(NOTE: These are the initial proposed regs, which have now been replaced by the actual new regs. They have no legal benefit to you, but may be of interest. They may be the same as the new regs, or they may have been modified substantially. We have not reviewed the new IEP Q+A regs (now known, we think, as Appendix A, rather than as Appendix C) as of Friday afternoon, March 12, 1999. New regulations were issued on March 12, 1999 and we are converting the regulations into html documents for posting on the website. When the Appendix to the IEP portion of the regulations, formerly known as Appendix C has been converted into html, it will replace this file. Stay posted to the website since there will be extensive revisions to many of our articles to incorporate the new regulations.)
 

Initial Proposal to 
Appendix C to Part 300--

The IEP requirements of the IDEA emphasize the importance of each child with a disability’s involvement and progress in the general curriculum; of the involvement of parents and students, together with regular and special education personnel in making individualized decisions to support each child’s educational success; and of preparing students with disabilities for employment and other post-school experiences.  This Appendix provides guidance regarding Part B IEP requirements, especially as they relate to these core concepts, as well as other issues regarding the development and content of IEPs.

I. Involvement and Progress in the General Curriculum In enacting the IDEA Amendments of 1997, the Congress found that: * * * research, demonstration, and practice [over the past 20 years] in special education and related disciplines have demonstrated that an effective educational system now and in the future must--  (A) maintain high academic standards and clear performance goals for children with disabilities, consistent with the standards and expectations for all students in the educational system, and provide for appropriate and effective strategies and methods to ensure that students who are children with disabilities have maximum opportunities to achieve those standards and goals. [Sec. 651(a)(6)(A) of the Act.]  Accordingly, the evaluation and IEP provisions of Part B place great emphasis on the involvement and progress of children with disabilities in the general curriculum. While the Act and regulations recognize that IEP teams must make individualized decisions about the special education and related services, and supplementary aids and services, provided to each child with a disability, they are driven by IDEA’s strong preference that, to the maximum extent appropriate, children with disabilities be educated in regular classes with their nondisabled peers with appropriate supplementary aids and services.

1. What are the major Part B IEP requirements that govern the involvement and progress of children with disabilities in the general curriculum?  Present Levels of Educational Performance  Section 300.347(a)(1) requires that the IEP for each child with a disability include "* * * a statement of the child’s present levels of educational performance, including--      (i) How the child’s disability affects the child’s involvement and progress in the general curriculum; or      (ii) for preschool children, as appropriate, how the disability affects the child’s participation in appropriate activities * * *" (Italics added.)  ("Appropriate activities" in this context refers to age-relevant developmental abilities or milestones that typically developing children of the same age would be performing or would have achieved.)  Measurable Annual Goals, Including Benchmarks or Short-term Objectives  Measurable annual goals, including benchmarks or short-term objectives, are instrumental to the strategic planning process used to develop and implement the IEP for each child with a disability.  Once the IEP team has developed measurable annual goals for a child, the team can  (1) develop strategies that will be most effective in realizing those goals and  (2) develop measurable, intermediate steps (short-term objectives) or major milestones (benchmarks) that will enable families, students, and educators to monitor progress during the year, and, if appropriate, to revise the IEP consistent with the child’s instructional needs.  Part B’s strong emphasis on linking the educational program of children with disabilities to the general curriculum is reflected in Sec. 300.347(a)(2), which requires that the IEP include: a statement of measurable annual goals, including benchmarks or short-term objectives, related to--  (i) meeting the child’s needs that result from the child’s disability to enable the child to be involved in and progress in the general curriculum; and  (ii) meeting each of the child’s other educational needs that result from the child’s disability. [Italics added.]  Special Education and Related Services and Supplementary Aids and Services  The requirements regarding services provided to address a child’s present levels of educational performance and to make progress toward the identified goals reinforce the emphasis on progress in the general curriculum, as well as maximizing the extent to which children with disabilities are educated with nondisabled children.  Section 300.347(a)(3) requires that the IEP include: a statement of the special education and related services and supplementary aids and services to be provided to the child, or on behalf of the child, and a statement of the program modifications or supports for school personnel that will be provided for the child—  (i) to advance appropriately toward attaining the annual goals;  (ii) to be involved and progress in the general curriculum * * * and to participate in extracurricular and other nonacademic activities; and  (iii) to be educated and participate with other children with disabilities and nondisabled children in [extracurricular and other nonacademic activities] * * * [Italics added.]  Extent to Which Child Will Participate With Nondisabled Children  Section 300.347(a)(4) requires that each child’s IEP include "* * * an explanation of the extent, if any, to which the child will not participate with nondisabled children in the regular class and in [extracurricular and other nonacademic] activities] * * " This is consistent with the least restrictive environment provisions at Secs. 300.550-300.553, which include requirements that:  (1) Each child with a disability be educated with nondisabled children to the maximum extent appropriate (Sec. 300.550(b)(1));  (2) Each child with a disability be removed from the regular educational environment only when the nature or severity of the child’s disability is such that education in regular classes with the use of supplementary aids and services cannot be achieved satisfactorily (Sec. 300.550(b)(1)); and  (3) To the maximum extent appropriate to the child’s needs, each child with a disability participate with nondisabled children in nonacademic and extracurricular services and activities (Sec. 300.553).  Participation in State or District-wide Assessments of Student Achievement  Consistent with Sec. 300.138(a), which sets forth a presumption that children with disabilities will be included in general State-and district-wide assessment programs, and provided with appropriate accommodations if necessary, Sec. 300.347(a)(5) requires that the IEP for each student with a disability include:       (i) A statement of any individual modifications in the administration of State or district-wide assessments of student achievement that are needed in order for the child to participate in the assessment; and       (ii) if the IEP Team determines that the child will not participate in a particular State or district-wide assessment of student achievement (or part of an assessment), a statement of--            (A) Why that assessment is not appropriate for the child; and            (B) How the child will be assessed.  Regular Education Teacher Participation in the Development, Review, and Revision of IEPs  Very often, regular education teachers play a central role in the education of children with disabilities (House Report No. 105- 95, p. 103 (1997)) and have important expertise regarding the general curriculum and the general education environment. Further, especially with the emphasis on involvement and progress in the general curriculum added by the IDEA Amendments of 1997, regular education teachers have an increasingly critical role in implementing, together with special education and related services personnel, the program of FAPE for most children with disabilities, as described in their IEPs.  Accordingly, the IDEA Amendments of 1997 added a requirement that each child’s IEP team must include at least one regular education teacher of the child, if the child is, or may be, participating in the regular education environment (see Sec. 300.344(a)(2)). (See also Secs. 300.346(d) on the role of a regular education teacher in the development, review and revision of IEPs.)

