[Federal Register: June 6, 2000 (Volume 65, Number 109)]
[Page 36037-36040]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]

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Part V

Department of Education

List of Correspondence--Office of Special Education and Rehabilitative 
Services; Notice

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List of Correspondence--Office of Special Education and 
Rehabilitative Services

AGENCY: Department of Education.

ACTION: List of correspondence from January 3, 2000 through March 31, 


SUMMARY: The Secretary is publishing the following list pursuant to 
section 607(d) of the Individuals with Disabilities Education Act 
(IDEA). Under section 607(d) of IDEA, the Secretary is required, on a 
quarterly basis, to publish in the Federal Register a list of 
correspondence from the Department of Education received by individuals 
during the previous quarter that describes the interpretations of the 
Department of Education of IDEA or the regulations that implement IDEA.

FOR FURTHER INFORMATION CONTACT: JoLeta Reynolds or Rhonda Weiss. 
Telephone: (202) 205-5507. Individuals who use a telecommunications 
device for the deaf (TDD) may call (202) 205-5465 or the Federal 
Information Relay Service (FIRS) at 1-800-877-8339 between 8 a.m. and 8 
p.m., Eastern time, Monday through Friday, except Federal holidays.
    Individuals with disabilities may obtain a copy of this notice in 
an alternate format (e.g., Braille, large print, audiotape, or computer 
diskette) on request to Katie Mincey, Director of the Alternate Formats 
Center. Telephone: (202) 205-8113.

SUPPLEMENTARY INFORMATION: The following list identifies correspondence 
from the Department issued between January 3, 2000 through March 31, 
    Included on the list are those letters that contain interpretations 
of the requirements of IDEA and its implementing regulations, as well 
as letters and other documents that the Department believes will assist 
the public in understanding the requirements of the law and its 
regulations. The date and topic addressed by a letter are identified, 
and summary information is also provided, as appropriate. To protect 
the privacy interests of the individual or individuals involved, 
personally identifiable information has been deleted, as appropriate.

Part A: General Provisions

Section 602--Definitions

Topic Addressed: Child With a Disability
    * Letter dated March 24, 2000 to individual, (personally 
identifiable information redacted), regarding school districts' 
obligations to appropriately evaluate children with attention deficit 
disorder (ADD) under Part B of IDEA, and clarifying applicable 
requirements under Part B of IDEA for children who have a prior medical 
diagnosis of ADD and the relationship of relevant State requirements to 
applicable Part B requirements.
    * Letter dated March 24, 2000 to Education Consultant and 
Advocate Michele Williams, regarding identification, evaluation, 
eligibility, and the provision of appropriate services and 
interventions in the least restrictive setting for children with 
Asperger's Syndrome determined eligible for services under Part B of 

Part B: Assistance for Education of all Children With Disabilities

Section 611--Authorization; Allotment; Use of Funds; Authorization of 

Topic Addressed: Use of Funds
    * Letter dated February 7, 2000 to California State 
Department of Education Special Education Director Dr. Alice Parker, 
regarding a finding in a Federal Fiscal Year (FFY) 1996 audit report 
questioning the use of Part B of IDEA funds to pay parents' or 
guardians' attorneys' fees in lawsuits against the State and clarifying 
that the IDEA March 12, 1999 final regulations explicitly prohibit 
using Part B of IDEA funds to pay attorneys' fees.
    * Letter dated March 8, 2000 to U.S. Senator Bob Graham, 
explaining that the Department does not provide Federal funds directly 
to parents, private schools, or a local educational agency (LEA) to pay 
the cost of special education programs for children with disabilities, 
but that State, local, or private sources of support may be available 
for this purpose.
Topic Addressed: Eligible Entities
    * Letter dated March 15, 2000 to the Office of U.S. Senator 
Don Nickles, regarding eligibility of State-supported schools for 
Federal education program funds, clarifying that a State-supported 
school cannot be made eligible for these funds in the absence of 
authorizing legislation, and that under many Federal programs, 
including Part B of IDEA, State-supported schools can be eligible for 
funds if they qualify as local school districts.

