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Exceptional Children Division i . mWM
Digitized by the Internet Archive
Over the past several years, many questions have been asked relative to the
interpretation of policy concerning exceptional children programs. Questions and Answers
Related to Policy Issues about Students with Disabilities represents the efforts of the
Exceptional Children Division to compile the responses and organize them in a succinct
manner that is convenient and easy to use. Policy letters, as well as "Analysis of Comments
and Changes" and "Notice of Interpretations on IEPs" of the Federal Register , are the
sources of the questions and answers selected to be included in the fourth edition of the
document. It will be advantageous to review all the questions and answers in this edition
since several of the responses are reflective of changing policy interpretations from the
Office of Special Education Programs and the Office of Civil Rights, United States
Department of Education, as well as the new federal regulations which were published
following the reauthorization of the Individuals with Disabilities Act (IDEA).
Directors of Exceptional Children Programs are invited to share this publication with
administrators and teachers in any manner that they find beneficial in the administration of
programs for students with disabilities. While the answers are not State Board of Education
policy per se, they are official interpretations of Procedures Governing Programs and
Services for Children with Disabilities , which is State Board of Education policy. Since this
document consists of the most recent interpretations, and may include revisions and changes
to previously issued policy guidance, it is recommended that earlier editions be destroyed.
TABLE OF CONTENTS
PREFACE -. i
1.1 Screening/Evaluation/Identification 1
1 .2 Placement Procedures 9
1.3 IEP 12
1 .4 Placement Setting/LRE/Pupil-Teacher Ratio 23
1 .5 Related Services 25
1.6 Reevaluation 26
1 .7 Change in Placement 29
1 .8 Out-of-District Placement 30
1 .9 Transfer Students 32
1.10 Free Appropriate Public Education (FAPE) 33
2.0 PROCEDURAL SAFEGUARDS
2.1 Prior Notice 34
2.2 Due Process 36
2.3 Independent Educational Evaluation 38
2.4 Attorney's Fees 40
2.5 Surrogate Parents 41
2.6 Confidentiality 46
2.7 Destruction of Records 49
3.1 Suspensions 50
3.2 Physical Restraint 57
3.3 Use of Aversives 59
4.0 FINANCIAL RESPONSIBILITY
4.1 Use of Funds (Teacher Licensure, Teacher Assignments) 60
4.2 Residential Schools/Private Schools 61
4.3 Third-Party Payments 63
4.4 Headcount/Pupil Accounting 64
4.5 Responsibilities and Liability 65
5.0 GENERAL EDUCATION REQUIREMENTS
5.1 State Testing Program 70
5.2 Graduation Requirements 71
6.0 PRESCHOOL CHILDREN WITH DISABILITIES
6.1.1 Screening/Evaluation/Identification 72
6.1 .2 Placement Procedures 73
6.1.3 IEP 73
6.1.4 Placement Setting/LRE/Pupil-Teacher Ratios 74
6.1.5 Related Services 74
6.1.6 Reevaluation 75
6.1.10 Free Appropriate Public Education (FAPE) 75
6.2.2 Procedural safeguards 75
6.4.1 Use of Funds (Teacher Certification/
Teacher Assignments/Funding 76
6.4.5 Responsibility and Liability 76
Note: Questions about Preschool Children with Disabilities are numbered/keyed to
the numbers for Children with Disabilities. If there are no questions and answers in
a particular area, these numbers/keys are omitted.
QUESTIONS AND ANSWERS
1 . l Screening/ Eval uation/ Identification
Q. Must the assistance team supply two new strategies or may it go directly to referral in
the following situation? An assistance team recommends interventions for a child,
the strategies appear to work, and the assistance team closes the case. Three months
later, the teacher brings the same concern to the assistance team. (July 1985)
A. Two new strategies may not be necessary. The assistance team should try to determine whether
the problem might be:
1. a need to modify the strategy;
2. an identifiable change in the employment of the strategy;
3. an identifiable change in the student's life situation; or
4. a need to refer the student.
Q. Occasionally a screening team incorrectly predicts that a child is eligible for EMD
placement and refers the child without attempting two interventions. Subsequent
evaluation rules out EMD placement but suggests SLD. Must the team now
recommend two interventions prior to placement? (July 1999)
A. The team must determine what information has not been gathered on a student in the pre-
referral/screening process and obtain it. If interventions have not been recommended and
implemented, the team must return to that point and document the results. The reason for the
interventions is to rule out causes for poor educational performance other than a possible
Q. Can documentation of pre-referral screening within the regular educational setting
be waived for state-supported residential treatment centers since they have no
regular educational settings? (June 1988)
A. Students referred to state-supported treatment centers from local school administrative units
and already identified as BED or LD must meet all criteria. Any information missing may be
obtained by phone from the school or gleaned from the student's school records and then
documented in the student's folder. A waiver of the items listed below is granted for those
students who have not been identified prior to coming to the treatment facility:
1. documentation of at least two interventions in the regular education setting;
2. observation in the regular education setting by an independent observer before
3. evidence that the student has received supportive regular education assistance.
Q. If a student from another state enrolls in an LEA, has a current IEP, and meets all of
North Carolina's eligibility criteria except for documentation of the required
intervention strategies in a regular class, may the intervention requirements be
waived? (July 1994)
A. Yes. If a child with an evaluation identifying him/her as BED or SLD moves into an LEA from
another state, the team should convene to determine whether the assessment in the previous
state meets the North Carolina requirements. It is not necessary to complete the intervention
requirements either at the time of transfer or at reevaluation.
Q. Would observation done during the screening/intervention phase be sufficient for
SLD observation during the placement process? (April 1992)
A. Yes, if the observation requirements of the screening/intervention phase specifically address
those characteristics which are associated with learning disabilities and if the person doing the
observing is someone other than the student's regular teacher. In addition, the Team may
require additional observations if it is necessary.
Q. Can individual testing be completed during the screening/prereferral stage? (July
A. Any individual testing for special education purposes requires parental permission and the
giving of parental rights prior to individual testing. Since the screening/preferral process is a
regular education function, testing completed during that phase does not meet the special
education requirements for procedural safeguards. A very real danger is that an individual test
could be used to determine eligibility which violates state and federal law requiring team
decisions for eligibility for special education. (July 1999)
Q. Is it mandatory to have a copy of the written psychological evaluation report in the
student's placement record prior to the time the child is initially placed into a
program, or prior to an audit of records in a PCA visit? (July 1999)
A. Parents must be given a summary of all of the evaluations completed during evaluation. They
must also have access to the psychological report. Therefore the report must be placed in the
file in a timely manner following completion of the assessment. The report must be available for
a PCA visit.
Q. When further testing is thought necessary or when other data appear to be needed, to
what extent should the reasons for such recommendations be documented? (July
A. The need for further testing and assessment may be documented with written statements of fact
or hypotheses that seem unique to that particular student, such as discrepancies between
similar types of test scores or between test scores and academic performance; the lack of
environmental or cultural opportunities to learn; and the presence of a physical, emotional or
learning disability that may render standardized test results suspect. The school system is
responsible for determining a format for the inclusion and documentation of these
Q. Can a student who is functioning at grade level be prohibited from consideration for
BED placement? (July 1986)
A. One of the, eligibility criteria for placement in a BED program is "evidence that the student's
own learning process is consistently and significantly disrupted." It is the team's role to
determine and document the information used to show this evidence, but this evidence does not
necessarily have to manifest itself in below grade level functioning. However, it is certainly a
consideration. IDEA '97 regulations say that children may be suspected of having a disability
even if they are advancing from grade to grade.
Q. Can a student be identified as behaviorally-emotionally disabled if the presenting
behavior is not affecting his educational performance? (July 1999)
A. No. As indicated in the definition of the category behaviorally-emotionally disabled in Section
.1501 (A)(2) of Procedures Governing Programs and Services for Children with Disabilities , a
student so identified must exhibit patterns of situational])' inappropriate behavior. The
inappropriate behaviors must be long standing patterns of behavior which occur regularly and
often enough as to interfere consistently with the student's own learning process.
Q. How does the standard error of measure of I.Q. scores apply in the determination of
an LD discrepancy? (June 1989)
A. While the use of a standard error of measure may be an appropriate practice psychometrically,
it was determined several years ago that the standard error of measure will not be used in
North Carolina in the identification of specific learning disabled students. This decision was
based on the implications for specific categories and the probability of abuse, such as use of only
the upper end and not the lower end of the standard error of measure.
Q. Why does North Carolina require a fifteen-point discrepancy between achievement
and ability for LD placement when the federal law does not indicate such a
discrepancy? (May 1988)
A. Federal regulations require that each state establish criteria for implementing federal law and
determining the eligibility of children with special needs. State criteria may exceed federal
requirements. North Carolina established the fifteen-point discrepancy for LD after careful
study of various intelligence scales, data from the local education agencies who field-tested the
criteria, review of other states' procedures, consultation with national experts in the area of
learning disabilities, and a review of relevant literature.
Q. Can a student with an I.Q. generally considered to be in the mentally disabled range
be identified as learning disabled? (July 1999)
A. One of the procedures necessary in identifying a student as learning disabled is ruling out that
the disability is not primarily the result of a mental disability. A student who meets the
eligibility criteria for educable mentally disabled cannot be identified as LD.
Q. Is it permissible for the teacher to do the Vineland adaptive behavior evaluation on a
child, or must the parents be interviewed? (July 1999)
A The Vineland is designed for parental input although there is no regulation which prohibits
teachers from answering the items. It is recommended that every effort be made to secure
parental responses. This is especially true in light of the increased emphasis in IDEA '97 on
parental participation and input.
Q. May a student's teacher serve as the informant for an adaptive behavior evaluation,
particularly in the case of the AAMD which was normed on teacher responses?
A. Adaptive behavior evaluations are generally designed for parental input as well as others
familiar with the student. Although it is not recommended to make it a common practice,
teachers may in some instances serve as the informant for the adaptive-behavior evaluation.
Every opportunity must be made to involve the child's parents. See Question 14.
Q. What is the adaptive behavior cutoff score for EMD placement? (November, 1988)
A. There are no mandatory or rigid cutoff scores for adaptive behavior as there are for cognitive
functioning. The LEA should use guidelines in the manual for the instrument it is using. The
Vineland Adaptive Behavior Scale describes "adequate functioning" as between -1.0 and +1.0
standard deviations. While two standard deviations below the mean or more is often considered
for EMD, the scores do not need to be this low if other documenting data support an EMD level.
There should be adaptive behavior deficits for initial placement. If scores rise on a reevaluation,
the team might look at whether that rise can be attributed to instruction or unreliable reporting.
If all other data supports EMD placement and adaptive behavior scores are slightly above the 2
SD's, the team should be able to justify continued placement.
Q. What information should a school have and what precautions should it take with
regard to a Down Syndrome child who wants to participate in Special Olympics. (July
A. Medical research indicates that up to 15% of individuals with Down Syndrome have a mal-
alignment of the cervical vertebrae C-l and C-2 in the neck known as Atlanto-axial instability.
This exposes them to possible injury if they participate in activities that hyperextend or
radically flex the neck or upper spine. This is of particular concern for those who may be
participating in Special Olympics in events such as the butterfly stroke and diving starts in
swimming, diving, pentathlon, high jump, squat lifts, equestrian sports, artistic gymnastics,
football (soccer), alpine skiing and any warmup exercise placing undue stress on the head and
An athlete with Down syndrome may be permitted to participate in the activities described
above if the athlete is examined, including x-ray views of full extension and flexion of the neck
by a physician who has been briefed on the nature of the Atlanto-axial instability condition, and
who determines, based on the results of that examination, that the athlete does not have an
Atlanto-axial instability condition.
If an athlete with Down syndrome is diagnosed with Atlanto-axial instability and wishes to
participate in Special Olympics, the school system is advised to contact North Carolina Special
Q. Must health assessments performed by a nurse be co-signed by a physician? (July
A. A distinction must be made between what is called "health screening" and a "medical
evaluation." Health screening includes but is not limited to vision, hearing and dental
screening, review of health history, review of developmental milestones, assessment of physical
growth and assessment of nutritional status. Health screening does not have to be performed by
a physician. It can be performed by a school nurse, classroom teacher or other professionals the
school system chooses to train. A medical evaluation is conducted by a licensed physician to
determine a child's medically related disability which results in the child's need for special
education and related services. These persons include physicians in all categories of specialty,
including psychiatrists when appropriate, optometrists, and health department personnel or
physicians' assistants who are authorized to perform certain health evaluations and procedures
under the supervision of an M.D.
Q. What can be used for an educational evaluation for speech-language impaired
children? (July 1999)
A. The Procedures state that an education evaluation is an evaluation of the child's educational
functioning in relation to his/her current education program. The results of this evaluation are
expressed in terms of both the child's academic strengths and needs. The educational
evaluation for a pupil whose only disability is in the area of speech-language could include
information from the following: end-of-grade and end-of-course testing; report cards; teacher
observations and check lists; and assessment information provided by the parent. If the team
decides that it needs information from an individually administered assessment, standardized
tests may be given. The purpose for the educational evaluation is to indicate areas of academic
strengths and needs.
Q. Must a speech screening include all four areas of speech-language impairment
(articulation, language, voice and fluency)? (July 1999)
A. Yes. It is through speech screening that the speech-language pathologist knows which area(s)
should be assessed through a speech- language evaluation. When the screening reveals that one
or more of the four areas are within normal limits, then those area(s) do not need to be
evaluated. Only the area(s) in which the student failed requires evaluation. The screening may
be done using commercially developed instruments or instruments developed by the speech-
language pathologist. The instruments developed by the speech-language pathologists must be
in uniform use throughout the local education agency and available for review, if requested,
during a PCA. Any instruments used must be appropriate for the population screened and
provide information for determining whether or not an evaluation is necessary.