2. Must a child’s IEP address his or her involvement in the general curriculum, regardless of the nature and severity of the child’s disability and the setting in which the child is educated?  Yes. The IEP for all children with disabilities must address how the child will be involved and progress in the general curriculum, as described. The Part B regulations recognize that some children with disabilities will have some educational needs that result from their disabilities that cannot be fully met by involvement and progress in the general curriculum; accordingly,  Sec. 300.347(a)(2) requires that each child’s IEP include: a statement of measurable annual goals, including benchmarks or short-term objectives, related to--  (i) Meeting the child’s needs that result from the child’s disability to enable the child to be involved in and progress in the general curriculum; and  (ii) meeting each of the child’s other educational needs that result from the child’s disability. [Italics added.]  Thus, the IEP team for each child with a disability must make an individualized determination regarding how the child will participate in the general curriculum, and what, if any, educational needs that will not be met through involvement in the general curriculum should be addressed in the IEP. This includes children who are educated in separate classrooms or schools.

3.  What must public agencies do to meet the requirements at Secs. 300.344(a)(2) and 300.346(d), regarding the participation of a "regular education teacher" in the development and review of the IEP, for children aged 3 through 5 who are receiving preschool special education services?  If a public agency provides "regular education" preschool services to non-disabled children, then the requirements of Secs. 300.344(a)(2) and 300.346(d) apply as they do in the case of older children with disabilities. If a public agency makes kindergarten available to nondisabled children, then a regular education kindergarten teacher could appropriately be the regular education teacher who would participate in an IEP meeting for a kindergarten-aged child who is, or may be, participating in the regular education environment.  If a public agency does not provide regular preschool education services to nondisabled children, the agency would designate an individual who, under State standards, is qualified to serve nondisabled children of the same age.

4. Must the measurable annual goals in a child’s IEP address all areas of the general curriculum, or only those areas in which the child’s involvement and progress are affected by the child’s disability?  Section 300.347(a)(2) requires that each child’s IEP include a  ". * * statement of measurable annual goals, including benchmarks or short-term objectives, related to--  (i) Meeting the child’s needs that result from the child’s disability to enable the child to be involved in and progress in the general curriculum; and  (ii) meeting each of the child’s other educational needs that result from the child’s disability* * * *" (Italics added).  Thus, a public agency is not required to include in an IEP annuals goals that relate to areas of the general curriculum in which the child’s disability does not affect the child’s ability to be involved in and progress in the general curriculum.

