Bolded emphasis has been added to highlight new requirements to the evaluation process.

• An initial evaluation must consist of procedures to determine whether a child is a child with a disability, and to determine the educational needs of such child.

• If the parents of a child refuse consent for the evaluation, the school district may continue to pursue an evaluation by utilizing the mediation and due process procedures under section 615.

• A school district must ensure that a reevaluation of each child with a disability is conducted if conditions warrant or if the child’s parent or teacher requests a reevaluation, but at least once every three years.

• Evaluation procedures must, in addition to current requirements, ensure that a school district uses:

• a variety of assessment tools and strategies to gather relevant functional and developmental information, including information provided by the parent, that may assist in determining whether the child is a child with a disability and the content of the child’s IEP, including information related to enabling the child to be involved in and progress in the general curriculum or, for preschool children, to participate in appropriate activities.

• technically sound instruments that may assess the relative contribution of cognitive and behavioral factors, in addition to physical or developmental factors.

• assessment tools and strategies that provide relevant information that directly assists persons in determining the educational needs of the child.

• The determination of whether the child is a child with a disability must be made by a team of qualified professionals and the parent of the child. (IDEA refers to this team as the "IEP Team". In New York State, the IEP Team is the Committee on Special Education (CSE), the Subcommittee on Special Education or the Committee on Preschool Special Education (CPSE)). Henceforth, the word Committee will refer to the Federal term "IEP Team."

• In making a determination of eligibility for special education and related services, a child may not be identified as a child with a disability if the determinant factor for such determination is lack of instruction in reading or math or limited English proficiency.

• A copy of the evaluation report and the documentation of determination of eligibility must be given to the parent.

• As part of an initial evaluation (if appropriate) and as part of any reevaluation under this section, the Committee and other qualified professionals, as appropriate -

• must review existing evaluation data on the child, including evaluations and information provided by the parents of the child, current classroom-based assessments and observations, and teacher and related services provider observations; and

• on the basis of that review, and input from the child’s parents, identify what additional data, if any, are needed to determine -

• whether the child has a particular category of disability or, in the case of a reevaluation, whether the child continues to have such a disability;

• present levels of performance and educational needs of the child;

• whether the child needs special education and related services, or in the case of a reevaluation of a child, whether the child continues to need special education and related services; and

• whether any additions or modifications to the special education and related services are needed to enable the child to meet the measurable annual goals set out in the IEP of the child and to participate, as appropriate, in the general curriculum.

• The school district must administer such tests and other evaluation materials needed to produce the data identified by the Committee.

• Each school district must obtain informed parental consent prior to conducting any new test or assessment as part of a reevaluation of a child with a disability, except that such informed parent consent need not be obtained if the district can demonstrate that it took reasonable measures to obtain such consent and the child’s parent failed to respond.

• If the Committee and other qualified professionals, as appropriate, determine that no additional data are needed to determine whether the child continues to be a child with a disability, the school district

• A school district must evaluate a child with a disability in accordance with section 614 before determining that the child is no longer a child with a disability (i.e., declassification).

NOTE: Additional requirements relating to evaluations and reevaluations for a student with a disability are included in Section 614 of IDEA and in NYCRR 200.4(b).

3. Must a Committee on Preschool Special Education (CPSE) obtain parental consent for a reevaluation of a preschool student with a disability?

(a) Evaluations and Reevaluations.

    (1) Initial evaluations.--

            (A) In general.--A State educational agency, other State agency, or local educational agency shall conduct a full and individual initial evaluation, in accordance with this paragraph and subsection (b), before the initial provision of special education and related services to a child with a disability under this part.

            (B) Procedures.--Such initial evaluation shall consist of procedures--

                (i) to determine whether a child is a child with a disability (as defined in section 602(3)); and
                (ii) to determine the educational needs of such child.

            (C) Parental consent.--

                (i) In general.--The agency proposing to conduct an initial evaluation to determine if the child qualifies as a child with a disability as defined in section 602(3) (A) or 602(3) (B) shall obtain an informed consent from the parent of such child before the evaluation is conducted. Parental consent for evaluation shall not be construed as consent for placement for receipt of special education and related services.
                (ii) Refusal.--If the parents of such child refuse consent for the evaluation, the agency may continue to pursue an evaluation by utilizing the mediation and due process procedures under section 615, except to the extent inconsistent with State law relating to parental consent.

(2) Reevaluations.--A local educational agency shall ensure that a reevaluation of each child with a disability is conducted--

            (A) if conditions warrant a reevaluation or if the child's parent or teacher requests a reevaluation, but at least once every 3 years; and

            (B) in accordance with subsections (b) and (c).

(b) Evaluation Procedures.--

    (1) Notice.--The local educational agency shall provide notice to the parents of a child with a disability, in accordance with subsections (b) (3) , (b) (4) , and (c) of section 615, that describes any evaluation procedures such agency proposes to conduct.

    (2) Conduct of evaluation.--In conducting the evaluation, the local educational agency shall-

            (A) use a variety of assessment tools and strategies to gather relevant functional and developmental information, including information provided by the parent, that may assist in determining whether the child is a child with a disability and the content of the child's individualized education program, including information related to enabling the child to be involved in and progress in the general curriculum or, for preschool children, to participate in appropriate activities;

            (B) not use any single procedure as the sole criterion for determining whether a child is a child with a disability or determining an appropriate educational program for the child; and

            (C) use technically sound instruments that may assess the relative contribution of cognitive and behavioral factors, in addition to physical or developmental factors.

    (3) Additional requirements.--Each local educational agency shall ensure that--

            (A) tests and other evaluation materials used to assess a child under this section--

                (i) are selected and administered so as not to be discriminatory on a racial or cultural basis; and
                (ii) are provided and administered in the child's native language or other mode of communication, unless it is clearly not feasible to do so; and

            (B) any standardized tests that are given to the child--

                (i) have been validated for the specific purpose for which they are used;
                (ii) are administered by trained and knowledgeable personnel; and
                (iii) are administered in accordance with any instructions provided by the producer of such tests;

            (C) the child is assessed in all areas of suspected disability; and

            (D) assessment tools and strategies that provide relevant information that directly assists persons in determining the educational needs of the child are provided.