Q. What constitutes an educational evaluation for hearing impaired, other health
impaired, and orthopedically impaired students? (July 1999)
A. The requirement for an educational evaluation is the same for these areas as other categories.
The educational evaluation is an evaluation of a child's educational functioning in relation to his
current educational program and must be expressed in terms of both academic strengths and
needs. The team may decide that the information needed can be obtained through less formal
means such as end-of-grade or end-of-course tests, teacher grades, teacher observation or
checklists, or other appropriate diagnostic tests or appropriate formal and/or informal measures.
The educational evaluation must be comprehensive enough to provide the necessary information
to determine educational strengths and needs.
Q. Can a student be classified as orthopedically impaired when the student is served in
the regular classroom and receives only physical therapy or occupational therapy?
A. In order for any student to receive a related service, the student must be receiving special
Q. Can anorexia be considered for other health impaired if the problem requires special
educational programming? (April 1987)
A. The condition of anorexia in itself does not qualify a student for special education. If the
student, however, has limited strength, vitality or alertness which adversely affects educational
performance to such an extent that special educational services are necessary, the student may
be identified as other health impaired. Any required screening and evaluation before placement
must be documented.
Q. Are school systems obligated to serve students who are chemically dependent in
programs for exceptional children? (August 1989)
A. House Bill 679, enacted effective July 1, 1989, specifically excludes children with chemical
dependency and drug and alcohol addicted children from the designation of children with special
needs unless the children meet the criteria for identification in one of the categories of
Q. When is it appropriate to use a discrepancy alternative to determine eligibility of a
learning disabled student? (April 1999)
A. A discrepancy alternative may be used for identification and placement of those students who
demonstrate a specific learning disability (LD) but do not meet the 15 or more point discrepancy
between aptitude and achievement. This may occur at the time of initial evaluation or re-
evaluation when evidence exists that supports a need for special education. Any time an
alternative discrepancy is used, there must be compelling documentable justification which
1. the testing procedures used;
2. rationale explaining how the learning disability manifests itself; and
3. why the student needs special education.
The report shall be written by a LD eligibility team; should any member of the team disagree
with the decision, a dissenting report must be filed.
Q. Which professional, the speech-language pathologist or the learning disabilities
teacher, serves the student with a discrepancy between ability and achievement in
the areas of oral expression and listening comprehension? (April 1992)
A. The majority of characteristic behaviors for either classification are quite similar in nature and
performance (e.g., receptive language problems in perceiving speech sounds, understanding
words, understanding language structure, and following directions; or expressive language
problems in articulating speech sounds, formulating words and sentences, word finding,
language pragmatics). A student with an appropriately diagnosed learning disability in oral
expression and/or listening comprehension, and with an appropriately diagnosed language
impairment (disorder), may be classified as either a specific learning disabled student or a
speech-language impaired student and served in either category. Whichever classification and
service is most appropriate for the student should be the classification and service chosen,
keeping in mind that a student cannot have two primary disabilities. Students may not be
classified as speech-language impaired unless appropriate diagnostics have been performed by a
speech-language pathologist which include an assessment of speech (articulation, voice and
fluency) and language (form, content and use). Students may not be classified as LD unless they
have been evaluated by a team which includes a person knowledgeable in learning disabilities
and demonstrates a significant discrepancy between ability and achievement. A student who is
identified in the area of speech-language must receive services from a speech-language
pathologist, and a student identified in the area of learning disabilities must receive services
from an LD teacher. Services from a speech-language pathologist may be provided if the LD
student requires speech as a related service.
Q. Are children who have a diagnosis of attention deficit disorder/attention deficit
hyperactivity disorder (ADD/ADHD) eligible for special education under IDEA? (July
A. Children with ADD/ADHD are eligible for special education services under IDEA if they meet
the eligibility criteria for one of the existing categories of disabilities, including other health
impaired, learning disabilities, or behaviorally/emotionally disabled. An LEA may not refuse to
evaluate a child with a medical diagnosis of ADD/ADHD if the child is suspected of having a
disability, but a child may not be placed in a category based solely on the basis of a medical
diagnosis of ADD/ADHD. A child must be in need of special education in order to qualify under
IDEA. IDEA '97 regulations state that a "heightened alertness to environmental stimuli" can
result in limited alertness. If a parent requests that a student who has been diagnosed with
ADD/ADHD be evaluated for special education and the school has no reason to believe the
student is a child with a disability, the LEA has no obligation to evaluate, although it must give
the parents prior notice of their due process rights at that time.
Q. Procedures requires an educational evaluation prior to initial placement or
reevaluation for a visually impaired child. Are there any tests which the Division
recommends to use for this purpose? (April 1992)
A. For Braille students, the Stanford Achievement Test, adapted by the American Printing House
for the Blind, is suggested. Since this test is normally administered to groups of students, the
Summary of Evaluations should state that the Stanford was administered individually. For
preschool blind children, the Division suggests such tests as the Oregon Project for Visually
Impaired, Blind, and Preschool Children; the Reynell-Zinkin Scales for Young Visually
Handicapped Children; the Maxfield-Bucholz Scale of Social Maturity; or the Brigance. For
large print readers the use of an enlarged version of the Woodcock-Johnson Psychoeducational
Battery- Revised is recommended.
Q. How can an LEA satisfy the requirements for a Braille skills inventory which is a
component of the placement process in determining eligibility for visually impaired
students? (April 1992)
A. The inventory is not a formal test. It is a process of examining factors to determine the
individual student's most appropriate or efficient mode of reading-print or Braille. The
American Printing House for the Blind offers a pamphlet, "Development of Guidelines for
Literacy: Selecting Appropriate Learning Media" by Hilda Caton. A sample assessment
developed by A. Koenig of Texas Technical University is also available to assist in making this
Q. Is a Focus of Concern required when a student's category of eligibility changes from
BED to LD, or LD to BED? (April 1992)
A. A Focus of Concern is not required when a student changes from one category to another.
However, in order to determine eligibility, the team must:
1. review current diagnostic information;
2. document interventions that have been attempted in regular classes;
3. ensure that all required evaluation components have been completed; and
4. ensure that the student meets the eligibility criteria for either BED or LD and
requires special education.
Q. What category best meets the needs of a Fragile X syndrome student? (April 1992)
A. There is no one best category for a Fragile X student because Fragile X is the etiology and not
the disabling condition itself. The LEA must conduct a multidisciplinary evaluation. If a team
decides that the student meets the eligibility criteria in one of the existing categories and is in
need of special education, an IEP must be developed based on the strengths and needs identified
during the evaluation.
Q: Children who have been exposed to cocaine during pregnancy frequently have a
unique clustering of neurological problems which may result in a combination of
disabilities that appear to require special education although they won't qualify for
LD, EMD, BED, etc. Can these students be considered for other health impaired?
A: This question might also pertain to children diagnosed with fetal alcohol syndrome, AIDS or
HIV positive as well as cocaine exposure. Each of the above is the etiology of the problem, not
the disability. If a student meets the eligibility criteria for other health impaired and the team
determines that the student requires special education, the student would qualify for other
health impaired. The key factor is that the problem be an acute or chronic health problem that
causes limited strength, vitality or alertness to such an extent that special educational services
are necessary because the health problem adversely affects educational performance.
Q: If a hearing impaired child is identified HI and academically gifted as well and, as a
result of special education is making A's in the curriculum, must the child be removed
from the HI program because there is no apparent academic deficiency? (July 1999)
A: The Office of Special Education Programs has said on several occasions that the hearing
impaired services that allow the child to succeed are in fact the child's special education. If the
special education services are removed, the child will fail because of his/her inability to
participate in an educational program. The emphasis must be on access to the general
1.2 Placement Procedures
Q. Who can serve as the LEA representative at the IEP meeting? (July 1999)
A. The "representative of the public agency" could be any member of the school staff who is
qualified to provide, or supervise the provision of specially designed instruction to meet the
unique needs of children with disabilities, is knowledgeable about the general curriculum, and
is knowledgeable about the availability of resources of the local educational agency. Appendix A
(formerly Appendix C, Questions and Answers about lEPs) uses the term "commit resources."
Q. Is each school required to have an assistance team? If so, where is that requirement
stated in Procedures ? (June 1987)
A. There is no requirement in State Board Procedures that every school or school administrative
unit must have a school assistance team. It is required that every child who is classified BED or
LD after January 1, 1985, must have gone through the pre-referral screening procedures. These
procedures are viewed as a regular education function which may be best facilitated by an
assistance team or building-based support team.
QUESTION # 3
Q. Does the ninety-day requirement between referral and placement refer only to days
that school is in session? (October 1989)
A. The ninety-day requirement refers to calendar days. When a child is referred at the end of the
school year for evaluation, the ninety-day requirement applies. The child should be evaluated
and a determination made of whether the child meets the criteria for being a child with special
needs and whether the child is in need of special education. The determination should be made
before the next school year and may not exceed ninety days. When parents fail to make their
child available during the summer months or refuse to give consent for evaluation,
documentation must be maintained to show a good faith effort on the part of the school to be in
compliance with the ninety days. All extenuating circumstances should be documented.
Q. If a student with disabilities withdraws from school and later re-enrolls, should he be
treated as a new referral or a reevaluation? (October 1987)
A. The student would not be treated as a new referral. If the data are not current, the student
should be reevaluated to determine his current educational status and whether or not he
remains eligible for special education and related services.
Q. Is it appropriate for a local educational agency to have a cut-off date for receiving
referrals? (July 1999)
A. This question was first included as a question and answer in 1988. After all of these years, the
issue is still brought to the Division's attention from parents and teachers who say their referral
was refused because it fell outside of the time frame the school system had established for
receiving referrals. It is a violation of federal and state laws to designate specific time frames
for receiving or making referrals. Parents, teachers, other professionals, etc. have the right to
make a referral at any time they suspect a child is in need of special education. Once the
referral is received, the LEA is obligated to begin the process to determine if the child has
special needs. Referrals may not be delayed under any circumstances.
Q. How would an LEA handle a situation where the judge refers a child to a specific
program and bypasses placement procedures? (April 1985)
A. A judge has the prerogative to commit students to institutions such as training schools.
However, the decision regarding placement in the school setting is the responsibility of the IEP
team and must be based on identification procedures found in the Procedures .
Q. If a student is referred to exceptional children programs for evaluation and is not
eligible for services, does the assessment information need to go before the team?
A. Yes. The team must review the assessment information and determine if the student qualifies
for placement in an exceptional children's program. The decision regarding placement cannot be
made by one person. It must be a team decision, including the parent. The parents can exercise
their parental rights if they disagree with the decision.
Q. Is there a specific requirement to maintain documentation when the student is not
eligible for exceptional children services? (July 1999)
A. Yes. Once a student is referred for an evaluation as an exceptional child, due process rights are
in effect immediately whether or not the child is later determined eligible. The parent has the
right to ask for further testing, an independent educational evaluation, a due process hearing,
etc. Documentation of parent involvement, therefore, remains a safeguard for the LEA and the
parent. However, if the parent requests that the information be destroyed, the LEA must
comply with the parent's request.
Q. Can a parent request that a specific person conduct evaluations done as a part of an
initial evaluation or three-year reevaluation? (July 1999)
A. A school system is under no obligation to use a person recommended by a parent or other party.
The school system is required to ensure that children receive an appropriate evaluation as
specified in Procedures Governing Programs and Services for Children With Disabilities , and
that the evaluations be conducted by appropriately certified/licensed professionals. If the
parents choose to have an evaluation conducted by a private person of their choosing, it is at
their expense, but the team must consider the results in making any decisions.
Q. A parent informs an LEA that he/she wants his/her child to be tested immediately for
BED or SLD. Is the LEA required to make an immediate referral for testing, or is the
LEA required to conduct the pre-referral screening procedures? (April 1992)
A. The LEA can explain the pre-referral process for suspected LD or BED students, stating the
purpose and the anticipated length of time it will take to complete pre-referral. However, if the
parent insists, the LEA must accept the referral and address assessment immediately. The 90-
day timeline begins with the referral. This does not, however, exempt the LEA from its
responsibility to assure that the student is eligible for placement following the Division's
Procedures . Eligibility criteria for BED and SLD require that specific evidence be documented
One of these is "dated and signed documented evidence of at least two interventions attempted
in order to make behavioral and academic achievements possible within the regular educational
setting..." Therefore, either simultaneously with the assessment (preferred) or following the
assessment, the team must document that classroom interventions have been implemented in
the regular classroom. The student must also meet the eligibility criteria for BED and SLD, and
require special education. If a parent makes a referral and the LEA does not believe the student
has a disability, they must notify the parents of its decision and advise the parent of his/her
Q. What is a reasonable time in which to complete the focus of concern? (July 1999)
A. The focus of concern is intended to provide the team with information about a student with a
suspected disability; however the process is expected to be completed in a timely manner. It was
originally suggested that a minimum of two weeks and a maximum of six weeks was reasonable.
OSEP has responded to parents and state agencies on several occasions saying that assistance
teams and the functions they perform are not prohibited as long as they are not used to delay
the evaluation process.
Q. What is required by local education agencies to document that annual reviews have
occurred? (April 1992)
A. Annual reviews may be documented in the following manner:
1. An IEP committee convenes to review each child's present goals, short term
objectives/benchmarks and progress. Parents must be invited to participate in the
2. The IEP committee documents the goals attained by each child on the IEP being
reviewed and develops a new IEP. Each child's strengths and needs must be
Q. Is adapted physical education considered a related service on the IEP, or is it a
separate program? (July 1985)
A. Adapted physical education is not a related service. The term special education includes
instruction in physical education. Physical education is defined in IDEA regulations as special
physical education, adapted physical education, or regular physical education. Adapted physical
education would be treated the same as other instructional areas on the IEP. If the student is
enrolled in a regular physical education program and does not require modifications or
adaptations, no goals or objectives are required. Participation in general education physical
education should be included with the section that addresses participation in regular education.