II. Involvement of Parents and Students One of the key purposes of the IDEA Amendments of 1997 is to "Expand and promote opportunities for parents, special education, related services, regular education, and early intervention service providers, and other personnel to work in new partnerships at both the State and local levels (House Report 105-95, p. 82 (1997)).  Indeed, the Committee viewed the Amendments as an opportunity to "strengthen the role of parents." (House Report 105-95, p-82 (1997).)  Accordingly, the Amendments require that parents have "an opportunity * * * to participate in meetings with respect to the identification, evaluation, and educational placement of the child, and the provision of FAPE to the child" (Sec. 300.501).  Parents must now be part of the teams that determine what additional data are needed as part of an evaluation of their child (Sec. 300.533(a)(1)); their child’s eligibility (Sec. 300.534(a)(1)); and the educational placement of their child (Sec. 300.501(c)).  Parents’ concerns, and information that they provide regarding their children, must be considered in developing and reviewing their children’s IEPs (Secs. 300.343(c)(iii) and 300.346 (a)(1)(i) and (b)).  As explained, the requirements for keeping parents informed about the educational progress of their children, particularly as it relates to their progress in the general curriculum, have been strengthened (Sec. 300.347(a)(7)).  The IDEA Amendments of 1997 and the 1990 amendments have both included provisions which greatly strengthen involvement of students with disabilities in decisions regarding their own futures, to facilitate movement from school to post-school activities.  The IDEA Amendments of 1990 included provisions regarding transition services, which require:       (a) A coordinated set of activities within an outcome-oriented process to facilitate movement from school to post-school activities;       (b) that the transition services provided to each student be "* * * based on the individual student’s needs, taking into account the student’s preferences and interests" (Sec. 300.27(b)),       (c) that the public agency invite a student with a disability to any IEP meetings for which a purpose is the consideration of transition services (Sec. 300.344(b)(1)), and that, if "* * * the student does not attend, the public agency * * * take other steps to ensure that the student’s preferences and interests are considered (Sec. 300.344(b)(2)).  States may now transfer most parent rights under Part B to the student when the student reaches the age of majority under State law (Sec. 300.517), and beginning at least one year before a student reaches the age of majority under State law, the IEP must include a statement that the student has been informed of any rights that will transfer to him or her upon reaching the age of majority (Sec. 300.347(c)).

5. What is the role of the parents, including surrogate parents, in decisions regarding the educational program of their children?  The parents of a child with a disability are expected to be equal participants along with school personnel, in developing, reviewing, and revising the IEP for their child. This is an active role in which the parents  (1) provide critical information about their child’s abilities, interests, performance, and history,  (2) participate in the discussion about the child’s need for special education and related services and supplementary aids and services, and  (3) join with the other participants in deciding how the child will be involved and progress in the general curriculum and participate in State and district-wide assessments, and what services the agency will provide to the child and in what setting.  As noted, Part B specifically provides that parents have the right to:       (a) Participate in meetings about their child’s identification, evaluation, educational program (including IEP meetings), and educational placement (Secs. 300.344(a)(1) and 300.517);       (b) Be part of the teams that determine what additional data are needed as part of an evaluation of their child (Sec. 300.533(a)(1)), and determine their child’s eligibility (Sec. 300.534(a)(1)) and educational placement (Sec. 300.501(c));       (c) Have their concerns and information that they provide regarding their child considered in developing and reviewing their child’s IEPs (Secs. 300.343(c)(iii) and 300.346 (a)(1)(i) and (b)); and       (d) Be regularly informed (by such means as periodic report cards), as specified in their child’s IEP, at least as often as parents are informed of their nondisabled children’s progress, of their child’s progress toward the annual goals in the IEP and the extent to which that progress is sufficient to enable the child to achieve the goals by the end of the year (Sec. 300.347(a)(7)).  A surrogate parent is a person appointed to represent the interests of a child with a disability in the educational decision- making process when no parent (as defined at Sec. 300.19) is known, the agency, after reasonable efforts, cannot locate the child’s parents, or the child is a ward of the State under the laws of the State. A surrogate parent has all of the rights and responsibilities of a parent under Part B. Thus, the surrogate parent is entitled to       (1) participate in the child’s IEP meeting,       (2) examine the child’s education records, and       (3) receive notice, grant consent, and invoke due process to resolve differences. (See Sec. 300.515, Surrogate parents.)

6. What are the Part B requirements regarding the participation of a child or youth with a disability in an IEP meeting?  If a purpose of an IEP meeting will be the consideration of needed transition services, the public agency must invite the student and, as part of notification to the parent of the IEP meeting, inform the parents that the agency will invite the student to the IEP meeting. If the student does not attend, the public agency must take other steps to ensure that the student’s preferences and interests are considered. Section Sec. 300.517 permits States to transfer procedural rights under Part B from the parents to students with disabilities who reach the age of majority under State law, but who have not been determined to be incompetent under State law. If procedural rights under Part B are, consistent with State law and Sec. 300.517, transferred from the parents to the student, the public agency would be required to ensure that the student has the right to participate in IEP meetings set forth for parents in Sec. 300.345.  However, at the discretion of the student or the public agency, the parents also could attend IEP meetings as "individuals who have knowledge or special expertise regarding the child * * *" (see Sec. 300.344(a)(6)). In other circumstances, the child may attend "if appropriate." (Sec. 300.344(a)(7)) Generally, a child with a disability should attend the IEP meeting if the parent decides that it is appropriate for the child to do so. If possible, the agency and parents should discuss the appropriateness of the child’s participation before a decision is made, in order to help the parents determine whether or not the child’s attendance will be       (1) helpful in developing the IEP or       (2) directly beneficial to the child or both.  The agency should inform the parents before each IEP meeting—as part of notification under Sec. 300.345(a)(1) —that they may invite their child to participate.

