IDEA '97 Topics & Issues

 

Present Levels of Educational Performance

Section 300.347(a)(1) requires that the IEP for each child
with a disability include "...a statement of the child's present
levels of educational performance, including--(I) How the
child's disability affects the child's involvement and progress
in the general curriculum; or (ii) for preschool children, as
appropriate, how the disability affects the child's
participation in appropriate activities..." (Italics needed.)
("Appropriate activities" in this context refers to age-relevant
developmental abilities or milestones that typically
developing children of the same age would be performing or
would have achieved.)

Measurable Annual Goals, Including Benchmarks or
Short-term Objectives

Measurable annual goals, including benchmarks or
short-term objectives, are instrumental to the strategies
planning process used to develop and implement the IEP for
each child with a disability. Once the IEP Team has
developed measurable annual goals for a child, the team can
(1) develop strategies that will be most effective in realizing
those goals and (2) develop measurable, intermediate steps
(short-term objectives) or major milestones (benchmarks)
that will enable families, students, and educators to monitor
progress during the year, and, if appropriate, to revise the
IEP consistent with the child's instructional needs.

Part B's strong emphasis on linking the educational program
of children with disabilities to the general curriculum is
reflected in Sec. 300.347(a)(2), which requires that the IEP
include:

a statement of measurable annual goals, including
benchmarks or short-term objectives, related to--(I) meeting
the child's needs that result from the child's disability to
enable the child to be involved in and progress in the general
curriculum; and (ii) meeting each of the child's other
educational needs that result from the child's disability.

Special Education and Related Services and
Supplementary Aids and Services

The requirements regarding services provided to address a
child's present levels of educational performance and to
make progress toward the identified goals reinforce the
emphasis on progress in the general curriculum, as well as
maximizing the extent to which children with disabilities are
educated with nondisabled children. Section 300.347(a)(3)
requires that the IEP include:

a statement of the special education and related services and
supplementary aids and services to be provided to the child,
or on behalf of the child, and a statement of the program
modifications or supports for school personnel that will be
provided for the child--(i) To advance appropriately toward
attaining the annual goals; (ii) to be involved and progress in
the general curriculum...and to participate in extracurricular
and other nonacademic activities; and (iii) to be educated
and participate with other children with disabilities and
nondisabled children in [extracurricular and other
nonacademic activities]...

Extent to Which Child Will Participate With
Nondisabled Children

Section 300.347(a)(4) requires that each child's IEP include
"...an explanation of the extent, if any, to which the child will
not participate with nondisabled children in the regular class
and in [extracurricular and other nonacademic activities]..."
This is consistent with the least restrictive environment
provisions at Secs. 300.550-300.553, which include
requirements that:

1. Each child with a disability be educated with
nondisabled children to the maximum extent
appropriate (Sec. 300.550(b)(1));

2. Each child with a disability be removed from the
regular educational environment only when the nature
or severity of the child's disability is such that
education in regular classes with the use of
supplementary aids and services cannot be achieved
satisfactorily (Sec. 300.550(b)(1)); and

3. To the maximum extent appropriate to the child's
needs, each child with a disability participate with
nondisabled children in nonacademic and
extracurricular services and activities (Sec. 300.553).

Participation in State or District-wide Assessments of
Student Achievement

Consistent with Sec. 300.138(a), which sets forth a
presumption that children with disabilities will be included in
general State-and district-wide assessment programs, and
provided with appropriate accommodations if necessary,
Sec. 300.347(a)(5) requires that the IEP for each student
with a disability include: (I) A statement of any individual
modifications in the administration of State or district-wide
assessments of student achievement that are needed in order
for the child to participate in the assessment; and (ii) if the
IEP Team determines that the child will not participate in a
particular State or district-wide assessment of student
achievement (or part of an assessment), a statement of--(A)
Why that assessment is not appropriate for the child; and
(B) How the child will be assessed.

Regular Education Teacher Participation in the
Development, Review, and Revision of IEPs

Very often, regular education teachers play a central role in
the education of children with disabilities (House Report No.
105-95, p. 103 (1997)) and have important expertise
regarding the general curriculum and the general education
environment. Further, especially with the emphasis on
involvement and progress in the general curriculum added by
the IDEA Amendments of 1997, regular education teachers
have an increasingly critical role in implementing, together
with special education and related services personnel, the
program of FAPE for most children with disabilities, as
described in their IEPs. Accordingly, the IDEA
Amendments of 1997 added a requirement that each child's
IEP Team must include at least one regular education
teacher of the child, if the child is, or may be, participating in
the regular education environment (see Sec. 300.344(a)(2)).
(See also Secs. 300.346(d) on the role of a regular
education teacher in the development, review and revision of
IEPs.)

Yes. The IEP for all children with disabilities must address
how the child will be involved and progress in the general
curriculum, as described. The Part B regulations recognize
that some children with disabilities will have some
educational needs that result from their disabilities that
cannot be fully met by involvement and progress in the
general curriculum; accordingly, Sec. 300.347(a)(2) requires
that each child's IEP include:

a statement of measurable annual goals, including
benchmarks or short-term objectives, related to--(I)
Meeting the child's needs that result from the child's disability
to enable the child to be involved in and progress in the
general curriculum; and (ii) meeting each of the child's other
educational needs that result from the child's disability. Thus,
the IEP Team for each child with a disability must make an
individualized determination regarding how the child will
participate in the general curriculum, and what, if any,
educational needs that will not be met through involvement in
the general curriculum should be addressed in the IEP. This
includes children who are educated in separate classrooms
or schools.

