Office of Special Education Programs
Training Overheads on the IDEA '97 Regulations

Overheads for
Part B: Native Language and Limited English Proficiency

[ Overhead-1 (Title of Presentation) ]

"Native Language" and "Limited English Proficiency" in IDEA-Part B Regulations

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Definition of "Native Language"
(§300.19)

The term native language, if used with reference to an individual of limited English proficiency, means:

-- The language normally used by that individual, or, in the case of a child, the language normally used by the parents of the child (except as provided below);

-- In all direct contact with a child (including his or her evaluation), the language normally used by the child in the home or learning environment.

For an individual with deafness or blindness or no written language, the mode of communication is that normally used by the individual (such as oral communication).

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Clarifications from the Discussion:

The definition of "native language" has been expanded to clarify that:

-- in all direct contact with a child (including his or her evaluation), communication would be in the language normally used by the child and not that of the parents, if there is a difference between the two; and

-- for individuals with deafness or blindness or no written language, the mode of communication would be that normally used by the individual (such as sign language, Braille, or oral communication).

These changes should enhance the chances of school personnel being able to communicate effectively with a LEP child in all direct contact with the child, including evaluation of the child.

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Parent Participation in the IEP Meeting
(§300.345)

The public agency shall take whatever action is necessary to ensure that the parent understands the proceedings of the IEP meeting, including arranging for an interpreter for parents with deafness or whose native language is other than English.

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Consideration of "Special Factors" when developing, reviewing, and revising the IEP
[§300.346(a)(2)(ii) and §300.346(b) and (c)]

With respect to a child with limited English proficiency, the IEP team shall consider the language needs of the child as those needs relate to the child's IEP, when:

-- the team develops the child's IEP, and

-- the team conducts a meeting to review and, if appropriate, revise the child's IEP.

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"Special Factors" (cont.)

In considering the child's language needs (as they relate to the child's IEP), if the IEP team determines that the child needs a particular device or service (including an intervention, accommodation, or other program modification) in order for the child to receive FAPE...

...the IEP team must include a statement to that effect in the child's IEP.

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Clarifications from the Discussion:

In developing an IEP for a LEP child with a disability, it is particularly important that the IEP team consider how the child's level of English proficiency affects the special education and related services that the child needs in order to receive FAPE.

Under Title VI of the Civil Rights Act of 1964, school districts are required to provide LEP children with alternative language services:

-- to enable them to acquire proficiency in English, and

-- to provide them with meaningful access to the content of the educational curriculum available to all students, including special education and related services.

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Clarifications (cont.):

A LEP child with a disability may require special education and related services for those aspects of the educational program that address the development of English language skills and other aspects of the child's educational program.

For a LEP child with a disability, the IEP must address whether the special education and related services that the child needs will be provided in a language other than English.

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Definition of "Consent"
[§300.500(b)(1)]

Included in the meaning of "consent" is that... ...the parent has been fully informed of all information relevant to the activity for which consent is sought, in his or her native language or other mode of communication...

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Parent Participation in Meetings
[§300.501(c)(5)]

Each public agency shall ensure that the parents of each child with a disability are members of any group that makes decisions on the educational placement of their child.

The public agency shall make reasonable efforts to ensure that the parents understand, and are able to participate in, any group decisions relating to the educational placement of their child, including arranging for an interpreter for parents with deafness or whose native language is other than English.

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Prior Notice in Understandable Language
[§300.503(c)]

Written notice must be given to the parents of a child with a disability a reasonable time before the public agency proposes or refuses to...

...initiate or change the identification, evaluation, or educational placement of the child, or the provision of FAPE to the child.

This written notice must be provided in the native language of the parent or other mode of communication used by the parent, unless it is clearly not feasible to do so.

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Prior Notice in Understandable Language (cont.)

If the native language or other mode of communication of the parent is not a written language, the public agency must take steps to ensure...

-- that the notice is translated orally or by other means to the parent in his or her native language or other mode of communication;

-- that the parent understands the content of the notice; and

-- that there is written evidence that these two requirements have been met.

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Evaluation Procedures
[§300.532(a)]

Each public agency must ensure that tests and other evaluation materials used to assess a child under Part B of IDEA:

-- are selected and administered so as not to be discriminatory on a racial or cultural basis; and

-- are provided and administered in the child's native language or other mode of communication, unless it is clearly not feasible to do so.

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Evaluation Procedures (cont.)

AND each public agency must also ensure that...

...materials and procedures used to assess a child with limited English proficiency are selected and administered to ensure that they measure the extent to which the child has a disability and needs special education...

...rather than measuring the child's English language skills.

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Clarifications from the Discussion:

Under Title VI of the Civil Rights Act of 1964:

-- In order to properly evaluate a child who may be limited English proficient, a public agency should assess the child's proficiency in English as well as in his or her native language to distinguish language proficiency from disability needs; and

-- An accurate assessment of the child's language proficiency should include objective assessment of reading, writing, speaking, and understanding.

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Clarifications (cont.):

Even in situations where it is clearly not feasible to provide and administer tests in the child's native language or mode of communication for a child with limited English proficiency, the public agency must still obtain and consider accurate and reliable information that will enable the agency to make an informed decision as to:

-- whether the child has a disability, and

-- the effects of the disability on the child's educational needs.

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Clarifications (cont.):

In some situations, there may be no one on the staff of the public agency who is able to administer a test or other evaluation in the child's native language, but an appropriate individual is available in the surrounding area.

In that case, a public agency could identify an individual in the surrounding area who is able to administer a test or other evaluation in the child's native language, including contacting neighboring school districts, local universities, and professional organizations.

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Determining Eligibility
[§300.534(b)(1)]

Upon completing the administration of tests and other evaluation materials, a group of qualified professionals and the parents of the child must determine if the child is a "child with a disability."

A child may not be determined to be eligible under Part B if the determinant factor for that eligibility determination is the child's lack of instruction in reading or math or the child's limited English proficiency...

...and the child does not otherwise meet the eligibility criteria for a "child with a disability."

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Clarifications from the Discussion:

A public agency must ensure that a child who has a disability as defined in §300.7 is not excluded from eligibility because the child also has limited English proficiency or has had a lack of instruction in reading or math.

Note: Section 300.7 defines a "child with a disability" as a child who has been evaluated in accordance with §§300.530-300.536 as having one of the 13 listed disabilities and who, because of that disability, needs special education and related services.

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Other Notice to Parents
[§300.561(a)(1)]

The SEA shall give notice that is adequate to fully inform parents about §300.127, which requires the State to have on file in detail the policies and procedures that the State has undertaken to ensure protection of the confidentiality of any personally identifiable information collected, used, or maintained under Part B, including:

...a description of the extent that the notice is given in the native languages of the various population groups in the State...