Table of Contents
Office of Special Education Programs'
Overheads from OSEP Regional Trainings
on the IDEA '97 Regulations
Overheads for
Appendix A: Individualized Education Programs and Other Selected Implementation Issues
(Overheads 68 - 104)
___________________________
Produced by....
NICHCY
National Information Center for Children and Youth with Disabilities
P.O. Box 1492
Washington, DC 20013
1-800-695-0285 (Voice/TTY)
(202) 884-8200 (Voice/TTY)
E-mail: nichcy@aed.org
URL: http://www.nichcy.org
_____________________
OH Appendix A - 68
Question #22
Who can serve as the representative of the public agency at an IEP meeting?
The IEP team must include a representative of the public agency who:
(a) is qualified to provide, or supervise the provision of, specially designed instruction to meet the unique needs of children with disabilities;
(b) is knowledgeable about the general curriculum; and
(c) is knowledgeable about the availability of resources of the public agency. [§300.344(a)(4)]
Each public agency may determine which specific staff member will serve as the agency representative in a particular IEP meeting, so long as the individual meets these requirements.
OH Appendix A - 69
However, it is important that the agency representative:
- have the authority to commit agency resources; and
- be able to ensure that whatever services are set out in the IEP will actually be provided.
A public agency may designate another public agency member of the IEP team to also serve as the agency representative, so long as that individual meets the requirements of §300.344(a)(4).
OH Appendix A - 70
Question #23
For a child with a disability being considered for initial provision of special education and related services, which teacher or teachers should attend the IEP meeting?
A child's IEP team must include:
- at least one of the child's regular education teachers (if the child is, or may be, participating in the regular education environment); and
- at least one of the child's special education teachers or, if appropriate, special education providers. [§300.344(a)(2) and (3)]
OH Appendix A - 71
Regular Education Teacher
At least one regular education teacher is a required member of the child's IEP team if the child is, or may be, participating in the regular educational environment, regardless of the extent to which that child is, or may be, participating in that environment.
Special Education Teacher or Provider
The requirements of §300.344(a)(3) can be met by either (1) a special education teacher of the child; or (2) another special education provider of the child, such as a speech pathologist, physical or occupational therapist, etc...
...if the related service consists of specially designed instruction and is considered special education under applicable State standards.
OH Appendix A - 72
The public agency must ensure that each regular education teacher, special education teacher, related services provider, and other service provider of an eligible child under this part:
(1) has access to the child's IEP, and
(2) is informed of his or her specific responsibilities related to implementing the IEP, and of the specific accommodations, modifications, and supports that must be provided to the child in accordance with the IEP.
This requirement is crucial to ensuring that each child receives FAPE in accordance with his or her IEP and that the IEP is appropriately and effectively implemented.
OH Appendix A - 73
Question #24
What is the role of the regular education teacher in the development, review, and revision of the IEP for a child who is, or may be, participating in the regular education environment?
The IEP of such a child must include at least one regular education teacher [§300.344(a)(2)]. Section §300.346(d) specifies that this teacher, as a member of the IEP team, must, to the extent appropriate, participate in the development, review, and revision of the child's IEP, including assisting in:
(a) the determination of appropriate positive behavioral interventions and strategies for the child;
(b) the determination of supplementary aids and services, program modifications, and supports for school personnel that will be provided for the child, consistent with §§300.347(a)(3) and 300.344(d).
OH Appendix A - 74
The teacher need not (depending on the child's needs and the purpose of the specific IEP meeting) be required to:
- participate in all decisions made as part of the meeting, or
- be present throughout the entire meeting, or
- attend every meeting.
For example:
- The regular education teacher who is a member of the IEP team must participate in discussions and decisions about how to modify the general curriculum in the regular classroom to ensure the child's involvement and progress there.
- Depending on the specific circumstances, it may not be necessary for the teacher to participate in discussions and decisions regarding, for example, the physical therapy needs of the child, if the teacher is not responsible for implementing that portion of the child's IEP.
OH Appendix A - 75
Determining the Extent of the Teacher's Participation
Public agencies and parents should discuss and try to reach agreement on whether the child's regular education teacher that is a member of the IEP team:
- should be present at a particular IEP meeting, and
- if so, for what period of time.
The appropriate extent to which the regular education teacher should participate in IEP meetings must be decided on a case-by-case basis.
OH Appendix A - 76
Question #25
If a child with a disability attends several regular classes, must all of the child's regular education teachers be members of the IEP team?
No. The IEP team need not include more than one regular education teacher of the child.
If the participation of more than one regular education teacher would be beneficial to the child's success in school (e.g., in terms of enhancing the child's participation in the general curriculum), it would be appropriate for them to attend the meeting.