    (4) Determination of eligibility. - Upon completion of administration of tests and other evaluation materials--

            (A) the determination of whether the child is a child with a disability as defined in section 602(3) shall be made by a team of qualified professionals and the parent of the child in accordance with paragraph (5); and

            (B) a copy of the evaluation report and the documentation of determination of eligibility will be given to the parent.

       (5) Special rule for eligibility determination.--In making a determination of eligibility under paragraph (4) (A), a child shall not be determined to be a child with a disability if the determinant factor for such determination is lack of instruction in reading or math or limited English proficiency.

(c) Additional Requirements For Evaluation and Reevaluations.-

    (1) Review of existing evaluation data.--As part of an initial evaluation (if appropriate) and as part of any reevaluation under this section, the IEP Team described in subsection (d) (1) (B) and other qualified professionals, as appropriate, shall--

            (A) review existing evaluation data on the child, including evaluations and information provided by the parents of the child, current classroom-based assessments and observations, and teacher and related services providers observation; and

            (B) on the basis of that review, and input from the child's parents, identify what additional data, if any, are needed to determine--

                (i) whether the child has a particular category of disability, as described in section 602(3), or, in case of a reevaluation of a child, whether the child continues to have such a disability;
                (ii) the present levels of performance and educational needs of the child;
                (iii) whether the child needs special education and related services, or in the case of a reevaluation of a child, whether the child continues to need special education and related services; and
                (iv) whether any additions or modifications to the special education and related services are needed to enable the child to meet the measurable annual goals set out in the individualized education program of the child and to participate, as appropriate, in the general curriculum.

    (2) Source of data.--The local educational agency shall administer such tests and other evaluation materials as may be needed to produce the data identified by the IEP Team under paragraph (1) (B).

    (3) Parental consent.--Each local educational agency shall obtain informed parental consent, in accordance with subsection (a) (1) (C), prior to conducting any reevaluation of a child with a disability, except that such informed parent consent notice need not be obtained if the local educational agency can demonstrate that it had taken reasonable measures to obtain such consent and the child's parent has failed to respond.

    (4) Requirements if additional data are not needed.--If the IEP Team and other qualified professionals, as appropriate, determine that no additional data are needed to determine whether the child continues to be a child with a disability, the local educational agency--

            (A) shall notify the child's parents of-

                (i) that determination and the reasons for it; and
                (ii) the right of such parents to request an assessment to determine whether the child continues to be a child with a disability; and

            (B) shall not be required to conduct such an assessment unless requested to by the child's parents.

    (5) Evaluations before change in eligibility.--A local educational agency shall evaluate a child with a disability in accordance with this section before determining that the child is no longer a child with a disability.

INDIVIDUALIZED EDUCATION PROGRAM TEAM
(Committee on Special Education; Subcommittee on Special Education;
Committee on Preschool Special Education)

[Section 614 of the IDEA]
EFFECTIVE JULY 1, 1998

IDEA amended the membership of the IEP Team to strengthen the connection between special education and related services and the child’s opportunity to experience and benefit from the general education curriculum. In New York State, the IEP Team is the Committee on Special Education, the Subcommittee on Special Education or the Committee on Preschool Special Education (hereafter referred to as the Committee).

Effective July 1, 1998, Federal requirements for the membership of the Committee will include (new requirements appear in bold):

• the parents of the child with a disability.
   

• at least one regular education teacher of such child (if the child is, or may be, participating in the regular education environment).

• at least one special education teacher, or where appropriate, at least one special education provider (i.e., related service provider) of such child.

• a representative of the local educational agency who

• is qualified to provide, or supervise the provision of, specially designed instruction to meet the unique needs of children with disabilities;
• is knowledgeable about the general curriculum; and
• is knowledgeable about the availability of resources of the local educational agency.

• an individual who can interpret the instructional implications of evaluation results, who may be selected from the child’s regular or special education teacher or the representative of the local educational agency.

• at the discretion of the parent or the agency, other individuals who have knowledge or special expertise regarding the child, including related services personnel as appropriate.

• whenever appropriate, the child with a disability.

Participate in the development of the IEP of the child, including the

determination of appropriate positive behavioral interventions and strategies.

determination of supplementary aids and services, program modifications, and support for school personnel that will be provided for the child to:

advance appropriately toward attaining the annual goals;

be included and progress in the general curriculum and to participate in extracurricular and other nonacademic activities; and

be educated and participate in activities with other children with disabilities and nondisabled children.

• Participate in the review and the revision of the IEP of the child.

The following charts specify who will be the required members of the Committee on Special Education, the Subcommittee on Special Education and the Committee on Preschool Special Education.

In addition to being invited to participate in all meetings to determine eligibility for special education and to develop, review and revise their child’s Individualized Education Program (IEP), the parents of the student with the disability must be included directly in the decision-making process. Parents are expected to be equal participants along with school personnel in:

• developing, reviewing and revising the IEP for their child;
• determining what additional data are needed as part of an evaluation of their child and determine their child’s eligibility and educational placement;
• having their concerns and information that they provide regarding their child considered in developing and reviewing their child’s IEP; and
• being regularly informed of their child’s progress toward reaching the annual goals.

Parents are to be equal partners with school personnel in making decisions about a child’s educational program, and the Committee must consider parents concerns and information that they provide regarding their child in developing and reviewing the IEP. The Committee has ultimate responsibility to ensure that the IEP includes services that the child needs in order to receive a free appropriate public education (FAPE). If it is not possible to reach consensus, the Committee must, nevertheless, make a recommendation and provide the parents with a notice of its recommendation regarding the child’s educational program and the parents’ due process rights.

