[Federal Register: September 19, 2003 (Volume 68, Number 182)]
[Page 54895-54897]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]

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Office of Special Education and Rehabilitative Services; List of 

AGENCY: Department of Education.

ACTION: List of correspondence from April 1, 2003 through June 30, 


SUMMARY: The Secretary is publishing the following list pursuant to 
section 607(d) of the Individuals with

[[Page 54896]]

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 the IDEA or the 
regulations that implement the IDEA.

FOR FURTHER INFORMATION CONTACT: Melisande Lee or JoLeta Reynolds. 
Telephone: (202) 205-5507 (press 3).
    If you use a telecommunications device for the deaf (TDD), you may 
call the Federal Information Relay Service (FIRS) at 1-800-877-8339.
    Individuals with disabilities may obtain a copy of this notice in 
an alternative format (e.g., Braille, large print, audiotape, or 
computer diskette) on request to the contact persons listed in the 
preceding paragraph.

SUPPLEMENTARY INFORMATION: The following list identifies correspondence 
from the Department issued from April 1, 2003 through June 30, 2003 
with the exception of two letters, one dated March 17, 2003, which was 
inadvertently omitted from the 1st Quarter list, and one dated August 
1, 2003, which relates to the subject matter of the March 17, 2003 
    Included on the list are those letters that contain interpretations 
of the requirements of the 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
    [sbull] Letter dated June 30, 2003 to individual (personally 
identifiable information redacted), clarifying that although neither 
the IDEA nor its implementing regulations require that students who are 
deaf or hard of hearing be assessed to determine their American Sign 
Language (ASL) skills or proficiency, the individualized education 
program (IEP) may specify that certain assessment methods be used to 
assess the student's proficiency in ASL.

Section 603--Office of special education programs

Topic Addressed: Responsibilities of the Office of Special Education 
    [sbull] Letter dated April 16, 2003 to the National Council on 
Disability General Counsel Jeff Rosen, regarding the efforts of the 
Office of Special Education Programs (OSEP) to focus its monitoring 
system on better outcomes for infants, toddlers, children and youth 
with disabilities and their families.
    [sbull] OSEP memorandum 03-5 dated April 8, 2003 to Chief State 
School Officers and Lead Agency Directors, regarding OSEP's 
implementation of the Continuous Improvement and Focused Monitoring 
System to target resources on those performance issues most closely 
related to improved results for children with disabilities and to those 
States most in need of improvement on those performance issues.

Part B--Assistance for Education of all Children with Disabilities

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

Section 619--Preschool Grants

Topic Addressed: Allocation of Grants
    [sbull] OSEP memorandum 03-7 dated April 15, 2003 to State 
Directors of Special Education, regarding calculating State grants and 
the determination of the age cohort for which each State ensures the 
availability of a free appropriate public education (FAPE).

Section 612--State Eligibility

Topic Addressed: Free Appropriate Public Education
    [sbull] Letter dated June 27, 2003 to individual (personally 
identifiable information redacted), clarifying whether Federal funds 
provided under the IDEA can be used to pay tuition at public or private 
State-approved special education programs designed to offer parents 
alternate State-approved school placement options.
Topic Addressed: Least Restrictive Environment
    [sbull] Letter dated June 26, 2003 to Maryland Disability Law 
Center Managing Attorney Leslie S. Margolis, clarifying that OSEP does 
not intervene in State decisions regarding construction of new schools 
and that there are no statutory or regulatory provisions which require 
a State to take certain steps before concluding there is no viable 
alternative to construction of a new separate facility.
Topic Addressed: State Educational Agency General Supervisory Authority
    [sbull] Letter dated June 25, 2003 to individual (personally 
identifiable information redacted), clarifying the State Educational 
Agency's general supervisory responsibilities and explaining that the 
IDEA and its implementing regulations do not (1) specify the manner or 
method in which a State educational agency (SEA) must conduct an 
independent onsite-investigation of a complaint or (2) require that 
students with disabilities attain particular graduation rates for a 
State to meet its obligations under the IDEA.
Topic Addressed: Participation of Children with Disabilities in State 
and District-Wide Assessments
    [sbull] Letter dated June 26, 2003 to individual (personally 
identifiable information redacted), regarding (a) participation by 
students placed in private schools or facilities in State and district-
wide assessments and in alternate assessments; (b) the appropriate 
configuration and authority of the IEP team; (c) the provision of 
direct services by the SEA and remedies available under State complaint 
procedures; (d) the filing of a State complaint in an alternative 
format and the completeness of a complaint investigation; and (e) 
procedural safeguards for parents with disabilities.
    [sbull] Letter dated April 10, 2003 to New York State Education 
Department Deputy Commissioner Lawrence Gloeckler, regarding a State's 
ability to (1) determine what accommodations in administration 
invalidate a test or a part thereof and (2) provide appropriate 
direction to school districts and IEP teams on issues including the 
design and constructs measured by various required tests, which 
accommodations and modifications in administration are valid, and which 
accommodations and modifications would invalidate the assessment or 
part of the assessment.

