Click on the links below to access useful information and guidance regarding the regulations that implement the Individuals with Disabilities Education Act (IDEA), corresponding Arizona State Board of Education rules, guidance from the US Department of Education/Office of Special Education Programs (OSEP), and case law involving special education.

504 Accommodation Plans

Assistive Technology

Bullying

Charter Schools

Child Find

Consensus

Consent

Discipline

Dispute Resolution

Eligibility

Evaluation & Reevaluation

Extended School Year (ESY)

FBA & BIP (Functional Behavioral Assessment & Behavioral Intervention Plans)

General IDEA Information

IEE (Independent Educational Evaluation)

IEP (Individualized Education Program)

IEP Team Meeting

IEP Team

IEP Team Authority

Manifestation Determinations

Myths of Special Education

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

Parents

Placement (Educational Placement)

Progress Reports

Records (Educational Records)

Special Education & Related Services

Timelines

Transition

Transportation

Is climate-controlled transportation required for children eligible to receive special education?

The regulations that implement the IDEA are silent in regard to climate-controlled transportation. As a general rule, IEP teams determine whether transportation for a child with a disability is a related service that the student needs in order to access special education services, and in this context an IEP team can determine that a student needs climate-controlled transportation, which would need to be provided to the student at no cost to the parents. Although climate-controlled transportation is also not discussed under section 504 of the Rehabilitation Act of 1973, a question of discrimination based on disability could arise if the school provides climate-controlled transportation for its general education students and not for children with disabilities. [Questions and Answers on Serving Children with Disabilities Eligible for Transportation, Question C-1 (OSERS 2009)] See the entire IDEA Q & A on Transportation from 2009.

The regulations that implement the IDEA state that special education includes travel training. What is travel training?

“Travel training is instruction that enables children with significant cognitive disabilities, and any other children with disabilities who require this instruction, to develop an awareness of the environment in which they live, and to learn the skills necessary to move effectively and safely from place to place within that environment. [34 C.F.R. §§ 300.39(a)(2)(ii) and 300.39 (b)(4)] These services can be a fundamental component of the provision of a free appropriate public education (FAPE) that will assist children in preparing for employment and independent living in their communities. Therefore, IEP Teams should consider the need for both transportation and travel training when planning for a child’s postsecondary transition needs.” [Questions and Answers on Serving Children with Disabilities Eligible for Transportation, Question A-2 (OSERS 2009)] See the entire IDEA Q & A on Transportation, 2009.

Must transportation be made available to all students who are eligible to receive special education and related services?

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.

Do the regulations that implement the Individuals with Disabilities Education Act (IDEA) limit the amount of time a student with a disability can spend on the bus?

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 IDEA Q & A on Transportation from 2009.

Do children eligible for special education who have transportation as a related service need to be transported on a separate special education bus?

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 IDEA Q & A on Transportation from 2009.

What information about a student eligible for special education should be shared with the student’s bus driver?

“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 IDEA Q & A on Transportation from 2009.

If an open enrolled student’s IEP includes transportation as a related service, can a district deny transportation because the student lives outside the district’s boundaries?

Arizona Revised Statutes, in regard to open enrollment, state in pertinent part as follows: “The governing board of the district educating the pupil shall provide transportation limited to no more than twenty miles each way to and from the school of attendance or to and from a pickup point on a regular transportation route, or for the total miles traveled each day to an adjacent district for nonresident pupils with disabilities whose individualized education program specifies that transportation is necessary for fulfillment of the program.” [A.R.S. § 15-816.01(C)] This means that the district educating the child under its open enrollment policy must provide transportation for the total miles traveled each day (even if it exceeds 20 miles) for a student with a disability whose IEP specifies transportation as a related service, provided that student resides in an adjacent school district.

What is the timeline for an evaluation in Arizona?

The federal regulations are clear that an evaluation must be completed within 60 days of the date the school received informed written consent from the parent or within the timeframe established by the State. [34 C.F.R. § 300.301(c)(1)] Arizona State Board of Education rules clarify that if the evaluation or reevaluation is initiated by the school, it must be conducted within 60 days from the date the school received informed written parental consent. [A.A.C. R7-2-401(E)(3)] If a parent requests an evaluation, the school must, "within a reasonable amount of time not to exceed 15 school days from the date it receives a parent's written request for an evaluation, either begin the evaluation by reviewing existing data, or provide prior written notice refusing to conduct the requested evaluation. The 60-day evaluation period shall commence upon the [school's] receipt of the parent's informed written consent" [Id. at (E)(4)] "and shall conclude with the date of the Multidisciplinary Evaluation Team (MET) determination of eligibility." [Id. at (E)(3)]

Is a reevaluation required every three years?