If a public agency provides "regular education" preschool
services to nondisabled children, then the requirements of
Secs. 300.344(a)(2) and 300.346(d) apply as they do in the
case of older children with disabilities. If a public agency
makes kindergarten available to nondisabled children, then a
regular education kindergarten teacher could appropriately
be the regular education teacher who would participate in an
IEP meeting for a kindergarten-aged child who is, or may
be, participating in the regular education environment. If a
public agency does not provide regular preschool education
services to nondisabled children, the agency would designate
an individual who, under State standards, is qualified to
serve nondisabled children of the same age.

Section 300.347(a)(2) requires that each child's IEP include
a "...a statement of measurable annual goals, including
benchmarks or short-term objectives, related to--(i)
Meeting the child's needs that result from the child's disability
to enable the child to be involved in and progress in the
general curriculum; and (ii) meeting each of the child's other
educational needs that result from the child's disability..."
[Italics added]. Thus, a public agency is not required to
include in an IEP annual goals that relate to areas of the
general curriculum in which the child's disability does not
affect the child's ability to be involved in and progress in the
general curriculum.

II. Involvement of Parents and Students

One of the key purposes of the IDEA Amendments of 1997
is to "Expand and promote opportunities for parents, special
education, related services, regular education, and early
intervention service providers, and other personnel to work
in new partnerships at both the State and local levels (House
Report 105-95, p. 82 (1997)). Indeed, the Committee
viewed the Amendments as an opportunity to "[strengthen]
the role of parents." (House Report 105-95, p. 82 (1997)).
Accordingly, the Amendments require that parents have "an
opportunity...to participate in meetings with respect to the
identification, evaluation, and educational placement of the
child, and the provision of FAPE to the child" (Sec.
300.501). Parents must now be part of the teams that
determine what additional data are needed as part of an
evaluation of their child (Sec. 300.533(a)(1)); their child's
eligibility (Sec. 300.534(a)(1)); and the educational
placement of their child (Sec. 300.501(c)). Parents'
concerns, and information that they provide regarding their
children, must be considered in developing and reviewing
their children's IEPs (Secs. 300.343(c)(iii) and 300.346(a)
(1)(I) and (b)).

As explained, the requirements for keeping parents informed
about the educational progress of their children, particularly
as it relates to their progress in the general curriculum, have
been strengthened (Sec. 300.347(a)(7)).

The IDEA Amendments of 1997 and the 1990 amendments
have both included provisions which greatly strengthen
involvement of students with disabilities in decisions
regarding their own futures, to facilitate movement from
school to post-school activities. The IDEA Amendments of
1990 included provisions regarding transition services
provided to each student be "...based on the individual
student's needs, taking into account the student's preferences
and interests" (Sec. 300.27(b)), (c) that the public agency
invite a student with a disability to any IEP meetings for
which a purpose is the consideration of transition services
(Sec. 300.344(b)(1)), and that, if "...the student does not
attend, the public agency...take other steps to ensure that the
student's preferences and interests are considered (Sec.
300.344(b)(2)). States may not transfer most parent rights
under Part B to the student when the student reaches the age
of majority under State law (Sec. 300.517), and beginning
at least one year before a student reaches the age of
majority under State law, the IEP must include a statement
that the student has been informed of any rights that will
transfer to him or her upon reaching the age of majority
(Sec. 300.347(c)).

The parents of a child with a disability are expected to be
equal participants along with school personnel, in
developing, reviewing, and revising the IEP for their child.
This is an active role in which the parents (1) provide critical
information about their child's abilities, interests,
performance, and history, (2) participate in the discussion
about the child's need for special education and related
services and supplementary aids and services, and (3) join
with the other participants in deciding how the child will be
involved and progress in the general curriculum and
participate in State and district-wide assessments, and what
services the agency will provide to the child and in what
setting.

As noted, Part B specifically provides that parents have the
right to:

(a) Participate in meetings about their child's
identification, evaluation, educational program
(including IEP meetings), and educational placement
(Secs. 300.344(a) (1) and 300.517);

(b) Be part of the teams that determine what
additional data are needed as part of an evaluation of
their child (Sec. 300.533(a)(1)), and determine their
child's eligibility (Sec. 300.534(a)(1)) and educational
placement (Sec. 300.501(c));

(c) Have their concerns and information that they
provide regarding their child considered in developing
and reviewing their child's IEPs (Secs. 300.343(c)(iii)
and 300.346(a)(1)(I) and (b)); and

(d) Be regularly informed (by such means as periodic
report cards), as specified in their child's IEP, at least
as often as parents are informed of their nondisabled
children's progress, of their child's progress toward
the annual goals in the IEP and the extent to which
that progress is sufficient to enable the child to
achieve the goals by the end of the year (Sec.
300.347(a)(7)).