OH Appendix A - 77
Question #26
How should a public agency determine which regular education teacher and special education teacher will be members of the IEP team for a particular child with a disability?
Determining the Regular Education Teacher
- The regular education teacher who serves as a member of the IEP team should be a teacher who is, or may be, responsible for implementing a portion of the IEP, so that the teacher can participate in discussions about how best to teach the child.
- If the child has more than one regular education teacher responsible for carrying out a portion of the IEP, the LEA may designate which teacher or teachers will serve as IEP team member(s), taking into account the best interest of the child.
OH Appendix A - 78
- In a situation in which not all of the child's regular education teachers are members of the IEP team, the LEA is strongly encouraged to seek input from the teachers who will not be attending.
- The LEA must ensure that each regular education teacher of an eligible child:
(1) has access to the child's IEP, and
(2) is informed of his or her specific responsibilities related to implementing the IEP, and of the specific accommodations, modifications, and supports that must be provided to the child in accordance with the IEP. [§300.342(b)]
OH Appendix A - 79
- In the case of a child whose behavior impedes the learning of the child or others, the LEA is encouraged to have a regular education teacher or other person knowledgeable about positive behavior strategies at the IEP meeting, especially if the regular education teacher is expected to carry out portions of the IEP.
Determining the Special Education Teacher or Provider
- The special education teacher or provider of the child who is a member of the IEP team should be the person who is, or will be, responsible for implementing the IEP.
- For example, if the child's disability is a speech impairment, the special education teacher on the IEP team could be the speech-language pathologist.
OH Appendix A - 80
Question #27
For a child whose primary disability is a speech impairment, may the public agency meet its responsibility under §300.344(a)(3) to ensure that the IEP team includes "at least one special education teacher, or, if appropriate, at least one special education provider of the child" by including a speech-language pathologist on the IEP team?
Yes, if speech is considered special education under State standards.
As with other children with disabilities, the IEP team must also include at least one of the child's regular education teachers if the child is, or may be, participating in the regular education environment.
OH Appendix A - 81
Question #28
Do parents and public agencies have the option of inviting any individual of their chioice to be participants on their child's IEP team?
The IEP team may, at the discretion of the parent or the agency, include "other individuals who have knowledge or special expertise regarding the child..." [§300.344(a)(6), emphasis added]
This is a change from prior law, which provided, without qualification, that parents or agencies could have other individuals as members of the IEP team at the discretion of the parents or agency.
Under §300.344(c), the determination of whether an individual has "knowledge or special expertise" shall be made by the parent or public agency who has invited the individual to be a member of the IEP team.
OH Appendix A - 82
Part B does not provide for including individuals such as representatives of teacher organizations as part of an IEP team, unless they are included because of knowledge or special expertise regarding the child.
Why?
Because a representative of a teacher organization...
- would generally be concerned with the interests of the teacher rather than the child, and
- would generally not possess knowledge or special expertise regarding the child...
...generally it would be inappropriate for such an official to be a member of the IEP or to otherwise participate in an IEP meeting.
OH Appendix A - 83
Question #29
Can parents or public agencies bring their attorneys to IEP meetings and, if so, under what circumstances?
Are attorney's fees available for parents' attorneys if the parents are prevailing parties in actions or proceedings brought under Part B?
Section 300.344(a)(6) authorizes the addition to the IEP team of any individuals at the discretion of the parent or public agency only if those other individuals have knowledge or special expertise regarding the child.
The determination of whether an attorney possesses knowledge or special expertise regarding the child would have to be made on a case-by-case basis by the parent or public agency inviting the attorney to be a member of the team.
OH Appendix A - 84
The presence of an attorney accompanying either the agency or the parents could contribute to a potentially adversarial atmosphere at the IEP meeting that is not necessarily in the best interests of the child.
Therefore, the attendance of attorneys at IEP meetings should be strongly discouraged.
Further, attorneys' fees may not be awarded relating to any meeting of the IEP team unless the meeting is convened as a result of an administrative proceeding or judicial action, or, at the discretion of the State, for a mediation conducted prior to the request for a due process hearing. [Section 615(i)(3)(D)(ii) of the Act and §300.513(c)(2)(ii)]
OH Appendix A - 85
Question #30
Must related services personnel attend IEP meetings?
Section 300.344(a)(6) provides that the IEP team includes "at the discretion of the parent or agency, other individuals who have knowledge or special expertise regarding the child, including related services personnel as appropriate..."
Thus,
Although Part B does not expressly require that the IEP team include related services personnel...
...it is appropriate for those persons to be included if a particular related service is to be discussed as part of the IEP meeting.
