EDUCATIONAL HELPS ...

Questions and Answers about IDEA

• A publication of the National Dissemination Center for Children with Disabilities
• NICHCY News Digest 21 (ND21) 2nd Edition
• 2000
• Approx. 47 pages when printed.
• PDF version

Table of Contents

• Introduction
  
• I: Background on IDEA
  
• II: Purposes of IDEA
  
• III: Accessing Services
  
• IV: The IEP
  
• V: Procedural Safeguards
  
• VI: Resources
  
• Attachment A
  

Introduction

Each year, the National Dissemination Center for Children with Disabilities (NICHCY) receives thousands of requests from families and professionals for information about special education and related services for children and youth with disabilities. This News Digest has been developed to answer many of the questions and concerns that families and professionals have when they contact NICHCY. This document looks specifically at the mandates and requirements of the Individuals with Disabilities Education Act Amendments of 1997 (IDEA), the federal law that supports special education and related services programming for children and youth with disabilities.

While this issue often uses the word "you" to speak directly to parents and families, we hope that its detailed information about special education law and services is also useful to professionals who work with children and youth with disabilities and their families.

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Part I: Background Information on the IDEA

Brief History of the IDEA

The federal law that supports special education and related service programming for children and youth with disabilities is called the Individuals with Disabilities Education Act (IDEA), [formerly the Education for the Handicapped Act (EHA)]. The IDEA has its roots in Public Law 94-142 (the Education of All Handicapped Children Act), which was originally enacted in 1975 to establish grants to States for the education of children with disabilities. This law has been amended several times. Under Part B of the law, all eligible school-aged children and youth with disabilities are entitled to receive a free appropriate public education (FAPE).

In 1986, the EHA was amended by P.L. 99-457 to provide special funding incentives for States that would make FAPE available for all eligible preschool-aged children with disabilities ages three through five. Provisions were also included to help States develop early intervention programs for infants and toddlers with disabilities; this part of the legislation became known as the Part H Program.

The EHA was amended again in 1990 by P.L. 101-476, which, among other things, changed the name of the legislation to the Individuals with Disabilities Education Act, or IDEA. The IDEA was first amended in 1992 by P.L. 102-119. The newest amendments to this law are the Individuals with Disabilities Education Act Amendments of 1997 (P.L. 105-17). These amendments restructured IDEA into four parts: Part A addresses General Provisions; Part B covers the Assistance for Education of All Children with Disabilities; Part C covers Infants and Toddlers with Disabilities; and Part D addresses National Activities to Improve the Education of Children with Disabilities.

The IDEA is an important federal law, because it requires that FAPE, which includes special education and related services, be made available to children and youth with disabilities in mandated age ranges. This News Digest provides a general overview of the IDEA and its regulations as they relate to school-aged children. The News Digest is intended to help you understand the law and how it mandates services for your school-aged child with a disability. Information about services available to infants and toddlers through the Part C program (formerly known as the Part H program) and to preschool children with disabilities is presented in a separate NICHCY document entitled A Parent's Guide: Accessing Programs for Infants, Toddlers, and Preschoolers With Disabilities.

The information provided in this News Digest is drawn specifically from the IDEA Amendments of 1997, as passed by Congress in 1997 and codified into law under 20 United States Code (USC), Chapter 33. Final regulations for the IDEA Amendments of 1997 were published in the Federal Register on Friday, March 12, 1999. These final regulations are currently guiding school systems in how they design and implement their special education and related services programs.

Obtaining a Copy of IDEA and Its Regulations

Because States base their programs upon the law and its final Federal regulations, it is helpful for you to read and become familiar with the law itself. To obtain a copy of the law (called the statute) and/or the final Federal regulations, contact: Superintendent of Documents, U.S. Government Printing Office, Attn: New Orders, P.O. Box 371954, Pittsburgh, PA 15250-7954. Charge orders may be telephoned to: (202) 512-1800. For a copy of the statute, state that you are requesting a copy of Public Law 105-17, the Individuals with Disabilities Education Act Amendments of 1997. To obtain a copy of the final Federal regulations, request the latest copy of the IDEA's regulations: Code of Federal Regulations: Title 34; Education; Part 300-399. There will be a minimal charge for both of these documents.

Both of these documents are also available on the Internet at the Web site of the Office of Special Education Programs (OSEP) at the U.S. Department of Education. OSEP's Web address is: www.ed.gov/offices/OSERS/IDEA/index.html

Another useful Web site for obtaining these materials is the OSEP-funded IDEA Partnership Projects at: www.ideapractices.org/law/index.php

Obtaining a Copy of Your State's Special Education Law

It is also important to become familiar with your State special education law. The IDEA is a Federal law and, as such, provides minimum requirements that States must meet in order to receive Federal funds to assist in providing special education and related services. Your State law and regulations may go beyond the Federal requirements, and it is important to know their specifics. You may want to contact your State Department of Education, Office of Special Education, and ask for a parent handbook on special education.

Using the Term "Public Agency"

In this News Digest, you will read a great deal about the responsibilities and rights of the agency that is responsible for providing education to your child with a disability. The term that is used in IDEA's regulations is generally public agency.

The "public agency" may vary from location to location and from child to child. In some instances, it is the State Education Agency (SEA); in others, it is the local education agency (LEA), a public charter school, or some other entity.

Although public agency is not a term most people are overly familiar with, we have chosen to use this term to refer to the agency in your area that is responsible for providing education to children with disabilities. In most cases, this agency will be your local school district.

Finding Specific Sections of the Regulations

As you read the explanations about the law below, you will find references to specific sections of the Federal regulations, such as Section 300.1. You can use these references to locate the precise sections in the Federal regulations that address the issue being discussed. For example, in the discussion of the IDEA's purpose, you are given the reference Section 300.1. This reference tells you that, if you wanted to read the exact words the regulations use to define the IDEA's purpose, you would look under Section 300.1 of the Code of Federal Regulations (CFR) for Title 34 (sometimes referred to as 34 CFR).

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Part II: Purposes of the IDEA: Who is Eligible? What Types of Services are Provided?

1. What are the purposes of the IDEA?

The major purposes of the IDEA are:

• to ensure that all children with disabilities have available to them a "free appropriate public education" that emphasizes special education and related services designed to meet their unique needs and prepare them for employment and independent living;
  
  
• to ensure that the rights of children and youth with disabilities and their parents are protected;
  
  
• to assist States, localities, educational service agencies, and Federal agencies to provide for the education of all children with disabilities; and
  
  
• to assess and ensure the effectiveness of efforts to educate children with disabilities. (Section 300.1)
  
  

2. What is a free appropriate public education?

Under the law, a free appropriate public education (FAPE) means special education and related services that:

• are provided to children and youth with disabilities at public expense, under public supervision and direction, and without charge;
  
  
• meet the standards of the State Education Agency (SEA), including the requirements of the IDEA;
  
  
• include preschool, elementary school, or secondary school education in the State involved; and
  
  
• are provided in keeping with an individualized education program (IEP) that meets the requirements of law, as specified in Sections 300.340-300.350. (Section 300.13)
  
  

The requirements for an IEP are discussed in greater detail in Part IV of this document.