Consistent with Federal and State laws and regulations, parents are to be active participants in the discussion and decision making about their child’s need for special education and participate with the Committee in developing their child’s Individualized Education Program (IEP). A telephone conference involving the parent(s) and Committee is a permissible strategy to involve parents in the IEP development process. The Committee has the responsibility to fully inform parents, in their dominant language or other mode of communication, of their right to participate in all Committee meetings where their child is being discussed, and to notify them of all actions proposed or refused by the Committee. The Committee is required to:

• Take steps to ensure that one or both of the parents of the student with a disability are present at Committee meetings or are afforded the opportunity to participate in the meeting to discuss their child.
• Provide full notice to parents or guardians of the Committee meeting at least five days before the scheduled meeting to ensure that they will have the opportunity to attend and understand their due process rights.
• Schedule the meeting at a mutually agreed on time and place.

A meeting may be conducted without a parent in attendance, if the school district or other responsible educational agency is unable to convince the parents that they should attend. The agency must have a record of its attempts to arrange a mutually agreed on time and place for the meeting, such as detailed records of telephone calls, copies of correspondence and detailed records of visits to parents.

Yes.

Yes. However, it is strongly encouraged that school districts begin to implement these new requirements as soon as possible for all students. This will help in shifting the focus of IEP meetings to emphasize a student’s participation in general education curriculum and to learning and teaching.

A child’s individual needs and prospects will determine whether a regular education teacher would need to attend a Committee meeting. A vast majority of students with disabilities would be expected to participate in regular classrooms, therefore requiring the participation of a regular education teacher. Further guidance on this will be provided once the Federal regulations are finalized.

Yes. IDEA requires that the regular education teacher on the Committee be the regular education teacher of the child. The Committee should ensure the participation of at least one regular education teacher of the child who can identify appropriate positive behavioral supports and modifications for the child, and necessary support for school personnel, to enable the student to participate in the general education class and curriculum. If the student is currently in full-time special education and is being considered for participation in general education classes, the regular education teacher may be a teacher who is likely to be providing general education instruction to that student.

No. The regular education teacher must be a certified teacher who is or may be providing general education instruction to the student.

10. How do the requirements for a regular education teacher pertain to the Committee on Preschool Special Education?

Draft U.S. Department of Education guidance on this issue indicates that, if a school district provides regular education preschool services to nondisabled children, then the regular education teacher would be the teacher who is, or may be, responsible for implementing the IEP. If the school district 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-age child who is, or may be, participating in the regular education environment. If the school district does not provide regular preschool education services to nondisabled children, the school district would designate an individual who, under State standards, is qualified to serve nondisabled children of the same age. (Appendix C – Notice of Interpretation to the draft Federal Regulations).

The IDEA provides that the regular education teacher participate on the Committee for students who are or may be participating in general education classes and that the regular education teacher, to the extent appropriate, participate in the development, review and revision of the IEP of the child to identify necessary support for the child and for the teacher that will assist a child to progress in the general education curriculum. School district administrators should schedule Committee meetings in a manner which would minimize the extent to which it affects a regular education teacher’s instructional responsibility to all students in the regular education class.

No. The Board of Education should establish procedures to ensure that the Committee include at least one regular education teacher of the student (if the student is, or may be, participating in the regular education environment). This individual, similar to the previous requirements that the student’s teacher attend all meetings, would vary based on the specific student to be discussed by the Committee If the student has more than one regular education teacher, the Committee is encouraged to seek input from teachers who will not be attending the Committee meetings and ensure that they are informed about the results of the meeting.

A member of the Committee may not serve more than one role, except that, consistent with the Act, the individual who can interpret the instructional implications of evaluation results may be a member of the Committee serving one of the other required roles. The Chairperson of the Committee on Special Education may be selected from any of the required members. (The Chairperson of the CPSE is always the school district representative.)

The individual on the Committee qualified to interpret the instructional implications of evaluations may be the school psychologist, the school district representative, the special education teacher or the regular education teacher or it may also be, for example, a curriculum specialist or a related service provider such as a speech and language therapist.

IEP meetings are the vehicles for school personnel and parents to reach consensus and make joint and informed decisions regarding a student’s needs. While the parent or school personnel may request other individuals to attend a Committee meeting, only those individuals with knowledge or special expertise regarding the student may participate as members of the Committee in the evaluation process and the development, review and revision of the student’s IEP.

(B) Individualized education program team.—The term 'individualized education program team' or 'IEP Team' means a group of individuals composed of--

            (i) the parents of a child with a disability;
            (ii) at least one regular education teacher of such child (if the child is, or may be, participating in the regular education environment);
            (iii) at least one special education teacher, or where appropriate, at least one special education provider of such child;
            (iv) a representative of the local educational agency who--

                (I) is qualified to provide, or supervise the provision of, specially designed instruction to meet the unique needs of children with disabilities;
                (II) is knowledgeable about the general curriculum; and
                (III) is knowledgeable about the availability of resources of the local educational agency;

            (v) an individual who can interpret the instructional implications of evaluation results, who may be a member of the team described in clauses (ii) through (vi);
            (vi) at the discretion of the parent or the agency, other individuals who have knowledge' or special expertise regarding the child, including related services personnel as appropriate; and
            (vii) whenever appropriate, the child with a disability.

(C) Requirement with respect to regular education teacher.--The regular education teacher of the child, as a member of the IEP Team, shall, to the extent appropriate, participate in the development of the IEP of the child, including the determination of appropriate positive behavioral interventions and strategies and the determination of supplementary aids and services, program modifications, and support for school personnel consistent with paragraph (1) (A) (iii).

(B) Requirement with respect to regular education teacher.--The regular education teacher of the child, as a member of the IEP Team, shall, to the extent appropriate, participate in the review and revision of the IEP of the child.

INDIVIDUALIZED EDUCATION PROGRAM
CONTENTS AND CONSIDERATIONS

[Section 614 of the IDEA]
EFFECTIVE JULY 1, 1998*

* Section 330.342(d) of the draft Federal regulations (10/97) indicate that all IEP's in effect on July 1, 1998 must meet the new requirements.