Q. Should activities such as field trips, plays, and interscholastic athletics be written in
the IEP? (June 1989)
A. The IEP is not intended to be detailed enough to include instructional plans/activities such as
field trips and plays. If the student requires any special equipment, devices, supplemental
supports, or transportation in order to participate in these activities, this should be indicated on
Q. Can a student who qualifies for specific learning disabilities (LD) placement with a
fifteen point discrepancy in either mathematics, reading or language be served in a
resource class for all three areas? (July 1994)
A. It is not good practice to place LD students in areas in which they do not demonstrate needs
which require special education. Although not addressed by regulations, such practices may not
serve the best interests of disabled students, and it is questionable as to whether the children
could benefit from such services. Documented strengths and needs serve to determine
appropriate special education. However, a fifteen (15) point discrepancy is not the only
indicator of need. It must be reflected in the documentation that the student has a processing
disorder that causes him to manifest difficulties in those areas in which he is receiving special
Q. Must modifications that are necessary for a child with disabilities to participate in a
regular education program be included in the IEP? (July 1999)
A. "Yes. If modifications (supplementary aids and services) to the regular education program are
necessary to ensure the child's participation in that program, those modifications must be
described in the child's IEP (e.g.,, for a hearing impaired child, special seating arrangements or
the provision of assignments in writing). This applies to any regular education program in
which the student may participate, including physical education, art, music, and vocational
education." A recent ruling by the Office for Civil Rights (Education of the Handicapped Law
Report 16 EHLR 180) further bears this out. It is clear that such modifications do need to be
recorded on the IEP. It is helpful to keep in mind that modifications made for regular education
instruction must be related to the disability. An LD student with a disability in the area of
reading may be able to handle a regular math class if modifications such as having written
instructions given orally or having math problems read to him can be provided. It may not be
appropriate, however, for that same student to have a modification that allows him to use a
calculator to do computations because the student's disability is not related to math
computation. Again, the appropriateness of any given modification depends on how it helps a
student compensate for an identified area of disability. A final important point is that the
appropriate context for making decisions about modifications in the regular classroom is the IEP
meeting, where all decisions about the content of an IEP are made. These decisions can be
negotiated during the annual IEP review or at a called meeting of the committee. Neither the
parents nor the local education agency can make unilateral decisions about such modifications.
Disagreements between parents and the local education agency about this issue should be
handled like any other similar disagreement, e.g., the parties may agree to follow an interim
course of action while the issue is being resolved, or either party may initiate a due process
Q. What are the requirements for Extended School Year-Special Education? (July 1999)
A. Parents must be notified annually that extended school year is available for those students for
whom it is appropriate. Federal court cases, rulings of OCR, and policy letters and monitoring
reports guide the development of requirements for ESY. Since the extended school year is a
part of the IEP, annual review is an appropriate time to determine if the student requires
extended school year with documentation of such discussion included in the minutes of the IEP
committee meeting. A number of factors must be considered when discussing the need for ESY.
1. degree of impairment;
2. degree of regression;
3. child's rate of progress;
4. behavioral, emotional, and physical problems;
5. availability of alternative resources;
6. vocational needs;
7. need for integration with non-disabled peers;
8. extraordinary needs v. integral needs;
9. need for related services; and
10. cognitive/knowledge skills.
(Refer to the Division ESY position paper, June 1998, for a detailed explanation of ESY.)
Q. If a student with disabilities requires a modified school day, must this be written into
the IEP? (April 1992)
A. Policy letters and letters of findings from OSERS, OCR and OSEP, and OSEP monitoring
reports require a student with disabilities have a school day that is the same length as that of a
student without disabilities. If the student requires a modified day, this must be reflected in the
IEP, the only vehicle to justify a shortened day. Insufficient numbers of buses, length of
transportation routes, etc., are not valid reasons for shortening the school day.
Q. If a BED student is enrolled in a self-contained/separate setting because of
inappropriate behavior, must the IEP contain goals that address each of the content
areas in which the student is receiving instruction? (July 1999)
A. The IEP contains goals and short term instructional objectives/benchmarks which define the
special education that the student is receiving. If content areas do not require special education
they are not addressed. However, if a modification or other special education is being provided
in the content area, that would be noted. The definition of behaviorally-emotionally disabled
requires that there be behavioral and/or emotional problems to the extent they impact adversely
and interfere consistently with the student's own learning process. An IEP for a BED student
will always contain at least one behavioral goal and objectives, and may contain academic goals
and objectives. The IEP must state the extent to which the student will not participate in the
Q. What are the major requirements that govern the involvement and progress of
children with disabilities in the general curriculum? (July 1999)
A. The IEP must contain a statement of the student's present levels of educational performance
which includes how the student's disability affects his/her involvement and progress in the
general curriculum. How the student will be involved and progress in the general curriculum is
a primary component that must be considered in developing an IEP. There are a variety of
assessment techniques that can be used to help determine the present level of performance
The IEP must contain measurable annual goals, including benchmarks or short-term objectives.
The annual goal describes what a student with a disability can reasonably be expected to
accomplish within a year.
The purpose of benchmarks and short-term objectives is to allow teachers, parents, and others
involved with the education of the student to measure progress toward attaining the annual
goal(s) at various points throughout the school year. The short-term objectives generally break
the skills described in the annual goal into discrete components. The benchmarks can be
thought of as describing the amount of progress the child is expected to make within specified
segments of the year. Generally, benchmarks set expected performance levels that allow for
regular checks of progress that coincide with the reporting periods for informing parents of the
student's progress toward achieving the annual goal(s). The IEP team may use either
benchmarks or short-term objectives, or a combination of both.
In addition to the above, the IEP must contain a statement of the special education
and related services and supplementary aids and services to be provided to the student, or on
behalf of the student, and a statement of the program modifications or supports for school
personnel that will be provided for the student. These must be designed to allow the student:
1. to advance appropriately toward attaining the annual goals;
2. to be involved and progress in the general curriculum; and
3. to be educated and participate with other students with disabilities and
nondisabled students in extracurricular and other nonacademic activities.
In satisfying the requirement for the student with a disability to be educated with nondisabled
students to the maximum extent appropriate, the IEP must contain an explanation of the
extent, if any, to which the child will not participate with nondisabled students in the regular
class and in extracurricular and nonacademic activities.
There is an expectation that students with disabilities will participate in state-wide assessment
programs, and that they will be provided with appropriate accommodations. The participation
and accommodations must be included in the IEP. If a student with a disability cannot
participate in the assessment program even with modifications, the IEP must include a
statement as to why the student cannot participate and how the student will be assessed.
IDEA '97 added a requirement that a regular teacher be a member of the IEP team because of
the increased emphasis on the general curriculum and the disabled student's involvement in it.
While the regulations use the phrase, "if the child is, or may be, participating in the regular
curriculum," it is anticipated that there will be few cases when consideration will not be given to
whether a student with a disability will participate in the general curriculum. (See Question 5)
Q. Must a child's IEP address his/her involvement in the general curriculum, regardless
of the nature and severity of the disability and the setting in which the child is
educated? (July 1999)
A. Yes. The IEP for each student with a disability (including students who are educated in
separate classrooms or schools) must address how the student will be involved and progress in
the general curriculum. However, since the student may have other needs resulting from the
disability, the IEP team must make an individualized decision regarding:
1. how the student will be involved and progress in the general curriculum and what
needs result from the disability that also must be met;
2. whether the student has any other educational needs resulting from his or her
disability that also must be met; and
3. what special education and other services and supports the student needs.
Q. Must the measurable annual goals address all areas of the general curriculum, or only
those areas in which the student's involvement and progress are affected by the
student's disability? (July 1999)
A. The IEP Team is required to develop annual goals addressing the skill/curriculum/behavior/
domain area(s) resulting from the student's disability and needing specialized instruction in
order to be involved in and progress in the general curriculum.
In addition, modifications and accommodations are available to students with disabilities across
content areas, within the general curriculum, if they are necessary for the student to access and
progress in the general curriculum. These accommodations and modifications must be
specified in the IEP.
Q. What is the role of the parents or surrogate in decisions regarding the educational
placement of the student? (July 1999)
A. IDEA '97 strengthens the role of the parents in the education of students with disabilities.
Parents must have the opportunity to participate in decisions about data that are needed as
part of the evaluation of their students, eligibility, and educational placement. Concerns and
information provided by the parents must be considered by the team making decisions. With
regard to the IEP, parents are expected to be equal participants along with school personnel in
developing, revising, and reviewing an IEP. This is an active role in which parents:
1. provide critical information regarding the strengths of the student and express
their concerns for enhancing the education of their child;
2. participate in discussions about the student's need for special education and
related services and supplementary aids and services; and
3. join with the other participants in deciding how the student will be involved and
progress in the general curriculum and participate in state assessments, and what
services the agency will provide to the student and in what setting.
They must also be informed of the student's progress toward meeting the goals of the IEP and to
what extent that progress is sufficient to enable the student to achieve the goals by the end of
the year at. least as often as parents of nondisabled students are informed.
Q. What are the requirements for a student to participate in the development of the IEP?
A. A student with a disability must be involved in the IEP meeting any time transition is a topic or
any other time that is appropriate. If transition is not involved, the school should, if possible,
discuss the appropriateness of the student's attendance with the parents. Two factors to
consider are whether the student will be helpful in developing the IEP or if participation will be
beneficial to the student.
Q. Must the school system inform the parents who will be at the IEP meeting? (July
A. Yes. The school must notify the parents and the notice must include the purpose, time, location
of the meeting, and who will be in attendance. If consideration of transition as a component of
the IEP is to be discussed, the parents must be notified that the student will be invited and
identify any other agency that will be invited to send a representative.
It may be appropriate for the school to ask the parents if they are planning to bring
someone, and parents are encouraged to notify the school of the names of those they intend to
bring. However, the parents are not required by law to do so.
Q. Do parents have the right to a copy of the IEP? (July 1999)
A. Yes, without cost.
Q. What is the LEAs' responsibility if it is not possible to reach consensus on what
services should be included in a student's IEP? (July 1999)
A. The IEP meeting is a vehicle for communication between the parents and the school, and
enables them to make joint, informed decisions regarding the student's needs, goals,
involvement in the general curriculum, and services needed to support the involvement and
participation. Parents are considered equal partners with school personnel in making these
decisions, and the IEP team must consider the parents' concerns and the information they
provide regarding the student. Although the IEP team should work toward consensus, the
school has the ultimate responsibility to ensure that the IEP includes the services that the
student needs in order to receive FAPE. It is not appropriate to make IEP decisions based upon
a majority "vote." If the team cannot reach consensus, the school system must provide the
parents with prior written notice of the system's proposals or refusals, or both, regarding the
student's educational program, and the parents have the right to seek resolution of any
disagreements by initiating an impartial due process hearing.
Q. Is the LEA required to inform parents about the educational progress of their
students? (July 1999)
A. The school is required to inform parents about their students' educational progress toward
achieving the annual goals at least as often as parents of nondisabled students are informed.
Q. What are the LEA responsibilities regarding transition on the student's IEP? (July
A. The IEP team, beginning at age 14, 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.
Although the focus of the transition planning process may shift as the student approaches
graduation, the IEP team must discuss specific areas beginning at least at the age of 14 years,
and review these areas annually.
To help reduce the number of students with disabilities that drop out, it is important that the
IEP team work with each student and the student's family to select courses of study that will be
meaningful to the student's future and motivate the student to complete his or her education.
Beginning at age 16, the IEP must include a "coordinated set of activities, that:
1. is designed within an outcome-oriented process, that promotes movement from
school to post-school activities. The process includes postsecondary education,
vocational training, integrated employment, continuing and adult education, adult
services, independent living, or community participation;
2. is based on the student's needs, taking into account his/her preferences; and
b. related services;
c. community experiences;
d. development of employment and other postschool adult living
e. if appropriate, acquisition of daily living skills and functional
IDEA '97 eliminated the need to include a statement that explains why certain of the
components listed above are not included in the IEP.
Q. Must the IEP include transition services that are being provided by another agency?
A. Yes. If the services that are to be provided by another agency are not delivered by that agency,
the LEA is responsible for implementing alternative strategies to meet the student's needs.
Q. When a student is receiving special education for the first time, when must the IEP be
developed — before or after placement? (July 1992)
A. The IEP must be in effect before special education and related services are provided to a student
with a disability. It is not permissible to first place the student and then develop the IEP.
Q. Who is responsible for ensuring the development of IEPs for children with disabilities
served by a public agency other than an LEA? (July 1999)
A. The LEA who is responsible for the education of the student is ultimately responsible for the
development and implementation of the IEP whether the student is in a public or private school
Q. Who is responsible for ensuring the development of an IEP for a student who is
placed out-of- state by the LEA? (July 1999)
A. The LEA who placed the student in an out-of-state facility is responsible for the development
and review of the IEP.
Q. If a student with an IEP transfers from one LEA to another in the same state, must
the new LEA develop an IEP before the student can be placed in a special education
program? (July 1999)
A. The receiving LEA is responsible for ensuring that FAPE is made available to the student. An
IEP must be in place before the student receives special education and related services. The
LEA. can meet this responsibility by either adopting the IEP the former school district had
developed or develop a new IEP for the student. If the student's current IEP is not available, or
if the parent believes that it is not appropriate, the new LEA must develop a new IEP through
appropriate procedures within a short time after the student enrolls in the new school (normally
within one week).