A surrogate parent is a person appointed to represent the
interests of a child with a disability in the educational
decision-making process when no parent (as defined at Sec.
300.19) is known, the agency, after reasonable efforts,
cannot locate the child's parents, or the child is a ward of the
State under the laws of the State. A surrogate parent has all
of the rights and responsibilities of a parent under Part B.
Thus, the surrogate parent is entitled to (1) participate in the
child's IEP meeting, (2) examine the child's education
records, and (3) receive notice, grant consent, and invoke
due process to resolve differences. (See Sec. 300.515,
Surrogate parents.)

If a purpose of an IEP meeting will be the consideration of
needed transition services, the public agency must invite the
student and, as part of notification to the parent of the IEP
meeting, inform the parents that the agency will invite the
student to the IEP meeting. If the student does not attend,
the public agency must take other steps to ensure that the
student's preferences and interests are considered. Section
Sec. 300.517 permits States to transfer procedural rights
under Part B from the parents to students with disabilities
who reach the age of majority under State law, but who
have not been determined to be incompetent under State
law. If procedural rights under Part B are, consistent with
State law and Sec. 300.517, transferred from the parents to
the student, the public agency would be required to ensure
that the student has the right to participate in IEP meetings
set forth for parents in Sec. 300.345. However, at the
discretion of the student or the public agency, the parents
also could attend IEP meetings as "individuals who have
knowledge or special expertise regarding the child..." (see
Sec. 300.344(a)(6)).

In other circumstances, the child may attend "if appropriate."
(Sec. 300.344(a)(7)) Generally, a child with a disability
should attend the IEP meeting if the parent decides that it is
appropriate for the child to do so. If possible, the agency
and parents should discuss the appropriateness of the child's
participation before a decision is made, in order to help the
parents determine whether or not the child's attendance will
be (1) helpful in developing the IEP or (2) directly beneficial
to the child or both. The agency should inform the parents
before each IEP meeting -- as part of notification under Sec.
300.345(a)(1) -- that they may invite their child to
participate.

Yes. In notifying parents about the meeting, the agency
"must indicate the purpose, time, and location of the meeting,
and who will be in attendance." (Sec. 300.345(b), italics
added.) In addition, if a purpose of the IEP meeting is the
consideration of transition services for a student, the notice
must also inform the parents that the agency is inviting the
student, and identify any other agency that will be invited to
send a representative. The public agency should also inform
the parents of their right to invite to the meeting "other
individuals who have knowledge or special expertise
regarding the child, including related services personnel as
appropriate..." (Sec. 300.344(a)(6)). It is also appropriate
for the agency to ask the parents what if any individuals they
will bring to the meeting.

Yes. Section 300.345(f) states that the public agency shall
give the parent, on request, a copy of the IEP. It is
recommended that public agencies provide parents with a
copy of the IEP within a reasonable time following the IEP
meeting, or inform them at the IEP meeting of their right to
request and receive a copy.

The IEP meeting serves as a communication vehicle between
parents and school personnel, and enables them, as equal
participants, to make joint, informed decisions regarding the
child's needs and appropriate goals, the extent to which the
child will be involved in the regular education environment
and State and district-wide assessments, and the services
needed to support that involvement and participation and to
achieve agreed-upon goals. Parents are to be equal partners
with school personnel in making these decisions, and the IEP
Team must consider parents' concerns and information that
they provide regarding their child in developing and
reviewing IEPs (Secs. 300.343(c)(iii) and 300.346(a)(1)
and (b)).

The IEP Team should work toward consensus, but the
public agency has ultimate responsibility to ensure that the
IEP includes the services that the child needs in order to
receive FAPE. If it is not possible to reach consensus in an
IEP meeting, the public agency must provide the parents
with prior written notice of the agency's proposals or
refusals, or both, regarding the child's educational program
and placement, and the parents have the right to seek
resolution of any disagreements through mediation or other
informal means, or by initiating an impartial due process
hearing. Every effort should be made to resolve differences
between parents and school staff through voluntary
mediation or some other informal step, without resort to a
due process hearing. However, mediation or other informal
procedures may not be used to deny or delay a parent's
right to a due process hearing.

Yes, the Part B statute and regulations include a number of
provisions to help ensure that parents are involved in
decisions regarding, and informed about, their child's
educational progress, including the child's progress in the
general curriculum. First, the parents will be informed
regarding their child's present levels of educational
performance through the development of the IEP. Section
300.347(a)(1) requires that each IEP include:

...a statement of the child's present levels of educational
performance, including--(I) How the child's disability affects
the child's involvement and progress in the general
curriculum; or (ii) for preschool children, as appropriate,
how the disability affects the child's participation in
appropriate activities...

Further, Sec. 300.347(a)(7) sets forth requirements for
regularly informing parents about their child's educational
progress. That section requires that the IEP include:

...a statement of--(i) How the child's progress toward the
annual goals...will be measured; and (ii) how the child's
parents will be regularly informed (by such means as
periodic report cards), at least as often as parents of
nondisabled children are informed, of--(A) Their child's
progress toward the annual goals...; and (B) the extent to
which that progress is sufficient to enable the child to achieve
the goals by the end of the year.

