Special Education Tip of the Week

What exactly is the stay-put placement?

Although the IDEA does not specifically define “stay put,” the regulations are clear that during the pendency of a due process hearing and any subsequent appeals, the child must remain in his or her current educational placement, unless the parent and the school agree otherwise. [34 C.F.R. § 300.518(a)] “Current educational placement” is generally understood to mean the last agreed upon placement (and not the placement that is being challenged in due process). The regulations further clarify that if a hearing officer in a due process hearing agrees with the child’s parents that a change of placement is appropriate, that placement must be treated as an agreement between the school and the parents during any subsequent appeals. [Id. at subsection (d)]

If you have a question that you would like to suggest for a future “Tip of the Week,” please submit a question.

Submit a Question

Archived Tips: New Tips are posted every week on Monday. When new Tips are posted, old Tips are moved to the Archive below. Eventually, the Archive will expand to include Tips for all of the categories below. Click on a question below and the answer will appear.

Child Find

With respect to students transferring into a school, Arizona State Board of Education rules require schools to review enrollment data and educational performance in the prior school. [Arizona Administrative Code (A.A.C.) R7-2-401(D)(7)] “If there is a history of special education for a student not currently eligible for special education, or poor progress, the name of the student shall be submitted to the administrator for consideration of the need for a referral for a full and individual evaluation or other services.” [Id.]
Yes. The Individuals with Disabilities Education Act (IDEA) and its implementing regulations require that all children with disabilities who are in need of special education and related services, regardless of the severity of their disability, are identified, located, and evaluated. [20 U.S.C. § 1412(a)(3); 34 C.F.R. § 300.111(a)] The federal regulations require that in discharging these “Child Find” obligations, a school must include children who are suspected of having a disability, even if they are advancing from grade to grade. [34 C.F.R. § 300.111(c)(1)] “Therefore, IDEA and the regulations clearly establish that the determination about whether a child is a child with a disability is not limited to information about the child’s academic performance. Furthermore, 34 CFR § 300.101(c) states that each State must ensure that a free appropriate public education (FAPE) is available to any individual child with a disability who needs special education and related services, even though the child has not failed or been retained in a course or grade, and is advancing from grade to grade.” [Letter to Clarke, 48 IDELR 77 (OSEP 2007)]
Arizona State Board of Education rules state that “identification (screening for possible disabilities) shall be completed within 45 calendar days after entry of each preschool or kindergarten student and any student enrolling without appropriate records of screening, evaluation, and progress in school, or after notification to the [school] by parents of concerns regarding developmental or educational progress by their child aged 3 years through 21 years.” [A.A.C. R7-2-401(D)(5)] “If a concern about a student is identified through screening procedures or through review of records, the public education agency shall notify the parents of the student of the concern within 10 school days and inform them of the public education agency procedures to follow-up on the student’s needs.” [A.A.C. R7-2-401(D)(8)]

