What is the difference between an evaluation and a reevaluation?

Evaluation is defined as procedures that are used to determine whether a student has a disability and, if so, the nature and extent of his/her need for special education and related services. [34 C.F.R. § 300.15] The term reevaluation generally means a comprehensive evaluation that is analogous to initial evaluation under 34 C.F.R. § 300.532. [See Letter to Tinsley, 26 IDELR 1076 (OSEP 1990)] The purpose of a reevaluation is to determine whether the child continues to have a disability and his or her educational needs. [34 C.F.R. § 300.305(a)]

When does a determination of eligibility for special education require verification by a qualified professional, and who is a qualified professional?

As required by A.A.C. R7-2-401(E)(8), the Arizona Department of Education developed a list of professionals qualified to verify the existence of specific disabilities for evaluation purposes as prescribed in subsection (E)(7).

Arizona Qualified Professionals List

Must a review of existing data take place in a meeting with parental participation?

As part of an initial evaluation or re-evaluation, the IEP team (of which the parent is a member) and other qualified professionals must review existing data on a child. “On the basis of this review, and input from the child’s parents, a determination is made about whether additional data are needed to determine whether the child is a child with a disability, whether the child continues to have such a disability, and the educational needs of the child.” [34 C.F.R. § 300.305(a)(1)and(a)(2)(i)(A)-(B)] It is important to stress that although the regulations that implement the IDEA permit the group referenced above to conduct its review without a meeting, it is still the IEP team that is required to review the existing data. [Id. at subsection (b)]

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]

Are schools always required to conduct evaluations or reevaluations upon parental request?

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)]

Does a review of existing data begin the evaluation process?

The regulations that implement the Individuals with Disabilities Education Act (IDEA) state that “[a]s part of an initial evaluation . . . the IEP Team and other qualified professionals, as appropriate, must review existing evaluation data on the child . . . [and] identify what additional data, if any, are needed to determine whether the child is a child with a disability.” [34 C.F.R. § 300.305(a)(1) and (2)] Every evaluation begins with the IEP team's review of existing data on the child, “including information provided by the parents, current classroom-based or local assessments . . . and observations by teachers and related service providers.” [Id. at (a)(1)] On the basis of that review and input by the child's parents, the team must determine if additional data are needed to determine if the child is eligible. Upon completion of the administration of assessments (should the MET determine that additional assessments are necessary), a group of qualified professionals and the child’s parents determine if the child is a child with a disability under the IDEA and his or her educational needs. [34 C.F.R. § 300.306(a)(1)] Thus, the evaluation process begins with a review of existing data and ends with a determination that the child is or is not eligible. In Arizona, evaluations or reevaluations "shall be conducted within 60 calendar days from the public education agency's receipt of the parent's informed written consent and shall conclude with the date of the Multidisciplinary Evaluation Team (MET) determination of eligibility." [A.A.C. R7-2-401(E)(3)])

Can parents dictate the specific assessment tools and instruments a school uses to conduct an initial evaluation or reevaluation?

There is nothing in the regulations that implement the IDEA to suggest that parents can choose the assessment tools or instruments a school uses to conduct an evaluation or reevaluation. The IDEA regulations require schools, when conducting an evaluation, to use a variety of assessment tools, to use technically sound instruments, and not to use any single measure or assessment as the sole criterion for determining the presence of a disability. In addition, assessment tools cannot be discriminatory on a racial or cultural basis, must be administered in accordance with their instructions, must be administered by trained and knowledgeable people, must be tailored to assess specific areas of educational need, and must be provided in the child’s native language or other mode of communication in the form most likely to yield accurate information. Finally, students must be assessed in all areas related to the suspected disability. If the assessment tools chosen by a school accomplish the above, then the school has met the procedural requirements of the IDEA in regard to evaluation instruments. [34 C.F.R. § 300.304(b) and (c)]

Should a school initially evaluate a child for special education eligibility if the child receives English Language Learner (ELL) services, if the child’s expressive/receptive language skills are delayed, or if the child has excessive absences from school over a period of several years?

