POLICY LETTER: Sept. 5, 2024, to McAndrews and Ramirez

400 MARYLAND AVE. S.W., WASHINGTON, DC 20202-2600 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 September 5 , 2024 Ms. Caitlin E. McAndrews McAndrews, Mehalick, Connolly, Hulse & Ryan, P.C. 900 Foulk Road, Suite 201 Wilmington, DE 19803 Ms. Stefanie Ramirez Community Legal Aid Society, Inc. 100 West 10 th Street, Suite 801 Wilmington, DE 19801 Dear Ms. McAndrews and Ms. Ramirez, This letter responds to your January 26, 2023, correspondence to the U.S. Department of Education (Department), Office of Special Education Programs (OSEP) regarding how, under the Individuals with Disabilities Education Act (IDEA), specially designed instruction (SDI) is identified on the individualized education program (IEP) as part of the requirement that the IEP include a statement of the special education and related services and supplementary aids and services for the eligible child under 34 C.F.R. § 300.320 and 20 U.S.C. § 1414(d)(1)(A)(i)(IV). We regret the delay in responding. Y our letter seeks information about “a practice employed by several Delaware school districts ” designating “ very minimal amounts of time allotted for SDI on students’ IEP s … less than 10 minutes per day .… Meanwhile D istricts verbally claim that, in reality, the students are receiving much more [than what is listed on the IEP].” Your letter alleges that this practice may result in IEPs that do not reflect the educational program that a child receives, and that the State educational agency is aware of this practice. You also noted that this practice may have implications for parental participation as members of the IEP Team under 34 C.F.R. §§ 300.321 and 300.322, and a free appropriate public education ( FAPE) in the least restrictive environment (LRE) under 34 C.F.R. §§ 300.17 and 300.114. Identification of SDI Services on the Child’s IEP & State Monitoring Under the IDEA statute and regulations, decisions about each child’s special education and related services and the setting in which the child receives services must be made on an individual ized basis by the child’s IEP team based on the child’s unique needs and identified on Page 2 – Ms. McAndrews and Ms. Ramirez the IEP by the IEP T eam. 20 U.S.C. § 1414(d) (1)(A) and 34 C.F.R. § 300.320. T he IEP Team, which includes the child’s parents, is responsible for identifying and determining the special education and related services that are needed to address the unique needs of the child with a disability. 20 U.S.C. § 1414(d)(1)(B) and 34 C.F.R. § 300.321 . “IEP Teams and other school personnel should be able to demonstrate that, consistent with the provisions in the child’s IEP, they are providing special education and related services and supplementary aids and services; making program modifications; providing supports for school personnel; and allowing for appropriate accommodations that are reasonably calculated to enable a child to make progress appropr iate in light of the child’s circumstances and enable the child to have the chance to meet challenging objectives.” OSEP Questions and Answers on U.S. Supreme Court Case Decision Endrew F. v. Douglas County School District Re-1, Question 18 (December 7, 2017). Under 34 C.F.R. § 300.39(a)(1), “special education” means specially designed instruction, at no cost to the parents, to meet the unique needs of a child with a disability. Under 34 C.F.R. § 300.39(b)(3), “specially designed instruction” means adapting, as appropriate to the needs of an eligible child under Part B of IDEA, the content, methodology, or delivery of instruction: (1) to address the unique needs of the child that result from the child’s disability; and (2) to ensure access of the child to the gen eral curriculum, so that the child can meet the educational standards within the jurisdiction of the public agency that apply to all children. As stated in OSEP Letter to Chambers (May 9, 2012), “ [t]he IEP Team is responsible for determining what special education and related services are needed to address the unique needs of the individual child with a disability. The fact that some of those services may also be considered ‘best teaching practices’ or ‘part of the district’s regular education program’ does not preclude those services from meeting the definition of ‘special education’ or ‘related services’ and being included in the child’s IEP.” Under 34 C.F.R. § 300.320(a)(7), the child’s IEP must include the specific amount of special education and related services and supplementary aids and services – including the projected date for the beginning of the services and modifications and the anticipated frequency, location, and duration of those services and modifications – that the local educational agency (LEA) will provide to the child so that the scope of the agency’s commitment of resources is clear to parents and IEP Team members. 1 Additionally, “ [t]he 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. ” OSEP Letter to Rowland (Sept. 9, 2019). Further, the public agency cannot unilaterally change the amount of services included in a child’s IEP. OSEP Letter to Carroll (April 19, 2018). Therefore, if the public agency wants to revise the child’s IEP, including the amount of services in the child’s IEP, after the IEP Team meeting, it must engage the parent in further discussion, 1 Assistance to States for the Education of Children with Disabilities and Preschool Grants for Children with Disabilities, Final Regulations, Analysis of Comments and Changes, 71 Fed. Reg. 46667 (Aug. 14, 2006). se. 71 Fed. Reg. 46715 (Aug. 14, 2006), avail able at: https://sites.ed.gov/idea/files/20060814-Part_B_regulations.pdf . Page 3 – Ms. McAndrews and Ms. Ramirez which may, but need not necessarily, occur through an IEP Team meeting. 