Finally, the parents will, as part of the IEP Team, participate,
at least once every 12 months, in a review of their child's
educational progress. Part B requires that a public agency
initiate and conduct a meeting, at which the IEP Team:

...(1) Reviews the child's IEP periodically, but not less than
annually to determine whether the annual goals for the child
are being achieved; and (2) revises the IEP as appropriate
to address--(i) Any lack of expected progress toward the
annual goals...and in the general curriculum, if appropriate;
(ii) The results of any reevaluation...; (iii) Information about
the child provided to, or by, the parents...; (iv) The child's
anticipated needs; or (v) Other matters.

III. Preparing Students With Disabilities for
Employment and Other Post-School Expenses

One of the primary purposes of the IDEA is to "...ensure
that all children with disabilities have available to them a free
appropriate public education that emphasizes special
education and related services designed to meet their unique
needs and prepare them for employment and independent
living..." (Sec. 300.1(a)).

Similarly, one of the key purposes of the IDEA
Amendments of 1997 was to "promote improved
educational results for children with disabilities through early
intervention, preschool, and educational experiences that
prepare them for later educational challenges and
employment." (House Report No. 105-95, p. 82 (1997).)
Thus, throughout their preschool, elementary, and secondary
education, the IEP for each child with a disability must, to
the extent appropriate for the individual child, focus on
providing instruction and experiences that enable the child to
prepare himself or herself for later educational experiences
and for post-school activities, including formal education, if
appropriate, employment, and independent living.

Although preparation for adult life is, as explained, a key
component of a free appropriate public education
throughout a child's educational experiences, Part B sets
forth specific requirements for transition from secondary
education to post-school activities, which must be
implemented no later than age 14 and 16, respectively,
which require an intensified focus on that preparation as
students with disabilities begin and prepare to complete their
secondary education.

Section 300.347(b)(1) requires that, beginning no later than
age 14, each student's IEP include specific transition-related
content, and beginning no later than age 16, a statement of
needed transition services.

Beginning at age 14, each student's IEP must include "...a
statement of the transition service needs of the child under
the applicable components of the child's IEP that focuses on
the child's courses of study (such as participation in
advanced-placement courses or a vocational education
program)" (Sec. 300.347(b)(1)(i)).

No later than age 16 (and younger, if determined
appropriate by the IEP Team), each student's IEP must
include "a statement of needed transition services for the
child, including, if appropriate, a statement of the interagency
responsibilities or any needed linkages..." (Sec.
300.347(b)(1)(ii)).

The House Report on the IDEA Amendments of 1997
makes clear that the requirement added to the statute in
1997 that beginning at age 14, or younger if appropriate, the
IEP include "a statement of the transition services needs" is
"...designed to augment, and not replace," the separate,
preexisting requirement that the IEP include, "...beginning at
age 16 (or younger, if determined appropriate by the IEP
Team), a statement of needed transition services..." (House
Report No. 105-95, p. 102 (1997).) As clarified by the
Report, "The purpose of [the requirement in Sec.
300.347(b)(1)(I)] is to focus attention on how the child's
educational program can be planned to help the child make
a successful transition to his or her goals for life after
secondary school." (House Report No. 105-95, pp.
101-102 (1997).) The report further explains that "[F]or
example, for a child whose transition goal is a job, a
transition service could be teaching the child how to get to
the job site on public transportation." (House Report No.
105-95, p-102 (1997).) Thus, beginning at age 14, the IEP
Team, in determining appropriate measurable annual goals
(including benchmarks or short-term objectives) and
services for a student, must determine what instruction and
educational experiences will assist the student to prepare for
transition from secondary education to post-secondary life.
The statement of transition service needs should relate
directly to the student's goals beyond secondary education,
and show how planned studies are linked to these goals. For
example, a student interested in exploring a career in
computer science may have a statement of transition service
needs connected to technology course work, while another
student's statement of transition needs could describe why
public bus transportation training is important for future
independence in the community. Though the focus of the
transition planning process may shift as the student
approaches graduation, the IEP Team must discuss specific
areas beginning at the age of 14 years and review these
areas annually.

This requirement is distinct from the requirement, at Sec.
300.347(b)(1)(ii), that the IEP include:

...beginning at age 16 (or younger, if determined appropriate
by the IEP Team), a statement of needed transition services
for the child, including, if appropriate, a statement of the
interagency responsibilities or any needed linkages.

The term "transition services" is defined at Sec. 300.27 to
mean:

...a coordinated set of activities for a student with a disability
that--(a) Is designed within an outcome-oriented process,
that promotes movement from school to post-school
activities, including postsecondary education, vocational
training, integrated employment (including supported
employment), continuing and adult education, adult services,
independent living, or community participation; (b) Is based
on the individual student's needs, taking into account the
student's preferences and interests; and (c) Includes--(1)
Instruction; (2) Related services; (3) Community
experiences; (4) The development of employment and other
post-school adult living objectives; and (5) If appropriate,
acquisition of daily living skills and functional vocational
evaluation. (Sec. 300.347(b)(2) provides, however, that, "If
the IEP Team determines that services are not needed in one
or more of the areas specified in Sec. 300.27((c)(1) through
(4), the IEP must include a statement to that effect and the
basis upon which the determination was made.)