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]

Can an evaluation or reevaluation be delayed due to summer vacation?

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 parent 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)(5)]

If a parent requests in writing for the IEP team to reconvene to review his/her child’s IEP, what is the required timeframe?

According to Arizona State Board of Education rules, a parent or school "may request in writing a review of the IEP and shall identify the basis for requesting [the] review. Such review shall take place within 45 school days of the receipt of the request at a mutually agreed upon date and time. [A.A.C. R7-2-401(G)(7)]

Does a school have a grace period to implement an IEP for a student eligible to receive special education who transfers to that school?

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)]

How long does a school have to develop an IEP after a student’s multidisciplinary evaluation team (MET) determines that the student is eligible to receive special education instruction and services?

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.)

Has the definition of “specially designed instruction” changed?

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.

If a special education teacher provides accommodations and helps a student with his/her assignments, is that specially designed instruction?

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.

Can paraprofessionals provide specially designed instruction?

The federal IDEA regulations allow appropriately trained and supervised paraprofessionals to be used to “assist in the provision of special education and related services . . . to children with disabilities.” [34 C.F.R. § 300.156(b)(2)(iii)] However, the United States Department of Education/Office of Special Education Programs (OSEP) explains that, “this provision should not be construed to permit or encourage the use of paraprofessionals as a replacement for teachers or related service providers who meet State qualification standards.” [Analysis of Comments and Changes, Subpart B – State Eligibility, Federal Register, Vol. 71, No. 156, p. 46612 (August 14, 2006)] Therefore, paraprofessionals can work with a student to reinforce instruction provided by a special education teacher and assist in the delivery of specially designed instruction, but they cannot be the sole provider of the specially designed instruction.

What exactly are related services, and is adapted/adaptive PE a related service?

“Related services” means transportation and such developmental, corrective, and other supportive services that are required to assist a child with a disability to benefit from special education. [34 C.F.R. § 300.34(a)] Related services include: “speech-language pathology and audiology services, interpreting services, psychological services, physical and occupational therapy, recreation, including therapeutic recreation, early identification and assessment of disabilities in children, counseling services, including rehabilitation counseling, orientation and mobility services, and medical services for diagnostic or evaluation purposes. Related services also include school health services and school nurse services, social work services in schools, and parent counseling and training. . . . Related services do not include a medical device that is surgically implanted, the optimization of that device’s functioning (e.g. mapping), maintenance of that device, or the replacement of that device.” [Id. at subsections (a) and (b)(1)]

The regulations that implement the IDEA do not identify adapted PE as a related service; however, special education is defined to mean “specially designed instruction, at no cost to the parents, to meet the unique needs of a child with a disability, including – – (i) Instruction conducted in the classroom, in the home, in hospitals and institutions, and in other settings; and (ii) Instruction in physical education.” [34 C.F.R. § 300.39(a)(1)] (Emphasis added) If an eligible student needs adaptive PE in order to receive a free appropriate public education, as determined by the child’s IEP team, the school must make such service available.

Can an IEP team determine that training for a parent is an appropriate related service to be included on a student’s IEP?

One of the related services outlined in the regulations that implement the IDEA includes Parent Counseling and Training. The regulation states that this means assisting parents in understanding the special needs of their child, providing parents with information about child development, and helping parents acquire the necessary skills that will allow them to support the implementation of their child’s IEP. [34 C.F.R. § 300.34(c)(8)]

According to the regulations that implement the IDEA, who can provide counseling services?

“Counseling services means services provided by qualified social workers, psychologists, guidance counselors, or other qualified personnel.” [34 C.F.R. § 300.34(c)(2)]

Does a school need to conduct a formal evaluation to add a related service to a student’s IEP?

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.

Does a school need to conduct a formal evaluation to remove a related service from a student’s IEP?

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.)

The IDEA lists medical services (for diagnostic or evaluation purposes) as a related service. What does medical services mean?

“Medical services means services provided by a licensed physical to determine a child’s medically related disability that results in the child’s need for special education and related services.” [34 C.F.R. § 300.34(c)(5)] Medical services are limited to services that are for diagnostic and evaluation purposes only.

What is the definition of an “education record”?

“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.”

How long does a school have to respond to a records request when a student moves or transfers to a different school?

