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Office of Special Education and Rehabilitative Services; List of Correspondence

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Department of Education.


List of correspondence from April 1, 2003 through June 30, 2003.


The Secretary is publishing the following list pursuant to section 607(d) of the Individuals with Start Printed Page 54896Disabilities Education Act (IDEA). Under section 607(d) of IDEA, the Secretary is required, on a quarterly basis, to publish in the Federal Register a list of correspondence from the Department of Education received by individuals during the previous quarter that describes the interpretations of the Department of Education of the IDEA or the regulations that implement the IDEA.

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Melisande Lee or JoLeta Reynolds. Telephone: (202) 205-5507 (press 3).

If you use a telecommunications device for the deaf (TDD), you may call the Federal Information Relay Service (FIRS) at 1-800-877-8339.

Individuals with disabilities may obtain a copy of this notice in an alternative format (e.g., Braille, large print, audiotape, or computer diskette) on request to the contact persons listed in the preceding paragraph.

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The following list identifies correspondence from the Department issued from April 1, 2003 through June 30, 2003 with the exception of two letters, one dated March 17, 2003, which was inadvertently omitted from the 1st Quarter list, and one dated August 1, 2003, which relates to the subject matter of the March 17, 2003 letter.

Included on the list are those letters that contain interpretations of the requirements of the IDEA and its implementing regulations, as well as letters and other documents that the Department believes will assist the public in understanding the requirements of the law and its regulations. The date and topic addressed by a letter are identified, and summary information is also provided, as appropriate. To protect the privacy interests of the individual or individuals involved, personally identifiable information has been deleted, as appropriate.

Part A—General Provisions

Section 602—Definitions

Topic Addressed: Child With a Disability

  • Letter dated June 30, 2003 to individual (personally identifiable information redacted), clarifying that although neither the IDEA nor its implementing regulations require that students who are deaf or hard of hearing be assessed to determine their American Sign Language (ASL) skills or proficiency, the individualized education program (IEP) may specify that certain assessment methods be used to assess the student's proficiency in ASL.

Section 603—Office of special education programs

Topic Addressed: Responsibilities of the Office of Special Education Programs

  • Letter dated April 16, 2003 to the National Council on Disability General Counsel Jeff Rosen, regarding the efforts of the Office of Special Education Programs (OSEP) to focus its monitoring system on better outcomes for infants, toddlers, children and youth with disabilities and their families.
  • OSEP memorandum 03-5 dated April 8, 2003 to Chief State School Officers and Lead Agency Directors, regarding OSEP's implementation of the Continuous Improvement and Focused Monitoring System to target resources on those performance issues most closely related to improved results for children with disabilities and to those States most in need of improvement on those performance issues.

Part B—Assistance for Education of all Children with Disabilities

Section 611—Authorization; Allotment; Use of Funds; Authorization of Appropriations

Section 619—Preschool Grants

Topic Addressed: Allocation of Grants

  • OSEP memorandum 03-7 dated April 15, 2003 to State Directors of Special Education, regarding calculating State grants and the determination of the age cohort for which each State ensures the availability of a free appropriate public education (FAPE).

Section 612—State Eligibility

Topic Addressed: Free Appropriate Public Education

  • Letter dated June 27, 2003 to individual (personally identifiable information redacted), clarifying whether Federal funds provided under the IDEA can be used to pay tuition at public or private State-approved special education programs designed to offer parents alternate State-approved school placement options.

Topic Addressed: Least Restrictive Environment

  • Letter dated June 26, 2003 to Maryland Disability Law Center Managing Attorney Leslie S. Margolis, clarifying that OSEP does not intervene in State decisions regarding construction of new schools and that there are no statutory or regulatory provisions which require a State to take certain steps before concluding there is no viable alternative to construction of a new separate facility.

Topic Addressed: State Educational Agency General Supervisory Authority

  • Letter dated June 25, 2003 to individual (personally identifiable information redacted), clarifying the State Educational Agency's general supervisory responsibilities and explaining that the IDEA and its implementing regulations do not (1) specify the manner or method in which a State educational agency (SEA) must conduct an independent onsite-investigation of a complaint or (2) require that students with disabilities attain particular graduation rates for a State to meet its obligations under the IDEA.