Q. What timelines apply to the development of an initial IEP? (July 1999)
A. An IEP meeting must be held within 30 days of the determination of eligibility to develop an
IEP and the implementation must begin as soon as possible. In North Carolina there is a ninety
day timeline from referral to placement. This timeline encompasses the 30 day requirement.
Q. Must an LEA hold separate meetings to determine a student's eligibility for special
education and related services, develop the child's IEP, and determine the student's
placement, or may the LEA meet all of these requirements in a single meeting? (July
A. If all of the appropriate persons are present, it is permissible to conduct a single meeting to
carry out all of the requirements listed above. It is also permissible to conduct separate
Q. How frequently must a public agency conduct meetings to review, and if appropriate
revise, the IEP for each child with a disability? (July 1999)
A. A review must be conducted periodically, but at least once every twelve months. The review is
for the purpose of determining whether the annual goals are being achieved, and to revise the
IEP, as appropriate, to address:
1. any lack of expected progress toward the annual goals and in the general
2. the results of any reevaluation;
3. information about the child provided to, or by, the parents;
4 the student's anticipated needs; or
5. other matters.
The student's parents or teacher(s) may request an IEP meeting at any time.
An IEP must be in effect at the beginning of each school year. The school may conduct an IEP
meeting at any time during year. However, if the IEP meeting is held prior to the beginning of
the school year, the school must ensure that the student's IEP can be appropriately
implemented during the next school year; otherwise, a new IEP meeting must be held before
Any time the LEA refuses to conduct an IEP meeting at a parent's request, it must provide the
parent with prior written notice of the refusal including an explanation of why the LEA has
determined that conducting the meeting is not necessary to ensure FAPE.
Q. May IEP meetings be audio or video-tape recorded? (July 1999)
A. IDEA '97 does not speak to either audio or video taping of IEP meetings. The Exceptional
Children Division does not have a policy regarding this topic.
Q. Who can serve as the representative of the LEA at the IEP meeting? (July 1999)
A. The LEA representative must be someone who:
1. is qualified to provide or supervise the provision of specially designed instruction;
2. is knowledgeable about the general curriculum; and
3. is knowledgeable about the availability of resources of the LEA.
Each LEA may designate which specific staff member will serve as the LEA representative in a
particular IEP meeting so long as the individual meets these requirements. However, it is
important that the person has the authority to commit LEA resources and be able to ensure that
whatever services are set out in the IEP will actually be provided. The LEA representative may
be another member of the IEP team as long as the person has these three qualifications.
Q. Which teacher(s) should attend the IEP meeting for a student with a disability being
considered for initial placement? (July 1999)
A. A group of qualified professionals and the parent of the child must determine whether the child
is a child with a disability. In addition to other required team members, the required teachers
on this team include:
a. the child's regular teacher. If the child does not have a regular teacher, a regular
classroom teacher qualified to teach a child of his or her age; and
b. at least one special education teacher of the child, or if appropriate at least one
special education provider of the child if the service consists of specially designed
instruction and is considered special education by the state. In North Carolina,
this applies to the speech language pathologist.
Q. What is the role of the regular education teacher in the development, review, and
revision of the IEP for a student who is, or may be, participating in the regular
education environment? (July 1999)
A. The regular education teacher must be involved in the development, review, and revision of the
student's IEP. This includes assisting in determining appropriate positive behavioral
interventions and strategies, and determining supplementary aids and services, program
modifications, and supports for school personnel that will be provided for the child. In
particular the regular education teacher must participate in discussions and decisions about
how to modify the general curriculum in the regular classroom to ensure the student's
involvement and progress in the general curriculum and participation in the regular education
Q. If a student with a disability attends several regular classes, must all of the regular
education teachers be a member of the IEP team? (July 1999)
A. No. The IEP team does not need to include more than one of the student's regular education
teachers. However, this doesn't preclude inviting more than one if that is advisable.
Q. How should the LEA decide which teachers, regular and special, will attend the IEP
meeting? (July 1999)
A. The regular education and special education teachers should be those individuals who are
responsible, partly responsible, or who may be responsible for implementing part of the IEP.
The IEP Team should be encouraged to seek input from any of the student's teachers who will
not be attending the meeting.
Q. For a student whose primary disability is a speech impairment, can the LEA meet its
requirement to ensure that the IEP team includes "at least one special education
teacher, or if appropriate, at least one special education provider of the child," by
including a speech-language pathologist on the IEP team? (July 1999)
A. The IEP team should include the speech language pathologist. A regular education teacher
should also be included.
Q. What options do the parents and the LEA have in inviting individuals of their choice
to the IEP meeting? (July 1999)
A. Either party has the option to invite other persons to attend the IEP meeting if those persons
have knowledge or expertise regarding the student. This is a change from the 1990
reauthorization of IDEA which allowed the parents or the school system to invite anyone at
their discretion. The party inviting the individual is the one who determines expertise or
Q. Can parents or LEAs bring attorneys to IEP meetings and are attorneys' fees
available for attending an IEP meeting? (July 1999)
A. If the attorney has knowledge or expertise about the student, he/she could be invited. The
presence of either the parents' or the school system's attorney may contribute to a potentially
adversarial atmosphere. Therefore, the attendance of attorneys at IEP meetings should be
discouraged. (See Question 25)
Attorneys' fees are not available for attendance at an IEP meeting unless the meeting is
ordered as a result of an administrative procedure.
Q. Must related services personnel attend IEP meetings? (July 1999)
A. Related services personnel do not have to attend IEP meetings, although is desirable if related
services are to be discussed as a component of the IEP. If the related service provider is unable
to attend, he/she should provide a written recommendation concerning the nature, frequency,
and amount of service to be provided to the student.
Q. Must the LEA ensure all services specified in the IEP are provided? (July 1999)
A. Yes. The school system may provide the services directly through its own staff resources,
indirectly, by contracting with another public or private agency, or through other arrangements.
The school system may use whatever state, local, federal, and private sources of support are
available, but the services must be at no cost to the parent.
Q. Is it permissible for the LEA to have the IEP completed before the meeting begins?
A. No. The school may bring evaluation findings and proposed recommendations regarding IEP
content, but the school must make it clear to the parents at the outset of the meeting that the
services proposed by the school are only recommendations for review and discussion with the
parents. The parents have the right to bring questions, concerns and recommendations to an
IEP meeting as part of a full discussion. If a draft of some or all of the IEP components is
brought to the IEP meeting, there must be full discussion before the final IEP is written.
Q. Are related services limited to those listed in the definition of related services? (July
A. No. The list of related services is not all inclusive. The need for a particular service which
might be a related service must be discussed on an individual basis.
Q. Are there any circumstances under which it is permissible for a student who requires
school purchased assistive technology to use the equipment in the home or another
setting? (July 1999)
A. The school must permit a student to use school purchased assistive technology at home or in
other settings, if the student requires it in order to receive FAPE, i.e. homework, etc. Assistive
technology devices that are necessary to ensure FAPE must be provided at no cost to the
parents, and the parents may not be charged for normal wear and tear.
Q. Does the IEP have to specify the amount of services or may it simply list the services
to be provided? (July 1999)
A. The amount of services provided to a student must be specified on the IEP so that the level of
commitment of resources is clear to everyone involved. For the first time, the regulations speak
to the possible use of a range of services, but it is very limited. The example the regulations use
is the case of a seizure disordered student who has seizures on an irregular basis and requires
services only at that time. Ranges may not be used because of personnel shortages or
uncertainty regarding the availability of staff.
Q. Can the IEP team also function as the group making the placement decision for a
student with a disability? (July 1999)
A. The school may use the IEP team to make placement decisions if the team is comprised of a
group of persons, including the parents, and other persons as appropriate who are
knowledgeable about the child, the meaning of the evaluation data, and the placement options.
Q. If a student's behavior in the regular education setting, even with appropriate
interventions, would significantly impair the learning of others, can the team that
makes the placement decision determine that placement in the regular classroom is
inappropriate for that child? (July 1999)
A. If a student's behavior is interfering with the education of others, careful consideration must be
given to whether the student can appropriately function in the regular classroom if provided
appropriate behavioral supports, strategies and interventions. If the student's behavior in the
regular classroom, even with the provision of appropriate behavioral supports, etc., significantly
interferes with the learning of other students, placement in the regular classroom is not
appropriate to meet the student's needs and would not be appropriate for that student.
Q: How can the LEA document that all staff have been advised of their specific
responsibilities to carry out requirements of the IEP? (July 1999)
A: The legally defensible method is (o provide any staff member who has responsibilities for the
IEP with a copy of the IEP.
NOTE: For more in-depth answers to IEP questions, please refer to Appendix A, Part 300, Federal
Regulations, March 12, 1999.
1.4 Placement setting /lre/ pupil-teacher ratio
Q. Is there a regulation which absolutely prohibits an LEA from having a separate
facility for students with disabilities? (July 1999)
A. The Office of Civil Rights has no regulations which prohibit a local education agency from
having or building a separate facility. Under Section 504 (Rehabilitation Act of 1973), students
with disabilities must be given the opportunity to participate in regular education and/or in
activities with regular students. A local education agency would have to document strong
justification for placing any student in a separate facility.
The Office of Special Education Programs also has no rule or law that prohibits a separate
facility; however, they also state that a local education agency has to document that options for
less restrictive placement have been considered and the option chosen was based on each child's
needs rather than the availability of the special facility. Placement decisions must not be based
on category of disability, configuration of the service delivery system, availability of
personnel/space, curriculum content or methods of delivery, or parent choice. Justification is
needed that each individual student in the separate facility can not be educated closer to the
regular classroom and the child's home school, and that a process is in place for making each
At the time of annual review, all of the placement options must be considered and there must be
a serious effort to place the student in a less restrictive environment.
Q. Does the LEA have the right to assign a student with disabilities to a school in the
school system other than the student's neighborhood school? (January 1989)
A. Yes. The LEA may transfer a child with disabilities under the same administrative procedures
as it would transfer students in regular education. A change in location that does not
fundamentally change or eliminate any of the elements on the child's IEP is considered
reasonable and adheres to IDEA. If a parent disagrees with the local education agency's
conclusion that the change in location does not entail a change in the child's educational
program, the parent has due process procedures available. Notification to the parents of
students involved in any transfer is advisable in order to promote positive relationships between
the school and the parents.
Q. If a child is mainstreamed for all nonacademic activities such as physical education,
music and art, does that placement include participation in field trips and a grade
level play? (June 1989)
A. According to IDEA '97 and Section 504, children with disabilities must be afforded an equal
opportunity for participation in nonacademic and extracurricular activities. If, for example, a
field trip is offered in a class in which a child with disabilities participates, the child with
disabilities should be afforded the same opportunity to attend the field trip under the same
conditions as the students without disabilities. If a child with disabilities participates in a class
in which a play is to be presented, he/she should be afforded the same opportunity to audition
for a part as students without disabilities.
Q. Can a student who is identified as learning disabled in oral expression and/or
listening comprehension be placed in an LD resource program or a developmental
kindergarten program for exceptional children in addition to receiving services from
the speech/language specialist? (October 1986)
A. The student may receive academic instruction in the LD program since LD is his primary
disability. He may also receive speech-language as a related service if he has been determined
through evaluation and eligibility criteria to possess a speech-language impairment for which a
related service is needed.
Q. Is regular class placement an appropriate option for OHI students? (August 1994)
A. The regular class with instructional modifications is an appropriate option for services to other
health impaired students who are appropriately identified. The student's IEP must justify
services by describing the needs of the student and the modifications and special instruction
which constitute special education. According to state and federal law, the regular class is
always the most appropriate placement for any student with disabilities unless it has been
determined that he/she cannot function satisfactorily in the regular classroom with the use of
supplementary aids and services.
Q: Can a student identified as mentally disabled be placed and served in a classroom
with students with learning disabilities? (July 1999)
A: Yes. A student with mental disabilities can be served in a classroom with students with
learning disabilities if the IEP team decides that setting is the educationally appropriate and
least restrictive environment for that individual student. Generally, teachers who teach these
classrooms have licensure in learning disabilties and mental retardation or cross-categorical
certification in mild disabilities.
1.5 Related Services
QUESTION # 1
Q. Are physical therapy and occupational therapy related services or special education
services? If these areas are related services only, is a child eligible to receive
physical therapy and/or occupational therapy if he does not qualify for special
education services? (July 1999)
A. Physical therapy and occupational therapy are related services that may be provided for
students with disabilities has in order to benefit from special education. If a student does not
require special education, he/she is not eligible to receive related services.
QUESTION # 2
Q. Is psychological counseling a related service? (April 1992)
A. Related services are limited to support services which are required to assist a student to benefit
from special education. The key factor is that the student must need the service to support or
benefit from the special education he is receiving. Psychological services are included as a
related service when they meet the definition of one. Psychological services include the
1. administering psychological and educational tests, and other assessment results;
2. interpreting assessment results;
3. obtaining, integrating, and interpreting information about child behavior and
conditions relating to learning;
4. consulting with other staff members in planning school programs to meet the
special needs of children as indicated by psychological tests, interviews, and
5. planning and managing a program of psychological services including
psychological counseling for children and parents;
6. referring children and families to community agencies and services when
7. screening and early identification of children with special needs; and
8. developing strategies for the prevention of learning and behavior problems.
The definitions above do not mean that a school system is obligated to pay for private
psychological counseling. The school system must plan for and arrange for any psychological
counseling that the IEP committee determines that the student needs. Such counseling may be
provided at school or a referral can be made to other community agencies.