Section 612--State Eligibility

Topic Addressed: Free Appropriate Public Education
    * Letter dated March 29, 2000 to Michigan Protection and 
Advocacy Attorney Stewart R. Hakola, regarding Michigan's School-of-
Choice legislation, and clarifying that (1) States may establish 
mechanisms to ensure that students with disabilities attending public 
school choice programs retain the right to a free appropriate public 
education (FAPE), and (2) the Department's view that a provision in the 
Michigan law requiring a written agreement between the resident 
district and the non-resident district regarding the provision of FAPE 
for any student with a disability who is enrolled in a non-resident 
school or program does not violate Part B of IDEA or Section 504 of the 
Rehabilitation Act of 1973.
    * Letter dated March 20, 2000 to Illinois State Board of 
Education Special Education Director Dr. Gordon M. Riffel, clarifying 
that there is no provision in Part B of IDEA that would permit a school 
district to make the award of compensatory services to a student with a 
disability contingent on the student's delaying graduation from high 
school, when a determination has been made as a result of a complaint 
resolution that compensatory services are necessary to remedy the 
denial of FAPE to that student.
Topic Addressed: Children With Disabilities Placed in Private Schools 
by Their Parents
    * Letter dated January 21, 2000 to U.S. Congressman David L. 
Hobson, regarding a parent's request for speech services for their 
child with a disability who is parentally-placed at a private school, 
and clarifying that the March 12, 1999 final regulations regarding the 
participation of parentally-placed private school children with 
disabilities accurately reflect the applicable statutory provision in 
the IDEA Amendments of 1997 and the Department's longstanding 
interpretations of the relevant statutory and regulatory requirements 
regarding the participation of these children in programs assisted or 
carried out under Part B of IDEA.
Topic Addressed: State Educational Agency General Supervisory 
    * Letter dated February 9, 2000 to Massachusetts Department 
of Education Program and Quality Assurance Administrator John Stager, 
regarding the State's obligation to recover the Part B of IDEA funds 
received by the Boston Renaissance Charter School because the charter 
school counted children with disabilities but did not produce required 
documentation that those children had received appropriate special 
education and related services.

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    * Letter dated February 10, 2000 to Lawrence M. Siegel, 
Esq., explaining the Department's view that a State complaint unit's 
decision--which found that a complaint did not allege a violation of 
Part B of IDEA--was valid, since the issue raised in the particular 
complaint concerned the district's alleged failure to provide services 
for a student with a disability in the succeeding school year.
    * Letter dated February 10, 2000 to Maryland State 
Department of Education Special Education Assistant Superintendent 
Carol Ann Baglin, regarding the State's authority to require a 
corrective action in resolving a complaint against a school district 
which prohibits that district from allowing parents to voluntarily 
waive their right to receive a copy of procedural safeguards available 
to parents under Part B of IDEA, since the statute specifies the times 
when the procedural safeguards notice must be provided and does not 
authorize any exceptions.
    * Letter dated February 28, 2000 to Alaska Department of 
Education and Early Development Commissioner Richard S. Cross, 
informing Alaska that, despite the unique circumstances set out in its 
inquiry, there is no authority in IDEA for the Department to grant a 
State a waiver of the requirement that it revise its State statutes to 
comply with the requirements of the IDEA Amendments of 1997 in order 
for the State to receive its Part B of IDEA grant awards for FFY 2000.
    * Letter dated March 27, 2000 to Virginia Department of 
Education Acting Superintendent Dr. Jo Lynne DeMary, informing the 
Virginia Department of Education that (1) its failure to comply with 
the regulation at 34 CFR 300.514(c)--which addresses what constitutes a 
child's ``stay-put'' or ``pendency'' placement if the decision of a 
hearing officer in a due process hearing conducted by the SEA or a 
State review official in an administrative appeal agrees with the 
child's parents that a change of placement is appropriate--could result 
in enforcement action against the State, and (2) compliance with this 
regulation, which is a valid and appropriate exercise of the 
Department's regulatory authority, is required of all States receiving 
IDEA funds.
Topic Addressed: Coordinated Services
    * Memorandum to Chief State School Officers dated January 
24, 2000, regarding distribution of Office of Special Education 
Programs (OSEP) Memorandum 00-7 dated January 13, 2000 to State 
Directors of Special Education, which explains five provisions in the 
IDEA Amendments of 1997 that enhance coordinated services and are 
designed to improve results for students with disabilities.
Topic Addressed: Participation in State and District-Wide Assessment 
    * Letter dated February 4, 2000 to individual, (personally 
identifiable information redacted), regarding the importance of 
ensuring that students with disabilities are fully included in the 
benefits of State and district-wide assessment programs and that States 
that report data about the performance of nondisabled children on 
assessments at the district or State level must also do so for disabled 

Section 613--Local Educational Agency Eligibility

Topic Addressed: Charter Schools
    * Letter dated March 31, 2000 to New York State Education 
Department Deputy Commissioner Lawrence Gloeckler, clarifying that an 
LEA is not required to distribute Part B of IDEA flow-through funds to 
charter schools that are not established as LEAs or as public schools 
of the LEA.