Consent

Yes. Schools are required to obtain informed consent from the parent of a child determined eligible to receive special education and related services before initially providing special education and related services. [34 C.F.R. § 300.300(b)(1)] “Parental consent for initial evaluation must not be construed as consent for [the] initial provision of special education or related services.” [34 C.F.R. § 300.300(a)(1)(ii)]
A “new provision in the [IDEA] relieves public agencies of any potential liability for failure to convene an IEP Team meeting or develop an IEP for a child whose parents have refused consent or failed to respond to a request for consent to the initial provision of special education and related services. It does not, however, prevent a public agency from convening an IEP Team meeting and developing an IEP for a child as a means of informing the parent about the services that would be provided with the parent’s consent.” [34 C.F.R. Part 300, Analysis of Comments and Changes, Subpart D–Evaluation, Eligibility Determinations, IEP, Educational Placement, Federal Register, Vol. 71, No. 156, p. 46634 and 46657 (August 2006)] Therefore, if a parent refuses consent for the initial provision of special education services or fails to respond to a request for such consent, a school may go ahead and develop an IEP as a means of showing parents what services the child would receive if the parents provided initial consent, but there is no requirement that schools do this.
The granting of parental consent is voluntary and may be revoked at any time. “If, at any time subsequent to the initial provision of special education and related services, the parent of a child revokes consent in writing for the continued provision of special education and related services, the public agency may not continue to provide special education and related services to the child, but must provide prior written notice in accordance with § 300.503 before ceasing the provision of special education and related services.” [34 C.F.R. § 300.9(c)(4)] Additionally, the public agency may not challenge the parent’s decision by requesting mediation or by filing a due process complaint in order to obtain a ruling that services may be provided to the child. [Id.]
“A public agency that is responsible for making a free appropriate public education (FAPE) available to a child with a disability must obtain informed consent from the parent of the child before the initial provision of special education and related services to the child.” [34 C.F.R. §300.300(b)] (Emphasis added) Consent is required before the initial provision of special education services; however, no new consent is required if a disability category changes or if the IEP team decides to expand the delivery of services, and consent is not needed on an annual basis when a new IEP is developed and implemented.

Discipline

The regulations that implement the IDEA allow children not yet eligible to receive special education services to assert the IDEA’s disciplinary protections if the school had knowledge that the child was a child with a disability before the disciplinary incident occurred. A school will be deemed to “have knowledge” if, prior to the disciplinary incident: (1) the parents expressed in writing to a school’s administrative or supervisory staff a concern that their child needs special education; (2) the parents requested an evaluation; or (3) school personnel expressed specific concerns about a student’s pattern of behavior to the school’s special education director or other school administrators. [34 C.F.R. § 300.534(b)(1)-(3)]

Dispute Resolution

The federal regulations that implement the IDEA require each State to have in place a system for resolving any special education-related complaints, including those filed by organizations or individuals from other states. [34 C.F.R. § 300.151(a)] Unlike mediation or a due process hearing, which can only be requested by the parent of a child with a disability (or an adult student with a disability if rights have transferred) or a public education agency, any member of the community may file a complaint alleging that a public school has violated a requirement of Part B of the IDEA. This includes parents, advocates, attorneys, school personnel, etc. It is important to note that the State Educational Agency must maintain the confidentiality of student information and will not disclose or discuss confidential student information with a non-parent complainant unless the child’s parent provides written consent. For more information about the state complaint process, visit the state complaint webpage or contact the Dispute Resolution unit at 602-542-3084.
When issues are resolved through mediation, the parties (that is, the parent of a child with a disability and the school) must execute a legally binding agreement that is signed by both parties that sets forth the resolution and clearly states that all discussions that occurred during the mediation process shall remain confidential and may not be used as evidence in any subsequent due process hearing or civil proceeding. This mediation agreement is enforceable in any State court of competent jurisdiction or in a district court of the United States. For more information about mediation, visit the mediation webpage or contact the Dispute Resolution unit at 602-542-3084.
Either a parent of a child with a disability or a public education agency may request mediation as a way to resolve disputes involving any matter that arises under the IDEA or its implementing regulations. [34 C.F.R. § 506(a)] Mediation may be used to resolve issues in a due process complaint or it may be requested, by the parent or the school, to address concerns or disputes that arise prior to the filing of a due process complaint. Mediation must be voluntary on the part of both parties and may not be used to deny or delay a parent’s right to a due process hearing. The Arizona Department of Education maintains a list of qualified mediators who are trained annually in the area of special education law. For more information on the benefits of mediation, visit the mediation webpage or contact the Dispute Resolution unit at 602-542-3084.

