Special Education Tip of the Week

Can a public school district or charter school designate itself as an inclusion-only school and turn special education students away if they need a more restrictive placement? (The submitter of this question wishes to remain anonymous.)

No. In Arizona, charter schools may not “limit admission based on ethnicity, national origin, gender, income level, disabling condition, or proficiency in the English language, or athletic ability.” (Emphasis added) [A.R.S. § 15-184(F)] The regulations that implement the IDEA state that schools “must ensure that a continuum of alternative placements is available to meet the needs of children with disabilities for special education and related services.” [34 C.F.R. § 300.115(a)] Schools must ensure that determinations regarding a child’s educational placement are made by the child’s IEP team, including his or her parent, and that they are made in conformity with the least restrictive environment provisions of the IDEA. [34 C.F.R. § 300.116] Placement decisions must be made based on the needs of the student and not the philosophy or convenience of the school.

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Assistive Technology

The equipment inventory available through this program is available for loan to personnel from public education agencies (i.e., districts, charters, and other public schools), as defined in Arizona state statute and recognized by the Arizona Department of Education. This program is designed to provide short-term (4 weeks) loans of assistive technology and/or universal design for learning products to be used for the following purposes:

• Consideration/Assessment as part of the IEP development process or IEP recommendations
• Classroom implementation on a time limited basis
• Serve as temporary loaner during device repair or while waiting for funding
• Provide an accommodation for a student on a short-term basis
• Professional development (teacher training, skill development, etc.)

Although families are not eligible to use the ADE AT lending library, they can access a similar program provided by the Arizona Technology Access Program. Parents may borrow items from the AzTAP AT Loan program at no charge for a 2-week trial period. Families can also make appointments with AzTAP for free demonstrations of the assistive technology products it has in its inventory. For more information on assistive technology, visit the ADE Assistive Technology webpage.

Yes. The key word is “consider.” The responsibility for developing a student’s IEP rests with the IEP team, which is charged with the duty to review the strengths of the child, the concerns of the parents, the results of evaluations, and the developmental and functional needs of the child. [34 C.F.R. §300.324(a)] Further, the IEP team must consider the communication needs of the child and whether the child needs assistive technology devices/services. [Id. at subsection (a)(2)(v)] The federal regulations, at §§ 300.6(a) through (f), explain the breadth of services required of school districts as they provide for the acquisition of assistive technology devices for children with disabilities, including: the selecting, customizing, adapting, maintaining, repairing, or replacing AT devices; training or technical assistance for a child with a disability or, if appropriate, that child’s family; and training or technical assistance for professionals who provide services to the child. For more information on assistive technology, visit the ADE Assistive Technology webpage.

“Assistive technology service means any service that directly assists a child with a disability in the selection, acquisition, or use of an assistive technology device. The term includes the evaluation of the needs of a child with a disability . . . purchasing, leasing, or otherwise providing for the acquisition of assistive technology devices . . . selecting, designing, fitting, customizing, adapting, applying, maintaining, repairing, or replacing assistive technology devices . . .coordinating and using other therapies, interventions, or services with assistive technology devices . . . . training or technical assistance for a child with a disability or, if appropriate, that child’s family . . . and training or technical assistance for professionals, employers, or other individual who provide services to, employ, or are otherwise substantially involved in the major life functions of that child.” [34 C.F.R. § 300.6] For more information on assistive technology, visit the ADE Assistive Technology webpage.