Q. Can a child classified as speech and/or language impaired receive occupational
therapy as a related service? (July 1999)
A. Yes, if the OT is required in order for the student to benefit from the speech-language special
education. The OT component of the IEP and intervention goals must relate to the student's
disability, in this case speech and/or language.
Q. When is audiology considered a related service which must be included in the annual
goals and objectives of the IEP? (August 1994)
A. A key question to ask to determine whether a service is related or not is, What is the child
learning? If the audiologist is providing assessment type functions or checking the child's
hearing aids, this is not a related service. However, if the audiologist is assisting the child to
learn something that will help him/her to benefit from his special education, then that is a
related service and requires a goal(s) and objectives on the IEP. Some examples of this type of
activity might be teaching a student to lip read, teaching the child to check and maintain his/her
own hearing aid, or providing counseling and guidance to pupils, parents, and teachers.
Q. What is reevaluation? (July 1999)
A. Reevaluation is a process that is conducted in order to determine the continuing eligibility of a
student with a disability or to develop an IEP. Reevaluation is required any time conditions
warrant, or the student's parent or teacher requests a reevaluation, but at least once every three
years. Process is the generic term for the deliberations that an IEP team goes through in
deciding whether a student continues to be eligible for special education and related services.
The team examines existing data, including information provided by the parents, and
determines if additional assessment is required in order to reach a decision. If additional
assessment is required, the parent must be given prior written notice and must give written
permission to conduct the assessment(s). The authors of the law and regulations saw this new
procedure as a way to reduce unnecessary testing and to concentrate on gathering information
that would address the educational needs of the student. If no additional testing is required, it
is not necessary to obtain written parental consent.
Q. Must the team meet as a whole when reviewing the existing information? (July 1999)
A. No. Team members may individually review all information. However, once the information
has been reviewed by the team members, the team must meet as a committee to make its
decisions regarding continuing eligibility or exit from the program.
Q. What types of information should be reviewed prior to making a decision about
additional assessments? (July 1999)
A. Existing evaluation data can consist of evaluations and information provided by the parents,
current classroom-based assessments and observations, observations by teachers and related
service providers, results of state-wide assessments, etc.
Q. What must occur when it is decided that a related service may be needed for a
student with a disability? (July 1999)
A. In order for a student with a disability to receive a related service, it must be required in order
for the student to benefit from special education. Therefore, the need for a related service
cannot be determined in isolation. A team would have to review the student's IEP and other
information and decide if, in fact, it seems feasible that the student may require a related
service. Parental permission would have to be obtained before testing.
Q. Is it permissible for an LEA to establish its own procedures that require specific tests
at the time of reevaluation? (July 1999)
A. No. The whole purpose of the new process is to allow flexibility within a team framework and to
focus reevaluation efforts on the educational needs of the student.
Q. At the time of reevaluation, if the team decides the student no longer qualifies for a
particular disability or does not qualify for any special education at all, must the team
reports be completed? (July 1999)
A. All team reports and prior written notice must be completed. This constitutes a change of
placement and all procedural safeguards must be in place. In the case of specific team reports,
i.e., LD Report, the report indicates non-eligibility as well as eligibility.
Q. If the team decides that a new aptitude test is not required when considering
reevaluation of a LD student, can the old aptitude test be used with a new educational
test to figure a discrepancy? (July 1999)
A. The age norms for the two tests would not be compatible; therefore a new discrepancy could not
be figured using the two. Perhaps there is other information that would document a continuing
learning disability, and the new educational test would be used for development and
implementation of the IEP.
Q. Do high school students have to be reevaluated prior to graduating? (July 1999)
A. High school students with a disability who are graduating with a standard diploma do not
require a reevaluation. However, since graduation is a change of placement, prior written notice
must be given to the parents.
Q. What happens when the team determines that no additional assessments are required
for reevaluation, but the parent requests a reevaluation that includes testing? (July
A. If a parent requests additional testing after receiving the prior written notice informing him/her
of the decision of the team, the school system must complete a reevaluation that includes
Q. What can a school system do if the parent refuses to give written consent for testing
during reevaluation? (July 1999)
A. The school system can offer mediation to see if that will resolve the impasse. The ultimate
recourse however is due process. If the school system has knowledge that the student requires
special education, it has an obligation to go to due process and request that an administrative
law judge grant it permission to proceed with testing.
Q. What can a school system do if the parent does not acknowledge its request for
written consent for testing? (July 1999)
A. Parental consent is required for an initial evaluation or for evaluations as a part of the
reevaluation process. If the district is seeking to conduct an initial evaluation and the parent
refuses consent, the district may pursue due process procedures. If the testing is for a
reevaluation, and the school system can document a good faith effort that it tried to obtain the
parent's written consent, it can proceed with testing.
A good faith effort must include an invitation to conference reflecting the district's attempt to
arrange a mutually agreed on time and place as well as:
1. detailed records of telephone calls made or attempted and the results of those
2. copies of correspondence sent to the parents and any responses received; and
3. detailed records of visits made to the parent's home or place of employment and
the result of those visits.
7. 7 Change in Placement
Q. What constitutes a change in educational placement and when are parents entitled to
prior notice? (April 1992)
A. Educational placement is where the student receives special education and related services --
the continuum as it relates to least restrictive environment. A change in educational placement
occurs when the placement required in the a child's individualized education program is affected
or changed. Parents must be notified 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 a free appropriate public education to
the child; or
2. refuses to initiate or change the identification, evaluation or educational
placement of the child or the provision of a free appropriate public education to
This notice is called "prior written notice."
Q. What is meant by the term "end of the grading period?" (July 1985)
A. Local board policy will determine the grading period for the schools within its system (six weeks,
nine weeks, etc.) For students with disabilities, progress toward the annual goal must be
reported as often as general education students' progress, which may include progress reports in
addition to report card periods.
Q. Is reevaluation required for exiting a student from a special education program?
A. Reevaluation is required to exit a student from a special education program except for an exit
due to graduation with a regular diploma or an exit due to exceeding the age of eligibility for
FAPE under state law. The reevaluation may or may not require new testing; however, there
must be current information to substantiate the exit when the IEP Team which determines
continuing eligibility makes a recommendation for a change in placement. Parents must be
given prior notice of the exit decision at least ten days prior to the exit. The parents have the
right to contest the exit through due process, in which case the stay-put provision is in effect
until such time as the disagreement is resolved.
School exit by means of a standard diploma or by reaching maximum age constitutes a change in
placement and requires prior notice. A student who receives a certificate of achievement or a
graduation certificate is not considered to have exited the program and is entitled to return to
school until he/she reaches the 21st birthday.
1.8 OVT-OF-Dl STRICT PLACEMENTS. COMMUNITY RESIDENTIAL CENTERS, DEVELOPMENTAL DAY
QUESTION #1 f
Q. Wliat are the responsibilities of a local education agency when it places children with
disabilities in another local education agency? (August 1989)
A. Local education agencies may, when unable to provide an appropriate education, place children
with disabilities in another local education agency with the following procedures:
1. A local education agency may contract with another local education agency for a special
education program. The contract is for one year and renewable annually. The local
education agency of legal residence is responsible for due process rights and ensuring the
implementation of the IEP. The agency of legal residence of the child should include the
child in the December 1 and April 1 headcounts. The receiving unit will include the child
in ADM, thereby generating ADM funds or teaching positions. The sending LEA is
responsible for record compliance and should maintain a copy of the IEP and the annual
review. It is recommended that the sending unit develop the initial IEP in cooperation
with the receiving LEA and that both units participate in the annual review.
2. A local board of education may release, by board action, a child to another local board of
education. The receiving board must, by board action, accept the child. This process is
for one year but could be renewed annually. The receiving LEA would be responsible for
all due process rights, implementing the IEP, record compliance, and counting the child
in all headcounts. The receiving LEA would be the defendant in any due process hearing
brought by the parent.
Q. May Developmental Day funds be spent in local education agencies for preschool
and/or school age children with disabilities? (August 1994)
A. Developmental Day funds can only be used in an approved developmental day center. These
funds are used by an LEA for contracting for educational and related services in a
developmental day center.
Q. How does an LEA place a child in a developmental day center? (July 1999)
A. Preschool and school-age students with disabilities are placed by the local education agency
through its IEP team. All services received should be negotiated locally and included in the
contract between the LEA and developmental day center. The service delivery model for each
child is determined by the IEP team and the IEP is based on each child's individual needs. The
procedure for placement is the same for preschool children and school-age students.
Q. Can a developmental day center request that an LEA place a specific number of
children in order to utilize the available slots? (August 1994)
A. No. All placement of children is the responsibility of the local education agency. Placement of
children in a developmental day center must be based on the individual needs of each child. All
placement options must be considered in meeting the requirement of the least restrictive
Q: Is it possible for a child to be served in a developmental day center as a preschooler
and continue services in the same center after he/she becomes eligible for
kindergarten? (July 1994)
A. Yes. A child may continue to be served in that same developmental day center if the IEP team
determines that the placement continues to be an appropriate educational placement. The IEP
committee must consider all factors related to LRE, as well as opportunities for interaction with
Q. Are teachers of preschool children with disabilities that are located in developmental
day centers required to have preschool licensure? (August 1994)
A. Yes. Teachers who are providing special education to children placed by LEA's must hold
preschool add-on licensure, birth-kindergarten licensure, or provisional birth-kindergarten
Q. Can an LEA contract with any developmental day center? (August 1994)
A. LEA's may only purchase developmental day services in centers operated by area mental health
authorities, private nonprofit agencies, or other public agencies. An approved list is on file in
the Exceptional Children Division.
Q. What is the process for placing a child in a community residential center when the
placement is for residential reasons? (August 1994)
A. As of August 15, 1994, all children placed in community residential centers for residential
purposes must be placed through the Area Mental Health Authority, the single portal of entry.
The Interagency Council must be involved. Parents may not place children in community
residential centers with the expectation that the state will pay for this placement. This
procedure was developed to comply with legislation enacted by the 1993 session of the General
Assembly which requires a single portal of entry for placement in community residential
1.9 Transfer Students
Q. When a child with a disability moves from one LEA to another LEA what must the
receiving LEA do about the provision of special education for the child? (February
A. A transfer does not justify interrupting special education whether the transfer is in-state or out-
of-state. The receiving LEA is expected to implement the IEP so as to ensure there is no
disruption to the delivery of special education and related services. If a child with a disability
moves to a new district, and the parents and the new district are unable to agree on an interim
placement, the new district must implement the old IEP to the extent possible until a new IEP
is developed and implemented. To the extent that implementation of the old IEP is impossible,
the new district must provide services that approximate, as closely as possible, those called for
in the old IEP. If a review of the student record reveals that there is insufficient evaluation
information to substantiate the student's placement in a special education program, the
receiving LEA must proceed with a new evaluation as quickly as possible to confirm eligibility
and the requirement for special education.
1.10 Free A ppropria te Public Ed uca tion (FA PE)
Q. Are there any circumstances under which the school day for a student with
disabilities can be shorter than that of students without disabilities? (August 1994)
A. There is only one situation when that may occur, and that is if the present level of performance
and the correlating annual goal(s) and short term instructional objectives or benchmarks
indicate that a particular student with a disability requires a modified school day. Other than
that, the school day for children with disabilities must be commensurate with that of students
without disabilities. Transportation or administrative convenience is never an acceptable
excuse for a shortened day.
2.0 PROCEDURAL SAFEGUARDS
2. 1 Prior Notice
Q. What is a "reasonable time" for prior notice? (March 1988)
A. An exceptional child's placement may be changed by the school district after it gives the parents
prior written notice "a reasonable time" before the change. OSEP states that ten calendar days
is a "reasonable time." If a parent has already given initial consent for evaluation and
placement, and subsequently it is determined that a change of placement is in a student's best
interest, the school must give proper written notice to the parents and wait ten days. If during
that time the parents do not request a hearing, even if they disagree, the change can be made.
Q. When must the LEA give parents a copy of procedural safeguards and due process
rights and what content should the Prior Notice contain? (July 1999)
A. Prior written notice must be given to the parents of a student with a disability a reasonable time
before the school system:
1. proposes to initiate or change the identification, evaluation, or educational
placement of the child or the provision of FAPE to the student; and
2. refuses to initiate or change the identification, evaluation, or educational
placement of the child or the provision of FAPE to the student.
The content of prior notice must include, in addition to all the procedural safeguards:
1. a description of the action proposed or refused by the agency, an explanation of
why the agency proposes or refuses to take the action, and a description of any
options the agency considered and the reasons why those options were rejected;
2. a description of each evaluation procedure, test, record, or report the agency uses
as a basis for the proposal or refusal;
3. a description of any other factors which are relevant to the agency's proposed
action or refusal;
4. a statement that the parents of a student with a disability have protection under
the procedural safeguards of this section, and, if this notice is not an initial
referral for evaluation, the means by which a copy of a description of the
procedural safeguards can be obtained; and
5. sources for parents to contact to obtain assistance in understanding the provisions
of prior notice.
Q. What relationship must exist between the Invitation to Conference and the IEP
committee signatures? (April 1992)
A. The Invitation to Conference is part of the documentation procedure (Prior Notice) that ensures
that parents' due process rights are observed. The regulations say that a parent is entitled to
notice which includes the purpose, time, and location of the meeting and who will be in
attendance. Correlation between names and signatures is an indication that parents were
appropriately notified as required in the federal regulations.
