Dated July 11, 2006This letter is in response to your letter dated March 10, 2006, regarding your efforts to remove the Mental Retardation label from the California regulations and replace it with a different term, such as Cognitive Impairment. Your letter asked four questions that the Office of Special Education Programs (OSEP) will address below.Our research indicates that the following states do not currently use the term Mental Retardation' as a label in identifying children for special education eligibility: Idaho, Michigan, New Jersey, Indiana, Wisconsin, Georgia, Minnesota, Montana, Nebraska, Colorado, Delaware, Kentucky, North Carolina, South Carolina, South Dakota, Utah, West Virginia and Wyoming. Are these states being funded for students who meet the Federal definition for Mental Retardation? Have there been any problems or issues related to funding for these states since they replaced the Mental Retardation label?A State's decision to use different terminology from that used in the Federal definition to describe disability categories does not affect its eligibility for funds under Part B of the Individuals with Disabilities Education Act (Part B). The term child with a disability under Part B includes children with specified impairments who are evaluated and determined to need special education and related services by reason of those impairments. Mental retardation is one of the impairments listed in the Federal definition of child with a disability in section 602(3)(A) of the Act. 20 U.S.C. 1401(3)(A). A State is not required to use the precise terminology in the Federal definition of child with a disability in describing children who meet criteria for that definition, provided that all children who are in need of special education and related services who have impairments listed in the Part B definition of child with a disability receive appropriate instruction and services.In order for a State to be eligible to receive assistance under Part B it must provide assurances to the Secretary of Education that the State has in effect policies and procedures that ensure that it meets the eligibility conditions in section 612 of the Act and its implementing regulations in 34 CFR Part 300.* The assurances that are relevant to your inquiry require a State to ensure that all children with disabilities residing in the State who are in need of special education and related services, are identified, located, and evaluated (20 U.S.C. 1412(a)(3)) and that a free appropriate public education (FAPE) is available to all eligible children (20 U.S.C. 1412(a)(1)). In addition, a State must provide an assurance in its application for funds under Parts B and C of the IDEA that it will provide data to the Secretary of Education on any information that may be required by the Secretary. 20 U.S.C. 1418(a)(3). Consistent with this assurance, States receiving assistance under Part B must provide data to the Secretary and to the public on an annual basis on the number and percentage of children with disabilities, by race, ethnicity, limited English proficiency status, gender, and disability category, who are receiving FAPE. 20 U.S.C. 1418(a)(1). This is true regardless of whether the State uses the terminology in the Federal definition of "child with a disability," substitutes different terms for the terminology used in the Federal definition, or does not classify any eligible children in the State by disability category. What process did these States go through with OSEP in order to make this happen?Whenever a State makes revisions to its policies and/or procedures, it must initiate the public participation process. The public participation requirements are set forth in 441 of the General Education Provisions Act (GEPA) at 20 U.S.C. 1232d(b)(7)(B) and in Part B at 20 U.S.C. 1412(a)(19). The Part B provision states that
rior to the adoption of any policies and procedures needed to comply with this section (including any amendments to such policies and procedures), the State ensures that there are public hearings, adequate notice of the hearings, and an opportunity for comment available to the general public, including individuals with disabilities and parents of children with disabilities. Therefore, before a State can make changes to its policies and procedures needed to comply with Part B of the Act, including definitions of disability categories, the State must comply with these public participation requirements.With regard to OSEP's current position on the Federal eligibility criteria of Mental Retardation, would it jeopardize funding for California if t With the knowledge that in our culture, outside of the professional realm the words Mental Retardation' have become a common insult that is used by children and adults (i.e. retard that's retarded you're mental) and in our media, is OSEP taking steps to consider changing this label at the Federal level?The IDEA was recently reauthorized and amended by the Individuals with Disabilities Education Improvement Act of 2004, and the term mental retardation was retained in the Federal definition of child with a disability in section 602(3) of the Act. OSEP is not considering changing the designation for children with mental retardation at this time. If you continue to believe that there is a need to change the IDEA designation for children with mental retardation, we suggest that you share your concerns with members of Congress. This response regarding a policy, question, or interpretation under Part B is provided as informal guidance, is not legally binding, is issued in compliance with the requirements of 5 U.S.C. 553, and represents the interpretation by the Department of Education of the applicable statutory or regulatory requirements in the context of the specific facts presented. We hope that you find the above explanation helpful. If you have any further questions, regarding the requirements of Part B that have been discussed in this response, please contact Perry Williams, the California State contact for Part B in the Monitoring and State Improvement Planning Division, at (202) 245-7575.Sincerely,/s/Alexa Posny, Ph.D.Director Office of Special Education Programs* Final regulations implementing the changes to the statute in 2004 have not yet been published and further clarification may be included in the final regulations when they become available The citations contained in this letter are to the current regulations issued March 12, 1999 and may change when final regulations are published.Page PAGE 3