7. Must the public agency let the parents know who will be at the IEP meeting?  Yes. In notifying parents about the meeting, the agency "must indicate the purpose, time, and location of the meeting, and who will be in attendance." (Sec. 300.345(b), italics added.)  In addition, if a purpose of the IEP meeting is the consideration of transition services for a student, the notice must also inform the parents that the agency is inviting the student, and identify any other agency that will be invited to send a representative.  The public agency should also inform the parents of their right to invite to the meeting "other individuals who have knowledge or special expertise regarding the child, including related services personnel as appropriate * * *" (Sec. 300.344(a)(6)). It is also appropriate for the agency to ask the parents what if any individuals they will to bring to the meeting.

8. Do parents have the right to a copy of their child’s IEP?  Yes. Section 300.345(f) states that the public agency shall give the parent, on request, a copy of the IEP. It is recommended that public agencies provide parents with a copy of the IEP within a reasonable time following the IEP meeting, or inform them at the IEP meeting of their right to request and receive a copy.

9. What is a public agency’s responsibility if it is not possible to reach consensus on what services should be included in a child’s IEP?  The IEP meeting serves as a communication vehicle between parents and school personnel, and enables them, as equal participants, to make joint, informed decisions regarding the child’s needs and appropriate goals, the extent to which the child will be involved in the general curriculum and participate in the regular education environment and State and districtwide assessments, and the services needed to support that involvement and participation and to achieve agreed-upon goals.  Parents are to be equal partners with school personnel in making these decisions, and the IEP team must consider parents’ concerns and information that they provide regarding their child in developing and reviewing IEPs (Secs. 300.343(c)(iii) and 300.346(a)(1) and (b)).  The IEP team should work toward consensus, but the public agency has ultimate responsibility to ensure that the IEP includes the services that the child needs in order to receive FAPE. If it is not possible to reach consensus in an IEP meeting, the public agency must provide the parents with prior written notice of the agency’s proposals or refusals, or both, regarding the child’s educational program and placement, and the parents have the right to seek resolution of any disagreements through mediation or other informal means, or by initiating an impartial due process hearing.  Every effort should be made to resolve differences between parents and school staff through voluntary mediation or some other informal step, without resort to a due process hearing. However, mediation or other informal procedures may not be used to deny or delay a parent’s right to a due process hearing.

10. Does Part B require that public agencies inform parents regarding the educational progress of their children with disabilities?  Yes, the Part B statute and regulations include a number of provisions to help ensure that parents are involved in decisions regarding, and informed about, their child’s educational progress, including the child’s progress in the general curriculum.  First, the parents will be informed regarding their child’s present levels of educational performance through the development of the IEP. Section 300.347(a)(1) requires that each IEP include:         * * * a statement of the child’s present levels of educational performance, including--       (i) How the child’s disability affects the child’s involvement and progress in the general curriculum; or       (ii) for preschool children, as appropriate, how the disability affects the child’s participation in appropriate activities * * *  Further, Sec. 300.347(a)(7) sets forth requirements for regularly informing parents about their child’s educational progress. That Section requires that the IEP include: * * * a statement of--       (i) How the child’s progress toward the annual goals * * * will be measured; and       (ii) how the child’s parents will be regularly informed (by such means as periodic report cards), at least as often as parents of nondisabled children are informed, of—            (A) Their child’s progress toward the annual goals * * * ; and            (B) the extent to which that progress is sufficient to enable the child to achieve the goals by the end of the year.  Finally, the parents will, as part of the IEP team, participate, at least once every 12 months, in a review of their child’s educational progress. Part B requires that a public agency initiate and conduct a meeting, at which the IEP team: * * *     (1) Reviews the child’s IEP periodically, but not less than annually to determine whether the annual goals for the child are being achieved; and     (2) revises the IEP as appropriate to address—        (i) Any lack of expected progress toward the annual goals * * * and in the general curriculum, if          appropriate;        (ii) The results of any reevaluation * * * ;        (iii) Information about the child provided to, or by, the parents * * * ;        (iv) The child’s anticipated needs; or        (v) other matters.

III. Preparing Students With Disabilities for Employment  and Other Post-School Experiences One of the primary purposes of the IDEA is to "* * * ensure that all children with disabilities have available to them a free appropriate public education that emphasizes special education and related services designed to meet their unique needs and prepare them for employment and independent living * * *" (Sec. 300.1(a)).  Similarly, one of the key purposes of the IDEA Amendments of 1997 was to "promote improved educational results for children with disabilities through early intervention, preschool, and educational experiences that prepare them for later educational challenges and employment." (House Report No. 105-95, p. 82 (1997).)  Thus, throughout their preschool, elementary, and Secondary education, the IEP for each child with a disability must, to the extent appropriate for the individual child, focus on providing instruction and experiences that enable the child to prepare himself or herself for later educational experiences and for post-school activities, including formal education, if appropriate, employment, and independent living.  Although preparation for adult life is, as explained, a key component of a free appropriate public education throughout a child’s educational experiences, Part B sets forth specific requirements for transition from Secondary education to post-school activities, which must be implemented no later than age 14 and 16, respectively, which require an intensified focus on that preparation as students with disabilities begin and prepare to complete their Secondary education.