Section 615--Procedural Safeguards

Topic Addressed: Student Discipline
    * Letter dated February 4, 2000 to individual, (personally 
identifiable information redacted), regarding options available to 
school authorities in appropriately educating a disabled student whose 
continued presence in a classroom may pose a threat to school safety.
    * Letter dated February 4, 2000 to U.S. Congressman Ronnie 
Shows, regarding a perceived disparity in procedures for disciplining 
disabled and nondisabled students, and providing an explanation of the 
requirements of the IDEA Amendments of 1997 that govern disciplining 
disabled students.
    * Letter dated February 16, 2000 to individual, (personally 
identifiable information redacted), regarding options available to 
school authorities in disciplining students with disabilities.
    * Letter dated March 15, 2000 to individual, (personally 
identifiable information redacted), regarding options available to 
parents in resolving disagreements with a school district over the 
requirements of Part B of IDEA even if criminal charges are pending 
against a student, and explaining that (1) Part B of IDEA does not 
prohibit a State or local school district from reporting a crime 
committed by a student with a disability to appropriate State law 
enforcement or judicial authorities, and (2) a hearing officer is not 
considered an employee of a local school district merely because the 
hearing officer is paid to conduct the hearing.
    * Letter dated March 15, 2000 to Louisiana State 
Superintendent Cecil Picard, clarifying that (1) the statutory 
provision requiring a school district to ask a hearing officer, in lieu 
of permitting school officials unilaterally, to order the removal of a 
child who is potentially dangerous to an appropriate interim 
alternative educational setting for up to 45 days strikes an 
appropriate balance between the need to provide school officials 
increased flexibility in dealing with school safety while maintaining 
due process and procedural protections for children with disabilities 
and their parents, and (2) regardless of available Federal special 
education funding, States have flexibility in accessing existing State 
and Federal programs to fund special education services.

Part C: Infants and Toddlers With Disabilities

Sections 631-641

Topic Addressed: Natural Environments
    * Letters dated March 21, 2000 to U.S. Senator Dianne 
Feinstein, responding to separate inquiries from constituents, 
regarding the history and changes to the natural environments 
requirements of Part C of IDEA since the law was originally enacted, 
and clarifying that the need for parent networking and parent training 
could be addressed through the provision of appropriate services in the 
child's individualized family services plan (IFSP).
    * Letter dated March 21, 2000 to U.S. Congressman Mike 
Thompson, regarding the history of and changes to the natural 
environments provisions of Part C of IDEA and the requirement that 
decisions about the provision of required early intervention services 
in natural environments must be individually determined by the child's 
IFSP team, and clarifying that determinations regarding services, 
including services for parents and the location of services to a child, 
are made by the child's IFSP team.
    * Letter dated March 21, 2000 to U.S. Congresswoman Lynn 
Woolsey, regarding the natural environments provision of Part C of 
IDEA, and clarifying, in general, that providing services to an infant 
or toddler with a disability in a setting such as a center-based 
program that is limited exclusively to infants and toddlers with 
disabilities would not constitute a

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natural environment, but that early intervention services may be 
provided in a center-based program serving only children with 
disabilities, if the IFSP team justifies in the IFSP that this location 
is necessary to meet the individual needs of a child for a particular 

Section 640--Payor of Last Resort

Topic Addressed: Use of Family's Public and Private Insurance for Early 
Intervention Services
    * Letter dated March 22, 2000 to Illinois Department of 
Human Services Director of Community Health and Prevention James R. 
Nelson, explaining that (1) with respect to the use of a family's 
private insurance for services under Part C of IDEA, pending further 
regulatory action, the Department will accept a State's reasonable 
interpretation of Part C of IDEA, including OSEP's prior policy letters 
and the position set out in the Department's Notice of Proposed 
Rulemaking on this issue; (2) with respect to the use of public 
insurance, Part C of IDEA funds are the payor of last resort; and (3) 
if a family does not permit access to its Medicaid payments, Part C of 
IDEA requires that a State ensure that the inability of a family to pay 
for required services does not result in the denial of services under 
Part C of IDEA to the child or to the child's family.

Part D: National Activities To Improve Education of Children With 

Subpart 1--State Program Improvement Grants for Children With 

Section 653--Applications

Topic Addressed: Information About State Program Improvement Grants
    * Letter dated March 24, 2000 to individual, (personally 
identifiable information redacted), clarifying that (1) State Program 
Improvement Grants, authorized by Part D of IDEA, are discretionary 
grants that are not intended to provide direct services to children 
with disabilities, and (2) Part D of IDEA does not require a State to 
establish its own regulations to administer this grant program.


Topic Addressed: Inapplicability of the Least Restrictive Environment 
and Discipline Requirements of Part B of IDEA to College Students
    * Letter dated February 10, 2000 to individual, (personally 
identifiable information redacted), clarifying that the least 
restrictive environment (LRE) and discipline provisions of Part B of 
IDEA do not apply to college students since the Part B of IDEA 
regulations provide that a disabled student's graduation from high 
school with a regular high school diploma ends the student's 
entitlement to FAPE, and noting that some of the issues regarding the 
provision of postsecondary services to students with disabilities may 
be within the jurisdiction of the Department's Office for Civil Rights.

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

    Dated: May 31, 2000.
Curtis L. Richards,
Acting Assistant Secretary for Special Education and Rehabilitative 
[FR Doc. 00-14074 Filed 6-5-00; 8:45 am]