Charter Schools

The federal regulations are clear that children with disabilities who attend public charter schools and their parents retain all rights afforded to them under the IDEA, and the charter school is responsible for ensuring that it carries out all of the requirements of Part B of the IDEA. [34 C.F.R. §§ 300.209(a) and (c)] In Arizona, charter schools are considered public schools [A.R.S. § 15-181(A)], and Arizona state law requires that “[a]ll school districts and charter schools shall develop policies and procedures for providing special education to all children with disabilities within the district or charter school.” [A.R.S. § 15-763(A)] Each public school must make available a full continuum of alternative placement options to meet the needs of children with disabilities, including “instruction in regular classes, special classes, special schools, home instruction, and instruction in hospitals and institutions.” [34 C.F.R. § 300.115(a) and (b)(1)] Schools are also required to “make provision for supplementary services (such as resource room or itinerant instruction) to be provided in conjunction with regular class placement.” [Id. at subsection (b)(2)]

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

The Commentary to the IDEA regulations states that “Section 300.300(b)(4) allows a parent at any time after the initial provision of special education and related services to revoke consent for the continued provision of special education and related services to their child in their entirety. Under § 300.300(b)(1), parental consent is for the initial provision of special education and related services generally, not for a particular service or services. In situations where a parent disagrees with the provision of a particular special education or related service and the parent and public agency agree that the child would be provided with FAPE if the child did not receive that service, the public agency should remove the service from the child’s IEP and would not have a basis for using the procedures in subpart E to require that the service be provided to the child. If, however, the parent and public agency disagree about whether the child would be provided with FAPE if the child did not receive a particular special education or related service, the parent may use the due process procedures in subpart E of these regulations to obtain a ruling that the service with which the parent disagrees is not appropriate for their child.” [Federal Register, Vol. 73, No. 231, p. 73011 (2008)] (Emphasis added)
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 United States Department of Education/Office of Special Education Programs (OSEP) has explained that whether a bus suspension counts as a day of removal depends on whether bus transportation is included in the child’s IEP. “If the bus transportation were a part of the child’s IEP, a bus suspension would be treated as a suspension . . . unless the public agency provides the bus service in some other way, because that transportation is necessary for the child to obtain access to the location where services will be provided. If the bus transportation is not a part of the child’s IEP, a bus suspension is not a suspension (under § 300.530).” [34 C.F.R. Part 300, Analysis of Comments and Changes, Subpart E-Procedural safeguards, Federal Register, Vol. 71, No. 156, p. 46715 (August 2006)]
“Portions of a school day that a child had been suspended may be considered as a removal in regard to determining whether there is a pattern of removals.” [34 C.F.R. Part 300, Analysis of Comments and Changes, Subpart E-Procedural safeguards, Federal Register, Vol. 71, No. 156, p. 46715 (August 2006)] In-school suspension would not count as a day of removal as long as the child “is afforded the opportunity to continue to appropriately participate in the general curriculum, continue to receive the services specified in [his/her] IEP, and continue to participate with nondisabled children to the extent they would have in their current placement.” [Id.; see also A.A.C. R7-2-401(B)(26)]

“After a child with a disability has been removed from his or her current placement for 10 school days in the same school year, if the current removal is for not more than 10 consecutive school days and is not a change of placement under §300.536, school personnel, in consultation with at least one of the child’s teachers, determine the extent to which services are needed . . . so as to enable the child to continue to participate in the general education curriculum, although in another setting, and to progress toward meeting the goals set out in the child’s IEP.” [34 C.F.R. § 300.530(d)(4)] “If the removal is a change of placement under §300.536, the child’s IEP Team determines appropriate services. . .” [Id. at subsection (d)(5)] Remember, a disciplinary change of placement occurs if: (1) the student is removed for more than 10 consecutive school days, or (2) the student is subjected to a series of removals that constitute a pattern. [34 C.F.R. § 300.536]

The educational services a child will receive during days of removal will depend on the circumstances and need not replicate everything in the child’s IEP. The United States Department of Education/Office of Special Education Programs (OSEP) offers the following guidance: “We believe the extent to which educational services need to be provided and the type of instruction to be provided would depend on the length of the removal, the extent to which the child has been removed previously, and the child’s needs and educational goals. For example, a child with a disability who is removed for only a few days and is performing near grade level would not likely need the same level of educational services as a child with a disability who has significant learning difficulties and is performing well below grade level.” [34 C.F.R. Part 300, Analysis of Comments and Changes, Subpart E-Procedural Safeguards, Federal Register, Vol.71, No. 156, p. 46717 (August 2006)]