3. Who is eligible for services under the IDEA?

The regulations for IDEA define a "child with a disability" as including a child (a) who has been evaluated according to IDEA's evaluation requirements (specified at Sections 300.530 - 300.536 and discussed in Part III of this document); (b) who has been determined, through this evaluation, to have one or more of the disabilities listed below; and (c) who, because of the disability, needs special education and related services. The disabilities listed by IDEA are:

• mental retardation;
  
  
• a hearing impairment, including deafness;
  
  
• a speech or language impairment;
  
  
• a visual impairment, including blindness;
  
  
• serious emotional disturbance (hereafter referred to as emotional disturbance);
  
  
• an orthopedic impairment;
  
  
• autism;
  
  
• traumatic brain injury;
  
  
• other health impairment;
  
  
• a specific learning disability;
  
  
• deaf-blindness; or
• multiple disabilities. [Section 300.7 (a)(1)]

Attachment A of this News Digest provides the complete description of each of these disabilities, as contained in the regulations for IDEA.

For children aged 3 through 9, a "child with a disability" may include, at the discretion of the State and the local educational agency (LEA) and subject to certain conditions (enumerated at Section 300.313), a child who is experiencing developmental delays, as defined by the State and as measured by appropriate diagnostic instruments and procedures, in one or more of the following areas:

• physical development;



• cognitive development;



• communication development;



• social or emotional development; or



• adaptive development; and



• who needs, for that reason, special education and related services. [Section 300.7(b)]

From birth through age 2, children may be eligible for services through The Infants and Toddlers with Disabilities Program (Part C) of the IDEA. This News Digest does not discuss the Part C program. For information about how to access services for infants and toddlers, read NICHCY's A Parent's Guide: Accessing Programs for Infants, Toddlers, and Preschoolers with Disabilities or contact us and request a copy..

4. What is special education?

Special education is defined as instruction that is specially designed, at no cost to you as parents, to meet your child's unique needs. Specially designed instruction means adapting the content, methodology, or delivery of instruction:

• to address the unique needs of your child that result from his or her disability, and



• to ensure your child's access to the general curriculum so that he or she can meet the educational standards that apply to all children within the jurisdiction of the public agency.

5. Where is special education instruction provided?

As listed above, special education instruction can be provided in a number of settings, such as: in the classroom, in the home, in hospitals and institutions, and in other settings (Section 300.26). Public agencies must ensure that a continuum of alternative placements is available to meet the needs of children with disabilities [Section 300.551(a)]. This continuum must include the placements just mentioned (instruction in regular classes, special classes, special schools, home instruction, and instruction in hospitals and institutions) and make provision for supplementary services (such as resource room or itinerant instruction) to be provided in conjunction with regular class placement. Unless a child's IEP requires some other arrangement, the child must be educated in the school he or she would attend if he or she did not have a disability [Section 300.552(c)].

Special education instruction must be provided to students with disabilities in what is known as the least restrictive environment, or LRE. Both the IDEA and its regulations have provisions that ensure that children with disabilities are educated with nondisabled children, to the maximum extent appropriate. The IDEA's LRE requirements apply to students in public or private institutions or other care facilities [Section 300.550(b)(1)]. Each State must further ensure that special classes, separate schooling, or other removal of children with disabilities from the regular educational environment occurs only if the nature or severity of the disability is such that education in regular classes with the use of supplementary aids and services cannot be achieved satisfactorily [Section 300.550(b)(2)].

6. What are related services?

Related services are defined in the regulations as transportation and such developmental, corrective, and other supportive services as are required to assist a child with a disability to benefit from special education. Related services may include:

• speech-language pathology and audiology;



• psychological services;



• physical therapy and occupational therapy;



• recreation, including therapeutic recreation;



• early identification and assessment of disabilities in children;



• counseling services, including rehabilitation counseling;



• orientation and mobility services; and



• medical services for diagnostic or evaluation purposes only;



• school health services;



• social work services in schools;



• parent counseling and training. (Section 300.24)

The list of related services identified in the IDEA's regulations is not intended to be exhaustive and could include other developmental, corrective, or support services if they are required to assist a child with a disability to benefit from special education.

You should inform yourself fully about the related services that are listed (and described in some detail) in the regulations. NICHCY's News Digest called Related Services can also provide information and guidance about related services.

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Part III: Accessing Services

7. What is the first step in obtaining special education and related services?

Before a child with a disability can receive special education and related services for the first time, a full and individual initial evaluation of the child, also known as a preplacement evaluation, must be conducted (Section 300.531). Informed parent consent must be obtained before this evaluation may be conducted [Section 300.505(a)(1)(i)].

8. How do I receive an evaluation of my child?

There are at least two ways in which your child may be selected to receive an evaluation:

If the public agency refuses to evaluate your child because it does not believe that your child has a disability, you must be given a written notice of the refusal and a full explanation of the reasons for the refusal [Sections 300.503(a)(1)(ii) and 300.503(b)(1) and (2)]. This notice must also include a statement telling you that you have protection under IDEA's regulations. In addition, at the time of initial referral for evaluation, you must be given a procedural safeguards notice that includes, among other elements, the State complaint procedures and a full explanation of all the procedural safeguards available under IDEA, including your right to challenge the public agency's refusal through a due process hearing (Section 300.507) and your right to request mediation (Section 300.506).

It is important for you to know that the law requires that the public agency notify you, the parents, in writing before it evaluates your child. All written communication from the public agency must be in a form the public can understand (and provided in your native language if you do not read English, or in the mode of communication you normally use, such as Braille or large print), unless it is clearly not feasible to do so. If your native language or other mode of communication is not a written language, the public agency must take steps to ensure:

• that the notice is translated orally (or by other means) to you in your native language or other mode of communication, and



• that you understand the content of the notice [Section 300.503(c)(2)].

The notice must also:

• state the action that is proposed or refused;



• the reasons for the proposal or refusal;



• a description of any other options considered by the agency and why they were rejected;



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



• a description of any other factors relevant to the proposal or refusal; and



• a statement that, as the parents of a child with a disability, you have protections under the procedural safeguards of the law and the means by which you can obtain a full explanation of those protections and State complaint procedures; and



• sources you can contact to obtain assistance in understanding the provisions of IDEA. [Section 300.503(b)(7)]

As was stated above, you, as parents, must give your informed written consent before the public agency may conduct an initial evaluation of your child. If you refuse consent for an initial evaluation, the public agency may continue to pursue conducting the evaluation by using the law's due process procedures or its mediation procedures (discussed in Part V of this News Digest), unless doing so would be inconsistent with State law relating to parental consent [Section 300.505(b)].