OH Appendix A - 86
Further,
Section 300.344(a)(3) requires that the IEP team for each child include "at least one special education teacher, or, if appropriate, at least one special education provider of the child..."
This requirement can be met by the participation of either: (1) a special education teacher of the child; or (2) another special education provider of the child, such as a speech pathologist, physical or occupational therapist, etc...
...if the related service consists of specially designed instruction and is considered special education under applicable State standards.
OH Appendix A - 87
If a child with a disability has an identified need for related services, it would be appropriate for the related services personnel to attend the IEP meeting or otherwise be involved in developing the IEP.
For example, a child's evaluation may indicate the need for a specific related service (e.g., physical therapy, occupational therapy, special transportation services, school social work services, school health services, or counseling). The agency should ensure that a qualified provider of that service either:
(1) attends the IEP meeting; or
(2) provides a written recommendation concerning the nature, frequency, and amount of services to be provided to the child. (This recommendation could be part of the evaluation report.)
OH Appendix A - 88
Question #31
Must the public agency ensure that all services specified in a child's IEP are provided?
Yes. The agency may provide each of those services:
- directly, through its own staff resources;
- indirectly, by contracting with another public or private agency; or
- through other arrangements.
OH Appendix A - 89
In providing the services, the agency may use whatever State, local, Federal, and private sources of support are available for those purposes [see §300.301(a)], but:
- the services must be at no cost to the parents, and
- the public agency remains responsible for ensuring that the IEP services are provided in a manner that appropriately meets the student's needs as specified in the IEP.
The SEA and responsible public agency may not allow the failure of another agency to provide service(s) described in the child's IEP to deny or delay the provision of FAPE to the child. [See §300.142, Methods of ensuring services.]
OH Appendix A - 90
Question #32
Is it permissible for an agency to have the IEP completed before the IEP meeting begins?
No. Agency staff may come to an IEP meeting prepared with evaluation findings and proposed recommendations regarding IEP content, but the agency must make it clear to the parents at the outset of the meeting that the services proposed by the agency are only recommendations for review and discussion with the parents.
Parents have the right to bring questions, concerns, and recommendations to an IEP meeting as part of a full discussion of the child's needs and the services to be provided to meet those needs before the IEP is finalized.
OH Appendix A - 91
Question #33
Must a public agency include transportation in a child's IEP as a related service?
As with other related services, a public agency must provide transportation as a related service if it is required to assist the disabled child to benefit from special education.
(This includes transporting a preschool-aged child to the site at which the public agency provides special education and related services to the child, if that site is different from the site at which the child receives other preschool or day care services.)
OH Appendix A - 92
In determining whether the child needs to receive transportation as a related service, it would be appropriate to have at the IEP meeting a person with expertise in this area.
In making this determination, the IEP team must consider how the child's disability affects the child's need for transportation, including whether the child's disability prevents the child:
- from using the same transportation provided to nondisabled children, or
- from getting to school in the same manner as nondisabled children.
The public agency must ensure that:
- any transportation service included in a child's IEP as a related service is provided at no cost to the parents, and
- the child's IEP describes the transportation arrangement.
OH Appendix A - 93
If the IEP Team Determines That the Child Does Not Require Transportation as a Related Service
Even in this circumstance, Section 504 of the Rehabilitation Act, as amended, requires that the child receive the same transportation provided to nondisabled children, under the same terms and conditions.
If the public agency transports only those children whose IEPs specify transportation as a related service, and does not transport nondisabled children, the public agency would not be required to provide transportation to a disabled child.
It should be assumed that most children with disabilities receive the same transportation services as nondisabled children. For some children with disabilities, integrated transportation may be achieved by providing needed accommodations such as lifts and other equipment adaptations on regular school transportation vehicles.
OH Appendix A - 94
Question #34
Must a public agency provide related services that are required to assist a child with a disability to benefit from special education, whether or not those services are included in the list of related services at §300.24?
The list of related services is not exhaustive and may include other developmental, corrective, or supportive services if they are required to assist a child with a disability to benefit from special education.
This could, depending on the unique needs of a child, include such services as nutritional services or service coordination.
These determinations must be made on an individual basis by each child's IEP team.
OH Appendix A - 95
Question #35
Must the IEP specify the amount of services, or may it simply list the services to be provided?
The amount of services to be provided must be stated in the IEP, so that the level of the agency's commitment of resources will be clear to parents and other IEP team members. [§300.347(a)(6)]
The amount of services to be provided to a child may be stated in the IEP as a range (e.g., speech therapy to be provided three times per week for 30-45 minutes per session) only if the IEP team determines that stating the amount as a range is necessary to meet the unique needs of the child. (Example: for particular services needed only under specific circumstances, such as the occurrence of a seizure or of a particular behavior.)
