The United States Department of Education’s Office of Special Education and Rehabilitative Services (OSERS) recently issued several policy guidance letters addressing important issues related to state and districtwide assessments, preschool programming, and disagreements during Planning and Placement Team (PPT) meetings, known under federal law as IEP team meetings.  While informal and nonbinding, these concise and digestible policy letters provide useful insight into OSERS’ interpretation of the statutes and regulations prescribing school district obligations related to mandatory assessments, preschool programming, and record keeping.

First, in Letter to Kane (Apr.18, 2018), OSERS addressed the potential obligation of school districts to provide compensatory special education and related services to students with disabilities who may or may not participate in required state or districtwide assessments.  Specifically, OSERS was asked to clarify whether school districts are obligated to provide compensatory services to make up for special education and related services missed (1) during the time a student participates in required state or districtwide assessments; and (2) when a parent withholds consent for such assessments and keeps the student home from school while the assessments are being administered.

OSERS recognized the importance of state and districtwide assessments, which are integral aspects of educational accountability systems, and which are used to measure student progress for the purposes of promotion, graduation, and access to educational services.  OSERS also highlighted the general requirement that children with disabilities be included in all state and districtwide assessments, while emphasizing that the IEP team will address the manner in which a student participates in such assessments.  A Student’s Individualized Education Program (IEP) will, for example, specify whether the student will take alternate assessments, or whether the student will receive any accommodations during such assessments.

Importantly, OSERS clarified that, generally, a special education or related service missed due to participation in required scheduled assessment will not constitute a denial of a Free Appropriate Public Education (FAPE), and the school district will not be required to make up the missed service.  Additionally, for a student who is absent from school on testing days due to a parent’s choice, the school district will not be obligated to make other arrangements to make up the missed service.

In Letter to Carroll (Apr. 19, 2018), OSERS addressed whether a school district could unilaterally schedule a full school week of special education and related services for a preschool student, despite knowing from the outset the student would not regularly attend school five days per week.  The specific inquiry involved a preschool student whose IEP specified 1,500 minutes of specially designed instruction per week, divided equally between a special education class and a general education class.  During the IEP team meeting in which the IEP was developed, no particular schedule was agreed upon, but the parents informed the IEP team that the student would attend the preschool program only three days per week so as to allow for participation in other activities and services outside of the school setting.  

Because it was unlikely that the full 1,500 minutes of weekly instruction could be provided in only three school days, the school district inquired whether it could unilaterally implement a schedule after the PPT meeting that provided for less than the 1,500 minutes.  OSERS noted that an IEP must identify the specific amount of special education and related services that a student will receive so that the school district’s commitment of resources is clear.  OSERS then emphatically stated that, under the IDEA, a school district cannot unilaterally change the amount of services included in a preschool student’s IEP.  As such, if the school district wanted to revise the amount of instruction provided for in the student’s IEP, it would have to engage the parents in further discussion, even if such discussion took place outside of a PPT meeting.  If the parents and school district agreed to change the student’s IEP, the changes would also have to be memorialized in an amended IEP following appropriate amendment procedures.

The form of the district’s inquiry is somewhat puzzling, since it seems as though the district could have solved the problem by preparing a schedule of services that would comply with the requirements of the IEP, and then simply noting when the parent chose to make the student available for the services that had been scheduled, and when the student was not made available.  Nonetheless, if a district wishes to reduce the amount of services available to a student through the IEP, proper procedures need to be followed to either amend the IEP or reconvene the meeting and have further discussions with the parent.

Finally, In Letter to Zirkel (Apr. 19, 2018), OSERS addressed the status of dissenting opinions from IEP team members.  Specifically, OSERS was asked whether it is permissible for a teacher or other district member of the IEP team to enter a dissenting opinion on a student’s IEP or elsewhere in the student’s record.  An example was provided involving a teacher who objects to the placement of a student in his or her classed based on behavioral and/or academic issues, while the PPT ultimately determines that placement in the teacher’s class is appropriate.

OSERS noted that the Individuals with Disabilities Education Act (IDEA) does not specifically address the issue of disagreements among school team members during IEP team meetings, except in the context of students suspected of having specific learning disabilities.  Specifically, 34 C.F.R. § 300.311(b) requires a team member who disagrees with an evaluator’s conclusions regarding a student’s potential learning disability to submit a separate statement reflecting his or her own conclusions.  As previously articulated in Letter to Anonymous (Oct. 29, 1996), however, an IEP team is not responsible for implementing the recommendation of an individual team member.

Due to the lack of a definitive authority on the subject, OSERS deferred to state and local educational agencies, which may maintain policies and procedures regarding the documentation of dissenting opinions among school team members during IEP team meetings.  Neither the Connecticut General Statues, the implementing Regulations, nor any other State authority addresses the extent to which such dissenting opinions must be documented in a student’s IEP or elsewhere.  As such, district personnel should determine whether their board of education maintains any relevant policies or procedures regarding disagreements during PPT meetings.  Importantly, however, during certain PPT meetings, such as manifestation determination meetings, the dissenting opinions of team members regarding issues such as whether a student’s behavior constituted a manifestation of his or her disability should be carefully documented in the worksheets memorializing the PPT’s ultimate decisions and recommendations. 

The full texts of the OSERS policy guidance letters, as well as additional OSERS resources, are available via the following web link:

https://sites.ed.gov/idea/policy-guidance/ 

As previously stated, policy guidance letters issued by federal and state agencies and their subdivisions, including the OSERS letters discussed herein, are informal, nonbinding, nonbinding, and do not establish a policy or rule that would apply in all circumstances.  School district administrators should consult with legal counsel as needed to resolve matters related to special education, including but not limited to state and districtwide assessments, disagreements during PPT meetings, and preschool programming.

Attorneys at Berchem Moses PC are available to consult school districts regarding regular and special education matters in the State of Connecticut.  For further information, please contact Attorney