Evaluation and Reevaluation

Schools must ensure that children are assessed in all areas related to the suspected disability. [34 C.F.R. § 300.304(c)(4)] Accordingly, if a secondary disability is suspected, then the school should proceed with an evaluation (in accordance with all procedural requirements). If the child’s IEP team determines that additional special education and/or related services are necessary in order for the child to receive a free appropriate public education, but no additional disability categories are suspected, the team can revise the IEP without further evaluation.
“The public agency must provide notice to the parents of a child with a disability . . . that describes any evaluation procedures the agency proposes to conduct.” [34 C.F.R. § 300.304(a)] “The public agency proposing to conduct an initial evaluation to determine if a child qualifies as a child with a disability . . . must . . . obtain informed consent . . . from the parent of the child before conducting the evaluation.” [34 C.F.R. § 300.300(a)] “Consent means that the parent has been fully informed of all information relevant to the activity for which consent is sought, in his or her native language, or other mode of communication, [and] the parent understands and agrees in writing to the carrying out of the activity for which his or her consent is sought, and the consent describes that activity and lists the records (if any) that will be released and to whom. . .” [34 C.F.R. § 300.9] Although it is not required that schools list all specific assessments to be conducted, schools should provide sufficient details and information so that parents are fully informed about the evaluation being proposed.

Extended School Year (ESY)

Extended school year services are special education and related services that are provided to a child with a disability beyond the normal school year, are in accordance with a child’s IEP, are provided at no cost to the parents, and are in alignment with the standards set by the state education agency (SEA). [34 C.F.R. § 300.106(b)] The regulations that implement the IDEA require IEP teams to determine, on an individual basis, whether ESY services are necessary to provide a FAPE to the child. [34 C.F.R. § 300.106(a)(1)] “Student participation in an ESY program is not compulsory. ESY services are not required for all students with a disability.”[A.A.C R7-2-408(D)] “Eligibility for [ESY] participation shall not be based on need or desire for any of the following: 1) A day care or respite care service for students with a disability; 2) A program to maximize the academic potential of a student with a disability; and 3) A summer recreation program for students with a disability.” [Id. at Subsection (E)]
The regulations that implement the IDEA require IEP teams to determine, on an individual basis, whether ESY services are necessary to provide a FAPE to the child. [34 C.F.R. § 300.106(a)(2)] Arizona State Board of Education rules state that, “For a student with a disability currently enrolled in special education, eligibility for ESY services shall be determined no later than 45 calendar days prior to the last day of the school year.” [A.A.C. R7-2-408(C)]