Q. What is the LEA's responsibility with regard to prior notice and the number of days
[which must pass between notice and the convening of the IEP committee? (April
A. There are no mandated number of days by which parents must receive prior notice when an
LEA is inviting parents to an IEP meeting. Federal regulations say parents must be given
reasonable notice of the impending meeting, and the LEA must document good faith efforts to
involve the parents. The Office of Special Education Programs suggests ten (10) days as a
Q. If an LEA is recommending a change in placement, how many days must it wait before
implementing the change? (July 1994)
A. The Office of Special Education Programs and Office of Civil Rights suggest ten days as an
appropriate time span between providing parents with prior notice of their parental rights and
the proposed change in placement, and implementing a change in placement. A parent has sixty
(60) days from the notice of change in placement to request a due process hearing. If the LEA
has already implemented the change before the petition, the child must be moved back to the
original placement where he/she will remain (stay put) until the contested action is resolved.
Q. What should an IEP team do when the parent keeps canceling scheduled IEP
meetings? (July 1999)
A. Unfortunately, this sometimes happens. The school system has the ultimate responsibility for
the development and implementation of an IEP for a student with a disability. If a parent
cancels an IEP meeting more than twice, schedule a new one and send at least two invitations to
conference -- the first as the initial notice and the second as a reminder -- and hold the meeting
as scheduled. In the invitation to conference, offer to set up a conference call, but advise the
parent that two meetings have been canceled and that the IEP must be developed. Also tell the
parent that the team hopes he/she will attend, but the team will proceed without the parent's
presence. Upon completion of the meeting, send the parent a copy of the IEP and minutes of the
2.2 Due Process
Q. When must parents receive the procedural safeguards notice (Handbook on Parents'
Rights) ? (July 1999)
A. A copy of the procedural safeguards notice must be given to parents, at a minimum:
1. upon initial referral for evaluation;
2. upon each notification of an IEP meeting;
3. upon reevaluation of the student; and
4. upon receipt of a request for a due process hearing.
Q. When a child's parents are divorced with one having custody, who should have access
to the confidential information about the child? (November 1986)
A. Both parents should have access to the confidential information about their child, even though
one has custody, unless the agency has been advised of a court order prohibiting such. Without
benefit of a court order, local education agencies may presume that either parent has authority
to inspect records.
Q. Are two signatures needed on required permissions when there is dual custody or
when the custody of the child has never been established? (November 1986)
A. The federal regulations state that parental permission must be granted prior to evaluation or
placement of a child with disabilities There is no requirement that both parents provide their
signatures. Schools are not obligated to check out, all situations to make sure that parents are
not divorced or that there is a problem with one parent signing instead of another. If a problem
does arise, however, school systems should try to work with both parties in deciding what is
needed for the child.
Q. Should the school system allow parents to sign children out of exceptional children
programs after they have at one time agreed to the placement? (April 1992)
A. The "granting of consent is voluntary on the part of the parent and may be revoked at any time."
The vehicle for revoking consent, however, is through the due process procedures
(administrative review). When a parent no longer feels a child should receive exceptional
children services, the parent may immediately request an administrative review through the
Office of Administrative Hearings. If the parent refuses due process and insists on removing the
child, the local education agency is compelled to request an administrative review if it feels the
child must have exceptional children services in order to receive an appropriate education.
During the pendency of an administrative review, unless the local education agency and the
parents of the child agree otherwise, the child involved must remain in his or her present
educational placement (in this case, the special education program). If the hearing officer's
review upholds the local education agency's placement, the local education agency may continue
to provide special education without the parent's consent, subject to the parent's rights of a
judicial appeal. If a parent revokes consent, that revocation is not retroactive, i.e. it does not
negate an action that occurred after the consent was given and before the consent was revoked.
Q: Is it required that minutes be kept of committee meetings such as IEP meetings?
A: There is no federal or state regulation that specifically requires minutes be kept for such
meetings. However, it certainly is best practice. School systems are frequently asked to provide
information about what happened at a particular meeting, especially with relation to the
various options that are considered and discussed when developing IEP's or deciding
placement. In the event that a formal complaint or litigation occurs, written minutes provide a
record of what happened at a meeting. While they need not be lengthy, they should be of
sufficient content to assist committee members in reconstructing and/or reporting events
regardless of when the meeting actually occurred.
2.3 Independent Educational Evaluation
Q. Do North Carolina procedures require that costs for independent educational
evaluations be reasonable? How is reasonable cost determined? (January 1989)
A. According to OSEP and analysis of the regulations of IDEA, a public agency should not be asked
to bear the cost of "unreasonably expensive" evaluations when such evaluations are available at
less expense and at no cost to parents. It is permissible for a state to define reasonable cost.
Reasonable cost may be determined on the basis of the rates the local education agency has paid
for other evaluations. Local education agencies are required to inform parents about where such
independent educational evaluations can be obtained, as stated in federal and state law.
Q. Must the parent obtain prior approval from the LEA in order to get reimbursed for an
independent educational evaluation? (July 1999)
A. Nothing in state or federal law requires a parent to obtain prior approval from the school for an
independent educational evaluation. However, whenever an independent evaluation is at public
expense the criteria under which the evaluation is obtained, including the location of the
evaluation and the qualifications of the examiner, must be the same as the criteria which the
local education agency uses when it initiates an evaluation. Failure to meet these criteria could
result in parents not receiving reimbursement; in addition, the LEA could prove in a due process
hearing that their evaluation is appropriate. In other words, contact with the school system
before obtaining an IEE is desirable, but not required.
Q. Must a school system replace its psychological report with a privately obtained
independent report at the request of the parent? (April 1992)
A The parent has no right to make such a request under IDEA; however, under the Family
Educational Rights and Privacy Act (FERPA), a request may be made to amend the records.
FERPA indicates that if the education agency refuses to amend the student's record, it shall
inform the parent of the refusal and advise the parent of the right to a hearing. The hearing is
not a special education due process hearing and the parent does not have the rights afforded in
a due process hearing. However, if the parents obtain an individual evaluation at the parents'
expense, the results of the evaluation:
1. must be considered by the public agency in any decision made with respect to
2. may be presented as evidence at a hearing.
Q. Do psychologists who practice in other states meet the requirements to perform
independent educational evaluations? (January 1989)
A. They meet those qualifications if they are licensed by either the North Carolina State
Department of Public Instruction or the North Carolina Psychological Licensing Act. According
to the Office of Special Education Programs, it is permissible and expected that states will have
state criteria for the implementation of IDEA as long as there are no violations of this federal
law. Since federal law does not address licensure of psychologists, North Carolina may set
regulations in this regard. "Qualified" is defined to mean that a person has met state education
agency approved licensure. A local education agency may therefore refuse to accept the
evaluation of a psychologist net licensed/certified in North Carolina on the grounds that it does
not meet "state" criteria.
Q. Does North Carolina have the right to restrict availability of independent educational
evaluations to professionals within a limited geographical location? (January 1989)
A. Federal lavy states that whenever an independent evaluation is at public expense, the criteria
under which the evaluation is obtained, including the location of the evaluation, must be the
same as the criteria which the public agency uses when it initiates an evaluation. It is
permissible for a state to set reasonable limitations regarding the location of the independent
educational evaluation as long as the limitations are the same for evaluations initiated by the
local education agency. Requiring an evaluation to be conducted within the state or region is
considered reasonable unless there is no one in the state who has the qualifications, in which
case, within the state would be considered unreasonable.
2.4 Attorney's Fees
Q. Can parents' or the local education agency's attorneys fees be paid with Part B funds?
A. Neither Part B nor state exceptional children categorical funds can be used to pay prevailing
parents' attorney fees or the attorney's fees of the local education agency.
(See Procedures Governing Programs and Services for Children with Disabilities , 1999 Edition,
Section .1512 P.)
2. 5 Surrogate Parents
Q. What situations require a child to have a surrogate parent? (March 1989)
A. Federal and state laws require a surrogate parent to be appointed for an exceptional child
whenever the parents of the child are unknown, unavailable, or the child is a ward of the state.
These laws define the term parent as follows: "a parent, a guardian, a person acting as a parent
of the child, or a surrogate parent who has been appointed by applicable regulations. The term
does not include the State if the child is a ward of the State." Any exceptional child who is not
represented by one of the above in the education decision-making process must be assigned a
surrogate parent. The regulations state that the term "guardian" refers to private individuals
who have been given the legal custody of a child. In cases where a State or State agency has
been assigned as the legal guardian of the child, a surrogate parent must be appointed. Where
institutionalized or parentless children are assigned a legal guardian who is an employee of the
State agency responsible for the care of the child, a surrogate must be appointed. The
regulations also state that the term "person acting as a parent for the child" refers to relatives of
the child or private individuals allowed to act as parents by the child's natural parents or
guardians. It does not include any persons or agencies supported in whole or part by public
funds to care for the child. If an exceptional child is not represented by such a person, a
surrogate parent must be appointed. The LEA is responsible for selecting, training and
appointing surrogates for students educated in an LEA. If the local education agency is either
the Department of Human Resources or the Department of Correction, then the Secretary of
those departments may assign the surrogate parent.
Any agency or institution educating exceptional children and receiving federal or state funding
for support of educational programs is required to adhere to surrogate parent regulations.
Examples of such funds include EHA Title VI-B, Title 1, Vocational Education and other federal
and state funds. Even if a private child care institution receives no such funds but wishes the
child to be educated by the local education agency, the local education agency must comply with
surrogate parent regulations. The same applies if a local education agency contracts with a
private agency to educate the child. Private institutions educating exceptional children and
receiving no public funds are not required to comply with the regulations.
Q. Who can qualify as a surrogate parent? (July 1999)
A. A person selected as a surrogate parent cannot be an employee of the state agency, the LEA or
any other agency that is involved in the education or care of the child. The person cannot have
an interest that conflicts with the interest of the child he or she represents. A public agency
may select as a surrogate a person who is an employee of a nonpublic agency that only provides
non-educational care for the child if that person has no conflict of interest.
Q. What would qualify as a "conflict of interest" that would prohibit a person from
serving as a surrogate parent? (1982)
A. Examples of conflict of interest include the following:
1. An employee paid by an agency or institution responsible for the education or care
of the child;
2. Local education agency school board member serving as a surrogate for a child
residing within the local education agency;
3. Spouse of principal working with local education agency serving as surrogate for
child residing within the local education agency; or
4. Owner of private school for students with disabilities serving as surrogate for
student with disabilities who wants to be served at the private school.
Q. Who qualifies as a "guardian" who can make educational decisions under IDEA? (July
A. Under IDEA and G.S. 1 15C- 116, a "guardian" is a private individual who has legal custody of
the child. If the state or local agency is the child's "guardian," then the child is a "ward of the
state" and needs a surrogate parent.
Q. Can a social worker from the local Department of Social Services be appointed as a
child's surrogate parent? (July 1985)
A. No. State Statute (G.S. 1 15C-116) and federal regulation (45 CFR 300.514 (d)) prohibit a social
worker employed by the local Department of Social Services from serving as a child's surrogate
parent if that child is in the custody of Social Services.
Q. When a child is in the custody or is the placement responsibility of the Department of
Social Services, who determines if that child needs a surrogate parent? Who assigns
the surrogate parent? (July 1999)
A. The determination of the need for a surrogate parent and a subsequent nomination should be
made jointly by the Department of Social Services and the local education agency. If a custody
order exists, the Department of Social Services should inform the local education agency
regarding what rights the custody order grants the child's parent(s). However, the ultimate
responsibility for naming a surrogate lies with the local education agency serving the child. The
local education agency has the responsibility to see that a potential surrogate is screened,
trained and has no conflicts of interest.
Q. Do directors of county departments of social services have authority to consent to
educational services for exceptional children? (March 1986)
A. No person employed by social services, either as a director or social worker, can make any
educational decisions for students with disabilities in their custody or care.
Q. Can employees of Department of Social Services serve as surrogate parents if they are
not involved with the child? (October 1987)
A. No. The nonemployee requirement prohibits any "employee of a public agency which is involved
in the education or care" of a child from serving as a surrogate parent. Because the phrase
"which is involved in the education or care of the child" modifies the term "agency" and not
"employee," the Office of Special Education interprets this exclusion to apply to all employees of
that agency and not only to those employees working directly with a particular child. This
exclusion prohibits these people from serving as surrogates under any circumstances. A
surrogate parent must be free from institutional bias regarding the education of the child and
from the possibility of administrative retaliation for the faithful execution of his/her rights and
duties as a surrogate parent.
Q. Can a foster parent assume parental responsibilities if designated by Department of
Social Services? (October 1987)
A. There is n6 rule either forbidding or requiring that foster parents act as surrogate parents;
however, most legal opinions suggest that foster parents have too many potential conflicts of
interest to serve as the child's surrogate parents for educational purposes. Foster parents may
volunteer to be trained and serve as surrogate parents for their foster children provided they
have no conflict of interest and are not agency employees involved in the education or care of the
child. It is the position of the Office of Special Education Programs and the Exceptional
Children Division that requests for foster parents to be appointed as surrogates be determined
on a case-by-case basis. It is strongly recommended that local education agencies explore all
other resources prior to this choice. The Exceptional Children Division will provide technical
assistance to local school administrative units in assessing conflict of interest and nonemployee
Q. Can teaching parents at a private residential home assume parental responsibilities?
A. No, the teaching parents at a private residential home cannot be given educational decision-
making responsibilities for the students in their care. Federal law does not contemplate a
voluntary transfer of rights from natural parents of children with disabilities to other parents.
The definition of parent or someone acting as a parent does not include persons hired by
agencies which care for children. In other words, the consent and participation of the teaching
parents cannot substitute for the consent and participation that is required by law from natural
parents. The only legally effective substitute is the appointment of surrogate parents.