The IDEA codified all provisions relating to the Individualized Education Programs (IEP). IDEA defines an IEP and requires that the Committee specifically consider certain factors to ensure that the IEP of each child addresses the unique needs of the child that arise from his or her disability and must be addressed in order for the child to progress in the general education curriculum. As previously stated, in making a decision on eligibility a child may not be identified as a child with a disability if the determinant factor is lack of instruction in reading or math or limited English proficiency. The House Committee Report emphasizes that the majority of children identified as eligible for special education and related services are capable of participating in the general education curriculum to varying degrees with necessary adaptations and modifications. This provision is intended to ensure that special education and related services provided to students are in addition to and are affected by the general education curriculum, not separate from it. (emphasis added).

IEP DEVELOPMENT (new requirements appear in bold).

In General: In developing each child’s IEP, the Committee must consider:

• the strengths of the child and the concerns of the parents for enhancing the education of their child; and
• the results of the initial evaluation or most recent evaluation of the child.

1. In the case where a child's behaviors impede learning, the Committee must consider strategies, including positive behavior interventions, strategies and supports, to address those behaviors.

2. In the case of a child with limited English proficiency, the Committee must consider the language needs of the child as such needs relate to the child's IEP.

3. In the case of a child who is blind or visually impaired, the Committee must provide instruction in Braille and the use of Braille unless the Committee determines, after an evaluation of the child's reading and writing skills, needs, and appropriate reading and writing media (including an evaluation of the child's future needs for instruction in Braille or the use of Braille), that instruction in Braille or the use of Braille is not appropriate for the child.

4. For children who are deaf or hard of hearing, the Committee must consider the language and communication needs of the child and opportunities for direct communication with peers and professional personnel in the child's language and communication mode. The Committee must also consider the child’s academic level and full range of needs, including the childs social, emotional and cultural needs.

5. For all students, the Committee must consider the provision of assistive technology devices and services when developing the child's IEP.

The term "individualized education program" means a written statement for each child with a disability that is developed, reviewed and revised in accordance with section 614 of IDEA and that includes (new requirements appear in bold):

1. A statement of the childs present levels of educational performance, including:

• how the childs disability affects the childs involvement and progress in the general curriculum; or

• for preschool children, as appropriate, how the disability affects the childs participation in appropriate activities.

2. A statement of measurable annual goals, including benchmarks or short-term objectives, related to:

• 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

• meeting each of the childs other educational needs that result from the childs disability.

3. 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 the child:

• to advance appropriately toward attaining the annual goals;

• to be involved and progress in the general curriculum and to participate in extracurricular and other nonacademic activities; and

• to be educated and participate in activities with other children with disabilities and nondisabled children.

4. An explanation of the extent, if any, to which the child will not participate with nondisabled children in the regular class and in other activities.

5. A statement of any individual modifications in the administration of State or districtwide assessments of student achievement that are needed in order for the child to participate in such assessment; and

6. The projected date for the beginning of the services and modifications and the anticipated frequency, location, and duration of those services and modifications.

7. Beginning at age 14, and updated annually, 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).

Beginning at age 16* (or younger, if determined appropriate by the Committee) a statement of needed transition services for the child, including, when appropriate, a statement of the interagency responsibilities or any needed linkages; and

*NYCRR 200.4(c)(2)(v) requires a statement of transition services be included on a student's IEP beginning at age 15 or younger if determine appropriate.

8. At the discretion of the states, beginning at least one year before the child reaches the age of majority under State law, a statement that the child has been informed of his or her rights under this title, if any, that will transfer to the child on reaching the age of majority. (Currently, under New York State law, no transfer of rights is permitted.) Refer to question 11.

9. A statement of how the childs progress toward the annual goals described above will be measured; and

1. How would the requirement that the IEP include "a statement of how the child’s disability affects the child’s involvement and progress in the general curriculum" be implemented for a preschool child with a disability?

   For a preschool child with a disability, the IEP should include a statement of how the child’s disability affects the child’s involvement in developmentally appropriate activities. Draft U.S. Department of Education guidance on this issue indicates "appropriate activities" are those "milestones that typically developing children of the same age would be performing or would have achieved." (Appendix C – Notice of Interpretation to the draft Federal regulations).
    

2. What is required in the explanation of the extent to which the child will not participate in the regular class or in other activities with nondisabled peers?

   The IDEA presumes that all children with disabilities are to be educated in regular classes. Therefore, the IEP requires an explanation of the extent, if any, to which a student with a disability will not participate with nondisabled children in the regular class and in the general education curriculum including extracurricular and nonacademic activities. The explanation should identify the regular classes, general curriculum, extracurricular and nonacademic activities in which the student will not participate and explain why the Committee made those decisions based on the unique needs of the individual child.
    

3. What is meant by the requirement that the location at which the special education and related services and modifications are provided be documented on the IEP?

   The location where special education and related services will be provided to a student may influence decisions about the nature and amount of these services and when they should be provided to a child. For example, the appropriate location for the related service to be provided may be the regular classroom, so that the child does not have to choose between a needed service and the regular education program. Therefore, for each special education service recommended, the location where the service will be provided should be indicated on the IEP.

4. What methods may be used to keep the parent informed about their child’s progress? How should this be indicated on the IEP?

   Parents of a student with a disability must be informed, as often as parents of nondisabled students are informed, of their child’s progress. This consistent and ongoing reporting will facilitate more useful feedback on their child’s performance. An example might be to provide parents with an IEP progress report along with the general education report card. An IEP progress report should include information that would enable parents and the student’s teacher to review and judge the performance of the students in reaching annual goals or benchmarks (For example, this information could be reported as "no progress," "some progress," "good progress," "almost complete," or "completed".) This example is not intended to indicate a preference for a single means of meeting this requirement.