According to the regulations that implement the Individuals with Disabilities Education Act (IDEA), schools have an affirmative duty to ensure that children with disabilities are identified, located, and evaluated. [34 C.F.R. § 300.111(a)] The IDEA 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)] The regulations require schools to ensure that children are “assessed in all areas of suspected disability, including, if appropriate, health, vision, hearing, social and emotional status, general intelligence, academic performance, communicative status, and motor abilities.” [34 C.F.R. § 300.304(c)(4)] However, the regulations are clear that “[a] child must not be determined to be a child with a disability . . . if the determinant factor . . . is lack of appropriate instruction in reading . . . , lack of appropriate instruction in math, or limited English proficiency, and if the child does not otherwise meet the eligibility criteria under § 300.8(a).” [34 C.F.R. § 300.306(b)]

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.)

Is a school required to list specific tests that will be used when seeking parent consent for evaluation or can it list only the areas that will be assessed (academics, adaptive, behavior, etc.)?

“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.

Do students who transfer to Arizona from another state have to be reevaluated to determine whether they continue to be eligible for special education services?

“If a child with a disability (who had an IEP that was in effect in a previous public agency in another State) transfers to a public agency in a new State, and enrolls in a new school within the same school year, the new public agency (in consultation with the parents) must provide the child with FAPE (including services comparable to those described in the child’s IEP from the previous public agency), until the new public agency (1) conducts an evaluation . . . (if determined to be necessary by the new public agency); and (2) Develops, adopts, and implements a new IEP, if appropriate, that meets the applicable requirements in §§ 300.320 through 300.324.” [34 C.F.R. § 300.323(f)]

Who determines eligibility for special education instruction and services?

No single individual determines eligibility – not a medical doctor, a school psychologist, a teacher, a related service provider, a school administrator, or a parent. As part of an initial evaluation or reevaluation, the student’s IEP team, including the parents and other qualified professionals, reviews existing data on a child and identifies what additional data are necessary to determine whether the child is a child with a disability and the educational needs of the child. [34 C.F.R. § 300.305(a)] Upon completion of the administration of assessments and other evaluation measures, a group of qualified professionals and the child’s parent determine whether the child is a child with a disability and his or her educational needs. [34 C.F.R. § 300.306(a)]

How does a child qualify for special education?

In order to qualify for special education and related services, the IDEA is clear that a child must be evaluated according to the procedures set forth in the regulations as having one of the following 13 categories of disability (autism; deaf-blindness; deafness; emotional disturbance; hearing impairment; cognitive impairment; multiple disabilities; orthopedic impairment; other health impairment; specific learning disability; speech or language impairment; traumatic brain injury; and visual impairment) and must, by reason thereof, need special education and related services. [34 C.F.R. § 300.8]

Can a student be eligible for special education under more than one eligibility category?

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)]

Does the IDEA impose any limitations on eligibility for special education?

In order to be determined eligible to receive special education and related services, a child must have a qualifying disability that causes an adverse effect on educational performance and who, by reason thereof, needs special education and related services. [34 C.F.R. § 300.8] It is important to note that the IDEA is clear that a child cannot be determined eligible if the determinant factor is that there has been a lack of appropriate instruction in reading or math, or that the student has limited English proficiency. [34 C.F.R. § 300.306]

When a new eligibility category is determined (for a student already receiving special education services), must the school have written consent from the parent before it can begin to provide services in that new area?

There is no such requirement. The regulations that implement the IDEA require that parents provide informed written consent prior to the initial provision of special education. [34 C.F.R. § 300.300(b)] There is no requirement that schools obtain written consent when a new disability category or a new related service is determined to be necessary to provide the child with a FAPE.

If medical verification of a disability is required as part of a full and individual initial evaluation, can the school require the parent to secure and pay for such medical verification?

Schools cannot require parents to secure medical verifications. The IDEA requires schools to conduct a full and individual initial evaluation before the initial provision of special education and related services. [34 C.F.R. § 300.301(a)] The 9th Circuit Court of Appeals (whose decisions are binding on Arizona) has ruled that a school cannot abdicate or delegate to parents its affirmative duties under the IDEA to ensure that students are evaluated [34 C.F.R. § 300.111(a)(i)] and that they are evaluated in all areas of suspected disability [34 C.F.R. § 300.304(c)(4)] by referring parents to an outside agency to secure an evaluation, for “[s]uch an action does not ‘ensure that the child is assessed,’ as required by 20 U.S.C. § 1414(b)(3)(C).” [N.B. and C.B. v. Hellgate Elementary School District, 541 F.3d 1202 (9th Cir. 2008)]

Does a student lose his/her eligibility for special education when he/she meets the IEP goals?