Topic Addressed: Participation of Children with Disabilities in State and District-Wide Assessments

  • Letter dated June 26, 2003 to individual (personally identifiable information redacted), regarding (a) participation by students placed in private schools or facilities in State and district-wide assessments and in alternate assessments; (b) the appropriate configuration and authority of the IEP team; (c) the provision of direct services by the SEA and remedies available under State complaint procedures; (d) the filing of a State complaint in an alternative format and the completeness of a complaint investigation; and (e) procedural safeguards for parents with disabilities.
  • Letter dated April 10, 2003 to New York State Education Department Deputy Commissioner Lawrence Gloeckler, regarding a State's ability to (1) determine what accommodations in administration invalidate a test or a part thereof and (2) provide appropriate direction to school districts and IEP teams on issues including the design and constructs measured by various required tests, which accommodations and modifications in administration are valid, and which accommodations and modifications would invalidate the assessment or part of the assessment.

Section 613—Local Educational Agency Eligibility

Topic Addressed: Charter Schools

  • Letter dated April 4, 2003 to Hawaii Department of Education Special Education Director Debra Farmer, clarifying the State's obligations, under its unitary school system and parental choice programs, to provide a FAPE to students with disabilities whose parents choose to place them in a charter school. Start Printed Page 54897

Section 614—Evaluations, Eligibility Determinations, Individualized Education Programs, and Educational Placements

Topic Addressed: Evaluations and Reevaluations

  • Letter dated June 26, 2003 to Maryland Department of Education Assistant State Superintendent Carol Ann Baglin, clarifying that (1) the determination of whether a child suspected of having a specific learning disability is a child with a disability must be made by the parents and a team of qualified professionals and (2) it would not be inconsistent with the IDEA for a State to require that the child's parent be afforded the opportunity to provide a statement presenting his or her conclusion regarding the determination of eligibility.
  • Letter dated April 10, 2003 to New York State Education Department Deputy Commissioner Lawrence Gloeckler, clarifying that (1) the IDEA statute and Part B regulations reflect the clear and unequivocal intent of Congress to support parents' rights to choose whether their children would be enrolled initially in special education and (2) an individual parent's refusal to consent to the initial provision of special education and related services relieves the State's obligation to provide FAPE to that child until the parent provides that consent.

Topic Addressed: Individualized Education Programs

  • Letter dated June 4, 2003 to individual (personally identifiable information redacted), regarding the audio or video recording of IEP meetings.
  • Letter dated April 2, 2003 to Sonja D. Kerr, Esq., clarifying that neither the IDEA nor the final regulations (1) address the “write-up” of the IEP (whether or not parents must be physically present when the IEP is written is a State issue) or (2) prohibit the parties from using an IEP developed during a conciliation conference or from making offers of settlement or submitting such settlement offers to a hearing officer or court.

Section 615—Procedural Safeguards

Topic Addressed: Manifestation Determination Review

  • Letter dated August 1, 2003 to Vermont Department of Education Legal Counsel Geoffrey A. Yudien, clarifying that (1) nothing in the IDEA statute or regulations limits a manifestation determination review only to the disability that served as the basis for the eligibility determination and (2) the ten-day timeline set forth in 34 CFR 300.523(a)(2) is not intended to preclude the IEP team from making an appropriate determination that additional evaluations must be completed in order to make a manifestation determination.
  • Letter dated March 17, 2003 to New Hampshire Department of Education Consultant Terry Brune, clarifying that, while the IDEA statute and regulations do not address the issue of conducting more than one manifestation determination review for the same incidence of behavior, any new information regarding the incident could be used as a basis for an IEP meeting to reexamine the student's program and placement.

Part C—Infants and Toddlers with Disabilities

Section 636—Individualized Family Service Plan

Topic Addressed: Early Intervention Services

  • Letter dated June 30, 2003 to individual (personally identifiable information redacted), clarifying that the regulations implementing Part C require that (1) written parental consent be obtained before conducting the initial evaluation and placement of a child and before initiating the provision of early intervention services and (2) there is no provision authorizing public agencies to use mediation or due process procedures to override a parent's refusal to consent to the initial provision of early intervention or special education and related services.

Section 641—State Interagency Coordinating Council

Topic Addressed: State Interagency Coordinating Council

  • OSEP memorandum 03-6 dated April 15, 2003, regarding the requirements for submitting annual performance reports, and clarifying that a single report can be used to satisfy both the Education Department General Regulations and the Part C Interagency Coordinating Council reporting requirements.

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(Catalog of Federal Domestic Assistance Number 84.027, Assistance to States for Education of Children with Disabilities).

Dated: September 16, 2003.

Robert H. Pasternack,

Assistant Secretary for Special Education and Rehabilitative Services.

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[FR Doc. 03-23975 Filed 9-18-03; 8:45 am]