   The IEP document should specify the method that will be used (e.g., IEP Progress Report attached to general education report card) and the frequency (e.g., quarterly).
    

5. What is meant by "consideration of special factors" and how should this be documented?

   The purpose of the IEP is to tailor the education to the child; not tailor the child to the education. Considerations of special factors will assist the student in the general education program by providing necessary modifications and supports. A number of considerations are essential to the process of creating a student’s IEP. The IDEA requires the Committee to specifically consider a student’s behaviors, language needs for a student with limited English proficiency, instruction in Braille for a student who is blind or visually impaired, language and communication needs of a student who is deaf or hard of hearing and a student’s need for assistive technology devices and services. Discussion on each of the special considerations, where appropriate, must occur at the IEP meeting and should be reflected in the notes taken at the IEP meeting. When the consideration of special factors results in a recommendation for supports, services or modifications, it must be documented on the IEP.
    

6. Must all students who are blind or visually impaired receive instruction in Braille?

   Instruction in Braille and use of Braille must be provided to a student who is blind or visually impaired unless the Committee determines, after an evaluation of the student’s reading and writing skills, needs and appropriate reading and writing media (including an evaluation of the student’s future needs for instruction in Braille or the use of Braille), that instruction in Braille or the use of Braille is not appropriate for the student at this time.
    

7. Must the IEP include all of the general education curriculum goals the student will be expected to achieve?

   IDEA is unclear on this issue. However, the House Committee Report indicates that the new emphasis on participation in the general education curriculum is not intended to result in major expansions in the size of the IEP or dozens of pages of detailed goals and benchmarks or objectives in every curricular content standard or skill. The new focus is intended to bring attention to the accommodations and adjustments necessary for a student with a disability to access the general education curriculum and the special services that may be necessary for appropriate participation in particular areas of the curriculum due to the nature of the disability.
    

8. To what extent must a child’s behavior plan be included as a component of the IEP?

• present levels of educational performance;
• annual goals and benchmarks or short-term objectives; and
• special education and related services and supplementary aids and services to be provided to the child, or on behalf of the child, and program modifications or supports for school personnel that will be provided for the child.

No. While teaching and related services methodologies or instructional approaches are an appropriate topic for discussion and consideration by the Committee during IEP development or annual reviews, specific methodologies are not required to be included on a student’s IEP.

No. The purpose of this requirement 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. This provision is designed to augment, not replace, the separate transition services requirement, under which children with disabilities in New York State receive transition services beginning no later than age 15, including instruction, community experiences, the development of employment and other post-school objectives and, when appropriate, independent living skills and functional vocational evaluation.

SECTION 614. INDIVIDUALIZED EDUCATION PROGRAMS, AND EDUCATIONAL PLACEMENTS.

(d) Individualized Education Programs.-

    (1) Definitions.-- used in this title:

            (A) Individualized education program.--The term 'individualized education program' or 'IEP' means a written statement for each child with a disability that is developed, reviewed, and revised in accordance with this section and that includes--

                (i) 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;

                (ii) 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;

                (iii) 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 in accordance with clause (i) 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 the activities described in this paragraph;

                (iv) an explanation of the extent, if any, to which the child will not participate with nondisabled children in the regular class and in the activities described in clause (iii);

                (v) (I) a statement of any individual modifications in the administration of State or districtwide assessments of student achievement that are needed in order for the child to participate in such assessment; and

                    (II) if the IEP Team determines that the child will not participate in a particular State or districtwide assessment of student achievement (or part of such an assessment), a statement of--

                            (aa) why that assessment is not appropriate for the child; and

                            (bb) how the child will be assessed;

                (vi) the projected date for the beginning of the services and modifications described in clause (iii), and the anticipated frequency, location, and duration of those services and modifications;

                (vii) (I) beginning at age 14, and updated annually, 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);

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

                    (III) beginning at least one year before the child reaches the age of majority under State law, a statement that the child has been informed of his or her rights under this title, if any, that will transfer to the child on reaching the age of majority under section 615(m); and

                (viii) a statement of--

                    (I) how the child's progress toward the annual goals described in clause (ii) 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 are informed of their nondisabled children's progress, of--

                        (aa) their child's progress toward the annual goals described in clause (ii); and

                        (bb) the extent to which that progress is sufficient to enable the child to achieve the goals by the end of the year.

    (3) Development of IEP.-

        (A) In general.--In developing each child's IEP, the IEP Team, subject to subparagraph (C), shall consider--

            (i) the strengths of the child and the concerns of the parents for enhancing the education of their child; and
            (ii) the results of the initial evaluation or most recent evaluation of the child.

        (B) Consideration of special factors.--The IEP Team shall--

            (i) in the case of a child whose behavior impedes his or her learning or that of others, consider, when appropriate, strategies, including positive behavioral interventions, strategies, and supports to address that behavior;
            (ii) in the case of a child with limited English proficiency, consider the language needs of the child as such needs relate to the child's IEP;
            (iii) in the case of a child who is blind or visually impaired, provide for instruction in Braille and the use of Braille unless the IEP Team determines, after an evaluation of the child's reading and writing skills, needs, and appropriate reading and writing media (including an evaluation of the child's future needs for instruction in Braille or the use of Braille), that instruction in Braille or the use of Braille is not appropriate for the child;
            (iv) consider the communication needs of the child, and in the case of a child who is deaf or hard of hearing, consider the child's language and communication needs, opportunities for direct communications with peers and professional personnel in the child's language and communication mode, academic level, and full range of needs, including opportunities for direct instruction in the child's language and communication mode; and
            (v) consider whether the child requires assistive technology devices and services.

        (C) Requirement with respect to regular education teacher.--The regular education teacher of the child, as a member of the IEP Team, shall, to the extent appropriate, participate in the development of the IEP of the child, including the determination of appropriate positive behavioral interventions and strategies and the determination of supplementary aids and services, program modifications, and support for school personnel consistent with paragraph (1) (A) (iii).