The regulations that implement the IDEA state that the school receiving a transfer student “must take reasonable steps to promptly obtain the child’s records,” and the previous school at which the child was enrolled “must take reasonable steps to promptly respond to the request [for records] from the new [school].” [34 C.F.R. § 300.323(g)(1)and(2)] Arizona has more specific requirements. “Within five school days after enrolling a transfer pupil from a private school or another school district, a school shall request directly from the pupil’s previous school a certified copy of the pupil’s record. The requesting school shall exercise due diligence in obtaining the copy of the record requested. Notwithstanding any financial debt owed by the pupil, any school requested to forward a copy of a transferring pupil’s record to the new school shall comply and forward the record within ten school days after receipt of the request unless the record has been flagged pursuant to section 15-829.” [A.R.S. § 15-828(G)] (A.R.S. §15-829 deals with missing children and reporting to law enforcement any request for a missing student’s records)]

What agency is responsible for investigating allegations of that a school has breached confidentiality with respect to a child’s education records?

The Family Educational Rights and Privacy Act (FERPA) is a comprehensive federal law governing education records and is found at 20 U.S.C. § 1232g; 34 C.F.R. Part 99. As a general matter, FERPA: (1) requires schools to provide parents and eligible students an opportunity to inspect and review the student’s education records; and (2) prohibits schools from disclosing personally identifiable information from a student’s education records to a third party unless the parent or eligible student has provided written consent. FERPA defines “education records” as records that are directly related to a student and that are maintained by an educational agency. The regulations that implement the IDEA further delineate and narrow the FERPA definition to mean education records relating to eligible students 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 FAPE to a child) under the IDEA is a smaller subset of the term “education record” as defined under FERPA.

Complaints alleging that a public education agency has violated the confidentiality requirements with respect to records that are collected, maintained, or used under Part B of the IDEA may be addressed to Arizona Department of Education/Dispute Resolution. Allegations that a public education agency has violated a child’s right to confidentiality with respect to records that are not collected, maintained, or used under Part B of the IDEA should be addressed to the U.S. Department of Education/Family Policy Compliance Office (FPCO), the agency that administers FERPA, at 400 Maryland Avenue, SW; Washington, D.C. 20202-5920. On the state level there is a parallel mechanism available. Arizona Revised Statutes state that “[a]ny person who suspects that a school district or charter school has knowingly violated [FERPA] may notify the principal of the charter school or the superintendent of the school district. If the matter is not satisfactorily resolved by the principal of the charter school or the superintendent of the school district within 60 days after the notice, the person may file a complaint with the [Arizona] superintendent of public instruction.” [A.R.S. § 15-142(C)] Such a complaint should be addressed to the Arizona Department of Education; Director of Legal Services, 1535 W. Jefferson, Bin 62, Phoenix, AZ 85007.

Does a student under the age of 18 have rights under FERPA to inspect and review his/her educational records?

It depends. “The rights under FERPA that pertain to a student’s education records are afforded to the parents of a student. . .” [Letter to Connor, 110 LRP 45084, Family Policy Compliance Office (FPCO), January 27, 2010] (Emphasis added) Under FERPA, the right of a parent to inspect and review the education record of his/her child transfers to the child when he/she reaches the age of majority (18 years of age) or begins attendance at a postsecondary school. [34 C.F.R. §§ 99.4 and 99.5; Letter to Connor, 110 LRP 45084 (FPCO 2010)]

Does FERPA protect the confidentiality of all information about a student?

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].”

What are the IDEA requirements regarding IEP goal 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)]

Is it sufficient for a school to provide IEP goal progress reports that include general statements that the student demonstrated improvement or that he/she made some progress, limited progress, or significant progress?

An IEP goal progress report is not merely an administrative hoop to jump through or a meaningless paperwork requirement of the IDEA. These periodic progress reports fulfill a central focus of the IDEA, namely that parents have sufficient information to meaningfully participate in IEP meetings. Vague statements of progress provide no objective measure of a student’s progress and do not meaningfully communicate with parents or demonstrate that the school actually provided the student with a free appropriate public education (FAPE). 

Can report cards indicate that a student receives special education?

