POLICY LETTER: July 30, 2024, to Tymeson

400 MARYLAND AVE. S.W., WASHINGTON, DC 20202-2800 www.ed.gov The Department of Education’s mission is to promote student achievement and preparation for global competitiveness by fostering educational excellence and ensuring equal access . UNITED STATES DEPARTMENT OF EDUCATION OFFICE OF SPECIAL EDUCATION AND REHABILITATIVE SERVICES OFFICE OF SPECIAL EDUCATION PROGRAMS DIRECTOR July 30, 2024 Garth Tymeson, Ph.D. Center on Disability Health and Adapted Physical Activity University of Wisconsin- La Crosse Department of Exercise and Sport Science 1725 State Street 108 Mitchell Hall La Crosse, Wisconsin 54601 Dear Dr. Tymeson, This letter responds to your September 12, 2023, correspondence to the U.S. Department of Education (Department), Office of Special Education Programs (OSEP). We regret the delay in responding. Your letter asked for clarification of the requirements related to the evaluation and provision of physical education, under Part B of the Individuals with Disabilities Education Act (IDEA). Your 2023 inquiry provided 11 different scenarios where you raise d concerns regarding the evaluation and provision of a free appropriate public education (FAPE) under the IDEA. OSEP has already provided information related to most of the issues your recent letter raised on the subject of the provision of physical education, including adaptive physical education (APE), 1 availabi lity of qualified staff , and professional qualifications needed to provide APE . 2 We address below the issues raised relating to evaluation procedures, individualized education program ( IEP) Team members, and p rovision of FAPE. Because each child’s needs are unique, OSEP will not be able to respond to each of the scenarios that you raised in a manner that can be applied to all children with disabilities and their IEP s. Instead, OSEP encourages you or a child’s parent to contact a n OSEP-funded Parent Training and Information Center (PTI) with questions you or a parent may have regarding the implementation of IDEA under these specific factual scenarios . The PTI can also explain the availability of IDEA’s dispute resolution options that may be pursued, if appropriate. I. Evaluation Procedures Your 2023 correspondence provided multiple scenarios regarding evaluations relating to children who may require “special physical education,” which is specially designed and prescribed in a 1 34 C.F.R. § 300.39(b)(2)(ii) uses the term “adapted physical education” while the comments to the 2006 final regulations use the terms “adapted physical education” and “adaptive physical education” interchangeably. See 71 Fed. Reg. 46577 (2006). Both refer to the provision of specially designed instruction to meet the unique needs of students with disabilities and to ensure their access to the gener al education curriculum, where possible. 34 C.F.R. § 300.39(b)(3). 2 Please see OSEP Letter to Tymeson, April 7, 2022 ; OSEP Letter to Tymeson, May 1 2, 2021; OSEP Letter to Kelly, October 23, 2013 ; OSEP Letter to Tymeson, July 31, 2013 , and OSEP Report on Creating Equal Opportunities for Children and Youth with Disabilities to Participate in Physical Education and Extracurricular Athletics (August 2011). Page 2 – Dr. Garth Tymeson child’s IEP consistent with 34 C.F.R. §§ 300.108(c) and 300.39(b)(2). 3 Under IDEA, an evaluation is defined as the procedures used in accordance with 34 C.F.R. §§ 300.304 through 300.311 to determine whether a child has a disability and the nature and extent of the special educatio n and related services that the child needs. 34 C.F.R. §300.15. Evaluations must meet additional requirements, including timelines. 34 C.F.R. §§ 300.301(c), 300.303(b). Once an LEA has received informed consent from a parent for an initial evaluation, the timeline is 60 days, or a State established time frame, to conduct the evaluation. 34 C.F.R. § 300.301(c) (1). For reevaluations, once an LEA has followed the parental consent requirements in 34 C.F.R. § 300.300(c), the reevaluation must occur at least once every three years, unless the parent and the public agency agree that a reevaluation is unnecessary. 34 C.F.R. § 300.303(b)(2 ). IDEA requires that the IEP Team review existing data, which includes observations of the child by teachers and related service providers. 34 C.F.R. § 300.305(a) (1)(iii). As a result of this reevaluation review, the IEP Team and other qualified professionals, as appropriate, may determine that no additional data is needed regarding the child’s special physical education. 34 C.F.R. § 300.305(d)(1). If this occurs, the IEP Team would need to provide notice to the parent of the reasons why additional data is not needed and the rights of parents to request an assessment to determine the child’s specially designed physical education needs consistent with 34 C.F.R. § 300.305(d)(1)(i)- (ii). As with all evaluations, the parents of a child with a disability have the right to an independent educational evaluation (IEE) at public expense if the parent disagrees with the evaluation obtained by the public agency. 34 C.F.R. § 300.502(b). If a parent requests an IEE, the public agency must either ensure that an IEE is provided at public expense or file a due process complaint to request a due process hearing to show that its evaluation is appropriate. 