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First Quarter 2012 OSEP Policy Documents on the Education of Children with Disabilities

December 10, 2012 in Special Education Advisor Blog by Doug Goldberg

As I have mentioned many times in the past the Federal Register is a goldmine of information when it comes to understanding the Individuals with Disabilities Education Act (IDEA).   Section 607 of IDEA requires that the Secretary of Education, on a quarterly basis, publish in the Federal Register a list of correspondence. This is correspondence from the Department of Education received by individuals that describes the interpretations of IDEA or the regulations that implement IDEA.  OSEP has recently published the First Quarter 2012 Policy Documents and as always they are enlightening and should be read by all.  I am going to provide the first couple of paragraphs of each letter below with a link to the entire document. Read the rest of this entry →

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OSEP Letter to Cox – September 26, 2011

April 10, 2012 in Special Education Advisor Blog by Doug Goldberg

September 26, 2011

H. Douglas Cox
Assistant Superintendent
Special Education and Student Services
Commonwealth of Virginia
Department of Education
P.O. Box 2120
Richmond, Virginia 23218-2120

 

Dear Mr. Cox:

This is in response to your June 16, 2010 letter, written on behalf of the Commonwealth of Virginia Department of Education, to Patricia J. Guard, former Deputy Director of the Office of Special Education Programs (OSEP). In your letter, you seek clarification of OSEP’s position on requirements for appropriate measurable postsecondary goals in individualized education programs (IEPs) under Part B of the Individuals with Disabilities Education Act (IDEA).

Your letter refers to the National Secondary Transition Technical Assistance Center (NSTTAC) guidance in the Indicator 13 Checklist Frequently Asked Questions (2006), which states that “students need to have at least one postsecondary goal that covers the areas of education or training, employment, and, if appropriate, independent living.” You indicate that similar guidance is provided in the NSTTAC Indicator 13 checklist, used in preparing State Performance Plan and Annual Performance Report submissions. You ask whether OSEP’s position is that postsecondary goals in the areas of training, education, and employment are required, and if more than one postsecondary goal is required.

OSEP’s position continues to be that IEPs that address transition services must include appropriate measurable postsecondary goals in the areas of training, education, and employment, and, where appropriate, independent living skills. However, based on your inquiry, we would like to provide further clarification on appropriate measurable postsecondary goals in the areas of training and education.

Section 614(d)(1)(A)(i)(VIII) of the IDEA requires that a child’s IEP include “beginning not later than the first IEP to be in effect when the child is 16, and updated annually thereafter—

(aa) appropriate measurable postsecondary goals based upon age appropriate transition assessments related to training, education, employment, and, where appropriate, independent living skills.” 20 U.S.C. 1414(d)(1)(A)(i)(VIII)(aa). The regulation at 34 CFR §300.320(b)(1) essentially incorporates this statutory provision.

OSEP interprets this statutory provision as not requiring, in general, that IEPs that address transition services include separate postsecondary goals in the areas of training and education.

The IDEA and its implementing regulations do not define the terms “training” and “education.” However, the areas of training and education can reasonably be interpreted as overlapping in certain instances. In determining whether postsecondary goals in the areas of training and education overlap, the IEP Team must consider the unique needs of each individual student with a disability, in light of his or her plans after leaving high school. If the IEP Team determines that separate postsecondary goals in the areas of training and education would not result in the need for distinct skills for the student after leaving high school, the IEP Team can combine the training and education goals of the student into one or more postsecondary goals addressing those areas. For example, for a student whose postsecondary goal is teacher certification, any program providing teacher certification would include education as well as training. Similarly, a student with a disability who enrolls in a postsecondary program in engineering would be obtaining both education and occupational training in the program. The same is true for students with disabilities enrolled in programs for doctors, lawyers, accountants, technologists, physical therapists, medical technicians, mechanics, computer programmers, etc. Thus, in some instances, it would be permissible for the IEP to include a combined postsecondary goal or goals in the areas of training and education to address a student’s postsecondary plans, if determined appropriate by the IEP Team. However, the guidance we are providing is not intended to prohibit the IEP Team from developing separate postsecondary goals in the areas related to training and education in a student’s IEP, if deemed appropriate by the IEP Team, in light of the student’s postsecondary plans. On the other hand, because employment is a distinct activity from the areas related to training and education, each student’s IEP must include a separate postsecondary goal in the area of employment.

Therefore, OSEP will inform NSTTAC that the guidance documents referred to in your letter will need to be revised to specify that, to be consistent with the IDEA, IEPs that address transition services must include a separate postsecondary goal in the area of employment, in addition to at least one postsecondary goal in the areas of training and education. Likewise, because independent living skills are distinct from employment, we will also inform NSTTAC that it will need to revise its guidance to specify that, to be consistent with the IDEA, a student’s IEP must include a separate postsecondary goal in the area of independent living skills, where appropriate.

The guidance provided in this letter is incorporated in questions F-1 and F-3 in the “Questions and Answers on Individualized Education Programs (IEPs), Evaluations, and Reevaluations” and a new section B. has been added to the “Questions and Answers on Secondary Transition.” These revised OSEP guidance documents are posted at http://idea.ed.gov .

