Questions and Answers on Individualized Education Programs ...

QUESTIONS AND ANSWERS ON INDIVIDUALIZED EDUCATION PROGRAMS (IEPS),

EVALUATIONS, AND REEVALUATIONS

REVISED JUNE 2010

Regulations for Part B of the Individuals with Disabilities Education Act (IDEA) were published in the Federal Register on August 14, 2006, and became effective on Oct. 13, 2006. In addition, supplemental Part B regulations were published on Dec. 1, 2008, and became effective on Dec. 31, 2008. Since publication of the regulations, the Office of Special Education and Rehabilitative Services (OSERS) in the U.S. Department of Education (Department) has received requests for clarification of some of these regulations. This is one of a series of question and answer (Q&A) documents prepared by OSERS to address some of the most important issues raised by requests for clarification on a variety of high-interest topics. Each Q&A document will be updated to add new questions and answers as important issues arise, or to amend existing questions and answers as needed.

OSERS issues this Q&A document to provide States, State educational agencies (SEAs), local educational agencies (LEAs), parents, and other stakeholders with information regarding the IDEA requirements relating to individualized education programs (IEPs), evaluations, and reevaluations. This Q&A document represents the Department's current thinking on this topic. It does not create or confer any rights for or on any person. This guidance does not impose any requirements beyond those required under applicable law and regulations. This Q&A document supersedes the Department's guidance, entitled: Questions and Answers on Individualized Education Programs (IEPs), Evaluations and Reevaluations, January, 2007.

The revised Part B regulations include significant changes related to:

(1) IEPs for children with disabilities who transfer from one public agency to another within the same school year;

(2) allowing IEP Team participants to be excused from attending IEP Team meetings;

(3) specifying when other agency representatives that are responsible for providing or paying for transition services must be invited to IEP Team meetings;

(4) parental consent for initial evaluations and reevaluations for determining eligibility for Part B services; and

QUESTIONS AND ANSWERS ON INDIVIDUALIZED EDUCATION PROGRAMS (IEPS), EVALUATIONS, AND REEVALUATIONS

(5) timelines for conducting the initial evaluation for determining whether the child qualifies as a child with a disability under Part B of the IDEA and what the educational needs of the child are.

Generally, the questions and corresponding answers presented in this Q&A document required interpretation of the IDEA and its implementing regulations; the answers are not simply a restatement of the statutory or regulatory requirements. The responses presented in this document generally are informal guidance representing the interpretation of the Department of the applicable statutory or regulatory requirements in the context of the specific facts presented and are not legally binding. The Q&As in this document are not intended to be a replacement for careful study of the IDEA and its implementing regulations. The IDEA, its implementing regulations, and other important documents related to the IDEA and the regulations are found at . If you are interested in commenting on this guidance, please e-mail your comments to OSERSguidancecomments@ and include IEPs, Evaluations and Reevaluations in the subject of your e-mail, or write to us at the following address:

Patricia Guard U.S. Department of Education Potomac Center Plaza 550 12th Street, SW, Room 4108 Washington, DC 20202

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QUESTIONS AND ANSWERS ON INDIVIDUALIZED EDUCATION PROGRAMS (IEPS), EVALUATIONS, AND REEVALUATIONS

CONTENTS

A. Transfer of Students with IEPs from One Public Agency to a New Public Agency................................................Page 7

A-1. What if a student whose IEP has not been subject to a timely annual review, but who continues to receive special education and related services under that IEP, transfers to a new public agency in the same State? Is the new public agency required to provide a free appropriate public education (FAPE) from the time the student arrives?

A-2. What options are available when an out-of-state transfer student cannot provide a copy of his/her IEP, and the parent identifies the "comparable" services that the student should receive?

A-3. Is it permissible for a public agency to require that a student with a disability who transfers from another State with a current IEP that is provided to the new public agency remain at home without receiving special education and related services until a new IEP is developed by the new public agency?

A-4. What is the timeline for a new public agency to adopt an IEP from a previous public agency or to develop and implement a new IEP?

