POLICY LETTER: January 7, 2010 to Texas attorney Nona Matthews

January 7, 2010Nona Matthews, AttorneyWalsh, Anderson, Brown, Aldridge & Gallegos, P.C.Attorneys at LawP.O. Box 168046Irving, TX 75016Dear Ms. Matthews:This is in response to your October 2, 2009 letter to Ms. Ruth E. Ryder, Director of the Monitoring and State Improvement Planning (MSIP) Division within the Office of Special Education Programs (OSEP). In your letter, you ask whether proposed language in a particular individualized education program (IEP) meets the requirement in 34 CFR 300.320(a)(7) that the IEP include the projected date for the beginning of the services and modifications described in paragraph (a)(4) of this section and the anticipated frequency, location, and duration of those services and modifications. The language in the proposed IEP states: Special education counseling will be provided through a combination of individual therapy (outside of the classroom) and classroom based therapy (in the classroom). The student will receive 600 minutes per semester of counseling in 16 weekly sessions. Session times may vary per session according to the Student's responsiveness, session activity, and individual needs. Student's parent understands and agrees to the program frequency, duration and location of therapy.Specifically, you ask whether: (1) the LEA would be in compliance with its obligation under 34 CFR 300.320(a)(4) and (7) to reflect frequency, location and duration of services through such a statement in a student's IEP; and (2) the Texas Education Agency's (TEA) written policy on documenting the duration of services by requiring an exact number of minutes per session is consistent with the Individuals with Disabilities Education Act (IDEA). As you noted in your letter, the Analysis of Comments and Changes to the regulations governing Part B of the 2004 Amendments to the IDEA states:Comment: One commenter recommended clarifying that the term duration in 300.320(a)(7) . . . refers to the length of a particular service session and not the entire IEP. Discussion: The meaning of the term duration will vary, depending upon such things as the needs of the child, the service being provided, the particular format used in an IEP, and how the child's day and IEP are structured. What is required is that the IEP include information about the amount of services that will be provided to the child, so that the level of the agency's commitment of resources will be clear to parents and other IEP Team members. The amount of time to be committed to each of the various services to be provided must be appropriate to the specific service, and clearly stated in the IEP in a manner that can be understood by all involved in the development and implementation of the IEP. 71 Fed. Reg. 46540, 46667 (Aug. 16, 2006).The IDEA regulations do not specifically require that an IEP include the exact number of minutes to be provided for each session of each related service, although we anticipate that most IEPs would include that information in order to meet the requirement that the level of the agency's commitment of resources be clear. Sixteen weekly sessions totaling 600 minutes equals approximately 37.5 minutes per week (if each session lasts the same amount of minutes). This is a specific amount of time and provides all parties with an understanding of the general commitment of resources by the agency in terms of the number of minutes to be provided over the course of a 16 week semester. However, we agree that there may be special circumstances where the amount of time for each session of related services may vary in order to meet the needs of an individual student and there is nothing in the IDEA that would bar such an arrangement in an IEP. If the student is provided more counseling in the beginning of the semester than anticipated when the IEP was written, and the parent becomes concerned during the semester that the IEP does not provide for a sufficient number of minutes of counseling for his or her child to receive at the end of the semester, the parent may request an amendment to the IEP pursuant to 34 CFR 300.324(a)(6), and may file a due process complaint under 34 CFR 300.507 if the parties do not agree to amend the IEP to include additional minutes. With respect to TEA's guidance on related services, there is no requirement that State regulations mirror the Federal IDEA regulations, provided that the State regulations are not inconsistent with the IDEA, particularly when a State's requirements are designed to protect the interests of children with disabilities and their families. Accordingly, we believe that States have the discretion to impose some additional requirements on local educational agencies (LEAs) including a general requirement to document the number of minutes for each session of related services on IEPs. TEA's guidance in this area is found on its Web site at: http://ritter.tea.state.tx.us/special.ed/guidance/relatedservices.html and includes the comment to the final Part B regulations as stated above. TEA's guidance includes the following guidelines:Frequency how often the child will receive the service(s) (number of times per day or week). If the services are less than daily or weekly then the conditions for the provision of the services must be clearly specified within the ARD [Admission, Review and Dismissal] documents.Duration how long each session will last (number of minutes) and when services will begin and end (starting and ending dates)Location where services will be provided (in the general education classroom or another setting such as a special education resource room). Additionally, TEA provides a series of questions and answers regarding related services and includes the following guidelines in its answer to question #9:Frequency: How often will the service be provided (daily, weekly)? If a service iAlexa PosnyActing DirectorOffice of Special Education Programscc: Kathy Clayton Page PAGE * MERGEFORMAT 3 Nona Matthews, Attorney