Office of Special Education and Rehabilitative Services; List of Correspondence

AGENCY:

Department of Education.

ACTION:

List of Correspondence from October 1, 2003 through December 31, 2003.

SUMMARY:

The Secretary is publishing the following list pursuant to section 607(d) of the Individuals with Disabilities Education Act (IDEA). Under section 607(d) of the 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 (Department) of the IDEA or the regulations that implement the IDEA.

FOR FURTHER INFORMATION CONTACT:

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.

SUPPLEMENTARY INFORMATION:

The following list identifies correspondence from the Department issued from October 1, 2003 through December 31, 2003.

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 B

Assistance for Education of All Children With Disabilities

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

Topic Addressed: Use of Funds.

• Letter dated November 18, 2003 to Florida Department of Education Director of Special Education Shan Goff, clarifying that under Part B of the IDEA, the court, in its discretion, may award reasonable attorneys' fees to the parents of a child with a disability who is a prevailing party in a due process hearing, but the IDEA does not provide a reciprocal right for a local educational agency (LEA) or State educational agency (SEA) (although it may be permissible for an LEA or SEA to recover fees under other applicable federal or State laws).

Section 612—State Eligibility

Topic Addressed: Condition of Assistance.

• Letter dated December 24, 2003 to Attorney Leigh M. Manasevit, regarding the requirement that North Carolina revise its State Plan because a public agency may not use the due process procedures to override a parent's refusal to consent to the initial provision of special education and related services.

Topic Addressed: Procedural Safeguards.

• Letter dated December 10, 2003 to individuals (personally identifiable information redacted), regarding options available to parents to resolve disputes relating to the requirements of Part B of the IDEA and clarifying that the Part B regulations do not include a provision for review by the Office of Special Education Programs of a State's complaint decision.
• Letter dated October 27, 2003 to California State Director of Special Education Alice Parker, clarifying that the Part B regulations require a State to resolve signed, written complaints regarding State eligibility requirements.

Topic Addressed: Confidentiality of Education Records.

• Letter dated October 31, 2003 to individual (personally identifiable information redacted), from Family Policy Compliance Office Director LeRoy S. Rooker, clarifying that under the Family Educational Rights and Privacy Act (FERPA) and the IDEA, a school system may not release to the parents of a student, for whom a due process hearing has been filed, the names and personally identifiable information of other students (without consent from their parents) that are contained in the student's record.

Topic Addressed: Least Restrictive Environment.

• Letter dated November 4, 2003 to New Jersey Department of Education Director of Special Education Barbara Gantwerk, regarding the least restrictive environment provisions of the IDEA and the placement of children with disabilities in segregated settings, with parental approval.

Topic Addressed: State Educational Agency General Supervisory Authority.

• Letters dated October 24, 2003 to New Jersey Statewide Parent Advocacy Network Executive Director Diana MTK Autin and to New Jersey Commissioner of Education William L. Librera, clarifying that the IDEA does not prohibit a State or school district from entering into an agreement with another entity to provide special education and related services, but the State and school district remain responsible for ensuring the provision of a free appropriate public education to the child, and the parents cannot be denied the opportunity to pursue complaints against the State and school district.

Section 613—Local Educational Agency Eligibility

Topic Addressed: Charter Schools.

• Letter dated December 18, 2003 to Texas Education Agency Associate Commissioner Susan Barnes, clarifying that the IDEA statute and its corresponding regulations do not make any exceptions to the requirements under 20 U.S.C. 1412(a)(1) and 20 U.S.C. 1412(a)(3)-(6) when a student is provided an education through information and communication technologies (e.g., via the Internet, teleconferencing, or tele-video conferencing).
• Letter dated November 10, 2003 to Harmony Community School Executive Director David Nordyke, clarifying that issues regarding a State's public school funding formula, including State funding of special education and related services, are matters to be resolved at the State level, as long as the provisions of the IDEA are met.

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

Topic Addressed: Individualized Education Programs.

• Letter dated October 2, 2003 to Daniel W. Morse, Esq., clarifying that a Section 504 plan that does not meet the specific individualized education program (IEP) requirements of Part B of the IDEA may not be used to substitute for an IEP.

Section 615—Procedural Safeguards

Topic Addressed: Due Process Hearings.

• Letter dated December 10, 2003 to individual (personally identifiable information redacted), clarifying that a party aggrieved by a decision in a hearing (in a one-tier due process hearing system) does not have a right to an appeal to the SEA merely because the State transfers responsibility for conducting due process hearings to the State's Office of Administrative Hearings, and clarifying that the State is not automatically a proper party to an administrative or judicial proceeding merely because the State operates a one-tier system.

Part C

Infants and Toddlers With Disabilities

Section 634—Eligibility

Topic Addressed: Evaluations.

• Letter dated November 6, 2003 to Connecticut Part C Coordinator Linda Goodman, clarifying whether audiological evaluations must be provided to an infant or toddler referred to Part C, who is suspected of having a communication delay, whose hearing has not been tested, and for whom an audiology evaluation is determined to be needed.

Section 635—Requirements for Statewide System

Topic Addressed: Eligibility Criteria.

• Letter dated October 24, 2003 to Connecticut Part C Coordinator Linda Goodman, regarding the State's obligation to evaluate and assess infants or toddlers who are suspected of having a disability and whether the State can deny services to families who refuse to pay or repeatedly fail to keep appointments.

Other Letters That Do Not Interpret the Idea But May Be of Interest to Readers

Topic Addressed: Procedural Safeguards.

• Letter dated October 17, 2003 to U.S. Congressman Ruben Hinojosa clarifying that the provisions of the Safe and Drug-Free Schools and Communities Act (Title IV of the Elementary and Secondary Education Act of 1965, as amended by the No Child Left Behind Act of 2001) do not prohibit the presence of a student's prescription drugs, or related equipment, at school.

Electronic Access to This Document

You may view this document, as well as all other Department of Education documents published in the Federal Register, in text or Adobe Portable Document Format (PDF) on the Internet at the following site: http://www.ed.gov/news/fedregister/index.html.

To use PDF you must have Adobe Acrobat Reader, which is available free at this site. If you have questions about using PDF, call the U.S. Government Printing Office (GPO), toll free, at 1-888-293-6498; or in the Washington, DC, area at (202) 512-1530.

Note:

The official version of this document is published in the Federal Register. Free Internet access to the official edition of the Federal Register and the Code of Federal Regulations is available on GPO Access at: http://www.gpoaccess.gov/nara/index.html

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