Arizona Revised Statutes (A.R.S.) acknowledge the authority of teachers and schools to maintain order and to discipline students, and to hold pupils to strict account for disorderly conduct on school property. [A.R.S. § 15-341(14)] There is nothing in the IDEA regulations or in Arizona law that allows a school to cede to parents or a student’s IEP team the deciding voice on whether or not discipline is to be imposed, and if so, the amount and severity of that discipline.
It depends. The regulations that implement the IDEA state that school personnel may remove a child with a disability who violates the code of conduct from his/her current educational placement for not more than 10 consecutive school days and during that time, no services need to be provided (as long as educational services are not provided during similar removals involving children without disabilities). [34 C.F.R. § 300.530(b)] However, after a child has been removed from his/her current placement for more than ten school days in the same year for disciplinary reasons, the school must ensure that the child receives a FAPE. [Id.] In other words, the school must ensure that the child receives educational services that enable him/her to continue to participate in the general curriculum and to progress toward meeting the goals set out in his/her IEP.[34 C.F.R. § 300.530(d)]
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

IEP teams are encouraged to work toward consensus, but when this is not possible the individual designated as the public education agency representative on the IEP team must make a final decision and notify the parent of the decision via prior written notice (PWN). [Pasatiempo v. Aizawa, 103 F. 3d 796 (9th Cir. 1996)] While parents do not have veto power over IEP team decisions, they may challenge an IEP team decision that they disagree with by requesting mediation or filing a due process complaint against the school. [34 C.F.R. §§ 300.506(a) and 300.507(a) respectively] The IDEA provides these procedural safeguards as a means for resolving disputes between parents and schools concerning the identification, evaluation, placement, or the provision of a free appropriate public education (FAPE).
No. Although anyone can file a state administrative complaint alleging a procedural violation of the IDEA [34 C.F.R. § 300.153(a)], the regulations that implement the IDEA specify that a “parent or a public agency may file a due process complaint on any [ ] matter [ ] . . . relating to the identification, evaluation or educational placement of a child with a disability, or the provision of [a] FAPE to the child.” [34 C.F.R. § 300.507(a)] Because “[a]ll rights accorded to parents under [the IDEA] transfer to the child” when that child reaches the age of majority according to 34 C.F.R. § 300.520(a)(1)(ii), a child who reaches the age of majority may also file a due process complaint.
No. The regulations that implement the IDEA state that “[a]n organization or individual may file a signed written complaint.” [34 C.F.R. § 300.153(a)] Although parents typically file complaints, this is not a right granted only to parents. In fact, anyone can file a complaint, including, but not limited to, a teacher, student, paraprofessional, neighbor, grandparent, school psychologist, advocate, etc. Unlike mediation or due processes, which are procedural safeguards guaranteed to parents of children with disabilities, the state administrative complaint system falls under the State Educational Agency’s (SEA) general supervisory authority to ensure that public schools are complying with the requirements Part B of the IDEA. Put another way, the complaint system is a way for the general public to alert the SEA that there may be noncompliance with IDEA in a public school and provides the SEA a way to conduct a targeted compliance monitoring. Please note that if the complainant is not the parent or legal guardian of the child that is the subject of the complaint, the letter of findings, which is a confidential student record, will not be shared with the complainant absent written parental consent to disclose the record.
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