Yes. A report card is sent to a student’s parents, and it would not be a violation of the student’s privacy rights under the Family Educational Rights and Privacy Act (FERPA) to include with progress information the fact that the student receives special education instruction and services. Nor would such disclosure violate the Americans with Disabilities Act (ADA Title II) or Section 504 of the Rehabilitation Act of 1973. Report cards can “distinguish between special education programs and services and general education curriculum classes . . . if the course content or curriculum in the special education programs or services is different from the course content or curriculum contained in the general education curriculum classes. [Schools] frequently distinguish between general education curriculum classes and other types of programs and classes, such as advanced placement, honors, or remedial classes. Making similar distinctions on report cards would be consistent with the general requirements of Section 504 and Title II that individuals with disabilities not be treated differently than individuals without disabilities.” [Dear Colleague Letter: Report Cards and Transcripts for Students with Disabilities (OCR October 17, 2008); Letter to Hudler: Response to Report Card and Transcript Questions (OCR 2006)] Similarly, a school can use asterisks, symbols or other coding on a report card to indicate that the student had a modified curriculum and different course content. [Id.]

Can a transcript indicate that a student receives special education?

No. Transcripts can be sent to a student’s postsecondary school or a prospective employer, and “it would be a violation of Section 504 and Title II [of the Americans with Disabilities Act (ADA)] for a student’s transcript to indicate that a student has received special education or a related services or that the student has a disability. While a transcript may not disclose that a student has received special education or a related service or has a disability, a transcript may indicate that a student took classes with a modified or alternate education curriculum. This is consistent with the transcript’s purpose of informing postsecondary institutions and prospective employers of a student’s academic achievements. Transcript notations concerning enrollment in different classes, course content, or curriculum by students with disabilities would be consistent with any similar transcript designation for classes, such as advanced placement, honors, or remedial instruction . . . [and] notations about modified or alternate education curriculum are permissible because they do not disclose that a student has a disability, are not used exclusively to identify programs for student with disabilities, and are consistent with the purpose of a student transcript.” [Dear Colleague Letter: Report Cards and Transcripts for Students with Disabilities (OCR October 17, 2008); Letter to Hudler: Response to Report Card and Transcript Questions (OCR 2006)]

Can a school email IEP goal progress reports and IEPs to the parents of a student eligible for special education?

“Under Part B of the Individuals with Disabilities Education Act (IDEA) and the implementing regulations, parents may elect to receive prior written notices, procedural safeguards notices, and due process complaint notices by an electronic mail communication, if the public agency makes that option available. [34 C.F.R. § 300.505] . . . Further, with regards to the requirement under 34 C.F.R. § 300.320(a)(3)(ii) concerning periodic progress reports, OSEP has left the discretion with State and local officials to determine the manner and format for reporting a child’s progress toward meeting the annual goals. [71 Federal Register at 46664] Therefore, in light of the IDEA statute and regulations, as well as OSEP’s prior guidance, States may permit the use of electronic mail to distribute IEPs and related documents, such as progress reports, to parents, provided that the parents and the school district agree to use the electronic mail option, and the States take the necessary steps to ensure that there are appropriate safeguards to protect the integrity of the process.” [Letter to Breton, 114 LRP 14938 (OSEP March 2014)

Can an IEP team decide to provide a student with instruction at home only if the student’s medical doctor provides a medical order for instruction at home?

No. Homebound instruction under State law and home-based instruction under the IDEA are not the same thing. Arizona law identifies “homebound” as a funding category that can be used to provide instruction to a student whose doctor has certified that the student is unable to attend regular classes due to illness, disease, accident or other health condition “for a period of not less than three school months.” [A.R.S. § 15-901(A)(14)] The statute goes on to state that homebound services can also be provided to a student with a chronic or acute health problem whose doctor certifies that the student is “unable to attend regular classes for intermittent periods of time totaling three school months during a school year.” [Id.] The regulations that implement the IDEA require schools to ensure the availability of a continuum of alternative placements to meet the needs of children with disabilities. [34 C.F.R. § 300.115(a)] The continuum must include, among other things, home instruction and instruction in hospitals and institutions. [Id. at subsection (b)] Placement decisions are made by a child’s IEP team; medical documentation is not required for the IEP team to determine that instruction in the home is appropriate for the child.

Can parents insist on a change in placement to a private school if they feel the current school’s placement is inappropriate?

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)].

What are schools required to do if an IEP team determines a particular educational placement is needed that the school does not have?

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.

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)]

How is “parent” defined in the IDEA regulations, and who can legally act as a parent?