A range may not be used because of personnel shortages or uncertainty regarding the availability of staff.
OH Appendix A - 96
Question #36
Under what circumstances is a public agency required to permit a child with a disability to use a school-purchased assistive technology device in the child's home or in another setting?
Each child's IEP team must:
- consider the child's need for assistive technology (AT) devices [§300.346(a)(2)(v)], and
- reflect in the child's IEP both the nature and extent of the AT devices & services to be provided to the child [§300.346(c)].
A public agency must permit a child to use school-purchased AT devices at home or in other settings, if the IEP team determines that the child needs access to those devices in nonschool settings in order to receive FAPE (e.g., to complete homework).
OH Appendix A - 97
Any AT devices necessary to ensure FAPE must be provided at no cost to parents, and the parents cannot be charged for normal use, wear, and tear.
However, while ownership of the devices in these circumstances would remain with the public agency...
...State law (rather than Part B) generally would govern whether parents are liable for loss, theft, or damage due to negligence or misuse of publicly owned equipment used at home or in other settings in accordance with a child's IEP.
OH Appendix A - 98
Question #37
Can the IEP team also function as the group making the placement decision for a child with a disability?
Yes. A public agency may use the IEP team to make the placement decision for a child with a disability...
...so long as the group making the placement decision meets the requirements of §§300.552 and 300.501(c)...
...which requires that the placement decision be made by a group of persons, including the parents, and other persons knowledgeable about the child, the meaning of the evaluation data, and the placement options.
OH Appendix A - 99
Question #38
If a child's IEP includes behavioral strategies to address a particular behavior, can a child ever be suspended for engaging in that behavior?
If a child's behavior impedes his or her learning or that of others, proper development of the child's IEP will include the development of strategies, including positive behavioral interventions, strategies, and supports to address that behavior. [See §300.346(c)]
This includes behavior that could violate a school code of conduct.
A failure to (if appropriate) consider and address these behaviors in developing and implementing the IEP would constitute a denial of FAPE to the child.
OH Appendix A - 100
As part of a comprehensive plan to address the child's behavior: The IEP team might determine that the child's behavioral plan includes:
- specific regular or alternative disciplinary measures, such as denial of certain privileges or short suspensions, that would result from particular infractions of school rules, along with
- positive behavior interventions strategies and supports.
If short suspensions that are included in the IEP are being
implemented in a manner that denies the child access to the
ability to progress in the educational program, the child would be denied FAPE.
Whether other disciplinary measures, including suspension, are ever appropriate for behavior that is addressed in a child's IEP will have to be determined on a case-by-case basis, in light of the particular circumstances of that incident.
OH Appendix A - 101
Question #39
If a child's behavior in the regular classroom, even with appropriate interventions, would significantly impair the learning of others, can the group that makes the placement decision determine that placement in the regular classroom is inappropriate for that child?
The IEP team, in developing the IEP, is required to consider, when appropriate:
- strategies (including positive behavioral interventions, strategies, and supports) to address the behavior of a child whose behavior impedes his or her own learning or that of others.
If the IEP team determines that such strategies are necessary to address the behavior of the child, those services must be included in the child's IEP.
OH Appendix A - 102
These provisions are designed to foster increased participation of children with disabilities in regular education environments or other less restrictive environments, not to serve as a basis for placing children in more restrictive settings.
The determination of appropriate placement for such a child requires careful consideration of whether the child can appropriately function in the regular classroom if provided appropriate behavioral supports, strategies, and interventions.
- If yes: Then placement in a more restrictive environment would be inconsistent with the LRE provisions of IDEA.
- If no (i.e., the child's behavior in the regular classroom, even with the provision of appropriate behavioral supports, strategies, or interventions, would significantly impair the learning of others): Then that placement would not meet his or her needs and would not be appropriate for that child.
OH Appendix A - 103
Question #40
May school personnel during a school year implement more than one short-term removal of a child with disabilities from his or her classroom or school for misconduct?
Yes. Under §300.520(a)(1), school personnel may order:
- removal of a child with a disability from the child's current placement for not more than 10 consecutive school days for any violation of school rules, and
- additional removals of not more than 10 consecutive school days in that same school year for separate incidents of misconduct...
...as long as these removals do not constitute a change of placement under §300.519(b).
OH Appendix A - 104
However, these removals are permitted only to the extent they are consistent with discipline that is applied to children without disabilities.
Also, school personnel should be aware of constitutional due process protections that apply to suspensions of all children. [Goss v. Lopez, 419 U.S. 565 (1975).]
Section 300.121(d) addresses the extent of the obligation to provide services after a child with a disability has been removed from his or her current placement for more than 10 school days in the same school year.
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