No. Schools must make a free appropriate public education (FAPE) available to all children with disabilities, with the following exceptions: 1) the student graduates and receives a regular high school diploma that is fully aligned with the State’s academic standards; 2) the student reaches the maximum age of eligibility under state law (which, in Arizona is the school year in which the student turns 22); 3) the student is evaluated and determined by the multidisciplinary evaluation team (MET) to be no longer eligible to receive special education instruction and services; or 4) the student’s parent revokes consent for the provision of special education and related services. [34 C.F.R. §§ 300.102; 300.305(e); 300.300(b)(4)] If a student achieves his/her IEP goals, the IEP team should review the IEP and revise it, as appropriate.

If a student eligible to receive special education receives a GED (general educational development) credential, does the student lose his/her right to receive a FAPE?

No. According to the IDEA, graduation from high school with a regular high school diploma constitutes a change in placement. [34 C.F.R. § 300.102(a)(3)(iii)] However, the regulations go on to say that “the term regular high school diploma does not include an alternative degree that is not fully aligned with the State’s academic standards, such as a certificate or a general educational development credential (GED).” [Id. at subsection (a)(3)(iv)]

Who can file a state administrative complaint?

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.

Can anyone file a due process complaint against a school?

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.

Who can request mediation and what types of issues can be mediated?

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 Dispute Resolution webpage or contact the Dispute Resolution unit at 602-542-3084.

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). [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).

Are the SEA’s findings in a state administrative complaint appealable?

In a State complaint investigation, the State Education Agency (SEA) is required to issue a written decision that “addresses each allegation in the complaint and contains findings of fact, conclusions of law, and the reasons for the SEA’s final decision.” [34 C.F.R. § 300.152(a)(5)] The U.S. Department of Education has stated, “The regulations neither prohibit nor require the establishment of procedures to permit [a school] or other party to request reconsideration of a State complaint decision. We have chosen to be silent in the regulations about whether a State complaint decision may be appealed because we believe States are in the best position to determine what, if any, appeals process is necessary to meet each State’s needs, consistent with State law.” [34 C.F.R. Part 300, Analysis of Comments and Changes, Subpart B – State Eligibility, Federal Register, Vol.71, No. 156, p. 46607 (August 2006)]

The U.S. Department of Education has explained, “[i]f after the SEA’s final decision is issued, a party who has the right to request a due process hearing and who disagrees with the SEA’s decision may initiate a due process hearing, provided that the subject of the State complaint involves an issue about which a due process hearing can be filed and the two-year statute of limitations for due process hearings (or other time limit imposed by State law) has not expired.” [34 C.F.R. Part 300, Analysis of Comments and Changes, Subpart B – State Eligibility, Federal Register, Vol.71, No. 156, p. 46607 (August 2006)]

When the SEA orders corrective action in response to a state complaint, and there is a subsequent due process complaint or appeal, is the corrective action postponed until the due process complaint or appeal is resolved?

Corrective action must be completed as soon as possible but in no case later than one year after the SEA’s identification of procedural noncompliance. [34 C.F.R. § 300.600(e)] The United States Department of Education is clear that during the pendency of any reconsideration of a state complaint or during any due process hearing, even if the issues are the same as those in the state complaint, public schools must implement corrective action ordered by the State Educational Agency in order to ensure the correction of noncompliance. [See Questions and Answers on IDEA Part B Dispute Resolution Procedures, Question B-32 (U.S. Department of Education/Office of Special Education Programs (OSEP) July 2013); Letter to Deaton, 65 IDELR 241 (OSEP 2015)]

Can a state administrative complaint alleging a procedural violation of the IDEA only be filed against a school by a parent of a child with a disability?

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 process, 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 of 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 Investigation Report, which is a confidential student record, will not be shared with the complainant absent written parental consent to disclose the record.