9. What does the evaluation process involve?

The regulations are very specific about how public agencies are to conduct evaluations of children and youth thought to have a disability. Your child's evaluation must be conducted by a group that includes:

• you, as parents;



• at least one regular education teacher of your son or daughter if he or she is, or may be, participating in the regular education environment;



• at least one of your child's special education teachers or special education providers;



• a representative of the public agency who is qualified to provide or supervise the provision of special education and who knows about the general curriculum (i.e., the curriculum used by nondisabled students), and about available resources;



• an individual who can interpret the instructional implications of the evaluation results;



• other individuals (invited at your discretion or the discretion of the public agency) who have special knowledge or expertise regarding your child;



• representatives from any other agency that may be responsible for paying for or providing transition services (if your child is 16 years old or, if appropriate, younger and will be planning for life after high school);



• your son or daughter, if appropriate (if transition services needs and/or transition services will be considered, the student must be invited to be part of the evaluation group); and



• other qualified professionals, as appropriate. (Section 300.533)

In this latter category--"other qualified professionals"--a wide range of individuals may be involved, depending upon the suspected disability of your child. For example, any of the following may be part of the evaluation team: school psychologist, speech-language pathologist, remedial reading teacher, occupational or physical therapist, adaptive physical education therapist, educational diagnosticians, or others.

The law requires that your child be assessed in all areas related to his or her suspected disability. This includes, where appropriate, evaluating your child's:

• health,



• vision,



• hearing,



• social and emotional status,



• general intelligence,



• academic performance,



• communicative status, and motor abilities. [Section 300.532(g)]

To accomplish this, a variety of assessment tools and strategies must be used to gather relevant functional and developmental information about your child. This includes information provided by you, as well as information related to enabling your child to be involved in and progress in the general curriculum (that is, the curriculum used with nondisabled children). The ultimate purpose of the initial evaluation is to gather information that may assist in determining:

• whether or not your child is a "child with a disability" (see discussion above under Question #3), and



• the content of your child's IEP, if he or she is found eligible for special education and related services. [Section 300.532(b)]

To this end, then, the evaluation must be sufficiently comprehensive to identify all of your son or daughter's special education and related services needs, whether or not those needs are commonly linked to the disability category in which he or she is thought to have a disability [Section 300.532(h)].

The evaluation process, as described within IDEA, requires that the group of individuals listed above begin the evaluation by reviewing existing evaluation data on your child. This includes evaluations and information provided by you; current classroom-based assessments and observations; and observations by teachers and related services providers. (Your permission is not needed for this review.)

Based on that review and on input from you as the child's parents, the group then identifies what additional data (if any) are needed to determine:

• whether your son or daughter has a particular category of disability (e.g., "other health impairment," "specific learning disability");



• your child's present levels of performance (that is, how he or she is currently doing in school) and his or her educational needs;



• whether your child needs special education and related services; and



• if so, whether any additions or modifications would need to be made in the special education and related services to enable your child to meet the goals set out in the IEP to be developed and to participate, as appropriate, in the general curriculum. [Section 300.533(a)]

For an initial evaluation, it is likely that additional data will be needed to answer these questions, particularly given the law's requirement to evaluate your child in all areas related to the suspected disability. The public agency must administer tests and other evaluation materials as may be needed to collect the needed data. Before the agency may collect this information about your child, it will need to ask you for your informed written permission [Section 300.505(a)(1)]. As was stated above, if you refuse consent, the public agency may continue to pursue conducting the evaluation by using the law's due process procedures or its mediation procedures (discussed in Part V of this News Digest), unless doing so would be inconsistent with State law relating to parental consent [Section 300.505(b)]. If you give your informed written consent to the evaluation, then the public agency will go ahead and collect the needed information about your child.

In addition to the requirements stated above, the IDEA includes a number of general evaluation provisions that are intended to ensure that evaluations of children provide information that is comprehensive and accurate about their strengths and needs. With respect to your child (and all children), this includes the following:

1. No single procedure may be used as the sole criterion for determining whether your child is a "child with a disability" and for determining an appropriate educational program for your child.



2. Tests and other evaluation materials must be selected and administered so as not to be discriminatory on a racial or cultural basis.



3. Tests and other evaluation materials must be provided and administered in your child's native language or other mode of communication, unless it is clearly not feasible to do so.



4. If your child has limited English proficiency, materials and procedures used to assess your child must be selected and administered to ensure that they measure the extent to which your child has a disability and needs special education, rather than measuring your child's English language skills.
   
   These last three provisions of the law are meant to protect children of different racial, cultural, or language backgrounds from misdiagnosis. For example, children's cultural backgrounds may affect their behavior or test responses in ways that teachers or other personnel do not understand. Similarly, if a child speaks a language other than English or has limited English proficiency, he or she may not understand directions or words on tests and may be unable to answer correctly. As a result, a child may mistakenly appear to be a slow learner or to have a hearing or communication problem.



5. Any standardized tests that are given to your son or daughter must be validated for the specific purpose for which they are used. They must also be administered by trained and knowledgeable personnel according to the instructions provided by the producers of the tests.



6. If an assessment is not conducted under standard conditions--meaning that some condition of the test has been changed (such as the qualifications of the person giving the test or the method of giving the test)--a description of the extent to which it varied from standard conditions must be included in the evaluation report.



7. The evaluation must include tests and other evaluation materials tailored to assess your child's specific areas of educational need and not merely include those that are designed to provide a single general intelligence quotient (your child's IQ score).



8. If your child has impaired sensory, manual, or speaking skills, the law requires that tests are selected and administered so as best to ensure that test results accurately reflect his or her aptitude or achievement level (or whatever other factors the test claims to measure), and not merely reflect your child's impaired sensory, manual, or speaking skills (unless the test being used is intended to measure those skills).



9. The public agency must use assessment tools and strategies that provide relevant information that directly assists persons in determining your child's educational needs. (Section 300.532)

Thus, the evaluation process begins when a group of individuals, including you as parents, reviews existing evaluation data on your child and decides what (if any) additional data are needed to decide if your child has a disability and to help plan instruction for your child. If more information is needed about your child to make these decisions, the public agency will ask your permission to collect the information. After you give your informed written consent, the public agency will collect whatever additional information is needed, following the guidelines listed above for sound evaluation and using a variety of evaluation methods and strategies, including tests, observations, and classroom-based assessments. An evaluation report will then be prepared. Such a report generally would summarize the results of your child's evaluation.

10. How are the evaluation results used?

Upon completing the administration of tests and other evaluation materials (if they are determined to be needed), a group of qualified professionals and you, the parents, must determine whether or not your child is a "child with a disability," as defined by IDEA (see Attachment A in this document) and local policy, and whether your child needs (and, thus, is eligible for) special education and related services (Section 300.534). This determination will be made based on the results of your child's evaluation and information from a variety of sources, including aptitude and achievement tests, parent input, teacher recommendations, and your child's physical condition, social or cultural background, and adaptive behavior [Section 300.535(a)(1)].

Previously, parents were not expressly included in the group that determined their child's eligibility and, in fact, were often excluded. Now, under the IDEA Amendments of 1997, parents are to be part of the group that determines their child's eligibility [Section 300.534(a)(1)]. The public agency must also provide a copy of the evaluation report to the parent, as well as the documentation of the determination of the child's eligibility [Section 300.534(a)(2)].