CHILDREN ENROLLED IN PRIVATE SCHOOLS BY THEIR PARENTS

[Section 612 of the IDEA]
EFFECTIVE JUNE 4, 1997

IDEA clarifies the responsibility of public school districts to children with disabilities who are placed by their parents in private schools. These requirements are intended to resolve a number of issues that have been the subject of litigation in recent years. The following pertains to situations in which (1) parents enroll their child in a nonpublic school and the student is eligible to receive special education programs and services from the public school district; and (2) parents unilaterally place their child in a private school for special education services and request reimbursement for the cost of their child’s education.

Requirements for the Provision of Special Education Services by Public Schools to Students Enrolled in Private Schools by their Parents (Section 612(10)(A))

• The requirements relating to child find apply with respect to children with disabilities in the State who are enrolled in private (including religiously-affiliated) elementary and secondary schools.

• Section 612(a)(10) of the IDEA requires that, to the extent consistent with the number and location of children with disabilities in the State who are enrolled by their parents in private elementary and secondary schools, provision is made for the participation of those children in the program assisted or carried out under Part B by providing special education and related services to such children. This provision has been further clarified, as follows:

• Amounts expended for the provision of those services by a school district are equal to a proportionate amount of Federal funds made available under Part B;

School District Responsibility for Reimbursement of Tuition when Parents Unilaterally Place Their Child in a Private School for Special Education Services (Section 612(10)(C))

• A school district is not required to pay for the tuition for a child with a disability placed in a private school or facility by a parent if that school district made a free appropriate public education available to the child and the parents, instead, elected to place the child in such private school or facility.

• If the parents of a child with a disability, who previously received special education and related services under the authority of a public agency, enroll the child in a private elementary or secondary school without the consent of or referral by the public agency, a court or a hearing officer may require the agency to reimburse the parents for the cost of that enrollment if the court or hearing officer finds that the agency had not made a free appropriate public education available to the child in a timely manner prior to that enrollment.

• The cost of reimbursement may be reduced or denied -

• 10 business days (including any holidays that occur on a business day) prior to the removal of the child from the public school, the parents did not give written notice to the school district of the information described in the preceding paragraph.

• If, prior to parental removal of the child from the public school, the school district informed the parents, through the notice requirements described in section 615(b)(7), of its intent to evaluate the child (including a statement of the purpose of the evaluation that was appropriate and reasonable), but the parents did not make the child available for such evaluation; or

1. What actions should be taken if parents inform the Committee that they intend to place their child in a private school and request reimbursement through the district?

STATUTORY LANGUAGE

(3) Child find.-

    (A) In general.--All children with disabilities residing in the State, including children with disabilities attending private schools, regardless of the severity of their disabilities, and who are in need of special education and related services, are identified, located, and evaluated and a practical method is developed and implemented to determine which children with disabilities are currently receiving needed special education and related services.

(10) Children in private schools.--

    (A) Children enrolled in private schools by their parents . --

            (i) In general.--To the extent consistent with the number and location of children with disabilities in the State who are enrolled by their parents in private elementary and secondary schools, provision is made for the participation of those children in the program assisted or carried out under this part by providing for such children special education and related services in accordance with the following requirements, unless the Secretary has arranged for services to those children under subsection (f):

                (I) Amounts expended for the provision of those services by a local educational agency shall be equal to a proportionate amount of Federal funds made available under this part.

                (II) Such services may be provided to children with disabilities on the premises of private, including parochial, schools, to the extent consistent with law.

            (ii) Child-find requirement . --The requirements of paragraph (3) of this subsection (relating to child find) shall apply with respect to children with disabilities in the State who are enrolled in private, including parochial, elementary and secondary schools.

Section 612. Payment for Children Enrolled in Private Schools without Consent of or Referral by the Public Agency

            (i) In general.--Subject to subparagraph (A) , this part does not require a local educational agency to pay for the cost of education, including special education and related services, of a child with a disability at a private school or facility if that agency made a free appropriate public education available to the child and the parents elected to place the child in such private school or facility.

            (ii) Reimbursement for private school placement.--If the parents of a child with a disability, who previously received special education and related services under the authority of a public agency, enroll the child in a private elementary or secondary school without the consent of or referral by the public agency, a court or a hearing officer may require the agency to reimburse the parents for the cost of that enrollment if the court or hearing officer finds that the agency had not made a free appropriate public education available to the child in a timely manner prior to that enrollment.

            (iii) Limitation on reimbursement.--The cost of reimbursement described in clause (ii) may be reduced or denied--

                (I) if--

                    (aa) at the most recent IEP meeting that the parents attended prior to removal of the child from the public school, the parents did not inform the IEP team that they were rejecting the placement proposed by the public agency to provide a free appropriate public education to their child, including stating their concerns and their intent to enroll their child in a private school at public expense; or

                    (bb) 10 business days (including any holidays that occur on a business day) prior to the removal of the child from the public school, the parents did not give written notice to the public agency of the information described in division (aa);

                (II) if, prior to the parents' removal of the child from the public school, the public agency informed the parents, through the notice requirements described in section 615(b) (7), of its intent to evaluate the child (including a statement of the purpose of the evaluation that was appropriate and reasonable), but the parents did not make the child available for such evaluation; or

                (III) upon a judicial finding of unreasonableness with respect to actions taken by the parents.

            (iv) Exception.--Notwithstanding the notice requirement in clause (iii) (I) , the cost of reimbursement may not be reduced or denied for failure to provide such notice if--

                (I) the parent is illiterate and cannot write in English;

                (II) compliance with clause (iii) (I) would likely result in physical or serious emotional harm to the child;

                (III) the school prevented the parent from providing such notice; or

                (IV) the parents had not received notice, pursuant to section 615, of the notice requirement in clause (iii) (I).