Thus, while Sec. 300.347(b)(1)(I) requires that the IEP
Team begin by age 14 to address the student's need for
instruction that will assist the student to prepare for
transition, Sec. 300.347(b)(2)(ii) requires that by age 16 the
IEP include a "coordinated set of activities..., designed
within an outcome-oriented process, that promotes
movement from school to post-school activities..." Section
300.344(b)(3) further requires that, in implementing Sec.
300.347(b)(2) (ii), public agencies invite (in addition to
required participants for all IEP meetings), must also invite a
representative of any other agency that is likely to be
responsible for providing or paying for transition services.
Thus, Sec. 300.346(a)(7)(ii) requires a broader focus on
coordination of services across, and linkages between,
agencies beyond the SEA and LEA.

Section 300.347(b)(1)(ii) requires that the IEP for each
child with a disability, beginning no later than age 16, or
younger if determined appropriate by the IEP Team, include
all "needed transition services," as identified by the IEP
Team and consistent with the definition at Sec. 300.27,
regardless of whether the public agency or some other
agency will provide those services. Section
300.346(b)(1)(ii) specifically requires that the statement of
needed transition services include, "...if appropriate, a
statement of the interagency responsibilities or any needed
linkages."

Further, the need to include in the IEP transition services to
be provided by agencies other than the public agency is
contemplated by Sec. 300.348(a), which specifies what the
public agency must do if another agency participating in the
development of the statement of needed transition services
fails to provide a needed transition service that it agreed to
provide: If a participating agency fails to provide
agreed-upon transition services contained in the IEP of a
student with a disability, the public agency responsible for
the student's education shall, as soon as possible, initiate a
meeting for the purpose of identifying alternative strategies to
meet the transition objectives and, if necessary, revising the
student's IEP.

This requirement is consistent with the public agency's
ultimate responsibility to ensure that FAPE is available to
each eligible child with a disability (see Sec. 300.300). That
responsibility includes the planning and coordination of
transition services through the IEP. This inter-agency
planning and coordination may be supported through a
variety of mechanisms, including memoranda of
understanding, interagency agreements, assignment of a
transition coordinator to work with other participating
agencies, or the establishment of guidelines to work with
other agencies identified as potential service providers. If an
agreed-upon service by another agency is not provided, the
public agency responsible for the student must exercise
alternative strategies to meet the student's needs. This
requires that the public agency provide the services, or
convene an IEP meeting as soon as possible to identify
alternative strategies to meet the needs of the transition
services needs of the student, and to revise the IEP
accordingly. Alternative strategies might include the
identification of another funding source, referral to another
agency, the public agency's identification of other
district-wide or community resources that it can use to meet
the student's identified need appropriately, or a combination
of these strategies. As emphasized by Sec. 300.348(b),
however:

Nothing in [Part B] relieves any participating agency,
including a State vocational rehabilitation agency, of the
responsibility to provide or pay for any transition service that
the agency would otherwise provide to students with
disabilities who meet the eligibility criteria of that agency.

However, the fact that an agency other than the LEA does
not fulfill its responsibility does not relieve the LEA of its
responsibility to ensure that FAPE is available to each
student with a disability.

Note: See also Sec. 300.142(b)(2), which requires that if an
agency other than the LEA fails to provide or pay for a
special education or related service (which could include a
transition service), the LEA must provide or pay for the
service, and may then claim reimbursement from the agency
that failed to provide or pay for the service.

Section 300.344(c)(ii) requires that, "In implementing the
requirements of [Sec. 300.347(b)(1)(ii) requiring a
statement of needed transition services], the public agency
shall also invite a representative of any other agency that is
likely to be responsible for providing or paying for transition
services." To meet this requirement, the public agency must
establish and implement appropriate procedures to ensure
that it identifies all agencies that are "likely to be responsible
for providing or paying for transition services" for each
student addressed by Sec. 300.347(b)(1)(ii), and invites
each of those agencies to the IEP meeting. If, during the
course of an IEP meeting, the team identifies additional
agencies that are "likely to be responsible for providing or
paying for transition services" for the student, the public
agency must determine whether it is necessary to invite those
agencies to an additional IEP meeting in order to develop an
appropriate statement of needed transition services for the
student.

IV. Other Questions Regarding the Development and
Content of IEPs

Section 300.342(b)(1) requires than an IEP be "in effect
before special education and related services are provided
to a child." The appropriate placement for a particular child
with a disability cannot be determined until after decisions
have been made about the child's needs and the services that
the public agency will provide to meet those needs. These
decisions must be made at the IEP meeting, and it would not
be permissible first to place the child and then develop the
IEP. Therefore, the IEP must be developed before
placement. This requirement does not preclude temporarily
placing an eligible child with a disability in a program as part
of the evaluation process -- before the IEP is finalized -- to
assist a public agency in determining the appropriate
placement for the child. It is essential that the temporary
placement not become the final placement before the IEP is
finalized. In order to ensure that this does not happen, the
State might consider requiring LEAs to take the following
actions:

a. Develop an interim IEP for the child that sets out
the specific conditions and timelines for the trial
placement. (See paragraph c.)

b. Ensure that the parents agree to the interim
placement before it is carried out, and that they are
involved throughout the process of developing,
reviewing, and revising the child's IEP.

c. Set a specific timeline (e.g., 30 days) for
completing the evaluation, finalizing the IEP, and
making judgments about the most appropriate
placement for the child.

d. Conduct an IEP meeting at the end of the trial
period in order to finalize the child's IEP.