11. What must the IEP team do to meet the requirements that the IEP include "a statement of * * * transition service needs" beginning at age 14 (Sec. 300.347(b)(1)(i))," and a statement of needed transition services" no later than age 16 (Sec. 300.347(b)(1)(ii))?  Section 300.347(b)(1) requires that, beginning no later than age 14, each student’s IEP include specific transition-related content, and, beginning no later than age 16, a statement of needed transition services:  Beginning at age 14, each student’s IEP must include "* * * a statement of the transition service needs of the child under the applicable components of the child’s IEP that focuses on the child’s courses of study (such as participation in advanced-placement courses or a vocational education program)" (Sec. 300.347(b)(1)(i)).  No later than age 16 (and younger, if determined appropriate by the IEP Team), each student’s IEP must include "a statement of needed transition services for the child, including, if appropriate, a statement of the interagency responsibilities or any needed linkages * * " (Sec. 300.347(b)(1)(ii)).  The House Report on the IDEA Amendments of 1997 makes clear that the requirement added to the statute in 1997 that beginning at age 14, or younger if appropriate, the IEP include "a statement of the transition service needs" is " * * designed to augment, and not replace," the separate, preexisting requirement that the IEP include, "* * * beginning at age 16 (or younger, if determined appropriate by the IEP Team), a statement of needed transition services * * *" (House Report No. 105-95, p. 102 (1997).)  As clarified by the Report, "The purpose of [the requirement in Sec. 300.347(b)(1)(i)] is to focus attention on how the child’s educational program can be planned to help the child make a successful transition to his or her goals for life after Secondary school." (House Report No. 105-95, pp. 101-102 (1997).) The report further explains that "[F]or example, for a child whose transition goal is a job, a transition service could be teaching the child how to get to the job site on public transportation." (House Report No. 105-95, p-102 (1997).)  Thus, beginning at age 14, the IEP team, in determining appropriate measurable annual goals (including benchmarks or short-term objectives) and services for a student, must determine what instruction and educational experiences will assist the student to prepare for transition from Secondary education to post-Secondary life. The statement of transition service needs should relate directly to the student’s goals beyond Secondary education, and show how planned studies are linked to these goals. For example, a student interested in exploring a career in computer science may have a statement of transition service needs connected to technology course work, while another student’s statement of transition needs could describe why public bus transportation training is important for future independence in the community. Though the focus of the transition planning process may shift as the student approaches graduation, the IEP team must discuss specific areas beginning at the age of 14 years and review these areas annually.  This requirement is distinct from the requirement, at Sec. 300.347(b)(1)(ii), that the IEP include: * * * beginning at age 16 (or younger, if determined appropriate by the IEP Team), a statement of needed transition services for the child, including, if appropriate, a statement of the interagency responsibilities or any needed linkages.  The term "transition services" is defined at Sec. 300.27 to mean:  * * * a coordinated set of activities for a student with a disability that--  (a) Is designed within an outcome-oriented process, that promotes movement from school to post-school activities, including postsecondary education, vocational training, integrated employment (including supported employment), continuing and adult education, adult services, independent living, or community participation;  (b) Is based on the individual student’s needs, taking into account the student’s preferences and interests; and  (c) Includes--       (1) Instruction;       (2) Related services;       (3) Community experiences;       (4) The development of employment and other post-school adult living objectives; and       (5) If appropriate, acquisition of daily living skills and functional vocational evaluation.  (Sec. 300.347(b)(2) provides, however, that, "If the IEP team determines that services are not needed in one or more of the areas specified in Sec. 300.27((c)(1) through (4), the IEP must include a statement to that effect and the basis upon which the determination was made.) Thus, while Sec. 300.347(b)(1)(i) requires that the IEP team begin by age 14 to address the [[Page 55127]] student’s need for instruction that will assist the student to prepare for transition, Sec. 300.347(b)(2)(ii) requires that by age 16 the IEP include a "coordinated set of activities * * *, designed within an outcome-oriented process, that promotes movement from school to post-school activities. * * "  Section 300.344(b)(3) further requires that, in implementing Sec. 300.347(b)(2)(ii), public agencies invite (in addition to required participants for all IEP meetings), must also invite a representative of any other agency that is likely to be responsible for providing or paying for transition services. Thus, Sec. 300.346(a)(7)(ii) requires a broader focus on coordination of services across, and linkages between, agencies beyond the SEA and LEA.