A-5. What happens if a child with a disability who has an IEP in effect transfers to a new public agency or LEA in a different State and the parent refuses to give consent for a new evaluation?

B. Initial Evaluation Timelines and Determination of Eligibility ....................Page 11

B-1. Under the IDEA, what must occur during the 60-day time period after the public agency receives parental consent for an initial evaluation? Must a public agency determine eligibility and begin providing special education and related services within this IDEA 60-day initial evaluation timeline?

B-2. Must the assessments and other evaluation measures used to determine eligibility for special education and related services include a doctor's medical diagnosis, particularly for children suspected of having autism or attention deficit disorder/attention deficit hyperactivity disorder?

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QUESTIONS AND ANSWERS ON INDIVIDUALIZED EDUCATION PROGRAMS (IEPS), EVALUATIONS, AND REEVALUATIONS

C. IEP Team Membership and IEP Meetings ...................................................Page 13

C-1. May the representative of the public agency be excused from attending an IEP Team meeting?

C-2. May more than one member of an IEP Team be excused from attending the same IEP Team meeting?

C-3. Must the public agency receive consent from a parent to excuse multiple regular education teachers if at least one regular education teacher will attend an IEP Team meeting?

C-4. If the designated regular education teacher is excused from attending the IEP Team meeting, would an alternate regular education teacher be required to attend?

C-5. Is there a specific timeline in the IDEA for public agencies to notify parents of a request to excuse an IEP Team member from attending an IEP Team meeting? May a State establish a timeline for this purpose?

C-6. May State law or regulations regarding IEP Team membership and IEP Team meeting attendance requirements exceed those of the IDEA?

C-7. Must an IEP Team document in writing that it considered all of the requirements of 34 CFR ?300.324, regarding the development, review, and revision of IEPs?

C-8. How must a public agency document that IEP Team members have been informed of changes to the IEP?

C-9. Who must participate in making changes to the IEP when an IEP is amended without convening an IEP Team meeting pursuant to 34 CFR ?300.324(a)(4)(i)?

C-10. Must a public agency provide a parent with prior written notice if an IEP is amended without convening a meeting of the IEP Team?

D. Consent Provisions ......................................................................................Page 19

D-1. Must a public agency obtain parental consent, or the consent of a child with a disability who has reached the age of majority, to invite a representative of a participating agency that is likely to be responsible for providing or paying for transition services to an IEP Team meeting

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QUESTIONS AND ANSWERS ON INDIVIDUALIZED EDUCATION PROGRAMS (IEPS), EVALUATIONS, AND REEVALUATIONS

conducted in accordance with 34 CFR ?300.321(b)(3)? Do the words "to the extent appropriate" impose a limitation on this requirement?

D-2. Must a public agency pursue the initial evaluation of a child using the procedural safeguards outlined in subpart E of 34 CFR Part 300 in every case where a parent refuses to provide consent for an initial evaluation?

D-3. What may a public agency do if a parent does not respond to the public agency's request for the parent to provide consent to a reevaluation?

D-4. The regulations provide, in 34 CFR ?300.303(b)(2), that a reevaluation must occur at least once every three years, unless the parent and the public agency agree that a reevaluation is unnecessary. What options are available to a public agency if a parent believes that the public agency should continue to provide special education and related services to their child but refuses to consent to a three-year reevaluation under 34 CFR ?300.303(b)(2)?

D-5. Does the requirement that a public agency obtain parental consent for the initial provision of special education and related services mean that parents must consent to each service included in the initial IEP developed for their child?

D-6. What recourse is available to parents who consent to the initial provision of special education and related services but who disagree with a particular service or services in their child's IEP?

D-7. May a foster parent provide consent for an initial evaluation even if the biological parent refuses to provide such consent?

E. Related Services ...........................................................................................Page 25

E-1. Can artistic and cultural services, such as music therapy, be considered related services under the IDEA? If so, are there qualifications in the IDEA for personnel to provide such services as related services?

E-2. Is a public agency responsible for paying for mental health services if the IEP Team determines that a child with a disability requires these services to receive FAPE and includes these services in the child's IEP?

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