34 C.F.R. § 300.502(b)(2). The IEE must be considered by the public agency (provided that it meets public agency criteria ) in any decision made regarding FAPE, including the development, review, and revision of an IEP, if applicable. 34 C.F.R. §§ 300.502(c)(1), 300.324. II. IEP Team Members Your letter also asked questions related to IEP Team participation , which is addressed in 34 C.F.R. § 300.321. The IDEA regulations do not specifically require the IEP Team to include an individual who has knowledge in special physical education, but instead requires the following individuals as part of the IEP Team who may assist in determining a child’s unique needs, including special physical education needs : 4 • Not less than one regular education teacher of the child (if the child is, or may be, participating in the regular education environment); 3 Physical education is defined in IDEA as t he development of: (A) Physical and motor fitness; (B) Fundamental motor skills and patterns; and (C) Skills in aquatics, dance, and individual and group games and sports (including in tramural and lifetime sports). Physical education includes special physical education, adapted physical education, movement education, and motor development. 34 C.F.R. § 300.39(b)(2). In this letter, OSEP uses the term “special physical education” consistent with the term in 34 C.F.R. § 300.108(c) denoting physical education that is prescribed in a child’s IEP. 4 This is a partial list of the IEP Team members required by 34 C.F.R. § 300.321. Page 3 – Dr. Garth Tymeson • Not less than one special education teacher of the child, or where appropriate, not less than one special education provider of the child; • An individual who can interpret the instructional implications of evaluation results ; and • A representative of the public agency who is qualified to provide, or supervise the provision of, specially designed instruction to meet the unique needs of children with disabilities. An individual who has knowledge in special physical education could fit into several of the above categories or fulfill multiple roles on the IEP Team. The IDEA regulations also allow, at the discretion of the parent or the agency, other individuals who have knowledge or special expertise regarding the child, including related services personnel, as appropriate, who may also have train ing and knowledge in special physical education. 34 C.F.R. § 300.321(a)(6). OSEP has provided guidance on 34 C.F.R. § 300.321(a)(6) in OSEP Letter to Haller , May 2, 2019, which states: Individuals with special expertise could include professionals in evaluation or special educat ion and related services who have been directly involved with the child, as well as those who do not know the child personally, but who have expertise in (for example) an instructional method or procedure, or in the provision of a related service that the parents or agency believe can be of assistance in developing an appropriate IEP for the child. Assistance to Stat es for the Education of Children with Disabilities and the Early Intervention Program for Infants and Toddlers with Disabilities, Final Rule, Analysis of Comments and Changes, 64 Fed. Reg. 12406, 12585 (March 12, 1999). The determination of the knowledge or special expertise of any individual described in 34 C.F.R. § 300.321(a)(6) must be made by the party (parents or public agency) who invited the individual to be a member of the IEP Team. 34 C.F.R. § 300.321(c). Therefore, an adaptive physical education teacher could also be an individual who has knowledge or special expertise regarding the unique special physical education needs of a child. III. Provision of FAPE You asked several questions regarding adaptive physical education as part of FAPE . We believe that these questions were previously addressed in OSEP’s May 12, 2021 policy letter to you, which continues to be applicable. We note that section 607(d) of the IDEA prohibits the Secretary of the Department from issuing policy letters or other statements that establish a rule that is required for compliance with, and eligibility under, IDEA without following the rulemaking requirements of section 553 of the Administrative Procedure Act. Therefore, based on the requirements of IDEA section 607(e), this response is provided as informal guidance and is not legally binding. It represents an interpretation by the Department of the requirements of IDEA in the context of the specific facts presented and does not establish a policy or rule that would apply in all circumstances. Other than statutory and regulatory requirements included in the document, the contents of this Page 4 – Dr. Garth Tymeson guidance do not have the force and effect of law and are not meant to bind the public. This document is intended only to provide clarity to the public regarding existing requirements under the law or agency policies. We thank you for your continued commitment to ensuring children with disabilities have access to appropriate instruction to meet their unique physical education needs. If you have further questions, please contact Kimberly Hymes at Kim berly.hymes@ed.gov. Sincerely, Valerie C. Williams