General IDEA Information

Arizona law states invests in teachers the duty to make the decision to promote a pupil from grade to grade or retain a pupil, and to pass or fail a pupil in a course in high school. [A.R.S. § 15-521(4)] The teacher’s decision may be overturned by the public education agency’s governing board. [A.R.S. § 15-342(11)] However, a statute commonly referred to as Move on When Reading prohibits a pupil from being promoted from the third grade if the pupil obtains a score on the reading portion of the AIMS test (Arizona’s Instrument to Measure Standards), or a successor test, that demonstrates that the pupil’s reading falls far below the third grade reading level. [A.R.S. § 15-701(A)(2)(a)] However, it is important to note that a child with a disability may be promoted from the third grade even if he or she falls far below the third grade reading standards “if the pupil’s individualized education program [IEP] team and the pupil’s parent or guardian agrees that promotion is appropriate based on the pupil’s individualized education program.” [A.R.S. § 15-701(A)(2)(b)(ii)]
No. “School day has the same meaning for all children in school, including children with and without disabilities.” [34 C.F.R. § 300.11] Further, the regulations that implement the IDEA presume that a student will not always be educated with his/her nondisabled peers, as evidenced by the requirement that each IEP contain an “explanation of the extent, if any, to which the child will not participate with nondisabled children in the regular class and in [special education and related services].” [34 C.F.R. § 300.320(a)(5)] Moreover, treating children with disabilities differently from their nondisabled peers (which could happen if children with disabilities have a longer school day than their non-disabled peers) may raise civil rights concerns.
“The [United States] Department [of Education] has consistently maintained that a child with a disability should be educated in a school as close to the child’s home as possible, unless the services identified in the child’s IEP require a different location.” [34 C.F.R. Part 300, Analysis of Comments and Changes, Subpart D–Evaluation, Eligibility, IEP, Educational Placement, Federal Register, Vol.71, No. 156, p. 46588 (August 2006)] However, the IDEA “does not mandate that a child with a disability be educated in the school he or she would normally attend if not disabled.” [Id.] Further, the IDEA “does not require that each school building in [a school district] be able to provide all the special education and related services for all types and severities of disabilities.” [Id.] “[A] public agency may have two or more equally appropriate locations that meet the child’s special education and related services needs and school administrators should have the flexibility to assign the child to a particular school or classroom, provided that determination is consistent with the decision of the group determining placement.” [Id.]
According to Arizona State Board of Education rules, a “Paraeducator means a person employed to assist with the education of students but who is not certified to teach by the Arizona Department of Education. Alternate terms may include paraprofessional, teacher aide, instructional assistant or other similar titles.” [A.A.C. R7-2-401(B)(18)] Therefore, paraprofessionals can work with a student to reinforce instruction provided by a special education teacher, but they cannot be the provider of the special education instruction.
In the analysis of comments and changes to the federal regulations, the United States Department of Education explains that “[a] parent does not have a legal right to require other members of the IEP Team to attend an IEP Team meeting. Therefore, if a parent invites other public agency personnel who are not designated by the [school] to be on the IEP Team, they are not required to attend.” [34 C.F.R. Part 300, Analysis of Comments and Changes, Subpart D–Evaluations, Eligibility Determinations, Individualized Education Programs, and Educational Placements. Federal Register, Vol. 71, No. 156, p. 46674 (August 2006)]

Independent Education Evaluation (IEE)

Basically an IEE is a second opinion. The Individuals with Disabilities Education Act (IDEA) and its implementing regulations afford parents of children with disabilities the right to obtain, at public expense, an IEE, which is “an evaluation conducted by a qualified evaluator who is not employed by the public education agency responsible for the education of the child in question.” [34 C.F.R. § 300.502(3)(i)] Under the regulations that implement the IDEA, “[a] parent has the right to an independent educational evaluation at public expense if the parent disagrees with an evaluation obtained by the public agency.” [34 C.F.R. § 300.502(b)(1)] “A parent is entitled to only one IEE at public expense each time the public agency conducts an evaluation with which the parent disagrees.” [34 C.F.R. § 300.502(b)(5)]

In the analysis of comments and changes to the federal regulations that implement the IDEA, the United States Department of Education explains that it is its longstanding position that schools should not have to bear the cost of unreasonably expensive IEEs; thus, they may establish reasonable cost containment criteria. [34 C.F.R. Part 300, Analysis of Comments and Changes, Subpart E – Procedural Safeguards. Federal Register, Vol. 71, No. 156, p. 46689-46690 (August 2006)] However, schools must provide parents the opportunity to demonstrate that unique circumstances justify their selection of an evaluator whose fees fall outside the agency’s criteria. [Id.] “To avoid unreasonable charges for independent educational evaluations, a school district may establish maximum allowable charges for specific tests. If a district does establish maximum allowable charges for specific tests, the maximum cannot simply be an average of the fees customarily charged in the area by professionals who are qualified to conduct the specific test. Rather, the maximum must be established so that it allows parents to choose from among the qualified professionals in the area and only eliminates unreasonably excessive fees.” [Letter to Anonymous, 22 IDELR 637 (OSEP 1995)][See also Letter to Thorne, 16 IDELR 606 (OSEP 1990)] However, although schools can establish reasonable cost containment criteria, a school has but two options when a parent requests an IEE: it can either file a due process complaint to show that its evaluation is appropriate; or it can ensure that an IEE is provided at public expense, unless it demonstrates in a due process hearing that the evaluation obtained by the parent does not meet agency criteria. [34 C.F.R. § 300.502(b)(1) & (2)] The regulations do not give schools the option of unilaterally determining that an IEE does not meet the agency’s cost containment criteria and refusing to provide that IEE at public expense; such a decision can only be made in a due process proceeding.

