teacher quality.

Electronic Access to This Document

You may view this document, as well as all other Department of Education documents published in the Federal Register, in text or Adobe Portable Document Format (PDF) on the Internet at the following site: http://www.ed.gov/​news/​fedregister/​index.html.

To use PDF you must have Adobe Acrobat Reader, which is available free at this site. If you have questions about using PDF, call the U.S. Government Printing Office (GPO), toll free, at 1-888-293-6498; or in the Washington, DC, area at [phone].

Note:

The official version of this document is published in the Federal Register. Free Internet access to the official edition of the Federal Register and the Code of Federal Regulations is available on GPO Access at: http://www.gpoaccess.gov/​nara/​index.html.

(Catalog of Federal Domestic Assistance Number 84.027, Assistance to States for Education of Children with Disabilities)

Dated: December 5, 2003.

Troy R. Justesen,

Acting Assistant Secretary for Special Education and Rehabilitative Services.