2 Additionally , each child’s placement decision must be made in conformity with the least restrictive environment provisions, including 34 C.F.R. §§ 300.114 through 300.118. S tate educational agencies (SEAs) have a general supervision responsibility to monitor the implementation of IDEA, including the identification and implementation of specially designed instruction on IEPs. Under 34 C.F.R. § 300.600, the State must monitor and enforce the implementation of the IDEA, including “[e]nsuring that public agencies meet the program requirements under [the IDEA] ….” To comply with this monitoring responsibility the Delaware Department of Education (DDOE) must determine whether the IEPs in question accurately reflect the specially designed instruction provided to the students . OSEP notes that the SEA’s monitoring must also determine whether any inaccuracies in the IEPs impacted the determination of LRE for those students or the State’s data reported under Section 618 of the IDEA, 20 U.S.C. § 1418. Providing Notice to Parents and Parental Consent Under 34 C.F.R. § 300.503, notice must be given to the parents of a child with a disability a reasonable time before the public agency – (1) proposes to initiate or change the identification, evaluation, or educational placement of the child or the provision of FAPE to the child; or (2) r efuses to initiate or change the identification, evaluation, or educational placement of the child or the provision of FAPE to the child. This notice and the IEP must provide sufficient information so that the parent can provide informed consent prior to the initial provision of special education and related services through an IEP and allow for the parent to make a decision about whether their child should receive special education and related services. 34 C.F.R. §§ 300.300(b)(1) and 300.300(b)(4) (italics added). It has been the Department’s long-standing position that the prior written notice informs parents of the educational services and supports that are being proposed and establishes a sufficient record demonstrating that parents have been appropriately informed. 3 By not providing a parent with an IEP developed consistent with IDEA, the parent may not receive the required notice. 34 C.F.R. § 300.503(b). Lastly, OSEP encourages parents and LEAs to work collaboratively in the best interests of children to resolve the disagreements that may occur when working to provide a positive educational experience for all children, including children with disabilities. To this end, the IDEA and its implementing regulations provide specific options for resolving disputes between parents and public agencies. Part B of the IDEA provides the following options for resolving disagreements about a child’s educational program: S tate complaints under 34 C.F.R. §§ 300.151 – 300.153, mediation under 34 C.F.R. § 300.506, and due process complaints under 34 C.F.R. §§ 300.507 – 300.516. Any individual or organization, including one from another State, may file a S tate complaint to resolve allegations that a public agency has violated a requirement of Part B of the IDEA. For more information regarding IDEA dispute resolution options in Delaware, please visit: https://www.doe.k12.de.us/Page/2337. 2 Under 20 U.S.C . § 1414(d)(3)(D), a parent and a public agency may agree not to convene an IEP Team meeting to make changes to the IEP after the annual IEP Team meeting for a school year, and instead to develop a written document to amend or modify the child’s current IEP. If changes are made to the child’s IEP in accordance with 20 U.S.C . § 1414(d)(3)(D), the public agency must ensure that the child’s IEP Team is informed of those changes. 34 C .F.R. § 300.324(a)(4)(ii). See OSEP Letter to Carroll (April 19, 2018) . 3 See 73 F.R. 73006, 73008 (Dec. 1, 2008) . Page 4 – Ms. McAndrews and Ms. Ramirez Conclusion By copy of this letter, we are informing Dale Matusevich, Director, Exceptional Children Resources, DDOE, of OSEP’s response to your inquiry. OSEP remains available to answer any questions from DDOE to ensure that IEPs are developed consistent with IDEA . OSEP notes that IDEA Section 607(d) requires the following statement that, 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 Part B 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 guidance do not have the force and effect of law and are not meant to bind the public. This document addresses only existing requirements under the law and agency policies. Further, OSEP responds to these matters generally and not in the context of any specific due process complaint or State complaint that may be pending or resolved. I hope you find this information helpful. If you have any additional information or updates that you would like to share with OSEP, please do not hesitate to contact Kim Hymes by email at Kimberly.hymes@ed.gov. Sincerely, /s/ Valerie C. Williams Director Office of Special Education Programs c c: Dale Matusevich Director, Exceptional Children Resources Delaware Department of Education (DDOE)