According to the regulations that implement the IDEA, “[p]arent means — (1) A biological or adoptive parent of a child; (2) A foster parent; (3) A guardian generally authorized to act as the child’s parent or authorized to make educational decisions for the child (but not the State if the child is a ward of the State); (4) An individual acting in the place of a biological or adoptive parent (including a grandparent, stepparent, or another relative) with whom the child lives, or an individual who is legally responsible for the child’s welfare; or (5) A surrogate parent. If more than one party meets the definition of a parent, the biological or adoptive parent must be presumed to be the parent for IDEA purposes unless the biological or adoptive parent does not have the legal authority to make educational decisions for the child. Additionally, if a judicial decree or order identifies a specific person or persons as having the authority to make educational decisions on behalf of the child, that person must be presumed to be the parent. [34 C.F.R. § 300.30]

What happens to parental rights when a child eligible for special education reaches 18 years of age?

In Arizona, when a student with a disability reaches 18 years of age, all rights previously accorded to the child’s parents under the IDEA and state law transfer to the student, unless the student has been declared legally incompetent. [A.R.S. § 15-773(A)] A student with a disability who is at least 18 years of age, but under 22 years of age and who has not been declared legally incompetent, may execute a delegation of rights for the purpose of educational decision-making. [See A.R.S. § 15-773(B) – (D)] For more information on guardianship, contact a Family Support Specialist at Encircle Families.

What are a parent’s options if he/she disagrees with an IEP team decision?

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). 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).

Does a parent have an automatic right to observe his/her child in the classroom, and do schools have to secure written consent from the parents of other students in the classroom before the parent can observe his/her child in the classroom?

“While the IDEA expects parents of children with disabilities to have an expanded role in the evaluation and educational placement of their children and be participants, along with school personnel, in developing, reviewing, and revising the IEPs for their children, neither the statute nor the regulations implementing the IDEA provide a general entitlement for parents of children with disabilities, or their professional representatives, to observe their children in any current classroom or proposed educational placement. The determination of who has access to classrooms may be addressed by State and/or local policy. However, we encourage school district personnel and parents to work together in ways that meet the needs of both the parents and the school, including providing opportunities for parents to observe their children’s classrooms and proposed placement options.” [Letter to Mamas, 42 IDELR 10 (OSEP 2004)]

“FERPA does not specifically prohibit a parent or professional working with the parent from observing the parent’s child in the classroom. This is because FERPA would generally prohibit a teacher from disclosing information from a child’s education records to other students in the classroom, as well as prohibit a teacher from disclosing information from a child’s education records to the parents of another child who might be observing the classroom. Further, FERPA does not protect the confidentiality of information in general; rather, FERPA applies to the disclosure of tangible records and of information derived from tangible records.” [Letter to Mamas, 106 LRP 15971 (Family Policy Compliance Office 2003)] Accordingly, no parental consent from the parents of other students in the classroom is required before a parent can observe his/her child in the classroom.

When and how often does a school need to provide parents with PSN (procedural safeguards notice)?

The regulations that implement the IDEA require that a school provide parents with PSN at least once annually and at specific milestones: upon initial referral or parent request for an evaluation, upon receipt of the first state complaint or the first due process complaint in a school year, at the time of some disciplinary actions, and upon request by a parent. [34 C.F.R. § 300.504(a)]

When is a school required to provide parents with prior written notice (PWN)?

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, educational placement of the child, or the provision of a FAPE to the child. [34 C.F.R. § 300.503(a)(1)-(2)] The U.S. Department of Education 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, IEPs, and Educational Placements, Federal Register, Vol. 71, No. 156, p. 46657 and 46658 (August 2006)] Arizona State Board of Education rules state that "prior written notice shall be provided to the parents of a child within a reasonable time after the PEA proposes to initiate or change, or refuses to initiate or change, the identification, evaluation, educational placement or the provision of FAPE to the child, but before the decision is implemented." [A.A.C. R7-2-401(I)(2)]

What content does PWN have to include?

A PWN must include the following content: a description of the action proposed or refused by the school; an explanation of why the agency proposes or refuses to take an action; a description of each evaluation procedure, assessment, record, or report the school used as a basis for the proposed or refused action; a statement that the parents have protections under the procedural safeguards; sources for the parent to contact to get assistance in understanding the school’s decisions; a description of other options considered by the IEP team and the reasons these options were rejected; and a description of other factors relevant to the school’s decision. [34 C.F.R. § 300.503(b)(1) – (7)]

What does a meeting notice that invites parents to attend an IEP meeting have to contain?

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)]

Do schools have to give parents 10-days’ advance notice before scheduling an IEP meeting?

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)]

How much time does a school have to provide parents with prior written notice (PWN)?

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. [A.A.C R7-2-401(I)(2)] “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)]

Should schools provide parents with PWN before an IEP or multidisciplinary evaluation team (MET) meeting?

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)]