Some school systems will hold a meeting where they consider only the eligibility of the child for special education and related services. At this meeting, your child's assessment results should be explained. The specialists who assessed your child will explain what they did, why they used the tests they did, your child's results on those tests or other evaluation procedures, and what your child's scores mean when compared to other children of the same age and grade.

It is important to know that the group may not determine that a child is eligible if the determinant factor for making that judgment is the child's lack of instruction in reading or math or the child's limited English proficiency. The child must otherwise meet the law's definition of a "child with a disability"--meaning that he or she has one of the disabilities listed in the law (see Attachment A) and, because of that disability, needs special education and related services. [Section 300.534(b)]

The regulations also specify criteria for determining the existence of a specific learning disability, one of the 13 disability categories listed in the law. Section 300.541 states that a team may determine that a child has a specific learning disability if two conditions are met. The first is that the child does not achieve commensurate with his or her age and ability levels in one or more of the following areas: oral expression, listening comprehension, written expression, basic reading skill, reading comprehension, mathematics calculation, or mathematic reasoning, even if the child is provided with learning experiences appropriate for his or her age and ability level. The second condition is that the team finds that a child has a severe discrepancy between achievement and intellectual ability in one or more of those areas. However, the team may not identify a child as having a specific learning disability if the severe discrepancy between ability and achievement is primarily the result of (a) a visual, hearing, or motor impairment; (b) mental retardation; (c) emotional disturbance; or (d) environmental, cultural, or economic disadvantage. (Section 300.541)

If the evaluation results indicate that your child meets the definition of one or more of the disabilities listed under IDEA and needs special education and related services, the results will form the basis for developing your child's IEP. The IEP is discussed in detail in the next section of this News Digest.

11. What happens if I don't agree with the evaluation results?

If you, as parents of a child with a disability, disagree with the results of your child's evaluation as obtained by the public agency, you have the right to obtain what is known as an Independent Educational Evaluation, or IEE (Section 300.502). An IEE means an evaluation conducted by a qualified examiner who is not employed by the public agency responsible for the education of your child. If you ask for an IEE, the public agency must provide you with, among other things, information about where an IEE may be obtained.

Who pays for the independent evaluation? The answer is that some IEEs are at public expense and others are paid for by the parents. For example, if you are the parent of a child with a disability and you disagree with the public agency's evaluation, you may request an IEE at public expense. "At public expense" means that the public agency either pays for the full cost of the evaluation or ensures that the evaluation is otherwise provided at no cost to you as parents [Section 300.502(a)(3)(ii)]. The public agency may grant your request and pay for the IEE, or it may initiate a hearing to show that its own evaluation was appropriate. The public agency may ask why you object to the public evaluation. However, the agency may not require you to explain, and it may not unreasonably delay either providing the IEE at public expense or initiating a due process hearing to defend the public evaluation. [Section 300.502(b)(4)]

If the public agency initiates a hearing and the final decision of the hearing officer is that the agency's evaluation was appropriate, then you still have the right to an IEE but not at public expense [Section 300.502(b)(3)]. As part of a due process hearing, a hearing officer may also request an IEE; if so, that IEE must be at public expense. Whenever an IEE is publicly funded, that IEE must meet the same criteria that the public agency uses when it initiates an evaluation. The public agency must tell you what these criteria are--such as location of the evaluation and the qualifications of the examiner--and they must be the same criteria the public agency uses when it initiates an evaluation, to the extent they are consistent with your right to an IEE. However, the public agency may not impose other conditions or timelines related to your obtaining an IEE at public expense. [Section 300.502(e)]

Of course, you have the right to have your child independently evaluated at any time at your own expense. (Note: When the same tests are repeated within a short time period, the validity of the results can be seriously weakened.) The results of this evaluation must be considered by the public agency, if it meets agency criteria, in any decision made with respect to providing your child with FAPE. The results may also be presented as evidence at a hearing regarding your child. [Section 300.502(c)] For more information about hearings, see Part V of this News Digest.

12. Will my child be evaluated again in the future?

In most cases, yes. The first time your child is evaluated is called an initial evaluation (Section 300.531). Evaluations must also be conducted at least every three years (generally called a triennial evaluation) after your child has been placed in special education [Section 300.536(b)]. Reevaluations can also occur more frequently if conditions warrant, or if you or your child's teacher request a reevaluation [Section 300.536(b)]. Informed parental consent is also necessary for reevaluations [Section 300.505(a)(1)(i)].

As with initial evaluations, reevaluations begin with the review of existing evaluation data, including evaluations and information provided by you, the child's parents. Your consent is not required for the review of existing data on your child. On the basis of that review, the group, including you and other qualified professionals (as appropriate), must identify what additional data, if any, are needed to determine whether your child continues to be a "child with a disability" and continues to need special education and related services. If the group determines that additional data are needed, then the public agency must administer tests and other evaluation materials as needed to produce the data. Prior to collecting this additional information, the agency must obtain your informed written consent.

If the group determines that no additional data are needed to determine whether your child continues to be a "child with a disability," the public agency must notify you:

• of this determination and the reasons for it; and



• of your right, as parents, to request an assessment to determine whether, for the purposes of services under IDEA, your child continues to be a "child with a disability."

The public agency is not required to conduct the assessment unless requested to do so by you, the child's parents. [Section 300.533(d)]

A final note with respect to reevaluations: Before determining that your child is no longer a "child with a disability" and, thus, no longer eligible for special education services under IDEA, the public agency must evaluate your child in accordance with all of the provisions described above. This evaluation, however, is not required before terminating your child's eligibility due to graduation with a regular high school diploma or due to exceeding the age eligibility for FAPE under State law. [Section 300.534(c)]

Part IV: The Individualized Education Program

13. What is an Individualized Education Program (IEP)?

An IEP is a written statement for a child with a disability that is developed, reviewed, and revised in a meeting in accordance with certain requirements of law and regulations. These requirements and the entire IEP process are discussed in this section.

Two general purposes of the IEP are (1) to establish measurable annual goals, including benchmarks or short-term objectives, for the child; and (2) to state the special education and related services and supplementary aids and services that the public agency will provide to, or on behalf of, the child. The regulations state that the State Education Agency (SEA) must ensure that each public agency develops and implements an IEP for each child with a disability served by that agency (Section 300.341).

Under the IDEA, your child's IEP must include:

• A statement of your child's present levels of educational performance, including how your child's disability affects his or her involvement and progress in the general curriculum (i.e., the same curriculum as for nondisabled children). This may include information concerning your son or daughter's: academic achievement, social adaptation and how your child's behavior impedes his or her learning or that of others, vocational skills, sensory and motor skills, self-help skills, language and communication needs, and speech and language skills;



• A statement of measurable annual goals, including benchmarks (major milestones) or short-term objectives (individual, intermediate steps that make up the annual goals). These goals and objectives must relate to (a) meeting your child's needs that result from his or her disability to enable your child to be involved in and progress in the general curriculum, and (b) meeting each of your son or daughter's other educational needs that result from his or her disability;



• A statement of the special education and related services and supplementary aids and services to be provided to your child, or on behalf of your child, and a statement of the program modifications or supports for school personnel that will be provided for your child to advance toward attaining the annual goals; to be involved and progress in the general curriculum and participate in extracurricular and other nonacademic activities; and to be educated and participate with other children with disabilities and nondisabled children in these activities;



• An explanation of the extent, if any, to which your son or daughter will not be participating with nondisabled children in a regular class, in the general curriculum, and in extracurricular and other nonacademic activities;



• A statement of any individual modifications in the administration of State or district-wide assessments of student achievement that are needed for your child to participate in the assessment. If your child will not take part in a particular State- or district-wide assessment, a statement must also be included as to why that assessment is not appropriate for your child and how he or she will be assessed.