What happens if parties are able to resolve a dispute related to special education through mediation?

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 on the benefits of mediation, visit the Dispute Resolution webpage or contact the Dispute Resolution unit at 602-542-3084.

Does the IEP team have the authority to decide whether to discipline a student eligible for special education, and if so, the amount and severity of the discipline?

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(12)] 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.

Must a school provide special education and related services to a child with a disability during disciplinary removals?

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)]

In disciplinary matters, do the protections of the IDEA only begin when a student is determined eligible for special education by his/her multidisciplinary evaluation team (MET)?

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)]

Under “special circumstances” involving weapons, drugs, or serious bodily injury, the IDEA allows school personnel to remove a child with a disability to an interim alternative educational setting (IAES) for not more than 45 school days regardless of whether the behavior is determined to be a manifestation of the child’s disability. How are “weapon,” “illegal drug,” and “serious bodily injury” defined?

The term “dangerous weapon” means a weapon, device, instrument, material, or substance, animate or inanimate, that is used for, or is readily capable of, causing death or serious bodily injury, except that such term does not include a pocket knife with a blade of less than 2 1/2 inches in length, as defined by the United States criminal code. [18 U.S.C. § 930(g)(2)] Illegal drug means a controlled substance, but does not include one that is legally possessed or used under the supervision of a licensed health-care professional or that is legally possessed, as defined by the Controlled Substances Act. [21 U.S.C. § 812(c)] (Alcohol does not fall under the definition of illegal drug in this context.) Serious bodily injury involves a substantial risk of death, unconsciousness, extreme physical pain, protracted and obvious disfigurement, or protracted loss or impairment of the function of a bodily member, organ, or mental faculty, as defined in the U.S. criminal code. [18 U.S.C. § 1365(h)(3)] These definitions are incorporated by reference in the IDEA.

Does a bus suspension count as a day of suspension?

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)]

Do partial days of suspension and in-school suspension count as days of removal?

“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.]

Can a school call the police to report a crime allegedly committed by a student eligible for special education?

There is nothing in the regulations that implement the IDEA that “prohibits an agency from reporting a crime committed by a child with a disability to appropriate authorities or prevents State law enforcement and judicial authorities from exercising their responsibilities with regard to the application of Federal and State law to crimes committed by a child with a disability.” [34 C.F.R. 300.535(a)] When reporting a crime committed by a child with a disability, copies of the child’s special education and disciplinary records must be transmitted to such authorities for consideration, to the extent permitted by the Family Educational Rights and Privacy Act (FERPA). [Id. at subsection (b)]

When a student eligible for special education is removed from his/her current educational placement for more than ten school days in a school year, who determines what educational services are needed to ensure that the student continues to receive a FAPE?

“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)]

Who determines what special education services are provided to a student with a disability who has been removed for disciplinary reasons?

If the disciplinary removal does not constitute a change of placement (because it is not more than 10 consecutive days or it is part of a series of removals that cumulates to more than 10 school days in the same school year, but does not amount to a pattern of removals, see 34 C.F.R. § 300.536), then school personnel, in consultation with at least one of the child’s teachers, determine the extent to which services are needed during the removal period. [34 C.F.R. § 300.530(d)(4)] If the removal is a change of placement, the child’s IEP team determines the appropriate services to be provided during the removal. [Id. at subsection (d)(5)]

When providing consent for an evaluation or reevaluation, can parents attach conditions to their consent, such as the specific assessment tools to be used, the evaluator, or other conditions?

The regulations that implement the IDEA require schools to obtain informed consent from the parent of the child before conducting an initial evaluation [34 C.F.R. § 300.300(a)(1)(i)] or reevaluation of a child with a disability. [34 C.F.R. § 300.300(c)] As part of any evaluation, the IEP team, which includes the parents, must review existing data and determine what, if any, additional data are needed to determine if the child is or continues to be a child with a disability, and his/her educational needs. [34 C.F.R. § 300.300(a)] Although the parents are part of the team that determines what additional data are needed, at least one court has determined that by placing conditions on their consent (such as only agreeing to consent to assessments in one area and not another, limiting the type of assessment tools to be used, or requiring a specific evaluator) parents are in effect refusing to consent. [See G.J. v. Muscogee County School District, 668 F.3d 1258, 58 IDELR 61 (11th Cir. 2012)]

Can a parent revoke consent for a particular special education service?