The answer as to which public agency has direct
responsibility for ensuring the development of IEPs for
children with disabilities served by a public agency other
than an LEA will vary from State to State, depending upon
State law, policy, or practice. The SEA is ultimately
responsible for ensuring that all Part B requirements,
including the IEP requirements, are met for eligible children
with the State, including those children by a public agency
other than LEA. (See Sec. 300.600 regarding the SEA's
general supervisory responsibility for all education programs
for children with disabilities, with one exception. The
Governor (or another individual pursuant to State law) may,
consistent with State law, assign to any public agency in the
State the responsibility to ensuring that Part B requirements
are met with respect to children with disabilities who are
convicted as adults under State law and incarcerated in adult
prisons.)

The SEA must ensure that every child with a disability in the
State has FAPE available, regardless of which State or local
agency is responsible for educating the child. (The only
exception to this responsibility is that, as noted, the SEA is
not responsible for ensuring that FAPE is made available to
children with disabilities who are convicted as adults under
State law and incarcerated in adult prisons, if the State has
assigned that responsibility to a public agency other than the
SEA.) Although the SEA has flexibility in deciding the best
means to meet this obligation (e.g., through interagency
agreements), the SEA must ensure that no eligible child with
a disability is denied FAPE due to jurisdictional disputes
among agencies.

When an LEA is responsible for the education of a child
with a disability, the LEA remains responsible for developing
the child's IEP, regardless of the public or private school
setting into which it places the child.

Regardless of the reason for the placement, the "placing"
State is responsible for developing the child's IEP and
ensuring that it is implemented. The determination of the
specific agency in the placing State that is responsible for the
child's IEP would be based on State law, policy, or practice.
However, the SEA in the placing State is responsible for
ensuring that the child has FAPE available.

If a child with a disability changes school districts in the same
State, the State and its public agencies have an ongoing
responsibility to ensure that the child receives FAPE, and the
new public agency is responsible for ensuring that the child
receives special education and related services in conformity
with an IEP. The new public agency must ensure that the
child has an IEP in effect before the agency can provide
special education and related services. The new public
agency may meet this responsibility by either adopting the
IEP the former public agency developed for the child or by
developing a new IEP for the child. Before the child's IEP is
finalized, the new public agency may provide interim services
agreed upon by both the parents and the new public agency.
If the parents and the new public agency are unable to agree
on an interim IEP and placement, the new public agency
must implement the old IEP to the extent possible until a new
IEP is developed and implemented.

In general, while the new public agency must conduct an IEP
meeting, it would not be necessary if: (1) A copy of the
child's current IEP is available; (2) the parents indicate that
they are satisfied with the current IEP; and (3) the new
public agency determines that the current IEP is appropriate
and can be implemented as written.

If the child's current IEP is not available, or if either the new
public agency or the parent believes that it is not
appropriate, the new public agency must conduct an IEP
meeting within a short time after the child enrolls in the new
public agency (normally, within one week).

Section 300.343(b) requires a public agency to: (1) Ensure
that an offer of services in accordance with an IEP is made
to parents within a reasonable period of time from the
agency's receipt of parent consent to an initial evaluation;
and (2) in meeting that timeline, conduct a meeting to
develop the IEP within 30-calendar days of a determination
that the child needs special education and related services.
Section 300.342(b)(2) requires that an IEP be implemented
as soon as possible following the meeting in which the IEP is
developed.

A public agency may, after a child is determined by "a team
of qualified professionals and the parent" (see Sec.
300.534(a)(1)) to be a child with a disability who needs
special education services, continue in the same meeting to
develop an IEP for the child and to determine the child's
placement. However, the public agency must ensure that it:
(1) Meets all of the Part B requirements regarding meetings
to develop IEPs, including providing appropriate notification
to the parents, consistent with the requirements of Sec.
300.345, and including the required team participants,
consistent with the requirements of Sec. 300.344; and (2)
the requirements of Sec. 300.533 regarding eligibility
decisions.

A public agency must initiate and conduct meetings
periodically, but at least once every twelve months, to
determine whether the annual goals for the child are being
achieved, and to revise the IEP as appropriate to address:
(a) Any lack of expected progress toward the annual goals
and in the general curriculum, if appropriate; (b) the results
of any reevaluation; (c) information about the child provided
to, or by, the parents; (d) the child's anticipated needs; or
(e) other matters (Sec. 300.343(c)).

A public agency must also ensure that an IEP is in effect for
each child at the beginning of each school year (Sec.
300.342(a)). It may conduct IEP meetings at any time
during the year. However, if the agency conducts the IEP
meeting prior to the beginning of the next school year, it must
ensure that the IEP contains the necessary special education
and related services and supplementary aids and services to
ensure that the student's IEP can be appropriately
implemented during the next school year. Otherwise, it
would be necessary for the public agency to conduct
another IEP meeting.