• A statement of when services and modifications are expected to begin, how frequently they will be provided, how long they will go on, and where they will be provided;



• A statement of how your child's progress toward the annual goals will be measured, and how you as parents will be regularly informed (through such means as report cards) of your child's progress toward the annual goals, and the extent to which that progress is sufficient to enable your child to achieve the goals by the end of the year. This regular report must occur at least as often as parents are informed of their nondisabled children's progress;



• A statement of the transition service needs of your child, beginning at age 14 (or younger, if determined appropriate by the IEP team) and updated annually. This statement would appear under the applicable components of your child's IEP that focuses on his or her courses of study, such as participation in advanced-placement courses or a vocational education program;



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



• A statement regarding transfer of rights at age of majority, as appropriate. If you live in a State that transfers rights at the age of majority, your child's IEP must include a statement that he or she has been informed of the rights under Part B of IDEA (if any) that will transfer to him or her on reaching the age of majority. If you live in such a State, this statement must be included in the IEP beginning at least one year before your child reaches the age of majority under State law.

These last three statements relate to the transition needs of students as they approach the age where they will leave high school and move on to the adult world of employment, further education, and independent living. Beginning in 1990, the IDEA included transition planning as part of the IEP in order to address the need of students with disabilities to prepare for life after high school. Because transition is such a crucial area for youth with disabilities, more will be said about it under Question #17 below.

In addition to including the above statements in the IEP, the IEP team must also consider "special factors" with respect to the child. New to the IEP process with the passage of the IDEA Amendments of 1997, these factors include the following:

• In the case of a child whose behavior impedes his or her learning or that of others: The IEP team must consider, if appropriate, strategies that address the behavior, including positive behavioral interventions, strategies, and supports.



• In the case of a child with limited English proficiency: The IEP team must consider the language needs of the child as those needs relate to his or her IEP.



• In the case of a child who is blind or visually impaired: The IEP team must provide for instruction in Braille and the use of Braille, unless it determines that instruction in Braille or the use of Braille is not appropriate for the child. The IEP team makes this determination 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.



• For all children: The IEP team must consider the communication needs of the child.



• In the case of a child who is deaf or hard of hearing: The IEP team must 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.



• For all children: The IEP team must consider whether the child requires assistive technology devices and services. (More will be said about assistive technology devices and services in Question #18 below.) [Section 300.346(a)(2)]

If, in considering these special factors with respect to your child, the IEP team determines that he or she needs a particular device or service (including an intervention, accommodation, or other program modification) in order to receive FAPE, then the IEP team must include a statement to that effect in your child's IEP [Section 300.346(c)].

Attachment A of the regulations for IDEA contains additional guidance on the IEP process. Using a question and answer format, Appendix A can assist the team developing your child's IEP. NICHCY makes Appendix A available in its entirety as its publication entitled Individualized Education Programs.

14. Who develops the IEP?

The IEP is developed by a team whose members meet, review the assessment information available about your child, and design an educational program to address your child's educational needs that result from his or her disability. This meeting, known by a variety of names such as an ARD meeting or an IEP meeting, must be held within 30 calendar days after it is determined, through a full and individual evaluation (described in Part III of this document), that your child has one of the disabilities listed in IDEA and needs special education and related services [Section 300.343(b)]. Your child's IEP must be reviewed at least annually thereafter to determine whether the annual goals are being achieved and must be revised as appropriate [Section 300.343(c)].

According to the regulations (Section 300.344), the IEP team for each child with a disability includes the following individuals:

• One or both of the child's parents;



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



• At least one special education teacher of the child or, if appropriate, at least one special education provider of the child;



• A representative of the public agency who is (a) qualified to provide, or supervise the provision of, specially designed instruction to meet the unique needs of children with disabilities, (b) knowledgeable about the general curriculum, and (c) knowledgeable about the availability of resources of the public agency;



• An individual who can interpret the instructional implications of evaluation results (this person can be one of the team members mentioned above or below);



• Other individuals, at the discretion of the agency or the parents, who have knowledge or special expertise regarding the child, including related services personnel, as appropriate; and



• The child, if appropriate.

Depending on the purpose of the meeting, other participants may be involved. For example, if one of the purposes of the meeting is the consideration of transition services for the student, then the public agency must also invite the student and a representative of any other agency that is likely to be responsible for providing or paying for the transition services [Section 300.344(b)]. More is said about transition under Question #17.

15. So we, as parents, are involved in developing our child's IEP?

Yes. The law is very clear that you, as parents, have the right to participate in the meeting where your child's IEP is developed. This means that:

• The public agency must notify you of the meeting early enough to ensure that you have an opportunity to attend [Section 300.345(a)(1)].



• The public agency must attempt to schedule the meeting at a mutually agreed on time and place [Section 300.345(a)(2)].



• The notice given you by the agency must indicate the purpose, time, and location of the meeting.



• The notice must also identify who will attend the meeting and inform you about the participation of other individuals on the IEP team who have knowledge or special expertise about your child.



• Beginning when your child is age 14 (or younger, if appropriate), the notice must also indicate that a purpose of the meeting will be the development of a statement of your child's transition services needs and indicate that the agency will invite your child [Section 300.345 (b)(2)].



• Beginning when your child is age 16 (or younger, if appropriate), the notice must indicate that a purpose of the meeting is the consideration of needed transition services for your child, indicate that the agency will invite your child, and identify any other agency that will be invited to send a representative [Section 300.345(b)(3)].



• The agency must take whatever action is necessary to ensure that you understand the proceedings at the meeting, including arranging for an interpreter for you, if you are deaf or if your native language is other than English [Section 300.345(e)].

IDEA's regulations state that the public agency may hold the IEP meeting without you if it is unable to convince you that you as parents should attend. However, the agency must have a record of its attempts to arrange a mutually agreed on time and place. This can be accomplished by keeping detailed records of telephone calls made or attempted and the results of those calls, copies of correspondence sent to you and any responses received, and detailed records of visits made to your home or work and the results of those visits. [Section 300.345(d)] The regulations also state that if neither of you as parents can attend the IEP meeting, the public agency must use other methods to ensure your participation, including individual or conference telephone calls [Section 300.345(c)].

16. What happens during an IEP meeting?

As has been said, the purpose of the IEP meeting is to develop a child's IEP. The meeting can serve as an excellent communication vehicle between parents and the public agency. It enables the parents and other members of the IEP team to decide what the child's educational needs are, what goals and objectives or benchmarks are appropriate, what services will be provided, and what results can be anticipated, and to specify these in the IEP.