12. Must the IEP for each student with a disability, beginning no later than age 16, include all "needed transition services," as identified by the IEP team and consistent with the definition at Sec. 300.27, even if an agency other than the public agency will provide those services? What is the public agency’s responsibility if another agency fails to provide agreed-upon transition services?  Section 300.347(b)(1)(ii) requires that the IEP for each child with a disability, beginning no later than age 16, or younger if determined appropriate by the IEP team, include all "needed transition services," as identified by the IEP team and consistent with the definition at Sec. 300.27, regardless of whether the public agency or some other agency will provide those services. Section 300.346(b)(1)(ii) specifically requires that the statement of needed transition services include, " * * if appropriate, a statement of the interagency responsibilities or any needed linkages."  Further, the need to include in the IEP transition services to be provided by agencies other than the public agency is contemplated by Sec. 300.348(a), which specifies what the public agency must do if another agency participating in the development of the statement of needed transition services fails to provide a needed transition service that it agreed to provide: If a participating agency fails to provide agreed-upon transition services contained in the IEP of a student with a disability, the public agency responsible for the student’s education shall, as soon as possible, initiate a meeting for the purpose of identifying alternative strategies to meet the transition objectives and, if necessary, revising the student’s IEP.  This requirement is consistent with the public agency’s ultimate responsibility to ensure that FAPE is available to each eligible child with a disability (see Sec. 300.300). That responsibility includes the planning and coordination of transition services through the IEP. This inter-agency planning and coordination may be supported through a variety of mechanisms, including memoranda of understanding, interagency agreements, assignment of a transition coordinator to work with other participating agencies, or the establishment of guidelines to work with other agencies identified as potential service providers. If an agreed-upon service by another agency is not provided, the public agency responsible for the student must exercise alternative strategies to meet the student’s needs. This requires that the public agency provide the services, or convene an IEP meeting as soon as possible to identify alternative strategies to meet the needs of the transition services needs of the student, and to revise the IEP accordingly.  Alternative strategies might include the identification of another funding source, referral to another agency, the public agency’s identification of other district-wide or community resources that it can use to meet the student’s identified need appropriately, or a combination of these strategies. As emphasized by Sec. 300.348(b), however: Nothing in [Part B] relieves any participating agency, including a State vocational rehabilitation agency, of the responsibility to provide or pay for any transition service that the agency would otherwise provide to students with disabilities who meet the eligibility criteria of that agency. However, the fact that an agency other than the LEA does not fulfill its responsibility does not relieve the LEA of its responsibility to ensure that FAPE is available to each student with a disability.  Note: See also Sec. 300.142(b)(2), which requires that if an agency other than the LEA fails to provide or pay for a special education or related service (which could include a transition service), the LEA must provide or pay for the service, and may then claim reimbursement from the agency that failed to provide or pay for the service.

13. Under what circumstances must a public agency invite representatives from other agencies to an IEP meeting at which a child’s need for transition services will be considered?  Section 300.344(c)(ii) requires that, "In implementing the requirements of [Sec. 300.347(b)(1)(ii) requiring a statement of needed transition services], the public agency shall also invite a representative of any other agency that is likely to be responsible for providing or paying for transition services."  To meet this requirement, the public agency must establish and implement appropriate procedures to ensure that it identifies all agencies that are "likely to be responsible for providing or paying for transition services" for each student addressed by Sec. 300.347(b)(1)(ii), and invites each of those agencies to the IEP meeting. If, during the course of an IEP meeting, the team identifies additional agencies that are "likely to be responsible for providing or paying for transition services" for the student, the public agency must determine whether it is necessary to invite those agencies to an additional IEP meeting in order to develop an appropriate statement of needed transition services for the student.

IV. Other Questions Regarding the Development and Content of IEPs

14. For a child with a disability receiving special education for the first time, when must an IEP be developed—before placement or after placement?  Section 300.342(b)(1) requires that an IEP be "in effect before special education and related services are provided to a child." (Italics added.)  The appropriate placement for a particular child with a disability cannot be determined until after decisions have been made about the child’s needs and the services that the public agency will provide to meet those needs. These decisions must be made at the IEP meeting, and it would not be permissible first to place the child and then develop the IEP.  Therefore, the IEP must be developed before placement.  This requirement does not preclude temporarily placing an eligible child with a disability in a program as part of the evaluation process—before the IEP is finalized—to assist a public agency in determining the appropriate placement for the child.  It is essential that the temporary placement not become the final placement before the IEP is finalized. In order to ensure that this does not happen, the State might consider requiring LEAs to take the following actions:       a. Develop an interim IEP for the child that sets out the specific conditions and timelines for the trial placement. (See paragraph c.)       b. Ensure that the parents agree to the interim placement before it is carried out, and that they are involved throughout the process of developing, reviewing, and revising the child’s IEP.       c. Set a specific timeline (e.g., 30 days) for completing the evaluation, finalizing the IEP, and making judgments about the most appropriate placement for the child.       d. Conduct an IEP meeting at the end of the trial period in order to finalize the child’s IEP.