(2) Contents.-The procedural safeguards notice shall include a full explanation of the procedural safeguards, written in the native language of the parents, unless it clearly is not feasible to do so, and written in an easily understandable manner, available under this section and under regulations promulgated by the Secretary relating to--

        (A) independent educational evaluation;
        (B) prior written notice;
        (C) parental consent;
        (D) access to educational records;
        (E) opportunity to present complaints;
        (F) the child's placement during pendency of due process proceedings;
        (G) procedures for students who are subject to placement in an interim alternative educational setting;
        (H) requirements for unilateral placement by parents of children in private schools at public expense;
        (I) mediation;
        (J) due process hearings, including requirements for disclosure of evaluation results and recommendations;
        (K) State-level appeals (if applicable in that State);
        (L) civil actions; and
        (M) attorneys' fees.

[Section 615 of the IDEA]
EFFECTIVE JUNE 4, 1997

The procedural safeguards in the IDEA have provided the foundation for ensuring access to a free appropriate public education for students with disabilities. The Act retains the "stay put" provisions and all provisions concerning the administrative procedures associated with an impartial due process hearing, and appeals through State-level reviews and the courts.

The Act specifies the instances when the procedural safeguards notice must be provided to parents and revises the content of notices to parents about their child’s rights. The Congressional intent in these amendments is to promote more user-friendly information that parents can understand. In addition, to encourage early resolution of problems between parents and school districts, the Act requires States to offer mediation as a voluntary option to parents and school districts. (New Federal requirements appear in bold).

TYPES OF PROCEDURES

IDEA retains the requirements of prior law regarding the right of parents to:

• examine records relating to their child;

• obtain an independent educational evaluation of the child;

• receive prior written notice of actions proposed or refused by the public agency in their native language, unless clearly not feasible to do so; and

• initiate a due process hearing regarding such actions.

IDEA also includes the following changes from prior law:

• clarifies that parents have an opportunity to participate in decision-making with respect to the identification, evaluation, and educational placement of their child, and the provision of a free appropriate public education to the child.

• specifies that a surrogate parent must be appointed whenever the parents of the child are not known or the agency cannot, after reasonable efforts, locate the parents; and a person assigned to act as a surrogate for the parents may not be an employee of the State educational agency, the local educational agency, or any other agency that is involved in the education or care of the child.

• requires the establishment and maintenance of procedures to require the parent of a child with a disability, or the attorney representing the child, to provide notice*(which shall remain confidential) to the State educational agency or to the local educational agency, as the case may be, in the complaint filed under section 615(b)(6); and that includes:

• the name of the child;

• the address of the residence of the child;

• the name of the school the child is attending;

• a description of the problem of the child relating to such proposed initiation or change, including facts relating to such problem; and

• a proposed resolution of the problem to the extent known and available to the parents at the time.

CONTENT OF WRITTEN NOTICE [Sec. 615(c)]

This section retains the requirements of prior law regarding the content of written notice to the parents, and adds the following modifications:

PROCEDURAL SAFEGUARDS NOTICE [Sec. 615(d)]

The requirements relating to procedural safeguards notice include:

• A copy of the procedural safeguards available to the parents of a child with a disability must be given to the parents, at a minimum –

• upon initial referral for evaluation;

• upon each notification of an IEP meeting and upon reevaluation of the child; and

• upon registration of a request for due process proceedings (e.g., mediation or an impartial due process hearing.) (IDEA requires states to develop a model form for parents to use to file a request for due process proceedings. This form is included in this section.)

• The procedural safeguards notice must include a full explanation of the procedural safeguards, written in the native language of the parents, unless it clearly is not feasible to do so, and written in an easily understandable manner, available under section 615 and under regulations promulgated by the Secretary relating to:

• independent educational evaluation
• prior written notice
• parental consent
• access to educational records
• opportunity to present complaints
• the child’s placement during pendency of due process proceedings
• procedures for students who are subject to placement in an interim alternative educational setting
• requirements for unilateral placement by parents of children in private schools at public expense
• mediation
• due process hearings, including requirements for disclosure of evaluation results and recommendations
• State-level appeals
• civil actions

• attorneys’ fees.

Presently, New York State Regulations (Section 200.5) requires that the procedural safeguard notice must also include the following:

• the right of the parent to request a school physician participate in the Committee meeting.

• the right of the parent to participate in meetings of the Committee.

• the right of the parent to request an interpreter, translator or reader for the meeting and be accompanied at such meetings by such individuals as the parent may desire.

• the right of the parent to obtain an impartial hearing and procedures for appealing impartial hearing decisions to the State Review Officer.

• a list of free or low-cost legal assistance.

The information in the procedural safeguards notice relating to students who are subject to interim alternative placements must be provided to parents no later than the date on which the decision is made and must include:

Procedural Safeguards Notice Requirements Concerning Parents Who Reject Placement Offered by the District and Unilaterally Place Their Child with a Disability in a Private School (refer to pages 31 – 37 of this memorandum).

Request for Due Process Proceedings

Federal law requires that a parent or attorney representing a child provide notice to the school district if the parents have a disagreement regarding the referral, evaluation, or placement or their child or regarding the provision of special education services. (This notice will remain confidential.) This form has been developed to assist you in describing your disagreement and accessing the due process procedures to which you are entitled. Please complete the entire form. Failure to do so may result in it being returned for additional information. According to Federal law, failure to provide information may result in a reduction in the award of any attorneys’ fees.

Student’s Name: ____________________________ Date of Birth:________________

Parent or Legal Guardian: ________________________________________________

Legal Residence: Street ________________________________________________

City or Town ______________________ Zip Code ____________

Telephone: ( ) ______________________

Current School: _______________________ Address: Street ________________

City or Town __________

School district of attendance, if different from district of residence: _________________________________
Zip Code _____________

Fully describe the nature of the problem including all specific facts relating to the disagreement (Attach additional pages or documents as necessary):

State your proposed solution to the problem or the reason why you are unable to suggest a solution at this time. (Attach additional pages or documents as necessary):

Upon receipt of this form, you will be contacted to establish a mutually agreeable time to participate in mediation with an outside mediator and representative(s) of the district to attempt to resolve this disagreement. If mediation is unsuccessful, an impartial hearing will be conducted unless you inform the district in writing that you do not wish to proceed with a hearing. Participation in mediation will not delay or preclude your right to a due process hearing.