Some public agencies conduct the IEP meeting separately from the meeting where the child's eligibility for services is determined. Other agencies combine the eligibility meeting and the IEP meeting, moving directly into developing the IEP once a child has been determined eligible for services. However, as Appendix A to the regulations points out (in Question #19), should the meeting move directly from eligibility to developing the IEP for the child and then to making a placement decision, the public agency must ensure that:

1. it has met the law's requirements regarding eligibility decisions (as specified at Sections 300.534-300.535);



2. it has met all of the Part B requirements regarding meetings to develop IEPs, including providing appropriate notification to the parents and ensuring that all the required team members participate in the development of the IEP; and



3. the placement decision is made by the required individuals, including the parent [as specified at Sections 300.552 and 300.501(c)].

Whichever approach your school system uses, once your child's eligibility for services has been determined, the focus of discussion should be on developing his or her IEP. You and the other members of the team will discuss the many issues associated with developing the specific IEP statements described above, including:

• what annual goals and objectives or benchmarks are appropriate for your child;



• what special education and related services your child needs;



• which related services are necessary to ensure your child benefits from his or her special education;
• what assistive technology devices or services (if any) your child needs to benefit from special education and related services;



• what transition service needs your child has with respect to his or her courses of study (this applies to your child beginning at age 14, or younger, if determined appropriate by the IEP team); and



• what transition services are necessary to prepare your child for life after completing high school (this applies to your child beginning at age 16, or younger, if determined appropriate by the IEP team).

You, as the parent, may wish to provide information on your child's educational needs (and, when appropriate, transition needs) and offer suggestions for the services appropriate for meeting those needs. At any point during the IEP meeting, don't hesitate to ask questions until you are sure that you understand what is being said.

Following the team's discussion, decisions will be made about the educational program and related services that meet your child's needs. These decisions are then specified in the IEP. The public agency must give you a copy of the IEP at no cost to you [(Section 300.345(f)].

It is important to understand that the IEP sets out the individualized instruction and related services to be provided to your child, but it is not a contract. While Part B of IDEA does not require that the public agency, teachers, and others be held liable if a child does not achieve the growth projected in the annual goals and benchmarks or objectives, the public agency is responsible for providing the special education and related services written into the IEP (Section 300.350). In order to check on your child's progress, you will find it helpful to have a copy of your child's IEP.

Your child's special education placement must be based on his or her IEP. Placement issues will be discussed further below (see Question #19), for they are a very important part of the special education process. However, first we will look at two IEP issues in more detail: transition planning and assistive technology devices and services.

17. What is required in terms of transition planning?

Beginning when your child is age 14 (or younger, if appropriate) and updated annually thereafter, your child's IEP team must include a statement in the IEP with respect to your son or daughter's transition service needs under the applicable components of the IEP that focuses on his or her courses of study. This might include, for example, your child's participation in advanced-placement courses or in a vocational education program. [Section 300.347(b)(1)] According to the Committee on Labor and Human Resources (1997), which submitted its Report [to accompany S. 717] to explain the IDEA Amendments of 1997, 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" (p. 22).

Beginning when your son or daughter is 16 (or younger, if appropriate), the IEP team must include a statement in the IEP of needed transition services for your child. This includes, if appropriate, a statement of the interagency responsibilities or any needed linkages. [Section 300.347(b)(2)]

The term "transition services" means a coordinated set of activities for a student with a disability that is designed within an outcome-oriented process that promotes movement from school to post-school activities. These activities can include postsecondary education, vocational training, integrated employment (including supported employment), continuing and adult education, adult services, independent living, or community participation. With respect to your child, this coordinated set of activities:

• is based on your child's individual needs, taking into account his or her preferences and interests; and



• includes instruction; related services; community experience; the development of employment and other post-school adult living objectives; and, if appropriate, the acquisition of daily living skills and functional vocational evaluation. (Section 300.29)

Transition services can be provided as special education if they are specially designed instruction or as related services, if they are required for your child to benefit from special education [Section 300.29(b)].

18. What are assistive technology devices and services?

As part of developing your child's IEP, the IEP team will consider your child's need for assistive technology devices and services. Assistive technology devices are defined as any item, piece of equipment, or product system that is used to increase, maintain, or improve the functional capabilities of a child with a disability (Section 300.5). Assistive technology devices can be acquired commercially off the shelf, modified, or customized. Since the explosion of technology in our country, assistive technology devices have become more widely available and have been shown to dramatically improve the functional capabilities of a child with a disability in terms of mobility, communication, employment, and learning (Flippo, Inge, & Barcus, 1995). Many of the devices have been instrumental in allowing students with disabilities to be educated in regular classrooms, working and learning alongside of their nondisabled peers. Some examples of these devices are: electronic communication aids, devices that enlarge printed words on a computer screen, devices that facilitate communication for individuals with hearing impairments, prosthetic devices, Braille writers, and keyboards adapted for fist or foot use.

Assistive technology services are any services that directly assist a child with a disability to select, acquire, or use an assistive technology device. This includes evaluating the needs of the child, including a functional evaluation in the child's customary environment (Section 300.6). The term also includes such services as:

• purchasing, leasing, or otherwise providing for the acquisition of assistive technology devices by children with disabilities;



• selecting, designing, fitting, customizing, adapting, applying, maintaining, repairing, or replacing assistive technology devices;



• coordinating and using other therapies, interventions, or services with assistive technology devices such as those associated with existing educational and rehabilitation plans and programs;



• providing training and technical assistance for the child with a disability or, if appropriate, the child's family, and



• providing training and technical assistance for professionals (including individuals providing education or rehabilitation services), employers, or others who provide services to, employ, or are otherwise substantially involved in the major life functions of that child. (Section 300.6)

19. How is my child's placement determined?

Now that you, as parents, and the other members of the IEP team have looked closely at and discussed your child's educational needs, decided what special education and related services are appropriate for your child, and specified the other information required in the IEP, it will be time to consider your child's placement--where your child will receive his or her special education and related services. Under Section 300.552(a) of IDEA, the placement decision is 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. The placement decision must be made in conformity with the law's least restrictive environment (LRE) provisions (discussed in Part II of this News Digest and found at Sections 300.550-300.354), which require that:

1. to the maximum extent appropriate, children with disabilities are educated with children who are nondisabled; and



2. special classes, separate schooling, or other removal of children with disabilities from the regular educational environment occurs only if the nature or severity of the disability is such that education in regular classes with the use of supplementary aids and services cannot be achieved satisfactorily.