The regulations that implement the IDEA state that “a public agency must evaluate a child with a disability . . . before determining that the child is no longer a child with a disability.” [34 C.F.R. § 300.305(e)(1)] However, if the IEP team is merely making a determination that a related service is no longer needed, no evaluation would be required before removing that related service from a student’s IEP. Put another way, because the related service is part of the student’s FAPE, the student’s need for such a service is an IEP team decision. However, if a student, for example, qualifies for special education under the category of speech-language impairment (SLI) and receives speech services in that regard, and the IEP team believes that the child no longer requires speech services, then the school must begin the evaluation process to determine whether the student continues to be a child with a disability. (If the student’s MET determines that no additional assessments are needed and that the team has sufficient information and data to make a determination, then no additional assessments would be required, but the school would still need to complete the evaluation process.)
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.
Because a student’s educational needs can change over time, the regulations that implement the IDEA require that a student be reevaluated every three years unless the parent and the school agree that such a reevaluation is unnecessary. [34 C.F.R. § 300.303(b)(2)] A reevaluation can occur more frequently, but not more than once a year, unless the parent and the school agree otherwise. [34 C.F.R. § 300.303(b)(1)] This does not mean that a school is required to conduct additional assessments if the IEP team, in conducting its review of existing data, determines that no additional data are needed to determine whether the child continues to have a qualifying disability and continues to need special education and related services; the educational needs of the child; or whether the child has an additional category of disability. Said another way, additional assessments every three years are not necessarily required, but a reevaluation every three years is required. [See 34 C.F.R. § 300.305]

Arizona State Board of Education rules spell out the following requirements for evaluations:

  • Emotional disability: verification of a disorder by a psychiatrist, licensed psychologist, or a certified school psychologist. [A.A.C. R7-2-401(E)(6)(a)]
  • Hearing impairment: an audiological evaluation by an audiologist. [A.A.C. R7-2-401(E)(6)(b)]
  • Other health impairment: verification of a health impairment by a doctor of medicine. [A.A.C. R7-2-401(E)(6)(c)]
  • Orthopedic impairment: verification of a physical disability by a doctor of medicine. [A.A.C. R7-2-401(E)(6)(e)]
  • Speech-language impairment: an evaluation by a certified speech-language therapist. [A.A.C. R7-2-401(E)(6)(f)]
  • Traumatic brain injury: verification of the injury by a doctor of medicine. [A.A.C. R7-2-401(E)(6)(h)]
  • Visual impairment: verification of a visual impairment by an ophthalmologist or optometrist. [A.A.C. R7-2-401(E)(6)(i)]
According to the regulations that implement the IDEA, either a parent or school may initiate the evaluation process. [34 C.F.R. § 300.301(b)] However, if a school has no basis for suspecting that a student might have a qualifying disability under the IDEA, it need not conduct an initial evaluation. [Pasatiempo v. Aizawa, 103 F.3d 796 (9th Cir. 1996)] In those cases, however, educators must inform parents of their decisions in a prior written notice and afford them an opportunity to challenge the decision by exercising their procedural safeguards right to mediation or due process. [34 C.F.R. § 300.503(a)(2)] Said another way, “[i]f a parent requests a reevaluation and the public agency disagrees that a reevaluation is needed, the public agency must provide prior written notice to the parent, consistent with § 300.503, that explains, among other things, why the agency refuses to conduct the reevaluation and the parent’s right to contest the agency’s decision through mediation or a due process hearing.” [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. 46640 (August 2006)]

“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)

The determination of whether a pupil is eligible for ESY services shall take into account least restrictive environment considerations and shall be determined by a multifaceted inquiry by the [IEP] team based on retrospective data, such as past regression and the rate of recoupment, and predictive data. [A.R.S. § 15.881(B)] “The critical question that each IEP team must ask regarding ESY services is whether meaningful progress on critical skills related to IEP goals that occurred during the regular school year will be significantly jeopardized (thus significantly jeopardizing the provision of FAPE) if ESY is not provided.” [Arizona Department of Education, Exceptional Student Services (ESS) AZ-TAS Guidelines for Extended School Year Services, February 2007, pg. 2] A critical skill is defined as an academic, social, functional or behavioral skill that is related to an IEP goal and is critical to the student’s overall school and community functioning. [Id. pg. 5] It may be that some goals on a student’s IEP are not critical skills. Therefore, it is incumbent on the IEP team to make “a determination if the student’s IEP contains critical skills that need ESY services in order to ensure [a] FAPE to the student.” [Id. pg. 12]
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