If you do not wish to attempt to resolve this problem through mediation prior to a hearing, please check the box below:

• I do not wish to participate in mediation and request that the district schedule an impartial hearing at this time. (Please note: You may be requested to participate in a meeting to discuss the benefits of mediation.)

Name of Person Completing this Form: ______________________________________

Signature: _____________________________________ Date: __________________

Relationship to Student: ð Parent ð Legal Guardian ð Surrogate Parent ð Attorney

Date of Receipt of Form: _____________________________

The Act limits the instances in which the full list of procedural safeguard rights must be provided to parents. However, the district must include a statement in the written notice that the parents have protection under the procedural safeguards of IDEA and how a copy the procedural safeguards notice can be obtained. The procedural safeguards must be included in the notice whenever the district is notifying the parents (or the student) of:

• an initial referral for evaluation.
• each Committee meeting.
• reevaluation.
• whenever the parents request a due process proceeding (impartial hearing or mediation) to resolve a disagreement regarding the referral, evaluation or placement or the provision of special education services to their child.

Currently, New York State regulations also require a list of procedural safeguards accompany notice when:

• the Committee notifies the parent of its recommendation, and
• upon review by the Board of Education

School districts are strongly encouraged to disseminate to parents the attached form, developed by the State Education Department, which would be used by parents to request mediation or an impartial hearing. This form could be provided to parents, along with a copy of their procedural safeguards, upon registration of a complaint pursuant to section 614 of IDEA. While failure of the parent to provide the required information as noted on this form will not preclude a parent’s right to pursue due process, it may result in a reduction in the award of any attorneys’ fees.

    (a) Establishment of Procedures.--Any State educational agency, State agency, or local educational agency that receives assistance under this part shall establish and maintain procedures in accordance with this section to ensure that children with disabilities and their parents are guaranteed procedural safeguards with respect to the provision of free appropriate public education by such agencies.

        (b) Types of Procedures.--The procedures required by this section shall include--

            (1) an opportunity for the parents of a child with a disability to examine all records relating to such child and to participate in meetings with respect to the identification, evaluation, and educational placement of the child, and the provision of a free appropriate public education to such child, and to obtain an independent educational evaluation of the child;

            (2) procedures to protect the rights of the child whenever the parents of the child are not known, the agency cannot, after reasonable efforts, locate the parents, or the child is a ward of the State, including the assignment of an individual (who shall not be an employee of the State educational agency, the local educational agency, or any other agency that is involved in the education or care of the child) to act as a surrogate for the parents;

            (3) written prior notice to the parents of the child whenever such agency--

                (A) proposes to initiate or change; or

                (B) refuses to initiate or change; the identification, evaluation, or educational placement of the child, in accordance with subsection (c), or the provision of a free appropriate public education to the child;

            (4) procedures designed to ensure that the notice required by paragraph (3) is in the native language of the parents, unless it clearly is not feasible to do so;

            (5) an opportunity for mediation in accordance with subsection (e);

            (6) an opportunity to present complaints with respect to any matter relating to the identification, evaluation, or educational placement of the child, or the provision of a free appropriate public education to such child;

            (7) procedures that require the parent of a child with a disability, or the attorney representing the child, to provide notice (which shall remain confidential)--

                (A) to the State educational agency or local educational agency, as the case may be, in the complaint filed under paragraph (6); and

                (B) that shall include--

                    (i) the name of the child, the address of the residence of the child, and the name of the school the child is attending;

                    (ii) a description of the nature of the problem of the child relating to such proposed initiation or change, including facts relating to such problem; and

                    (iii) a proposed resolution of the problem to the extent known and available to the parents at the time; and

        (8) procedures that require the State educational agency to develop a model form to assist parents in filing a complaint in accordance with paragraph (7).

    (c) Content of Prior Written Notice. --The notice required by subsection (b) (3) shall include--

        (1) a description of the action proposed or refused by the agency;

        (2) an explanation of why the agency proposes or refuses to take the action;

        (3) a description of any other options that the agency considered and the reasons why those options were rejected;

        (4) a description of each evaluation procedure, test, record, or report the agency used as a basis for the proposed or refused action;

        (5) a description of any other factors that are relevant to the agency's proposal or refusal;

        (6) a statement that the parents of a child with a disability have protection under the procedural safeguards of this part and, if this notice is not an initial referral for evaluation, the means by which a copy of a description of the procedural safeguards can be obtained; and

        (7) sources for parents to contact to obtain assistance in understanding the provisions of this part.

    (d) Procedural Safeguards Notice.--

        (1) In general.--A copy of the procedural safeguards available to the parents of a child with a disability shall be given to the parents, at a minimum-

            (A) upon initial referral for evaluation;
            (B) upon each notification of an individualized education program meeting and upon reevaluation of the child; and
            (C) upon registration of a complaint under subsection (b)(6).

    (2) Contents.~~The procedural safeguards notice shall include a full explanation of the procedural safeguards, written in the native language of the parents, unless it clearly is not feasible to do so, and written in an easily understandable manner, available under this section and under regulations promulgated by the Secretary relating to--

            (A) independent educational evaluation;
            (B) prior written notice;
            (C) parental consent;
            (D) access to educational records;
            (E) opportunity to present complaints;
            (F) the child's placement during pendency of due process proceedings;
            (G) procedures for students who are subject to placement in an interim alternative educational setting;
            (H) requirements for unilateral placement by parents of children in private schools at public expense;
            (I) mediation;
            (J) due process hearings, including requirements for disclosure of evaluation results and recommendations;
            (K) State-level appeals (if applicable in that State);
            (L) civil actions; and
            (M) attorneys' fees.