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)]

If a parent has provided informed written consent for an initial evaluation, is it necessary for the school to also obtain consent prior to the initial provision of special education services?

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)]

Does a school have to develop an IEP for a student newly identified as eligible for special education if the parent refuses to provide initial consent for special education services?

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.

When a parent revokes consent for special education services, can a school challenge the parent’s decision by requesting mediation or a due process hearing?

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.]

Are schools required to get parental consent on an annual basis before implementing each new individualized education program (IEP)?

“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.

Can a school conduct a reevaluation without parental consent?

Reevaluations “[m]ust occur at least once every 3 years, unless the parent and the public agency agree that a reevaluation is unnecessary.” [34 C.F.R. § 300.303(b)(2)] The regulations that implement the IDEA require schools to obtain informed parental consent prior to conducting any reevaluation of a child with a disability, unless the reevaluation consists solely of a review of existing data, in which case parental consent would not be required. [34 C.F.R. §§ 300.300(c), 300.300(d)(1)] Moreover, a school is not required to obtain informed parental consent if it can demonstrate that it made reasonable efforts to obtain informed parental consent, but the child’s parent failed to respond. [34 C.F.R. § 300.301(c)(2)] If, however, the parent refuses to consent to the reevaluation, the public agency may, but is not required to, pursue the reevaluation by using the consent override procedures; that is, the school could request mediation or a due process hearing. [34 C.F.R. § 300.300(c)(1)(ii)]

What happens at an IEP meeting if the parties cannot reach consensus?

“The IEP Team meeting serves as a communication vehicle between parents and school personnel and enables them, as equal participants, to make joint informed decisions regarding the services that are necessary to meet the unique needs of the child. The IEP team should work towards a general agreement, but the public agency is ultimately responsible for ensuring that the IEP includes the services that the child needs in order to receive a free appropriate public education (FAPE). It is not appropriate to make IEP decisions based on majority “vote.” If the team cannot reach agreement, the public agency must determine the appropriate services and provide the parents with prior written notice of the agency’s determinations regarding the child’s education program and of the parents’ right to seek resolution of any disagreements by initiating an impartial due process hearing or filing a State complaint.” [Letter to Richards, 55 IDELR 107 (OSEP 2010)]

Can parents block an IEP they disagree with?

No. There is nothing in the regulations that implement the IDEA to suggest that parents can block or overturn an IEP they disagree with. However, this does not mean that parents are without an option when a disagreement on the IEP team arises. If parents disagree with any IEP team decision, their recourse is to request mediation or to file a due process complaint against the school district or charter school. 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 FAPE. [34 C.F.R. §§ 300.506(a) and 300.507(a) respectively]

To avoid conflict, should the school implement the parents’ suggestions if the parents and school personnel cannot reach consensus at an IEP meeting?

Conflict is not necessarily a bad thing, and sometimes conflict is unavoidable. Although the spirit of the IDEA is that the parties, as equal participants, will arrive at consensus, sometimes this is not possible. Although parental suggestions should be encouraged and considered, the school is ultimately responsible for ensuring that the IEP includes the services that the child needs in order to receive a free appropriate public education (FAPE). [Letter to Richards, 55 IDELR 107 (OSEP 2010)] “If the [IEP] team cannot reach agreement, the public agency must determine the appropriate services and provide the parents with prior written notice of the agency’s determinations regarding the child’s education program and of the parents’ right to seek resolution of any disagreements by initiating an impartial due process hearing or filing a State complaint.” [Letter to Richards, 55 IDELR 107 (OSEP 2010)]

Can a student who has good grades and who is advancing from grade to grade still be eligible to receive special education instruction and services?

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)]

What are Arizona’s screening procedures for special education eligibility?

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)]

When a child transitions from the Arizona Early Intervention Program (AzEIP) to preschool, is it appropriate or required to send the child through a Child Find screening process?