Based on section 607(e) of the IDEA, we are informing you that our response is provided as informal guidance and is not legally binding, but represents an interpretation by the U.S. Department of Education of the IDEA in the context of the specific facts presented.

If you have additional questions, please do not hesitate to contact Deborah Morrow at 202-245-7456 or by email at Deborah.Morrow@ed.gov.

Sincerely,

Melody Musgrove, Ed.D.
Director
Office of Special Education Programs

 

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The Federal Register is a Goldmine of Information Regarding IDEA

November 14, 2011 in Special Education Advisor Blog by Doug Goldberg

Ever wonder:

1) If Parents can add a written report to their child’s Individualized Education Program (IEP); or

2) Whether placement decisions in an IEP can be made based on the category of disability; or

3) How do you protect the rights of a child who is a ward of the State in an IEP; or

4) Does the School need to have highly qualified staff to teach Extended School Year (ESY); or

5) Whether Children with a Disability should be included in State Assessments.

All of the above questions and many, many more can be answered by reviewing the Federal Register. Section 607 of the Individuals with Disabilities Education Act (IDEA) requires that the Secretary of Education, on a quarterly basis, publish in the Federal Register a list of correspondence. This is correspondence from the Department of Education received by individuals that describes the interpretations of IDEA or the regulations that implement IDEA. You can find a list by topic or date of these letters on the US Department of Education’s website.

I review these letters regularly as it gives me guidance on how to communicate with School Districts. Especially, when I need answers to questions like the one’s presented above. For instance:

1) Federal Register / Vol. 71, No. 156 Page 46678 states that, “Parents are free to provide input into their child’s IEP through a written report if they so choose.” This is important information to know when the School District’s IEP notes are skewed or missing information the Parent’s feel is important to get on the record; or

2) In a Letter to Tom Trigg dated November 30, 2007, the Office of Special Education Programs (OSEP) answered a question regarding Least Restrictive Environment (LRE) where they stated, “The public agency should exercise caution in making such a determination [location of services] so that the placement of the child with a disability is not based on factors such as the category of disability, configuration of the service delivery system and the availability of staff and instead is based on the factors stated in §300.552;” or

3) In a letter to Dr. Mary J. Ford dated July 10, 2003, OSEP answered a question regarding protecting the rights of a child who is a ward of the State where they stated, “The first part of your question, regarding the appointment of a surrogate parent for a child who is a ward of the State, involves 34 CFR §300.515(a). This regulation requires the public agency to ensure that the rights of a child are protected if 1) no parents (as defined in §300.20) can be identified, 2) the public agency, after reasonable efforts, cannot discover the whereabouts of a parent; or 3) the child is a ward of the State under the laws of the State. The duty of the public agency under §300.515(a) includes the assignment of an individual to act as a surrogate for the parents. The public agency must have a method for determining whether the child needs a surrogate parent and for assigning a surrogate parent for the child. (34 CFR §300.515(b));” or

4) In a letter to Dr. John Copenhaver dated November 7, 2007, OSEP answered a question about the qualifications of school staff during ESY where they stated, “Under Part B regulations, no distinction is made between the personnel qualifications for special education and related services provided pursuant to a child's IEP as part of the regular school program and those provided pursuant to an IEP as ESY services. Personnel providing ESY services should meet the same requirements that apply to personnel providing the same types of services as a part of a regular school program;” or

5) In a letter to Congressman Weldon dated October 10, 2001, OSEP answered a question about state assessments where they stated, “The requirements for including children with disabilities in assessments are based on a number of federal laws, including Title II of the Americans with Disabilities Act of 1990, Section 504 of the Rehabilitation Act of 1973, and most notably the IDEA and Title I of the Elementary and Secondary Education Act. These laws recognize that an assessment is often connected to student benefits such as moving to the next grade or graduating. Assessment is also an important factor in school accountability as well as individual benefits provided to children. Excluding children with disabilities from assessments may violate these Federal laws.”

Knowledge and information are two of the most important tools that Parents have to ensure their child receives a Free Appropriate Public Education (FAPE). Answers to these and other questions like them can be the difference between a child with a disability receiving FAPE or that child receiving a failing education. Stay informed by reviewing new letters as they become available quarterly on the Department of Education website.

 

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OSEP Letter to Margaret Kohn, 17 EHLR 522 (1990)

October 28, 2011 in Special Education Advisor Blog by Doug Goldberg

Ms. Margaret A. Kohn
Bogan and Eig
Attorneys at Law
Suite 330
1400 Sixteenth Street, N.W.
Washington, DC 20036

 Digest of Inquiry

(July 10, 1990)

• Is compensatory education a proper means to provide FAPE to a child with disabilities who was previously denied an appropriate education?

• Does a hearing officer have the authority to award compensatory education to a child with disabilities who has been denied FAPE?

• May a child be awarded summer school programming as compensatory education, as opposed to extending his/her special education beyond the maximum age of entitlement? Read the rest of this entry →

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