In Arizona, homeschooled students are considered private school students. [A.R.S. § 15-763(C)] The regulations that implement the IDEA state that “[n]o parentally-placed private school child with a disability has an individual right to receive some or all of the special education and related services that the child would receive if enrolled in a public school.” [34 C.F.R. § 300.137(a)] (However, a parentally-placed private school student may be entitled to some services under the proportionate share and equitable service provisions of the IDEA. [See 34 C.F.R. § 300.130 – 300.144]) If an IEP team determines that the appropriate and least restrictive setting for a student is a private school, then this placement must be provided at no cost to the parent. [See § 300.146 for other responsibilities of the local education agency when a student is placed in a private school by the student’s IEP team] A determining factor is whether the student is unilaterally placed in a private school by his/her parents, or whether the IEP team determines that the most appropriate and least restrictive environment for the student is a private school.
Although a student can meet eligibility requirements in more than one area of disability, it is not the label or category that is important. The important thing is that eligible students receive a free appropriate public education “designed to meet their unique needs and prepare them for further education, employment, and independent living.” [34 C.F.R. § 300.1(a)] The regulations that implement the IDEA require schools to evaluate students in all suspected areas of disability [34 C.F.R. § 300.304(c)(4)], and each child’s IEPs must contain measurable annual goals designed to “meet the child’s needs that result from the child’s disability to enable the child to be involved in and make progress in the general education curriculum and meet each of the child’s other educational needs that result from the child’s disability.” [34 C.F.R. § 300.320(a)(2)(i)] As a practical matter, there is nothing in the IDEA that requires students to be classified by their disability so long as each child who has a disability and who needs special education is regarded as a child with a disability under the IDEA. [34 C.F.R. § 300.111(d)]
A student eligible for special education is entitled to certain protections outlined in the IDEA (in disciplinary matters, for example), but the right to obtain a particular grade is not enumerated anywhere in these protections. The purpose of the IDEA is “to ensure that all children with disabilities have available to them a free appropriate public education that emphasizes special education and related services designed to meet their unique needs and prepare them for further education, employment, independent living.” The United States Supreme Court has articulated that “. . . the intent of the [IDEA] was more to open the doors of public education to [children with disabilities] on appropriate terms than to guarantee any particular level of education once inside.” [Board of Education of the Hendrick Hudson Central School District v. Rowley, 455 U.S. 175, 102 S.Ct. 3034, (1982)] Thus, an IEP is not a contract, and a school cannot be held liable if a student does not perform at a certain level. Arizona law is clear that teachers “make the decision to promote or retain a pupil in grade in a common school or to pass or fail a pupil in a course in high school.” [A.R.S. § 15-521] (There is, however, a specific exception pertaining to the promotion from third grade under A.R.S. § 15-701). Accordingly, the assignment of grades is not something that can be determined by an IEP team and included in a child’s IEP.
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)

An evaluation conducted in order to determine if a child is a child with a disability under the IDEA is a process that begins with a review of existing data and ends with a determination as to the child’s eligibility to receive special education and related services. [34 C.F.R. §§ 300.301-311] If a school conducts an evaluation and the multidisciplinary evaluation team (MET) determines that a child is not eligible, the parent would be entitled to an IEE, even if the eligibility determination is solely based on a review of existing data. [See 34 C.F.R. § 300.305] This is not the case when a parent requests an initial evaluation to determine if a child is eligible for special education and the school refuses (via PWN) to conduct the evaluation because it has no reason to suspect that the child is a child with a disability who needs special education. [34 C.F.R. § 300.503(a)] That is, if a school refuses to conduct an initial evaluation because there is no suspicion that the child has a qualifying disability, the parent would not be entitled to an IEE, although he/she would have the right to challenge the school’s refusal to evaluate the child by requesting mediation or a due process hearing.
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)