Although the public agency is responsible for determining
when it is necessary to conduct an IEP meeting, the parents
of a child with a disability have the right to request an IEP
meeting at any time. For example, if the parents believe that
the child is not progressing satisfactorily or that there is a
problem with the child's current IEP, it would be appropriate
for parents to request an IEP meeting. If a child's teachers
feels that the child's placement or IEP services are not
appropriate to the child, the teachers should follow agency
procedures with respect to (1) calling or meeting with the
parents or (2) requesting the agency to hold another IEP
meeting to review the child's IEP. The legislative history of
Public Law 94-142 makes it clear that there should be as
many meetings a year as any one child may need (121
Cong. Red. S20428-29 (Nov. 19, 1975) (remarks of
Senator Stafford)).

In general, if either a parent or a public agency believes that
a required component of the student's IEP should be
changed, the public agency must conduct an IEP meeting if it
believes that the question of whether the student's IEP needs
to be revised to ensure the provision of FAPE to the student
is a matter that must be considered by the IEP Team. If a
parent requests an IEP meeting because the parent believes
that a change in the provision of FAPE to the child or the
educational placement of the child, and the agency refuses to
convene an IEP meeting to determine whether such a change
is needed, the agency must provide written notice to the
parents of the refusal, including an explanation of why the
agency has determined that conducting the meeting is not
necessary to ensure the provision of FAPE to the student.
Under Sec. 300.506(a), the parents or agency may initiate a
due process hearing at any time regarding the identification,
evaluation, or educational placement of the child, or the
provision of FAPE to the child.

Part B does not address the use of audio or video recording
devices at IEP meetings, and no other Federal statute either
authorizes or prohibits the recording of an IEP meeting by
either a parent or a school official. Therefore, an SEA or
public agency has the option to require, prohibit, limit, or
otherwise regulate the use of recording devices at IEP
meetings. If a public agency has a policy prohibiting the use
of these devices at IEP meetings, that policy must provide
for exceptions if they are necessary to ensure that the parent
understands the IEP or the IEP process or to implement
other parental rights guaranteed under Part B. Any recording
of an IEP meeting that is maintained by the public agency is
an "education record," within the meaning of the Family
Educational Rights and Privacy Act ("FERPA"; 20 USC
1232g), and would, therefore, be subject to the
confidentiality requirements of the regulations under both
FERPA (34 CFR Part 99) and Part B (Secs.
300.560-300.575).

Parents wishing to use audio or video recording devices at
IEP meetings should consult State or local policies for
further guidance.

The IEP Team must include a representative of the local
educational agency who: (a) Is qualified to provide, or
supervise the provision of, specially designed instruction to
meet the unique needs of children with disabilities; (b) is
knowledgeable about the general curriculum; and (c) is
knowledgeable about the availability of resources of the
local educational agency (Sec. 300.344(a)(4)). Each State
or local agency may determine which specific staff member
will serve as the agency representative in a particular IEP
meeting, so long as the individual meets these requirements.
It is, however, important that the agency representative have
the authority to commit agency resources and be able to
ensure that whatever services are set out in the IEP will
actually be provided.

Note: IEP meetings for continuing placements may in some
instances be more routine that those for initial placements,
and, thus, may not require the participation of a key
administrator.

A child's IEP Team must include at least one of the student's
regular education teachers (if the child is, or may be
participating in the regular education environment) and at
least one special education teacher, or, if appropriate, at
least one of the child's special education providers (Sec.
300.344(a)(2) and (3)). Each IEP must include a statement
of present levels of educational performance, including a
statement of how the child's disability affects the child's
involvement and progress in the general curriculum (Sec.
300.347(a)(1)). The regular education teacher is a required
participant on the IEP Team of a child who is, or may be,
participating in the regular education environment, regardless
of the extent of that participation.

The child's special education teacher could be either (1) a
teacher qualified to provide special education in the child's
area of suspected disability, or (2) another special education
provider such as a speech pathologist, physical or
occupational therapist, etc., if the related service consists of
specially designed instruction and is considered special
education under the applicable State standard.

Note: Sometimes more than one meeting is necessary in
order to finalize a child's IEP. In this process, if the special
education teacher who will be working with the child is
identified, it would be useful to have that teacher participate
in the meeting with the parents and other members of the
IEP Team in finalizing the IEP. If this is not possible, the
agency should ensure that the teacher is given a copy of the
child's IEP as soon as possible after the IEP is finalized and
before the teacher begins working with the child.

No. The IEP Team need not include more than one regular
education teacher of the child. If the participation of more
than one regular education teacher is considered by the
agency or the parents to be beneficial to the child's success
in school (e.g., in terms of enhancing the child's participation
in the general curriculum), it would be appropriate for them
to attend the meeting.

Yes, if speech is considered special education under State
standards. As with other children with disabilities, the IEP
Team must also include at least one of the child's regular
education teachers if the child is, or may be, participating in
the regular education environment.

The IEP Team may, at the discretion of the parent or the
agency, include, "other individuals who have knowledge or
special expertise regarding the child..." (Sec. 300.344
(a)(6)), italics added). This is a change from prior law, which
had provided, without qualification, that parents or agencies
could bring other individuals to IEP meetings at the
discretion of the parents or agency. However, the legislative
history of Public Law 94-142 made it clear that attendance
at IEP meetings should be limited to those who have an
intense interest in the child. (121 Cong. Rec. S10974 (June
18, 1975) (remarks of Sen. Randolph).)

