POLICY LETTER: February 12, 2010 to Alabama attorney James Irby

February 12, 2010James Irby, Esq.The Law Firm of James Irby, P.C.120 East Tennessee Street Florence, Alabama 35630Dear Mr. Irby:This letter is in response to your September 17, 2009 letter to Patricia Guard, former Acting Director of the Office of Special Education Programs. You requested guidance regarding the requirements of under Part B of the Individuals with Disabilities Education Act (IDEA) as they relate to additional reading instruction provided in lieu of mandatory physical education. Specifically, you ask whether an Individualized Education Program (IEP) team for a student with a disability may agree to provide additional reading instruction in place of, and during, otherwise scheduled mandatory physical education instruction. You enclosed a November 16, 2004 memorandum from the State of Alabama Department of Education addressing sufficient instruction time for struggling readers that references the requirement for 30 minutes daily of physical education established in accordance with the Code of Alabama (1975), 16-4-1. We interpret the State requirement as applying to students with and without disabilities and your question to be whether the IDEA provides the IEP Team with authority to waive this State requirement for students with disabilities who require additional reading instruction.In general, it would be inappropriate for the IEP Team to deny children with disabilities the opportunity to participate in State mandated physical education instruction for the sole purpose of providing them with additional reading instruction. The IEP Team should consider additional strategies and scheduling, such as an extended school day or extended school year, if the child requires such insSincerely,/s/Alexa Posny, Ph.D.Acting DirectorOffice of Special Education ProgramsPage PAGE 2 James Irby, Esq.