“If a parent requests an IEE at public expense, the public agency must, without unnecessary delay, either file a due process complaint to request a hearing to show that its evaluation is appropriate;” or “ensure that an IEE is provided at public expense, unless the agency demonstrates in a [due process] hearing . . . that the evaluation obtained by the parent [does] not meet agency criteria.” [34 C.F.R. § 300.502(b)(2)(i)and(ii)] (Please note that there is no requirement that a request for an IEE be in writing.) The regulations that implement the Individuals with Disabilities Education Act (IDEA) do not define the term “unnecessary delay.” However, the United States Department of Education/Office of Special Education Programs (OSEP) has stated that the meaning of “unnecessary delay” depends on the facts and circumstances involved. “[i]t permits a reasonably flexible, though normally brief, period of time that could accommodate good faith discussions and negotiations between the parties over the need for, and arrangements for, an IEE.” [Letter to Anonymous, 56 IDELR 175 (OSEP 2010)]

Individualized Education Program (IEP)

There is nothing in the regulations that implement the IDEA that requires an IEP to state the exact number of minutes that a particular service will be provided. “What is required is that the IEP include information about the amount of services that will be provided to the child so that the level of the agency’s commitment of resources will be clear to parents and other IEP Team members.” [Letter to Matthews, 55 IDELR 142 (OSEP 2010)] The amount of time for a particular service must be appropriate and clearly stated in the IEP so that all parties understand. [34 C.F.R. Part 300, Analysis of Comments and Changes, Subpart D–Evaluation, Eligibility, IEP, Educational Placement, Federal Register, Vol.71, No. 156, p. 46667 (August 2006)] The regulations that implement the IDEA require IEPs to include the projected date for the beginning of services and modifications, and also the anticipated frequency, location, and duration of those services and modifications. Frequency refers to how often a child will receive a service, meaning the number of times per day or per week. Duration refers to how long each session will last, meaning the number of minutes, and also when services will begin and end, meaning the starting and ending dates. [Letter to Matthews, 55 IDELR 142 (OSEP 2010)] An IEP needs to include information on the frequency and the duration; so a designation of 2,500 minutes/year (duration) is insufficient without also including information on the frequency of the service to be provided.
The regulations that implement the IDEA state that IEP meetings should be scheduled at a mutually agreed on time and place. [34 C.F.R. § 300.322(a)(2)] However, the regulations do not require the school to schedule an IEP meeting outside regular school hours to accommodate parents or their experts. [Letter to Thomas, 51 IDELR 224 (OSEP 2008)]