Q. Will a statement from the parent allow the guardian (e.g., grandparents, aunts, uncles,
etc.) to give permission for evaluation, placement, etc? (October 1987)
A. Yes. Federal regulations define the term parent as: "a parent, a guardian, a person acting as a
parent of the child, or a surrogate parent who has been appointed." The term "guardian" refers
to a private individual who has been given legal custody of a child. The term "person acting as a
parent of a child" refers to individuals allowed to act as parents of a child by the child's natural
parents or guardian. It does not include any persons or agencies supported in whole or part by
public funds to care for the child.
Q. Can grandparents sign consent forms for children with special needs when the local
education agency has no record of the grandparents being appointed as legal
guardians? Must the grandparents be appointed as surrogate parents? (May 1989)
A. According to IDEA, parent is defined in G.S. 300.20 as: "...a parent, guardian, person acting as a
parent of a child, or a surrogate parent who has been appointed..." A parenthetical comment in
this section states: "the term 'parent' is defined to include persons acting in the place of a
parent, such as a grandmother or stepparent with whom a child lives as well as persons who are
legally responsible." A grandparent may act as a parent of a child in his care and does not have
to be appointed as a surrogate as long as the grandparent has the explicit or tacit approval of
the child's natural parent or legally appointed guardian. It is the responsibility of the local
education agency to determine that such approval has been granted.
Q. Who assigns and/or monitors the surrogate parent for a child in the following
situations: (March 1989)
A. The child is placed in a residential child caring agency outside his home local education
agency (LEA) and is enrolled in the LEA where the child caring agency is located.
B. The child is placed in a residential child caring agency outside his home LEA and is
enrolled in the private on-campus school operated by the child caring agency.
A. A. The local education agency where the child caring agency is located has the responsibility
to secure a surrogate parent.
B. The child caring agency (if it receives public funds) is responsible for securing a surrogate
Q. What is the operational definition of responsibility and/or authority relating to the
responsibilities of surrogate parents, namely "to represent the child"? How are
"education" issues versus "care" issues distinguished? (April 1992)
A. The phrase "represent the child in all matters relating to the identification, evaluation and
educational placement" means that surrogate parents may exercise all of the same rights
granted to natural parents by IDEA.
These rights include accessing educational records; participating in educational decisions;
receiving written prior notice and responding with approval or disapproval before evaluation;
receiving prior written notice and responding with approval or disapproval before placement;
participating in IEP development, disciplinary proceedings and other school/parent conferences;
initiating requests for evaluation and reevaluation; initiating and representing the child in
complaint or due process procedures, etc.
What distinguishes an "education" issue from a "care" issue is not always easy to discern;
however, as it pertains to the school setting, a surrogate parent would not have responsibility
for such "care" or "treatment" issues as these examples:
1. whether or not a child receives fluoride treatment at school;
2. whether or not a child is vaccinated;
3. permission to take a child to a doctor/hospital when becoming ill or injured at
4. permission for a child to go on a field trip.
These responsibilities would be assumed by the child's caretakers. The best way to determine
the scope of a surrogate parent's authority is to review all of the educational rights granted to
parents under IDEA and apply these same rights to surrogates.
Q. What liability do surrogate parents assume by agreeing to serve in this role and can
they be held liable for decisions made in which they are involved? (April 1986)
A. It is the opinion of the Attorney General's Office that a person serving as a surrogate parent
could only be held legally liable for his/her actions if that person was negligent or acted willfully
in a wrongful manner while acting on behalf of the child. This same protection is afforded to
social agency workers who are appointed to serve as wards for children.
Q. Does a court-appointed guardian ad litem of a child in the custody of the Department
of Social Services have the authority to give consent for evaluation/placement without
first being appointed as a surrogate parent? (April 1992)
A. No. The guardian ad litem (GAL) must be approved as a surrogate parent first. The GAL must
not be an employee of the state or have an interest that would conflict with the interest of the
2. 6 Confidentiality
Q. Please clarify the ownership and security of psychological reports. (March 1989)
A. According to an opinion issued by the Attorney General's office (February 20, 1980),
"Psychological reports prepared by the school psychologist or a psychologist contracting with the
LEA are part of the child's cumulative record." As part of the cumulative record, the
psychological report is considered confidential and is afforded the same protection as all other
information contained in the records as specified by the Privacy Rights of Parents and Students
Act, Part II (Buckley Amendment), Subpart A, 99.3. If the school system and/or the psychologist
maintain separate copies of the psychological report, those copies are subject to the same
standards of confidentiality as the cumulative record. In addition, the psychologist must adhere
to the standards of confidentiality of student information contained in the NASP and APA
Codes of Ethics and Standards of Professional Practice (NASP, 1984; APA 1981).
Q. Does listing disabilities on transcripts or cumulative folders violate the right of
privacy of information in regards to exceptional children? (July 1985)
A. No. The cumulative folder and transcript are confidential documents and should be treated the
same as information in special education records. There are no degrees of confidentiality. The
Family Educational Rights and Privacy Act makes clear its purpose in asserting and protecting
the confidentiality of the education records and personally identifiable information of all
students attending educational agencies. Under this act, all education records such as
cumulative folders and transcripts are to be kept equally confidential. Every effort must be
made to prevent the disclosure of such information to inappropriate persons.
Since a transcript is one of the most likely student documents to be disclosed, it would probably
be the most difficult to assure confidentiality. The local education agency would have to treat
the transcript in the way it does placement records.
Q. Can evaluations done by third party individuals or agencies that are used for
placement purposes be considered a part of the student's folder and transferred to a
receiving local educational agency without parental permission? (January 1992)
A. Yes. When a parent consents to an outside agency (such as the Developmental Evaluation
Center or Mental Health) releasing evaluation information to a child's school for educational
purposes, that information becomes a part of the child's education record. Since the information
has become a part of the child's record and was used in determining the child's educational
needs, it should be sent to the requesting school. Any records dealing primarily with medical
treatment or correction as opposed to education should not be transferred by either party. Only
medical records used for placement are transferable. Section 99.31 (a) (2) of FERPA allows one
school system to disclose educational records to another system in which the student intends to
1. the sending system makes a reasonable attempt to notify the parent or eligible
student at the last known address of either of the above; or
2. the FERPA policy of the sending system contains a notice that the LEA forwards
records to other systems or institutions that have requested them and in which the
student intends to enroll.
Third party evaluations may not be released to another outside agency without the express
consent of the parents.
Q. When a child with a disability is being withdrawn from school and given home
instruction, is a local education agency required to give original copies from a
student's regular and special education records to a parent upon request? (June
A. No. The General Statute 1 15C-402 of Public School Laws mandates that the official record of
each student enrolled in North Carolina's public schools be permanently maintained in the files
of the school or central office from which the student graduates or should have graduated. Thus,
the parent is not entitled to the permanent record. He/she may have copies of any or all
information in the record. The special education records should be a part of the permanent
record and follow the same rules. The school records must be maintained as long as the child is
in need of special education. The fact that the child is being removed from the school by his
parent for home instruction does not eliminate the child's need for special education. The
records therefore must be maintained. The parent's request that the special education records
be destroyed must be honored when the child is no longer in need of special education.
Q. Do personnel in a detention home have the right to access the records of exceptional
children without parental consent? (January 1988)
A. Personnel in detention homes do not have access to such records unless they are operating an
educational program approved by the state or under the auspices of a state agency. The parents
of exceptional children in detention homes may give written release to personnel in the homes to
access their children's educational records. This is the only way they have access. The
personnel in the homes may not assume parental rights regarding educational decision-making
simply because the children reside with them. If the children in the homes are wards of the
state and their parents are unavailable, surrogate parents will need to be appointed. Further,
personnel in the detention homes may not serve as surrogates if they are paid through a state or
local governmental, educational or human resources agency.
Q. Must parents be shown test protocols? (August 1994)
A. Test protocols are not covered by the "sole possession" exclusion of the Family Educational
Rights and Privacy Act (FERPA) regulations. OSEP has ruled that they are considered to be
education records and must be made available for parental review. The exclusion clause of the
FERPA definition of education records provides that "records of instructional, supervisory, and
administrative personnel. ..which are in the sole possession of the maker and not accessible or
revealed to any other individual except a substitute" are not subject to parental review.
Test protocols are subject to parental review - OSEP was asked whether the "sole possession"
provision in the FERPA regulation could be interpreted as excluding test protocols from parent
review. Apparently referring to prior FERPA office rulings on the nature of test protocols,
OSEP responded in the negative. The FERPA office reasoned that even though the protocol
itself may remain in the sole possession of the maker of the record, the information contained in
the protocol is most likely discussed with school personnel when determining education
programming and placement of students. Thus, once the information contained in the protocol
is revealed to other persons, it loses its protected status and becomes an education record
subject to inspection by the parent.
Right to receive copies of protocols - Although the test protocols must be made accessible to the
parents, that does not mean that the public agency must provide copies of the protocols to
parents, OSEP continued. Reg. 300.562(A) provides that the "Agency shall comply with a
request without unnecessary delay..., and in no case more than 45 days after the request has
been made." The right to receive copies of records is limited by Reg. 300.562(B)(2), which OSEP
stated, applies mainly to when the parents are unable to come to the school during that 45-day
period to review and inspect their child's records. Under those circumstances, OSEP indicated,
parents would have the right to request copies of records containing information about their
child since failure to provide copies would, in effect, prevent the parent from exercising their
Copyright Infringement - Publishers and users of test protocols often object to the release of
copies of the test questions and answers to the public because of the fear that such disclosure
would make the norms meaningless in future testing. For example, the WISC-III and Peabody
Picture Vocabulary Test-Revised contain language which does not allow the reproduction and
release of such tests. In a letter sent to the FERPA office, it was asked whether such language
could be used as a basis for refusing to release copies of the test protocols to parents. Both
OSEP and the FERPA office stated that they could not comment on the effect of such language,
or the application of the "Fair Use" doctrine, since that involved the interpretation of copyright
law. The doctrine of fair use permits a person to make a limited number of copies of the
copyrighted material for purposes such as criticism, comment, news reporting, teaching,
scholarship, or research if certain standards are met. While it appears the copyright law and
FERPA may be in conflict with each other, the potential conflict has not been litigated. Until
such time as it is, LEA's are advised not to provide copies of protocols.
Q. What if parents of a student who is currently receiving special education services,
request that the special education records not be transferred to another school in
which the child intends to enroll? (April 1992)
A. Parent permission to release records to an agency in which a child intends to enroll is not
required if the LEA has a statement in its confidentiality policy which says that the LEA will
share educational records with another school in which a child enrolls. If the LEA does not have
such a statement in its policy, it can notify the parents at the last known address of its intent to
release the records and proceed with the release. A record must be kept of date of release, to
whom, and reason. In addition, if the parent requests, the LEA can provide them with a copy of
the records. Educational records include all records-special education as well as regular
education. Parents do not have a selective veto on which records are released when a child
transfers to another LEA.
2. 7 Destruction of Records
Q. What exceptional children placement records must a local education agency maintain
and for how long when a student transfers, drops out, moves away or otherwise leaves
the school system? (March 1988)
A. No federal or state regulations require that a local education agency maintain a set of records
for exceptional program purposes on exceptional students who transfer to another school. Local
education agencies should transfer records of exceptional children to officials of another school
or local education agency in which the child enrolls or intends to enroll. However, adequate
documentation must be maintained to verify headcount be kept in the LEA from which the
Neither federal nor state laws regulate the number of years that the records must be
maintained for students who complete their educational programs or drop out. The Exceptional
Children Division recommends that five years from the time the child leaves school would be an
adequate length of time to maintain records if the agency does not wish to maintain the record
permanently. The parent or child, if of age, should be notified prior to the destruction of the
records so that he/she can obtain a copy for his/her files if so desired, unless a destruction of
records policy is in place describing the method of notification.
Regardless of the reason for leaving school, directory information (a permanent record of a
student's name, address, phone number, grades, attendance records, classes attended, grade
level completed and year completed) should be maintained by the LEA without time limitation.
Q. Can either parent, in case of a divorce, request to have a child's records concerning
evaluation for placement in special education destroyed? (October 1986)
A. Federal regulations state that information must be destroyed at the request of the parent if the
child is no longer in need of special education. An agency may presume that either parent has
such authority, unless the agency has been advised of a court order prohibiting such.
Q. What are the procedures for destroying records of students with disabilities who are
no longer in school? (July 1999)
A. The local education agency shall inform the parent when personally identifiable information
collected or maintained is no longer needed to provide educational services to the child. The
personally identifiable information on a child with disabilities may be retained permanently
unless the parent requests that it be destroyed. The educational agency should remind them
that the records may be needed by the child or the parent for social security benefits or other
purposes. The information shall be destroyed at the request of the parent. However, a
permanent record of a student's name, address, phone number, grades, attendance record,
classes attended, grade level completed, and year completed should be maintained without time
limitation. LEAs should have a destruction of records policy.
Q. What should the response of the school be when a parent requests that a student's
special education record be destroyed? (August 1994)
A. If the records are no longer required to provide special education and related services, the
records must be destroyed. (Regulation 300.573)
3. 1 SUSPENSIOXS
QUESTION #1 ^
Q. What are the procedures that a school must follow when a student with a disability is
subjected to a disciplinary removal for ten cumulative school days or less in a given
school year? (July 1999)
A. When a suspension is for ten cumulative school days or less in a given school year, the school
may follow its normal disciplinary procedures. The student is entitled to the same board of
education due process safeguards that have been established for a student who does not have a
disability when he/she is suspended from school. While there are no specific actions that must
occur during this suspension period, if school personnel anticipate a likely potential for further
disciplinary action on behalf of the child being suspended, this period of removal can be used for
further planning. During this period, the IEP committee can be reconvened to determine if the
student's IEP has been properly developed and implemented or if the program placement is
appropriate to meet the student's needs. If the IEP committee identifies deficiencies in the IEP
development or implementation and/or the student's placement, they should consider taking
steps to remedy those deficiencies. The IEP committee may also want to complete a functional
behavioral assessment if one has not been done previously. If a long term suspension is being
considered, this period of removal allows the school an opportunity to provide notice and
convene an IEP team, of which the parent is a member, and other appropriate personnel to
determine if there is a relationship between the behavior that subjects the child to the
disciplinary removal and his/her disability.