15. Who is responsible for ensuring the development of IEPs for children with disabilities served by a public agency other than an LEA?  The answer as to which public agency has direct responsibility for ensuring the development of IEPs for children with disabilities served by a public agency other than an LEA will vary from State to State, depending upon State law, policy, or practice.  The SEA is ultimately responsible for ensuring that all Part B requirements, including the IEP requirements, are met for eligible children within the State, including those children served by a public agency other than an LEA. (See Sec. 300.600 regarding the SEA’s general supervisory responsibility for all education programs for children with disabilities, with one exception. The Governor (or another individual pursuant to State law) may, consistent with State law, assign to any public agency in the State the responsibility of ensuring that Part B requirements are met with respect to children with disabilities who are convicted as adults under State law and incarcerated in adult prisons.)  The SEA must ensure that every child with a disability in the State has FAPE available, regardless of which State or local agency is responsible for educating the child. (The only exception to this responsibility is that, as noted, the SEA is not responsible for ensuring that FAPE is made available to children with disabilities who are convicted as adults under State law and incarcerated in adult prisons, if the State has assigned that responsibility to a public agency other than the SEA.) Although the SEA has flexibility in deciding the best means to meet this obligation (e.g., through interagency agreements), the SEA must ensure that no eligible child with a disability is denied FAPE due to jurisdictional disputes among agencies. When an LEA is responsible for the education of a child with a disability, the LEA remains responsible for developing the child’s IEP, regardless of the public or private school setting into which it places the child.

16. For a child placed out of State by an educational or non- educational State or local agency, is the placing or receiving State responsible for the child’s IEP?  Regardless of the reason for the placement, the "placing" State is responsible for developing the child’s IEP and ensuring that it is implemented. The determination of the specific agency in the placing State that is responsible for the child’s IEP would be based on State law, policy, or practice. However, the SEA in the placing State is responsible for ensuring that the child has FAPE available.

17. If a disabled child has been receiving special education from one public agency and transfers to another public agency in the same State, must the new public agency develop an IEP before the child can be placed in a special education program?  If a child with a disability changes school districts in the same State, the State and its public agencies have an ongoing responsibility to ensure that the child receives FAPE, and the new public agency is responsible for ensuring that the child receives special education and related services in conformity with an IEP.  The new public agency must ensure that the child has an IEP in effect before the agency can provide special education and related services. The new public agency may meet this responsibility by either adopting the IEP the former public agency developed for the child or by developing a new IEP for the child.  Before the child’s IEP is finalized, the new public agency may provide interim services agreed upon by both the parents and the new public agency. If the parents and the new public agency are unable to agree on an interim IEP and placement, the new public agency must implement the old IEP to the extent possible until a new IEP is developed and implemented.  In general, while the new public agency must conduct an IEP meeting, it would not be necessary if:       (1) A copy of the child’s current IEP is available;       (2) the parents indicate that they are satisfied with the current IEP; and       (3) the new public agency determines that the current IEP is appropriate and can be implemented as written.  If the child’s current IEP is not available, or if either the new public agency or the parent believes that it is not appropriate, the new public agency must conduct an IEP meeting within a short time after the child enrolls in the new public agency (normally, within one week).

18. What timelines apply to the development and implementation of an initial IEP for a child with a disability?  Section 300.343(b) requires a public agency to:  (1) Ensure that an offer of services in accordance with an IEP is made to parents within a reasonable period of time from the agency’s receipt of parent consent to an initial evaluation; and  (2) in meeting that timeline, conduct a meeting to develop the IEP within 30-calendar days of a determination that the child needs special education and related services. Section 300.342(b)(2) requires that an IEP be implemented as soon as possible following the meeting in which the IEP is developed.

19. Must a public agency hold separate meetings to determine a child’s eligibility for special education and related services, develop the child’s IEP, and determine the child’s placement, or may the agency meet all of these requirements in a single meeting?  A public agency may, after a child is determined by "a team of qualified professionals and the parent" (see Sec. 300.534(a)(1)) to be a child with a disability who needs special education services, continue in the same meeting to develop an IEP for the child and to determine the child’s placement. However, the public agency must ensure that it:  (1) Meets all of the Part B requirements regarding meetings to develop IEPs, including providing appropriate notification to the parents, consistent with the requirements of Sec. 300.345, and including the required team participants, consistent with the requirements of Sec. 300.344; and  (2) the requirements of Sec. 300.533 regarding eligibility decisions.