Myths of Special Education

Not necessarily. The Individuals with Disabilities Education Act (IDEA) requires schools to place students in the LRE. LRE means that, to the maximum extent appropriate, schools must educate students with disabilities in the regular classroom with appropriate aids and supports, referred to as “supplementary aids and services,” along with their nondisabled peers in the school they would attend if not disabled, unless a student’s individualized education program (IEP) requires some other arrangement. This requires an individualized inquiry into the unique educational needs of each student with a disability in determining the possible range of aids and supports that are needed to facilitate the student’s placement in the regular educational environment before considering a more restrictive placement. [U.S. Department of Education, OSEP Memorandum 95-9 (November 23, 1994)] Although there is a strong preference for educating a child in the regular classroom, this may not always be the LRE. For example, a deaf student who communicates only with sign language may be unable to communicate easily or directly with hearing peers in the general education classroom/environment. In this case, a more restrictive environment on the continuum of possible placements, say a placement at a special school for the deaf, may actually be less restrictive for this child.
Not according to the Individuals with Disabilities Education Act (IDEA) or Arizona State Board of Education rules (although some states and districts have imposed such a requirement). Although the regulations that implement the IDEA require that parents provide informed written consent prior to the initial provision of special education services [34 C.F.R. § 300.300(b)], there is nothing in the IDEA that requires IEP team members to sign the IEP. The United States Department of Education, Office of Special Education Programs (OSEP) believes it would be overly burdensome to impose such a requirement. [34 C.F.R. Part 300, Analysis of Comments and Changes, Subpart D–Evaluations, Eligibility Determinations, Individualized Education Programs, and Educational Placements. Federal Register, Vol. 71, No. 156, p. 46682 (August 2006)] Schools generally ask meeting participants to sign only to indicate that they were present as meeting participants.
There is no such requirement in the Individuals with Disabilities Education Act (IDEA). The regulations that implement the IDEA require each child’s IEP team to determine the special education and related services that are needed to meet the child’s unique needs in order for the child to receive a free appropriate public education (FAPE). [34 C.F.R. §§ 300.320 and 324] If consensus is not possible, then schools have a duty to come up with an appropriate plan with the information from the IEP meeting, and then provide the parents the opportunity for due process if they disagree. [Doe v. Maher, 793 F.2d 1470 (9th Cir. 1986)]
There is no such requirement in the Individuals with Disabilities Education Act (IDEA). The regulations that implement the IDEA state that a school “must take steps to ensure that one or both of the parents of a child with a disability are present at each IEP Team meeting or are afforded the opportunity to participate.” Schools must notify “parents of the meeting early enough to ensure that they will have an opportunity to attend,” and schedule “the meeting at a mutually agreed time and place.” [34 C.F.R. § 300.322(a)(1)and(2)]
This is neither required nor recommended. In Doe v. Maher, the 9th U.S. Circuit Court of Appeals (of which Arizona is a part) addressed the question of whether, in the IEP team decision-making process, the team is required to follow a “majority rules” type of vote in making decisions. [793 F.2d 1470 (1986)] The court reasoned that a head count did not make sense due to the inconsistent makeup of IEP teams at meetings, and the potential for encouraging parties to “stack the deck.” Thus, schools have a duty to come up with an appropriate plan with the information from the meeting, and provide parents written notice of the final decision and the opportunity for due process if they disagree. [Id.]

Notice: Meeting Notice, Prior Written Notice (PWN), and Procedural Safeguards Notice (PSN)

There is no such requirement in the Individuals with Disabilities Education Act (IDEA). The regulations that implement the IDEA state that a school “must take steps to ensure that one or both of the parents of a child with a disability are present at each IEP Team meeting or are afforded the opportunity to participate.” Schools must notify “parents of the meeting early enough to ensure that they will have an opportunity to attend,” and schedule “the meeting at a mutually agreed time and place.” [34 C.F.R. § 300.322(a)(1)and(2)]
The regulations that implement the IDEA require a school to provide parents with written notice “a reasonable time before the public agency proposes or refuses to initiate or change the identification, evaluation, or educational placement of the child, or the provision of a free appropriate public education (FAPE) to the child.” [34 C.F.R. § 300.503(a)(1)-(2)] “We do not believe that it is necessary to substitute a specific timeline to clarify what is meant by the requirement that the notice be provided within a reasonable period of time. [34 C.F.R. Part 300, Analysis of Comments and Changes, Subpart D–Evaluation, Eligibility Determinations, IEP, Educational Placement, Federal Register, Vol. 71, No. 156, p. 46657 and 46658 (August 2006)] In a nutshell, schools have to provide PWN after the IEP team makes a decision but before that decision is implemented. “Providing prior written notice in advance of meetings could suggest, in some circumstances, that the [school’s] proposal was improperly arrived at before the meeting and without parent input.” [Federal Register, p. 46691 (August 2006)]
There is no such requirement. The regulations that implement the Individuals with Disabilities Education Act (IDEA) require a school to provide parents with written notice a reasonable time before the public agency proposes or refuses to initiate or change the identification, evaluation, or educational placement of the child, or the provision of a free appropriate public education (FAPE) to the child.” [34 C.F.R. § 300.503(a)(1)-(2)] The U.S. Department of Education/Office of Special Education Programs has stated, “We do not believe that it is necessary to substitute a specific timeline to clarify what is meant by the requirement that the notice be provided within a reasonable period of time. [34 C.F.R. Part 300, Analysis of Comments and Changes, Subpart D–Evaluations, Eligibility Determinations, Individualized Education Programs, and Educational Placements. Federal Register, Vol. 71, No. 156 p. 46657 and 46658 (August 2006)] “Providing prior written notice in advance of meetings could suggest, in some circumstances, that the [school’s] proposal was improperly arrived at before the meeting and without parent input.” [34 C.F.R. Part 300, Analysis of Comments and Changes, Subpart E–Procedural Safeguards. Federal Register, Vol. 71, No. 156, p. 46691 (August 2006)]