When assembling an IEP team, a school is required by the regulations that implement the IDEA to include, at a minimum, a regular education teacher of the child, a special education teacher of the child, the parent(s), an agency representative who has the authority to commit resources, someone to explain evaluation results, and, when appropriate, the child. [34 C.F.R. § 300.321] Others are permitted to attend, but are not required, including, “at the discretion of the parent or the [school], other individuals who have knowledge or special expertise regarding the child, including related services personnel as appropriate.” [34 C.F.R. § 300.321(a)(6)] The Commentary to the federal regulations offers additional guidance: “The public agency determines the specific personnel to fill the roles for the public agency’s required participants at the IEP team meeting. Whether other teachers or service providers who are not the public agency’s required participants at the IEP Team meeting can attend an IEP Team meeting is best addressed by State and local officials.” [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. 46675 (August 2006)]
IEP meetings can be conducted without all the required members being in attendance, but there are specific requirements. A required participant can be excused “in whole or in part, if the parent of a child with a disability and the [school] agree, in writing, that the attendance of the member is not necessary because the member’s area of the curriculum or related services is not being modified or discussed in the meeting.” [34 C.F.R. § 300.321(e)(1)] If the required member’s area is being discussed, then the member can be excused if the school and the parent consent to the excusal, in writing, and if the required member submits, “in writing to the parent and the IEP team, input into the development of the IEP prior to the meeting.” [Id. at subsection (e)(2)] “The [IDEA] does not specify how far in advance of an IEP Team meeting a parent must be notified of an agency’s request to excuse a member from attending an IEP Team meeting or when the parent and [the school] must sign a written agreement or provide consent to excuse an IEP Team member. . . We do not believe it is appropriate to impose a specific timeframe for matters relating to the excusal of IEP Team members.” [34 C.F.R. Part 300, Analysis of Comments and Changes, Subpart D–General, Federal Register, Vol. 71, No. 156, p. 46676 (August 2006)] Although the commentary to the IDEA regulations anticipates the excusal of a required IEP team participant when this is known prior to the convening of an IEP team, the regulations specifically address “in whole or in part,” therefore indicating that written consent is required when circumstances arise during a meeting that necessitate a required IEP team participant to leave prior to the conclusion of the meeting. “We do not believe that it is appropriate to require that the request to excuse an IEP Team member from an IEP Team meeting be included in the meeting notice, because the public agency may not be aware of the need to request an excusal of a member at the time the IEP Team meeting notice is sent. For similar reasons, it is not appropriate to require that the IEP Team meeting notice include any written input from an IEP Team member who may be excused from the IEP Team meeting. [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. 46678 (August 2006)]
When assembling an IEP team, a school is required by the federal regulations that implement the IDEA to include, at a minimum, a regular education teacher of the child, a special education teacher of the child, the parent(s), an agency representative who has the authority to commit resources, someone to explain evaluation results, and, when appropriate, the child. [34 C.F.R. § 300.321] Others are permitted to attend, but are not required, including, “at the discretion of the parent or the [school], other individuals who have knowledge or special expertise regarding the child, including related services personnel as appropriate.” [34 C.F.R. § 300.321(a)(6)] The determination of knowledge or special expertise is made by the person inviting that individual to be a member of the student’s IEP team. [34 C.F.R. § 300.321(c)] A school’s failure to ensure the attendance of all necessary parties at an IEP meeting may result in the development of an incomplete and insufficient IEP, in violation of the school district’s affirmative duties under the IDEA. [See W.G B.G. v. Board of Trustees of Target Range School District No. 23, 960 F.2d1479 (9th Cir. 1992)]
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)