Part B does not provide for the participation of individuals
such as representatives of teacher organizations or attorneys
at IEP meetings. For example, since a representative of a
teacher organization would be concerned with the interests
of the teacher rather than the interests of the child, and
generally would not possess knowledge or expertise
regarding the child, it generally would be inappropriate for
such an official to attend an IEP meeting. While either the
parent or public agency may consider inviting their attorneys
to an IEP meeting, parents and public agencies need to
ensure that their attorneys possess knowledge and expertise
regarding the child to warrant their participation. However,
the participation of attorneys at IEP meetings should be
discouraged if their participation would have the potential for
creating an adversarial atmosphere which would not
necessarily be in the best interests of the child. Further, as
provided in Section 615 (I)(3)(D)(ii) of the Act, "Attorneys"
fees may not be awarded relating to any meeting of the IEP
Team unless such meeting is convened as a result of an
administrative proceeding or judicial action, or, at the
discretion of the State, for a mediation...conducted prior to
the [request for a due process hearing]."

Although Part B does not expressly require that the IEP
Team include related services personnel as part of the IEP
Team (Sec. 300.344(a)), it is appropriate for those persons
to be included if a particular related service is to be
discussed as part of the IEP meeting. Section 300.344(a)(6)
provides that the IEP Team also includes "at the discretion
of the parent or the agency, other individuals who have
knowledge or expertise regarding the child, including related
services personnel as appropriate..." [Italics added.]

Further, Sec. 300.344(a)(3) requires that the IEP Team for
each child with a disability include "at least one special
education teacher, or, if appropriate, at least one special
education provider of the child..." This requirement can be
met by the participation of either (1) a special education
teacher of the child, or (2) another special education
provider such as a speech pathologist, physical or
occupational therapist, etc., if the related service consists of
specially designed instruction and is considered special
education under the applicable State standard.

If a child with a disability has an identified need for related
services, it would be appropriate for the related services
personnel to attend the meeting or otherwise be involved in
developing the IEP. As explained in the House Report on
the IDEA Amendments of 1997, "Related services
personnel should be included on the team when a particular
related service will be discussed at the request of the child's
parents or the school." (House Report 105-95, p. 103
(1997).) For example, if the child's evaluation indicates the
need for a specific related service (e.g., physical therapy,
occupational therapy, special transportation services, school
social work services, school health services, or counseling),
the agency should ensure that a qualified provider of that
service either (1) attends the IEP meeting, or (2) provides a
written recommendation concerning the nature, frequency,
and amount of service to be provided to the child. This
written recommendation could be a part of the evaluation
report.

Yes. The public agency must ensure that all services set forth
in the child's IEP are provided, consistent with the child's
needs as identified in the IEP. It may provide each of those
services directly, by contracting with another public or
private agency; or through other arrangements. In providing
the services, the agency may use whatever State, local,
Federal, and private sources of support are available for
those purposes (see Sec. 300.301(a)), but the services must
be at no cost to the parents, and the public agency remains
responsible for ensuring that the IEP services are provided in
a manner that appropriately meets the student's needs as
specified in the IEP. The SEA and responsible public agency
may not allow the failure of another agency to provide
services described in the child's IEP to deny or delay the
provision of FAPE to a child.

No. Agency staff may come to an IEP meeting prepared
with evaluation findings and proposed recommendations
regarding IEP content, but the agency must make it clear to
the parents at the outset of the meeting that the services
proposed by the agency are only recommendations for
review and discussion with the parents. Agencies that use
this approach must ensure that there is a full discussion with
the parents of the child's needs and the services to be
provided to meet those needs before the child's IEP is
finalized.

A public agency must provide transportation as a related
service if it is required to assist the disabled child to benefit
from special education. (This includes transporting a
preschool-aged child to the site at which the public agency
provides special education and related services to the child,
if that site is different from the site at which the child receives
other preschool or daycare services.) In determining
whether to include transportation in a child's IEP, the IEP
Team must consider how the child's disability affects the
child's need for transportation, including determining whether
the child's disability prevents the child from using the same
transportation provided to nondisabled children, or from
getting to school in the same manner as nondisabled
children. The public agency must ensure that any
transportation service included in a child's IEP as a related
service is provided at public expense and at no cost to the
parents, and that the child's IEP describes the transportation
arrangement.

Even if a child's IEP Team determines that the child does not
require transportation as a related service, Section 504 of
the Rehabilitation Act of 1973 requires that the child receive
the same transportation provided to nondisabled children. If
a public agency transports nondisabled children, it must
transport disabled children under the same terms and
conditions. However, if a child's IEP Team determines that a
student does not need transportation as a related service,
and the public agency transports only those children whose
IEPs specify transportation as a related service, and does
not transport nondisabled children, the public agency would
not be required to provide transportation to a disabled child.

The Note following Sec. 300.16 clarifies that "[T]he list of
related services is not exhaustive and may include other
developmental, corrective, or supportive services...), if they
are required to assist a child with a disability to benefit from
special education." This could, depending upon the unique
needs of a child, include such services as nutritional services
or service coordination.

The amount of services to be provided must be stated in the
IEP, so that the level of the agency's commitment of
resources will be clear to parents and other IEP Team
members. The amount of time to be committed to each of
the various services to be provided must be (1) appropriate
to the specific service, and (2) stated in the IEP in a manner
that is clear to all who are involved in both the development
and implementation of the IEP.