Placement (Educational Placement)

Progress Reports

Records (Education Records)

“Education record” is a term defined under the Family Educational Rights and Privacy Act (FERPA) and incorporated into the IDEA by reference. FERPA defines education records as records that are directly related to a student and that are maintained by an educational agency. [20 U.S.C. § 1232g(d); 34 C.F.R. § 99.3] FERPA “regards as an education record most information that teachers, school administrators, and education officials maintain about students in a tangible format, whether in electronic, photographic, or paper files.” [National Forum on Education Statistics. Forum Guide to Protecting the Privacy of Student Information: State and Local Education Agencies, NCES 2004-330. Washington, DC: 2004] The regulations that implement the IDEA require public schools to allow parents to inspect and review any education records relating to their children that are collected, maintained, or used by the school under Part B of the IDEA. [34 C.F.R. § 300.613(a)] Therefore, a “special education record” (relating to the identification, evaluation, educational placement, or the provision of a free appropriate public education (FAPE) to a child) is a smaller subset of the term “education record.”

Special Education and Related Services

The IDEA regulations define special education as “specially designed instruction, at no cost to parents, to meet the unique needs of a child with a disability.” [34 C.F.R. § 300.39(a)(1)] The regulation continues: “[s]pecially designed instruction means adapting, as appropriate to the needs of the eligible child … the content, methodology, or delivery of instruction.” [Id. at subsection (a)(3)] The United States Department of Education/Office of Special Education Programs (OSEP) “recognizes that classrooms across the country are changing as the field of special education responds to innovative practices and increasingly flexible methods of teaching. [However], [w]hile the needs of many learners can be met using such methods [best teaching practices or services that are part of a school’s regular education program], they do not replace the need of a child with a disability for unique, individualized instruction that responds to his or her disability and enables the child to meet the educational standards within the jurisdiction of the public agency that apply to all children.” [Letter to Chambers, 59 IDELR 170 (OSEP 2012)] (Emphasis added) If a child with a disability can access the general education curriculum without specially designed instruction or related services, the child’s eligibility under the IDEA would be called into question.
The regulations that implement the Individuals with Disabilities Education Act (IDEA) define special education as specially designed instruction, which “means adapting, as appropriate to the needs of an eligible child . . . the content, methodology, or delivery of instruction.” [34 C.F.R. § 300.39(b)(3)] While this means that special education is different from general education, it also means that special education is something more than providing accommodations and/or assisting a student with assignments. Although students eligible for special education may need some accommodations to access the general education environment, simply providing accommodations and/or academic support does not equate with specialized instruction.