The regulations that implement the IDEA require schools to notify parents that an IEP meeting will take place early enough to ensure they are afforded the opportunity to participate. [34 C.F.R. § 300.322(a)] This “meeting notice” must indicate the purpose, time, and location of the meeting, and who will be in attendance. [34 C.F.R. § 300.322(b)] According to the United States Department of Education/Office of Special Education Programs (OSEP), the notice may indicate only the positions of the individuals from the public agency who will attend, rather than the names of the individuals. [Letter to Livingston, 21 IDELR 1060 (OSEP 1994)]
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)

The federal regulations that implement the IDEA require schools to afford the parents of a child with a disability an opportunity to participate in meetings that concern the identification, evaluation, educational placement, or the provision of a free appropriate public education (FAPE) to their child. [34 C.F.R. § 300.501(b)] Further, the regulations specify that schools are required to ensure that a parent is a member of any group that makes decisions regarding a child’s educational placement. [Id. at subsection (c)] In its Letter to Burton, the United States Department of Education/Office of Special Education Programs (OSEP) explains that the “[Individuals with Disabilities Education Act (IDEA)] does not permit a placement decision to be based solely on parent preference; however, it is one factor that a public agency may consider in making a placement decision.” [17 IDELR 1182; 17 LRP 1339 (OSEP 1991)] The spirit behind the regulations is one of collaboration, and IEP teams are encouraged to make decisions by consensus. However, when consensus cannot be reached, the school is charged with making a decision, providing the parents written notice of the decision and the reason or reasons for the decision, and informing the parents of their right to challenge the decision by requesting mediation or a due process hearing. The regulations are clear that disagreements between parents and schools about the availability of an appropriate program for the child, and questions about financial reimbursement for a parent’s unilateral private school placement, are subject to the due process procedures. [34 C.F.R. § 300.148(c)].
Public schools, including charter schools, “must ensure that a continuum of alternative placements is available to meet the needs of children with disabilities for special education and related services.” [34 C.F.R. § 300.115(a)] This continuum of educational placements must include “instruction in regular classes, special classes, special schools, home instruction, and instruction in hospitals and institutions.” [Id.] “Although the [IDEA] does not require that each school building in an LEA be able to provide all the special education and related services for all types and severities of disabilities, the [school] has an obligation to make available a full continuum of alternative placement options that maximize opportunities for its children with disabilities to be educated with nondisabled peers to the extent appropriate. In all cases, placement decisions must be individually determined on the basis of the child’s abilities and needs and each child’s IEP, and not solely on factors such as category of disability, severity of disability, availability of special education and related services, configuration of the service delivery system, availability of space, or administrative convenience.” [34 C.F.R. Part 300, Analysis of Comments and Changes, Subpart B–State Eligibility, Federal Register, Vol.71, No. 156, p. 46588 (August 2006)] Therefore, if a school does not have the educational placement needed by a particular child, it can pay tuition to send the student to a school that has the appropriate placement, it can contract services out to a vendor, or it can create an appropriate program.
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)]

Progress Reports

An IEP must include information as to “[w]hen periodic reports on the progress the child is making toward meeting the annual goals (such as through the use of quarterly or other periodic reports, concurrent with the issuance of report cards) will be provided.” [34 C.F.R. § 300.320(a)(3)(ii)]

Records (Education Records)

No. “FERPA [Family Educational Rights and Privacy Act] applies to the disclosure of tangible records and of information derived from tangible records. FERPA does not protect the confidentiality of information in general, and, therefore, does not apply to the disclosure of information derived from a source other than education records, even if education records exist which contain that information. As a general rule, information that is obtained through personal knowledge, observation, or hearsay, and is not information obtained from an education record, is not protected from disclosure under FERPA.” [Letter: New York City Department of Education, 105 LRP 25855, Family Policy Compliance Office (FPCO), January 27, 2005].”
“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 regulations that implement the IDEA state that “a public agency must evaluate a child with a disability . . . before determining that the child is no longer a child with a disability.” [34 C.F.R. § 300.305(e)(1)] However, if the IEP team is merely making a determination that a related service is no longer needed, no evaluation would be required before removing that related service from a student’s IEP. Put another way, because the related service is part of the student’s FAPE, the student’s need for such a service is an IEP team decision. However, if a student, for example, qualifies for special education under the category of speech-language impairment (SLI) and receives speech services in that regard, and the IEP team believes that the child no longer requires speech services, then the school must begin the evaluation process to determine whether the student continues to be a child with a disability. (If the student’s MET determines that no additional assessments are needed and that the team has sufficient information and data to make a determination, then no additional assessments would be required, but the school would still need to complete the evaluation process.)
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 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)] 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 specially designed instruction.