As was stated in Part II of this document, the law requires that the public agency ensure that a continuum of alternative placements is available to meet the needs of children with disabilities for special education and related services. This continuum must include instruction in regular classes, special classes, special schools, home instruction, and instruction in hospitals and institutions, and make provision for supplementary services (such as resource room or itinerant instruction) to be provided in conjunction with regular class placement. (Section 300.551)

These, then, are the options that the group deciding your child's placement will consider. The involvement of parents in placement decisions is new to the law with IDEA '97. The implementing regulations for IDEA '97 state that "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" [Section 300.501(c)(1)]. To ensure your involvement in this critical decision, the public agency must use procedures consistent with those described under Question #15 for involving parents in IEP meetings (e.g., being notified about the meeting early enough to have the opportunity to attend, efforts to arrange a mutually agreed-upon time and location for the meeting) [Section 300.501(c)(2)]. The agency must also make reasonable efforts to ensure that you understand, and are able to participate in, any group discussions relating to the educational placement of your child. This includes arranging for an interpreter for you if you are deaf or if your native language is other than English. [Section 300.501(c)(5)]

If you cannot participate in the meeting where a placement decision will be made for your child, the public agency must use other methods to ensure your participation, including individual or conference telephone calls, or video conferencing [Section 300.501(c)(3)]. The law does state that a placement decision may be made by a group without your involvement as parents, if the public agency is unable to obtain your participation in the decision. However, in this case, as with IEP development, the public agency must have a record of its attempt to ensure your involvement, including detailed records of telephone calls made or attempted and the results of those calls; copies of correspondence sent to you and any responses received; and detailed records of visits made to your home or work and the results of those visits. [Section 300.501(c)(4)]

Your child's placement must be determined at least annually, must be based on his or her IEP, and must be as close as possible to his or her home [Section 300.552(b)]. In fact, unless your child's IEP requires some other arrangement, your son or daughter must be educated in the school he or she would attend if nondisabled [Section 300.552(c)]. When selecting the least restrictive environment, consideration must be given to any potential harmful effect on your child or on the quality of services that he or she needs [Section 300.552(d)]. And as was stated before, your child may not be removed from education in age-appropriate regular classrooms solely because he or she needs modifications made in the general curriculum [Section 300.552(e)].

20. How often will my child's IEP be revised?

The law clearly makes provisions for the growth and changing needs of children. At least once a year, whether you request it or not, a meeting must be scheduled with you to review your child's IEP to determine whether the annual goals for your child are being achieved [Section 300.343(c)(1)]. Other aspects of your child's education will need to be considered as well, including:

• the special factors discussed under Question #13;



• the strengths of your child and your concerns for enhancing his or her education;



• the results of the most recent evaluation of your child; and



• as appropriate, the results of your child's performance on any general State- or district-wide assessment programs. [Section 300.346(b)]

Based upon this review, the IEP would be revised as appropriate to address the following:

• any lack of expected progress toward the annual goals and in the general curriculum, if appropriate;



• the results of any reevaluation of your child;



• information about your child provided to, or by, you the parents (e.g., evaluations, current classroom-based assessments and observations; and observations by teachers and related services providers);



• your child's anticipated needs; or



• other matters. [Section 300.343(c)]

While the law requires that this review and revision of the IEP take place at least once a year, you as parents may request a review or revision of your child's IEP at any time. If you feel that your child is not progressing toward the annual goals as he or she should, or you feel that he or she has achieved the goals and that new ones need to be written, you may contact the school and request that the IEP team review and revise your child's IEP as appropriate. Because of the law's new requirement that parents be regularly informed of their child's progress toward the annual goals and the extent to which that progress is sufficient to enable the child to achieve the goals by the end of the year [Section 300.347(a)(7)(ii)], parents will have the ability to gauge their child's progress more closely than ever before.

21. How can I be involved after my child's IEP is developed?

It is in the best interests of everyone--the parents, the public agency, and the child with a disability--that the school and the parents maintain a good working relationship. The following are some suggestions that parents can use to develop and maintain a positive working relationship with the professionals who work with their child.

• Let your child's teacher(s) and therapists know that you are interested in playing an active role in your child's education. Plan and schedule times to talk with the professionals working with your child and, if possible, visit the classroom or program.



• Offer to explain any special equipment, medication, or medical problem your child has.



• Ask that samples of your child's work be sent home. If you have questions, make an appointment with your child's teacher(s) or therapists to discuss new strategies to meet your child's goals.



• Ask for suggestions of how you can continue, expand, and reinforce your child's educational activities at home.



• Volunteer to be a classroom or program parent. In this way, you can observe how things work in your child's program or school and how your child interacts with others.



• Let the school or program know that you may be consulted.



• Remember that both you and the school or program in which your child is enrolled want the best for your child. Working together can make this happen.

Part V: What to Do When You Don't Agree: Procedural Safeguards

The regulations implementing IDEA include an entire section (Subpart E) entitled "Procedural Safeguards." These safeguards are designed to protect the rights of parents and their child with a disability, as well as to give families and public agencies a mechanism for resolving disputes. Some of IDEA's procedural safeguards are listed between the dotted lines below; many have been discussed in earlier parts of this News Digest. We will look at some of these areas in this section, including: the confidentiality of information; access to education records and parents' right to request that records be amended; and what parents can do if they do not agree with an educational decision made by the public agency regarding their child. This latter area will involve discussing a series of options, including mediation, due process, and filing a complaint with the State agency. New requirements for placing the child in a private school at public expense will also be discussed, although technically this is not a procedural safeguard. The disciplining of students with disabilities, a new procedural safeguard within the law, will be discussed briefly as well.

Some Procedural Safeguards Under the IDEA

• the right of parents to inspect and review their child's educational records



• the right of parents to obtain an independent educational evaluation (IEE)



• the right of parents to be given written prior notice on matters regarding the identification, evaluation, or educational placement of their child, or the provision of FAPE to their child



• the right of parents or public agencies to request mediation and an impartial due process hearing on these matters (at a minimum, mediation must be available whenever an impartial due process hearing is requested)



• the right of parents to be given a full explanation of all of the procedural safeguards available under IDEA and the State complaint procedures



• the right of parents or public agencies to appeal the initial hearing decision to the State Education Agency (SEA) if the SEA did not conduct the hearing



• the right of the child to remain in his or her present educational placement, unless the parent and the public agency agree otherwise, while administrative or judicial proceedings are pending
• 
  
  
• the right of parents or public agencies to bring a civil action in an appropriate State or Federal court to appeal a final hearing decision



• the right of parents to request reasonable attorney's fees from a court for actions or proceedings brought under the IDEA under the circumstances described in Section 300.513



• the right of parents to give or refuse consent before their child is evaluated or reevaluated



• the right of parents to give or refuse consent before their child is provided with special education and related services for the first time



• discipline procedures for students with disabilities

Educational Records

22. Are my child's records confidential?

There are provisions under the IDEA (and other Federal laws as well) that protect the confidentiality of a child's education records. These safeguards address three issues: (a) the use of personally identifiable information; (b) who may have access to a child's records; and (c) the parents' right to request that their child's records be amended.