Timelines

According to Arizona State Board of Education rules, when a parent makes a written request for the IEP team to reconvene, the school must do so within 15 school days or at mutually agreed upon time not to exceed 30 school days. [A.A.C. R7-2-401(G)(7)]

The regulations that implement the IDEA state that if a child with a disability transfers to a new school within the same State during the same school year, the new school (in consultation with the parents) must provide the child a FAPE, which includes services comparable to those described in the child’s IEP from the previous school, until the new school either (1) adopts the child’s IEP from the previous school; or (2) develops, adopts, and implements a new IEP. [34 C.F.R §300.323(e)(1)(2)] There is no mention in the IDEA regulations about establishing an interim IEP, and there is no grace period during which the new school can delay providing services comparable to those required by the student’s transfer IEP. (The same regulation at subsection (f)(1)(2) addresses students who transfer from another state, and the requirement to provide comparable services is the same.)

Although there is no specific IDEA regulation that defines comparable services, the United States Department of Education has opined that, “[w]e do not believe it is necessary to define ‘comparable services’ because the Department [of Education] interprets ‘comparable’ to have the plain meaning of the word, which is ‘similar’ or ‘equivalent.’” [34 C.F.R. Part 300, Analysis of Comments and Changes, Subpart D–Evaluation, Eligibility Determinations, IEP, Educational Placement. Federal Register, Vol.71, No. 156, p. 46681 (August 2006)]

The regulations that implement the IDEA require a school to convene a student’s IEP team to develop an IEP within 30 calendar days of the date when eligibility was determined. [34 C.F.R. § 300.323(c)(1)] This requirement is “longstanding,” and “experience has demonstrated that the 30-day timeline for conducting a meeting to develop an IEP is a reasonable time to provide both [schools] and parents the opportunity to ensure that required participants can be present at the IEP Team meeting.” [34 C.F.R. Part 300, Analysis of Comments and Changes, Subpart D–Evaluation, Eligibility Determinations, IEP, Educational Placement. Federal Register, Vol. 71, No. 156, p. 46680 (August 2006)] (Please note that this 30-day timeline applies only to the development of the first IEP after eligibility is determined; schools do not have 30 days past the annual review date of successive IEPs to develop and implement subsequent IEPs or transfer IEPs.)

Transportation

The regulations that implement the IDEA and Arizona State Board of Education rules are silent as to the amount of time a child with a disability can spend on the bus. However, it is logical to assume that if a child requires transportation as a related service, then the school day would begin when the child gets on the school bus. Although the length of a school day is not addressed in the IDEA, as a general rule the length of a school day for a student eligible for special education should not be longer or shorter than a school day for a non-disabled peer. “However, if a child’s IEP Team determines a child needs a shorter or extended school day in order to receive [a] FAPE, then appropriate modifications should be incorporated into the IEP. However, these modifications must be based on the unique needs of the child, as determined by the IEP team, and not solely based on the child’s transportation time.” [Questions and Answers on Serving Children with Disabilities Eligible for Transportation, Question B-1 (OSERS 2009)]See the entire OSERS document on transportation at Q and A: Questions and Answers on Transportation

No. “The Individuals with Disabilities Education Act (IDEA) does not require [schools] to transport children with disabilities in separate vehicles, isolated from their peers. In fact, many children with disabilities can receive the same transportation provided to non-disabled children, consistent with the least restrictive environment requirements in 34 C.F.R. §§300.39(a)(2)(ii) and 300.39(b)(4).” [Questions and Answers on Serving Children with Disabilities Eligible for Transportation, Question A-2 (OSERS 2009)

See the entire OSERS document on transportation at Q and A: Questions and Answers on Transportation

“Effective communication between schools and transportation providers is essential, including communication about transportation needs and potential problems of children with disabilities. To the extent appropriate, school personnel in [schools] should ensure that school bus drivers or other transportation providers are well informed about protecting the confidentiality of student information related to (1) the special needs of individual children with disabilities who ride on school buses with their general education peers, and (2) possible strategies and assistance that may be available to drivers(including the use of aides on buses).” [Questions and Answers on Serving Children with Disabilities Eligible for Transportation, Question D-1 (OSERS 2009)]

See the entire OSERS document on transportation at Q and A: Questions and Answers on Transportation


Back to Dispute Resolution