According to Arizona State Board of Education rules, screening for possible disabilities for a child entering preschool is only required if the student enrolls “without appropriate records of screening, evaluation and progress in school.” [A.A.C. R7-2-401(D)(5)] Therefore, a screening for a child already having such screening or evaluation information would not be required. The regulations that implement the IDEA require States to have in effect policies and procedures to ensure that a child participating in early intervention services under Part C, “and who will participate in preschool programs assisted under Part B of the [IDEA], experience a smooth and effective transition to those preschool programs.” [34 C.F.R. § 300.124] To this end, a transition meeting is required. At this meeting the team reviews existing data on the child, determines if further assessments are required, and, by the child’s third birthday, develops and implements an IEP for the child. [Id.]

Who is responsible for child find activities for school-aged students who are homeschooled or those who attend private schools or charter schools?

The regulations that implement the IDEA require each State to have policies and procedures to ensure that “all children with disabilities . . . including children with disabilities who are homeless children or are wards of the State, and children with disabilities attending private schools, regardless of the severity of their disability, and who are in need of special education and related services, are identified, located and evaluated.” [34 C.F.R. § 300.111(a)(i)] In Arizona, each public education agency must have written procedures for the identification and referral of all children with disabilities within its boundaries of responsibility, including children with disabilities attending private schools and those who are home schooled. [A.A.C. R7-2-401(D)(1)] This is known as “child find.” A school district is responsible for identifying children with disabilities attending non-profit private schools located within its boundaries. [A.A.C. R7-2-401(D)(4)(b)] With regard to children with disabilities attending for-profit private schools, the school district responsible for child find activities is the district where the parent resides. [Letter to Chapman, 49 IDELR 163 (OSEP 2007)] Under Arizona statutes, homeschooled students are considered private school students. [A.R.S. § 15-763(C)] Charter schools are responsible for child identification activities for students enrolled in the charter school. [A.A.C. R7-2-401(D)(4)(a)] However, charter schools are not responsible for outreach under the child find regulations because charter schools have no specific geographical boundaries.

What are a school’s Child Find duties in regard to a transfer student?

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.]

Can charter schools put a cap on the number of students eligible for special education that it will accept for enrollment?

No. Charter schools may limit admission to pupils within a given age group or grade level, but cannot “limit admission based on ethnicity, national origin, gender, income level, disabling condition, or proficiency in the English language, or athletic ability.” [A.R.S. § 15-184(F)] “A charter school shall enroll all eligible pupils who submit a timely application, unless the number of applications exceeds the capacity of a program, class, grade level or building.” [A.R.S. § 15-184(A)] Note that “program” used here is not synonymous with a specific educational placement; special education is not a “program” under this definition. (If special education were a program under A.R.S. § 15-184(A), then this would automatically invalidate A.R.S. § 15-184(F), leading to an absurd result.) It is important to remember that 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 . . .” [34 C.F.R. § 300.1(a)], emphasizing that special education is not a place or a program. Denial of enrollment based on disability or special education status could lead to claims of discrimination and possibly an investigation by the United States Department of Education/Office for Civil Rights (OCR).

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?

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.” [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.

Are charter schools required to offer everything a public school district must provide to children with disabilities?

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)]

What exactly is bullying?

“Bullying is characterized by aggression used within a relationship where the aggressor(s) has more real or perceived power than the target, and the aggression is repeated, or has the potential to be repeated, over time. Bullying can involve overt physical behavior or verbal, emotional, or social behaviors (e.g., excluding someone from social activities, making threats, withdrawing attention, destroying someone’s reputation) and can range from blatant aggression to far more subtle and covert behaviors. Cyberbullying, or bullying through electronic technology (e.g., cell phones, computers, online/social media), can include offensive text messages or e-mails, rumors or embarrassing photos posted on social networking sites, or fake online profiles.” [Dear Colleague Letter, p. 2 (Office of Special Education and Rehabilitative Services (OSERS) August 13, 2013)]

Is it sufficient for a school, when it discovers bullying, to investigate the matter, discipline the bully, and provide training to students and staff to prevent future bullying?