20. How frequently must a public agency conduct meetings to review, and if appropriate revise, the IEP for each child with a disability?  A public agency must initiate and conduct meetings periodically, but at least once every twelve months, to determine whether the annual goals for the child are being achieved, and to revise the IEP as appropriate to address:       (a) Any lack of expected progress toward the annual goals and in the general curriculum, if appropriate;       (b) the results of any reevaluation;       (c) information about the child provided to, or by, the parents;       (d) the child’s anticipated needs; or       (e) other matters (Sec. 300.343(c)).  A public agency must also ensure that an IEP is in effect for each child at the beginning of each school year (Sec. 300.342(a)). It may conduct IEP meetings at any time during the year. However, if the agency conducts the IEP meeting prior to the beginning of the next school year, it must ensure that the IEP contains the necessary special education and related services and supplementary aids and services to ensure that the student’s IEP can be appropriately implemented during the next school year. Otherwise, it would be necessary for the public agency to conduct another IEP meeting.  Although the public agency is responsible for determining when it is necessary to conduct an IEP meeting, the parents of a child with a disability have the right to request an IEP meeting at any time. For example, if the parents believe that the child is not progressing satisfactorily or that there is a problem with the child’s current IEP, it would be appropriate for the parents to request an IEP meeting. If a child’s teachers feels that the child’s placement or IEP services are not appropriate to the child, the teachers should follow agency procedures with respect to       (1) calling or meeting with the parents or       (2) requesting the agency to hold another IEP meeting to review the child’s IEP.  The legislative history of Public Law 94-142 makes it clear that there should be as many meetings a year as any one child may need (121 Cong. Rec. S20428-29 (Nov. 19, 1975) (remarks of Senator Stafford)).  In general, if either a parent or a public agency believes that a required component of the student’s IEP should be changed, the public agency must conduct an IEP meeting if it believes that the question of whether the student’s IEP needs to be revised to ensure the provision of FAPE to the student is a matter that must be considered by the IEP team.  If a parent requests an IEP meeting because the parent believes that a change in the provision of FAPE to the child or the educational placement of the child, and the agency refuses to convene an IEP meeting to determine whether such a change is needed, the agency must provide written notice to the parents of the refusal, including an explanation of why the agency has determined that conducting the meeting is not necessary to ensure the provision of FAPE to the student. Under Sec. 300.506(a), the parents or agency may initiate a due process hearing at any time regarding any proposal or refusal regarding the identification, evaluation, or educational placement of the child, or the provision of FAPE to the child.

21. May IEP meetings be audio or video-tape-recorded?  Part B does not address the use of audio or video recording devices at IEP meetings, and no other Federal statute either authorizes or prohibits the recording of an IEP meeting by either a parent or a school official. Therefore, an SEA or public agency has the option to require, prohibit, limit, or otherwise regulate the use of recording devices at IEP meetings.  If a public agency has a policy prohibiting the use of these devices at IEP meetings, that policy must provide for exceptions if they are necessary to ensure that the parent understands the IEP or the IEP process or to implement other parental rights guaranteed under Part B.  Any recording of an IEP meeting that is maintained by the public agency is an "education record," within the meaning of the Family Educational Rights and Privacy Act ("FERPA"; 20 U.S.C. 1232g), and would, therefore, be subject to the confidentiality requirements of the regulations under both FERPA (34 CFR Part 99) and Part B (Secs. 300.560-300.575). Parents wishing to use audio or video recording devices at IEP meetings should consult State or local policies for further guidance.

22. Who can serve as the representative of the public agency at an IEP meeting?  The IEP team must include a representative of the local educational agency who:  (a) Is qualified to provide, or supervise the provision of, specially designed instruction to meet the unique needs of children with disabilities;  (b) is knowledgeable about the general curriculum; and  (c) is knowledgeable about the availability of resources of the local educational agency (Sec. 300.344(a)(4)).  Each State or local agency may determine which specific staff member will serve as the agency representative in a particular IEP meeting, so long as the individual meets these requirements. It is, however, important that the agency representative have the authority to commit agency resources and be able to ensure that whatever services are set out in the IEP will actually be provided.  Note: IEP meetings for continuing placements may in some instances be more routine than those for initial placements, and, thus, may not require the participation of a key administrator.

23. For a child with a disability being considered for initial placement in special education, which teacher or teachers should attend the IEP meeting?  A child’s IEP team must include at least one of the student’s regular education teachers (if the child is, or may be participating in the regular education environment) and at least one special education teacher, or, if appropriate, at least one of the child’s special education providers (Sec. 300.344(a)(2) and (3)).  Each IEP must include a statement of present levels of educational performance, including a statement of how the child’s disability affects the child’s involvement and progress in the general curriculum (Sec. 300.347(a)(1)).  The regular education teacher is a required participant on the IEP team of a child who is, or may be, participating in the regular educational environment, regardless of the extent of that participation.  The child’s special education teacher could be either  (1) a teacher qualified to provide special education in the child’s area of suspected disability, or  (2) another special education provider such as a speech pathologist, physical or occupational therapist, etc., if the related service consists of specially designed instruction and is considered special education under the applicable State standard.  Note: Sometimes more than one meeting is necessary in order to finalize a child’s IEP. In this process, if the special education teacher who will be working with the child is identified, it would be useful to have that teacher participate in the meeting with the parents and other members of the IEP team in finalizing the IEP. If this is not possible, the agency should ensure that the teacher is given a copy of the child’s IEP as soon as possible after the IEP is finalized and before the teacher begins working with the