Timelines

Because a student’s educational needs can change over time, the regulations that implement the IDEA require that a student be reevaluated every three years unless the parent and the school agree that such a reevaluation is unnecessary. [34 C.F.R. § 300.303(b)(2)] A reevaluation can occur more frequently, but not more than once a year, unless the parent and the school agree otherwise. [34 C.F.R. § 300.303(b)(1)] This does not mean that a school is required to conduct additional assessments if the IEP team, in conducting its review of existing data, determines that no additional data are needed to determine whether the child continues to have a qualifying disability and continues to need special education and related services; the educational needs of the child; or whether the child has an additional category of disability. Said another way, additional assessments every three years are not necessarily required, but a reevaluation every three years is required. [See 34 C.F.R. § 300.305]
No. The 60-day timeframe for an evaluation or reevaluation refers to 60 calendar days and would include school breaks. [34 C.F.R. Part 300, Analysis of Comments and Changes, Subpart D-Evaluation, Eligibility Determinations, Individualized Education Programs, and Educational Placement, Federal Register, Vol. 71, No. 156, p. 46659 (August 2006)] “The Office of Special Education Programs (OSEP) recognizes that conducting evaluation activities during extended breaks, such as the typical school’s summer vacation, can be challenging for school districts, particularly if fewer staff members are available. Nevertheless, the IDEA contemplates that the initial evaluation of a child suspected of having a disability not be unreasonably delayed so that eligible children with disabilities are not denied a FAPE.” [Letter to Reyes, 112 LRP 23105 (OSEP, April 2012)] “The 60-day evaluation period may be extended for an additional 30 days, provided it is in the best interest of the child [not the convenience of the school], and the parents and [school] agree in writing to such an extension. Nonetheless, neither the 60-day evaluation period nor any extension shall cause a re-evaluation to exceed the timelines for a re-evaluation within three years of the previous evaluation.” [A.A.C. R7-2-401(E)(4)]
The federal regulations are clear that an evaluation must be completed within 60 days of the date the school received parental consent or within the timeframe established by the State. [34 C.F.R. § 300.301(c)(1)] Arizona State Board of Education rules clarify that for either an initial evaluation or a re-evaluation, if the evaluation was initiated by the school, the timeline for completion is 60 calendar days from the date the school received informed written parental consent. [A.A.C. R7-2-401(E)(3)] The rule further explains that when a parent requests an evaluation and the MET concurs, the 60-day timeframe for conducting an initial evaluation to determine special education eligibility “shall commence with the date that the written parental request was received by the [school] and shall conclude with the date of the MET determination of eligibility.” [Id.] Put another way, when the parent initiates a referral for an initial evaluation (or a re-evaluation) to determine special education eligibility, the 60-day evaluation timeline begins not with the date of informed consent, but with the date on which the referral was received by the school.
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

Transportation is a related service under the IDEA and includes “travel to and from school and between schools, travel in and around school buildings, and specialized equipment (such as special or adapted buses, lifts, and ramps), if required to provide special transportation for a child with a disability.” [34 C.F.R. §§ 300.34(a) and (c)(16)] Not all children with disabilities require transportation; each child’s IEP team must determine if transportation is required to enable the student to access education and receive a FAPE. Put another way, only when a child’s IEP team determines that transportation is necessary for the child to benefit from special education is a school obligated to provide such a service.

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


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