Personally identifiable information means information that includes: (a) the name of the child, parent, or other family member; (b) the address of the child; (c) a personal identifier number (such as the child's social security number or student number); or (d) a list of personal characteristics or other information that would make it possible to identify the child with reasonable certainty [Section 300.500 (b)(3)]. With a number of exceptions, you must give your consent before any personally identifiable information can be disclosed by the school system (Section 300.571). These exceptions are specified by your State or other participating agency's policy in keeping with Section 99.31 of the regulations for the Family Educational Rights and Privacy Act (FERPA), P.L. 93-380. (Regulations for the entire FERPA can be found in 34 CFR Section 99.1 through Section 99.67. IDEA's regulations on confidentiality--Section 300.560 through Section 300.577--contain several references to FERPA.) You have the right to know the policies and procedures that participating agencies in your State must follow regarding the gathering, storage, disclosure to third parties, retention, and destruction of personally identifiable information (Section 300.561). You can obtain this information through your district's special education director or through the State's Office of Special Education.

Access to a child's education records is frequently a concern of parents. The IDEA guarantees you as parents the right to inspect and review all education records relating to your child that the public agency collects, maintains, or uses regarding the identification, evaluation, and educational placement of your child and the provision of FAPE to your child (Sections 300.501 and 300.562). Should you ask to review your child's records, the public agency must respond to the request without unnecessary delay and before any meeting regarding an IEP or a due process hearing involving your child, and in no case later than 45 days after the request has been made [Section 300.562(a)]. You also have the right to receive a response to your reasonable requests for explanations and interpretations of the records. You may ask the agency to provide you with a copy of your child's records, and the school may charge you a reasonable fee for making the copies, as long as this fee does not effectively prevent you from exercising your right to inspect and review the records. Schools may not charge you for searching for or retrieving the records [Section 300.566 (b)]. You also have the right to have a representative inspect and review the records. Furthermore, you have the right to obtain from the school district or other participating agency a list of the types of education records that are collected, maintained, or used by the agency, and where these records are kept (Section 300.565).

In keeping with the requirements of the FERPA, only certain individuals besides you, as parents, may have access to your child's records. These individuals may include, for example, teachers or officials of the school or State who have a legitimate educational interest in the records. The school or other participating agency is required by law to maintain a record of all parties who obtain access to a child's educational records collected, maintained, or used under Part B of IDEA (with the exception of parents and authorized employees of the agency). This record should include the name of the person who accessed the records, the date, and the purpose for which the person was authorized to use the records (Section 300.563).

The right to request that records be amended is also given to parents under the law. If you believe the information in your child's records is inaccurate or misleading or that information in the records violates your child's right to privacy or other rights, you may request that the agency that maintains this information amend it [Section 300.567 (a)]. The agency must then decide, within a reasonable period of time, whether to amend the information in accordance with your request [Section 300.567(b)]. If the agency decides to refuse to amend the information as requested, it must inform you of this decision, as well as advise you of your right to a hearing [Section 300.567(c)].

If you decide to challenge the school district's or other participating agency's refusal through a hearing, you have the right to present evidence showing why you feel the information in your child's records should be amended (Section 99.22 of FERPA). You may also, at your own expense, be assisted or represented by one or more individuals of your choice, including an attorney. The hearing must be conducted by an individual who does not have a direct interest in its outcome, and the educational agency or institution must make its decision in writing within a reasonable amount of time after the hearing (Section 300.570 of IDEA refers readers to Section 99.22 of FERPA). The decision must be based solely on the evidence presented at the hearing and must include a summary of the evidence and the reasons for the decision.

Should the result of the hearing be in your favor, the district or other participating agency must amend the information in your child's records accordingly and inform you in writing that it has done so [Section 300.569(a)]. If, however, the result of the hearing is that the information about your child is not inaccurate, misleading, or otherwise in violation of his or her privacy or other rights, then the agency must inform you that, as parents, you have the right to place in your child's records a statement commenting on the information or setting forth any reasons you have for disagreeing with the decision [Section 300.569(b)]. The district must then place your statement in the records and keep it there as long as the record or contested portion is maintained by the agency. If the record of your child (or the contested portion) is disclosed by the agency to any party, the explanation must also be disclosed to that party. [Section 300.569(c)]

IDEA '97 adds an additional provision regarding educational records and the inclusion of disciplinary information in those records. A State may now require that a public agency include in the records of a child with a disability a statement of any current or previous disciplinary action taken against the child. This statement would be transmitted to the same extent that the disciplinary information is included in, and transmitted with, the student records of nondisabled children. [Section 300.576(a)] This statement may include:

• a description of any behavior engaged in by the child that required disciplinary action,



• a description of the disciplinary action taken, and



• any other information that is relevant to the safety of the child and other individuals involved with the child. [Section 300.576(b)]

If the State adopts such a policy and the child transfers from one school to another, the transmission of any of the child's records must include both the child's current IEP and any statement of current or previous disciplinary action taken against the child [Section 300.576(c)].

What to Do When You Don't Agree With the Decisions of a Public Agency

23. What can the public agency do if parents don't consent to their child's initial evaluation, reevaluation, or initial provision of special education and related services?

When parents refuse consent for an initial evaluation or reevaluation of their child or the initial provision of special education and related services, the agency may continue to pursue the evaluation or the provision of services through the mediation or due process procedures specified within the law, except to the extent that doing so would be inconsistent with State law relating to parental consent [Section 300.505(b)]. Some States have policies that would prohibit the agency from overriding a parental refusal to consent. If so, the agency must follow the requirements of State law and, thus, may have no recourse but to not evaluate the child under IDEA or to not provide services to the child.

If no such State law applies with respect to parental consent, the public agency may follow Federal law and utilize either the due process or mediation procedures of IDEA to secure the initial evaluation or the initial provision of special education and related services. In this case, the public agency must notify the parents of its intended actions (i.e., to pursue mediation or a due process hearing). Parents may chose to participate in the mediation process, which is voluntary, and they have rights with respect to due process hearings (both mediation and due process are discussed further below).

The only exception to the above requirements for consent is a specific provision in the case of parents who fail to respond to a request for a reevaluation of their child. In this instance, informed parent consent does not need to be obtained if the agency can demonstrate that it has taken reasonable measures to obtain that consent and the child's parent has failed to respond [Section 300.505(c)]. (Note that this provision applies only in the case of reevaluation and only when parents fail to respond, as opposed to expressly refusing consent.) The regulations describe "reasonable measures" as being consistent with provisions at Section 300.345(d), which means that the public agency must have a record of its attempts to secure parents' consent to the reevaluation of their child, such as:

• detailed records of telephone calls made or attempted and the results of those calls;



• copies of correspondence sent to the parents and any responses received; and



• detailed records of visits made to the parent's home or place of employment and the results of those visits.

24. What can I do if, at some point in time, I don't agree with decisions the school makes concerning my child?

There are several different procedures that you might want to use when you are not in agreement with the decisions made by the public agency with regard to your child's identification, evaluation, educational placement, or the provision of FAPE. Five commonly used procedures are listed below. You may want to use one or more of these approaches; some may be more appropriate than others at different times and for different reasons. You may also find it useful to involve an advocate in some of these approaches. An advocate can help you understand your rights and responsibilities fully, as well as those of the public agency, and can assist in discussions concerning whatever differences exist between you and the public agency. (To find out more about advocates in your area, you may wish to contact a local