“Whether or not the bullying is related to the student’s disability, any bullying of a student with a disability that results in the student not receiving meaningful educational benefit constitutes a denial of FAPE under the IDEA that must be remedied. . . Schools have an obligation to ensure that a student with a disability who is the target of bullying behavior continues to receive FAPE in accordance with his or her IEP. The school should, as part of its appropriate response to the bullying, convene the IEP Team to determine whether, as a result of the effects of the bullying, the student’s needs have changed such that the IEP is no longer designed to provide meaningful educational benefit. If the IEP is no longer designed to provide a meaningful educational benefit to the student, the IEP Team must then determine to what extent additional or different special education or related services are needed to address the student’s individual needs; and revise the IEP accordingly.” [Dear Colleague Letter, p. 3 (OSERS August 13, 2013)]

If a student with a disability is bullied, should the school or the IEP team change the student’s educational placement in an attempt to prevent future bullying? 

“The IDEA placement team (usually the same as the IEP Team) should exercise caution when considering a change in the placement or the location of services provided to the student with a disability who was the target of the bullying behavior and should keep the student in the original placement unless the student can no longer receive FAPE in the current LRE placement. While it may be appropriate to consider whether to change the placement of the child who was the target of the bullying behavior, placement teams should be aware that certain changes to the education program of a student with a disability (e.g., placement in a more restrictive “protected” setting to avoid bullying behavior) may constitute a denial of the IDEA’s requirement that the school provide FAPE in the LRE. Moreover, schools may not attempt to resolve the bullying situation by unilaterally changing the frequency, duration, intensity, placement, or location of the student’s special education and related services. These decisions must be made by the IEP Team and consistent with the IDEA provisions that address parental participation.” [Dear Colleague Letter, p. 3 (OSERS August 13, 2013)]

What should a school do if the student who engaged in bullying is a child with a disability with an IEP?

“If the student who engaged in the bullying behavior is a student with a disability, the IEP Team should review the student’s IEP to determine if additional supports and services are needed to address the inappropriate behavior. In addition, the IEP Team and other school personnel should consider examining the environment in which the bullying occurred to determine if changes to the environment are warranted.” [Dear Colleague Letter, p. 3 (OSERS August 13, 2013)]

Why is it important to address bullying behavior immediately?

“Addressing and reporting bullying is critical. Students who are targets of bullying behavior are more likely to experience lower academic achievement and aspirations, higher truancy rates, feelings of alienation from school, poor relationships with peers, loneliness, or depression. . . Students with disabilities are disproportionately affected by bullying. For example, students with learning disabilities, attention deficit or hyperactivity disorder, and autism are more likely to be bullied than their peers. Any number of factors — physical characteristics, processing and social skills, or intolerant environments — may increase the risk that students with disabilities will be bullied. Due to the characteristics of their disabilities, students with intellectual, communication, processing, or emotional disabilities may not understand the extent to which bullying behaviors are harmful, or may be unable to make the situation known to an adult who can help. In circumstances involving a student who has not previously been identified as a child with a disability under the IDEA, bullying may also trigger a school’s child find obligations under the IDEA. 34 C.F.R. §§ 300.111, 300.201.” [Dear Colleague Letter, p. 2 (OSERS August 13, 2013)]

What is the FAPE standard under the IDEA?

In March 2017, the US Supreme Court, in Endrew F. v. Douglas County School District clarified the FAPE standard and ruled unanimously that IEPs must be "reasonably calculated to enable a child to make progress in light of the child's circumstances." The Court rejected the petitioner's view that the IDEA requires schools to provide educational opportunities for children with disabilities that are "substantially equal to the opportunities afforded [to] children without disabilities." However, the Court also rejected the view that schools, in order to meet their obligations under the IDEA, only have to provide "merely more than de minimis" education program to a student with a disability. The Court ruled that the "de minimis" test is not demanding enough, and said cogently that "[i]t cannot be right that the IDEA generally contemplates grade-level advancement for children with disabilities who are fully integrated in the regular classroom, but is satisfied with barely more than de minimis progress for children who are not."

Do custodial and noncustodial parents have the same rights under FERPA?