Section 613--Local Educational Agency Eligibility

Topic Addressed: Charter Schools
    [sbull] Letter dated April 4, 2003 to Hawaii Department of 
Education Special Education Director Debra Farmer, clarifying the 
State's obligations, under its unitary school system and parental 
choice programs, to provide a FAPE to students with disabilities whose 
parents choose to place them in a charter school.

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Section 614--Evaluations, Eligibility Determinations, Individualized 
Education Programs, and Educational Placements

Topic Addressed: Evaluations and Reevaluations
    [sbull] Letter dated June 26, 2003 to Maryland Department of 
Education Assistant State Superintendent Carol Ann Baglin, clarifying 
that (1) the determination of whether a child suspected of having a 
specific learning disability is a child with a disability must be made 
by the parents and a team of qualified professionals and (2) it would 
not be inconsistent with the IDEA for a State to require that the 
child's parent be afforded the opportunity to provide a statement 
presenting his or her conclusion regarding the determination of 
    [sbull] Letter dated April 10, 2003 to New York State Education 
Department Deputy Commissioner Lawrence Gloeckler, clarifying that (1) 
the IDEA statute and Part B regulations reflect the clear and 
unequivocal intent of Congress to support parents' rights to choose 
whether their children would be enrolled initially in special education 
and (2) an individual parent's refusal to consent to the initial 
provision of special education and related services relieves the 
State's obligation to provide FAPE to that child until the parent 
provides that consent.
Topic Addressed: Individualized Education Programs
    [sbull] Letter dated June 4, 2003 to individual (personally 
identifiable information redacted), regarding the audio or video 
recording of IEP meetings.
    [sbull] Letter dated April 2, 2003 to Sonja D. Kerr, Esq., 
clarifying that neither the IDEA nor the final regulations (1) address 
the ``write-up'' of the IEP (whether or not parents must be physically 
present when the IEP is written is a State issue) or (2) prohibit the 
parties from using an IEP developed during a conciliation conference or 
from making offers of settlement or submitting such settlement offers 
to a hearing officer or court.

Section 615--Procedural Safeguards

Topic Addressed: Manifestation Determination Review
    [sbull] Letter dated August 1, 2003 to Vermont Department of 
Education Legal Counsel Geoffrey A. Yudien, clarifying that (1) nothing 
in the IDEA statute or regulations limits a manifestation determination 
review only to the disability that served as the basis for the 
eligibility determination and (2) the ten-day timeline set forth in 34 
CFR 300.523(a)(2) is not intended to preclude the IEP team from making 
an appropriate determination that additional evaluations must be 
completed in order to make a manifestation determination.
    [sbull] Letter dated March 17, 2003 to New Hampshire Department of 
Education Consultant Terry Brune, clarifying that, while the IDEA 
statute and regulations do not address the issue of conducting more 
than one manifestation determination review for the same incidence of 
behavior, any new information regarding the incident could be used as a 
basis for an IEP meeting to reexamine the student's program and 

Part C--Infants and Toddlers with Disabilities

Section 636--Individualized Family Service Plan

Topic Addressed: Early Intervention Services
    [sbull] Letter dated June 30, 2003 to individual (personally 
identifiable information redacted), clarifying that the regulations 
implementing Part C require that (1) written parental consent be 
obtained before conducting the initial evaluation and placement of a 
child and before initiating the provision of early intervention 
services and (2) there is no provision authorizing public agencies to 
use mediation or due process procedures to override a parent's refusal 
to consent to the initial provision of early intervention or special 
education and related services.

Section 641--State Interagency Coordinating Council

Topic Addressed: State Interagency Coordinating Council
    [sbull] OSEP memorandum 03-6 dated April 15, 2003, regarding the 
requirements for submitting annual performance reports, and clarifying 
that a single report can be used to satisfy both the Education 
Department General Regulations and the Part C Interagency Coordinating 
Council reporting requirements.

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

    Dated: September 16, 2003.
Robert H. Pasternack,
Assistant Secretary for Special Education and Rehabilitative Services.
[FR Doc. 03-23975 Filed 9-18-03; 8:45 am]