Unless a judicial decree or court order identifies a specific person or persons to act as the “parent” under the IDEA or to make educational decisions on behalf of a child, or there is evidence that a biological or adoptive parent does not have legal authority to make educational decisions for the child, the rights accorded to parents, as that term is defined in the federal regulations at 34 C.F.R. 300.30, apply to both custodial and noncustodial parents. [34 C.F.R. § 300.30(b)(1) and (2)]

What is the purpose of the Individuals with Disabilities Education Act (IDEA)?

The purpose of the IDEA is to “ensure that all children with disabilities have available to them a free appropriate public education [FAPE] that emphasizes special education and related services designed to meet their unique needs and prepare them for further education, employment, and independent living.” [34 C.F.R. § 300.1(a)]

Are homeschooled or private school students who are eligible for special education entitled to all the special education and related services they would receive if they attended a public school district or charter school?

In Arizona, homeschooled students are considered private school students. [A.R.S. § 15-763(C)] The IDEA regulations 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.

What is the difference between “homebound,” “homeschool,” and “home instruction”?

Under Arizona law, “homebound” is a funding code for 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.” The statute goes on to state that homebound also applies 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.” [A.R.S. § 15-901(B)(14)]

“Homeschool” means a nonpublic school conducted primarily by the parent, guardian or other person who has custody of the child or nonpublic instruction provided in the child’s home. [A.R.S. § 15-802(G)(2)]

The regulations that implement the IDEA state that “[s]pecial education means specially designed instruction . . . including instruction conducted in the classroom, in the home, in hospitals and institutions, and in other settings.” [34 C.F.R. § 300.38(a)] (Emphasis added) The continuum of educational placements that schools must ensure includes “instruction in regular classes, special classes, special schools, home instruction, and instruction in hospitals and institutions.” [34 C.F.R. § 300.115(a)] Accordingly, a student’s IEP team can determine that instruction at home is the most appropriate and least restrictive environment.

Is a school obligated to change a student’s schedule so that he/she can receive specially designed instruction or related services before or after regular school hours so that he/she does not miss out on class time in the general education environment?

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.

Does a student eligible for special education have the right to attend his/her neighborhood school, the one he/she would attend if not disabled?

“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.]

Can a parent or a school tape record an IEP meeting?

Neither the IDEA nor its implementing regulations address the issue of tape recording IEP meetings, and Arizona has no law allowing or prohibiting this practice. Therefore, a school district or charter school may set the ground rules for recording IEP meetings, as long as those rules do not inhibit parental participation. [See Letter to Anonymous 40 IDELR 70 (OSEP 2003) and Letter to Doerr 213 IDELR 127 (OSEP 1988)]

Since IEPs are generally written for a year, do services that are missed during the school’s fall, winter, and spring breaks have to be made up?

The IDEA and its implementing regulations require schools to provide all children with disabilities between the ages of 3 and 21 a free appropriate public education (FAPE) designed to meet their unique needs. [34 C.F.R. § 300.1(a)] A FAPE is defined as special education and related services that are provided at public expense, under public supervision and direction, and without charge; meet the standards of the state education agency; and are provided to each child in conformity with his or her IEP. [34 C.F.R. § 300.17(d)] An IEP is a written statement for a child with a disability that is developed, reviewed, and revised in a meeting and that must include certain content. [34 C.F.R. § 300.320(a)] Among other things, each child’s IEP must include “a statement of the special education and related services and supplementary aids and services … that will be provided to enable the child to advance appropriately toward attaining the annual goals, and to be involved in and make progress in the general education curriculum, and the projected date for the beginning of the services, and the anticipated frequency, location, and duration of those services. [34 C.F.R. § 300.320(a)(4) and (7)] In discussing a school’s responsibility to meet the amount of service time specified in a student’s IEP, OSEP has stated that, “a school district is generally responsible for making alternative arrangements to provide the services set out in a student’s IEP when other school-related activities make either the student or the service provider unavailable during the time the service is regularly scheduled. However, it is not obligated to do so when the student is unavailable for other reasons . . .” Letter to Balkman 23 IDELR 646 (OSEP 1995)] Thus, it is not necessary to account for days when school is not in session. However, IEP teams should carefully describe the frequency and duration of service time in each child’s IEP in order to avoid misunderstanding. [See Letter to Matthews 55 IDELR 142 (OSEP 2010) for a detailed explanation of the terms frequency and duration]