Q. What happens when a student with a disability is being considered for a disciplinary
removal of more than ten cumulative school days during a given school year? (July
A. When a student with a disability is subject to a disciplinary removal for more than ten
cumulative school days in a given school year, the local education agency must provide services
during days of removal that exceed ten in the given school year to the extent necessary to enable
the child to progress in the general curriculum and appropriately advance toward achieving the
goals set out in the child's IEP. School personnel, in consultation with the child's special
education teacher, determine the extent to which services are necessary to meet this standard
unless the removal constitutes a change in placement. If the school had not previously
conducted a functional behavioral assessment and implemented a behavioral intervention plan
before the behavior that subjects the child to consideration of disciplinary removal, the LEA
shall convene an IEP meeting to develop an assessment plan. This meeting must take place
within ten business days of the first disciplinary removal for more than ten cumulative school
days in the given school year if the child does not have a behavioral intervention plan. As soon
as practical after conducting the functional behavioral assessment, the IEP team shall develop
appropriate behavioral interventions to be implemented that address the behavior that subjects
the child to the disciplinary removals. If the child already has a behavioral intervention plan,
the IEP team shall review the plan and its implementation and determine if modifications are
necessary to address the behavior subject to disciplinary removal. If one or more of the team
members believes that such modifications are necessary, the IEP team should meet and make
such changes in the behavioral intervention plan.
Q. What happens when a student with a disability is being considered for a disciplinary
removal for more than ten consecutive school days or for a series of removals that
constitute a change in placement? (July 1999)
A. A change in placement for disciplinary removals occurs if the removal is for more than ten
consecutive school days; or the child is subjected to a series of removals that constitute a
pattern because they cumulate to more than ten school days in a school year, and because of
factors such as the length of each removal, the total amount of time the child is removed, and
the proximity of the removals to one another. If a disciplinary removal constitutes a change in
placement certain additional procedural safeguards and due process requirements must be
followed. The first step to follow if the disciplinary removal constitutes a change in placement is
to immediately notify the parent(s) of the decision to change the placement as well as all
procedural safeguards to which they are entitled. An IEP team and other qualified personnel
must convene within ten (10) school days to determine if the behavior is a manifestation of the
child's disability. If the LEA did not conduct a functional behavioral assessment previously and
the student did not have a behavioral intervention plan, the team must develop an assessment
plan to address the behavior. If the child has a behavioral intervention plan, the team must
review the plan and modify it as necessary to address the behavior. If the IEP team determines
that there are deficiencies in the IEP or placement or their implementation, it should take steps
at this time to remedy these deficiencies. If, following specified considerations, the team
determines that the behavior is not a manifestation of the child's disability, school personnel
may follow its normal disciplinary procedures subject to the parents' rights to seek a due process
hearing, although the student must be provided a free and appropriate education during the
period of disciplinary removal. The IEP team determines the extent to which services are
necessary to enable the child to appropriately progress in the general curriculum and
appropriately advance toward achieving the goals set out in the child's IEP during this period of
disciplinary removal. If the team determines that the behavior is a manifestation of the child's
disability, the child may not be removed. The team may propose a change in placement, if
appropriate, for the student. The parent may request an expedited hearing if the parent
disagrees with a determination that the behavior was not a manifestation of the child's
disability or with the placement of the child resulting from such determination.
Q. What happens when a student with a disability carries a weapon to school or a school
function or knowingly possesses or uses illegal drugs or solicits the sale of a
controlled substance while at school or a school function? (July 1999)
A. When a child with a disability carries a weapon or knowingly possesses or uses illegal drugs or
solicits the sale of a controlled substance, the student may be placed in an interim alternative
educational setting for forty-five (45) calendar days. The parent(s) must be notified immediately
of the decision and all available procedural safeguards to which they are entitled. The
alternative educational setting must be determined by an IEP team which includes the parent.
The setting must be selected so as to enable the child to continue to progress in the general
curriculum, although in another setting, and to continue to receive those services and
modifications that will enable the child to meet the goals set out in the IEP. The setting must
also include services and modifications that are designed to prevent the behavior that subjects
the child to disciplinary removal from recurring. The multidisciplinary team must convene
within ten (10) school days to determine if the behavior is a manifestation of the child's
disability. If the LEA did not conduct a functional behavioral assessment and the student does
not have a behavioral intervention plan, the team must develop an assessment plan and as soon
as practical after conducting such an assessment, develop appropriate behavioral interventions
to be implemented that address the behavior that subjects the child to the disciplinary removal.
If the team determines the behavior is not a manifestation of the child's disability, school
personnel may proceed with normal disciplinary procedures, although the student must be
provided a free and appropriate education during the time of removal. If the team determines
the behavior is a manifestation of the child's disability, the child is not subject to the normal
disciplinary removal. The team may propose to change the child's placement if they believe that
a return to the placement before the removal is inappropriate, through the IEP and placement
Q. When a disciplinary removal exceeds ten consecutive school days or creates a pattern
of exclusion that constitutes a change in placement, what factors should the IEP team
consider when it conducts a manifestation determination? (July 1999)
A. The IEP committee which includes parents and other qualified personnel conducts a review to
determine if there is a relationship, i.e., manifestation, nexus between the behavior and the
disability. A number of factors should be considered in reaching such a decision:
1. The appropriateness of the student's IEP and placement;
2. The extent to which the student's IEP has been implemented and included the
provision of special education and related services, strategies and interventions,
positive behavioral supports and behavioral management techniques;
3. The extent to which the student's disability prevented the student from understanding
the impact and consequences of the behavior;
4. The extent to which the student exhibited similar behavior in the past;
5. Evaluation and diagnostic results, including any results supplied by the parents of the
6. Observation by a person knowledgeable about the student and the student's disability,
including to the extent possible, an observation in the environment in which the
7. The context in which the behavior at issue arose, including antecedent behaviors and
8. The extent to which the student's disability impaired the student's ability to control
the behavior at issue;
9. Whether the student was told of the school policy regarding the behavior in question.
Q. What steps are available to parents if they disagree with the manifestation
determination? (July 1999)
A. Parents may request an expedited due process hearing from the Office of Administrative
Hearings. In reviewing the IEP team's decision, the hearing officer must decide whether the
school demonstrated that the behavior was not a manifestation of the disability. See question
5 for those factors which the hearing officer must consider in reaching a decision.
Q. What is a functional behavioral assessment? (July 1999)
A. A functional behavioral assessment is a method of identifying and evaluating factors that
reliably predict and maintain problem behavior. Such an assessment may include conducting
interviews with parents, teachers, and/or others most closely associated with the student; a
precise, descriptive observation(s) of the student; and/or a functional analysis. A functional
analysis involves systematically changing specific factors, such as a schedule of reinforcement,
individual consequences or reinforcements, and the sequence or time of day instructional
activities are presented, to see if they affect the problem behavior. When conducting an
assessment, consideration should be given to factors such as the purpose of the behavior,
consequences of the behavior, events/occurrences (antecedents) prior to the behavior, and the
setting and events in which the behavior occurred. Since the focus of interventions includes
manipulating environmental events and building new, appropriate skills, a functional
behavioral assessment should assist with understanding what maintains the problem behavior,
predicting when problem behavior may occur, identifying ways to prevent the problem
behavior, and designing ways to respond to the problem behavior when it does occur.
Q. What is the stay-put provision and at what point does it become a factor in a
disciplinary action? (July 1999)
A. Stay-put is implemented when parents file a due process petition because they are in
disagreement with the school system over a proposed change in the identification, evaluation,
or placement of the student, or the provision of a free and appropriate education. Due process
petitions filed relative to discipline cases are generally over disagreements about proposed
change in placement or the manifestation determination. Once the petition is filed, the
student's placement cannot be changed during the pendency of the requisite administrative
and subsequent judicial proceedings, unless the school officials and the parents can mutually
agree to such a change in placement. Therefore, the placement of the child at the time of the
contested action is often referred to as the "stay-put placement". Under the IDEA '97
regulations, if the behavior involves a weapon or a controlled substance violation or if a hearing
officer has made a determination of the child's dangerousness, the unilateral assignment of the
child to an interim alternative educational setting in these specific cases is the exception to the
generally applicable pendency requirement of the stay put provision. Therefore, if
disagreements arise over the proposed changes in placement or the manifestation
determination in such situations and a due process petition is filed on behalf of a child
involved, the stay put placement of the child becomes the interim alternative educational
setting. However, if no resolution can be reached within the required forty-five (45) calendar
day timeline for the assignment to the interim alternative educational setting, the child returns
to the placement that he/she was in at the time of the behavioral incident, unless the school
personnel maintain that it is dangerous for the child to return to the previous placement. In
such case, the school would be required to file for an expedited hearing and meet the standards
for dangerousness delineated in question 9.
Q. What actions are available to the principal if he/she believes a student is
dangerous to himself or others and must be removed from the school for more than
ten consecutive school days, but an IEP team has determined there is a
relationship between the behavior and the disability and a change of placement
cannot be agreed upon? (July 1999)
A. Upon the request of the principal, a hearing officer or a judge may order a unilateral
assignment of a child to an alternative educational setting for forty-five (45) calendar days if
the hearing officer:
1. Determines that the school system has demonstrated by substantial evidence
that maintaining the current placement of the student is substantially likely
to result in injury to the student or others;
2. Considers the appropriateness of the student's current placement;
3. Considers whether the school has made reasonable efforts to minimize the risk
of harm in the student's current placement, including the use of supplemental
aids and services;
4. Determines that the interim alternative educational setting is one that:
(a) allows the student to participate in the general curriculum, although in
another setting, and to continue to receive those services in the student's
current IEP, and will enable the student to meet the goals set out in that IEP;
(b) includes services and modifications designed to address the behavior which
caused the disciplinary action to occur.
Q. Under what circumstance may a principal notify the local law enforcement
authorities if the student in question is a child with a disability? (July 1999)
A. Nothing in state or federal regulations prohibits a school official from notifying law
enforcement authorities if the student with a disability commits a crime. Whatever action
the school official takes must be the same action that he/she would take if the
student did not have a disability. An agency reporting a crime committed by a student
with a disability must provide copies of the special education and disciplinary records of the
student to the law enforcement authorities following the guidelines set forth by the Family
Educational Rights and Privacy Act.
Q. What is a free and appropriate public education (FAPE) for a student with a
disability who has been long-term suspended/expelled? (July 1999)
A. A FAPE for a student who has been long-term suspended or expelled provides services to the
extent necessary to enable the child to appropriately progress in the general curriculum and
appropriately advance toward achieving the goals set out in the child's IEP. The student's IEP
team determines the extent to which services are necessary. The final regulations use the
terms "progress in the general curriculum" which clarifies that the schools do not have to
replicate every aspect of the services that the child would receive if in his/her normal
classroom placement. As used in this context, the general curriculum as defined by the
Exceptional Children Division is the North Carolina Standard Course of Study.
Q. What is prior written notice? (July 1999)
A. Prior written notice is written notice to the parents of a student with a disability anytime the
school proposes to initiate or change or refuses to initiate or change the identification,
evaluation, or educational placement of the student, or the provision of a free and appropriate
public education. The notice must include a description of the action proposed or refused by
the agency and an explanation of why the agency proposes or refuses to take the action. The
date of the written notice is the date that triggers the statute of limitations in filing a due
process petition. According to Chapter 150B of the Administrative Procedures Act, parents
have sixty (60) calendar days from the receipt of the prior written notice to file a due process
petition. Generally ten calendar days is considered an adequate time frame between the
decision to take the proposed action and the action itself.
Q. What should a school system do if a student who is to receive special education in
an alternative educational setting such as homebound or alternative school doesn't
come to school or is not at home when the teacher arrives? (July 1999)
A. The Division recommends that the LEA address the problem in the same manner that it
addresses any attendance problem. Once the number of absences for which reasons cannot be
determined reaches 10 school days, the student may be treated as a drop out. For a student
who is covered by compulsory attendance laws, the same legal requirements must be followed
as with any student who is in violation of compulsory attendance law.
Q. Are there any procedural safeguards in place for a student who is not eligible for
special education and related services? (July 1999)
A. The student who has not been identified as a student with a disability may invoke the
procedural safeguards that are available to an identified student with a disability if the school
had knowledge that the child was a child with a disability before the behavior that resulted in
the disciplinary action occurred. A school shall be assumed to have knowledge that the
student was suspected of having a disability if:
1. The parent had expressed a concern in writing to the appropriate school
official that the student is in need of special education and related services;
2. The behavior or the performance of the student demonstrates a need for
3. The parent of the child has requested an evaluation; or
4. The teacher of the student and/or other personnel of the school system have
expressed concern about the behavior or performance of the child to the
director of special education or other agency personnel consistent with
established child find procedures.
The local education agency would not be deemed to have knowledge that the child was
suspected of having a disability if the school conducted an evaluation and determined that
the child was not a child with a disability and did not require special education or upon
request made a determination that an evaluation was not necessary and provided proper
notice to the parents. If there is a request for an evaluation during the period of suspension,
it must be carried out in an expedited manner. During the evaluation, the student will
remain in an educational setting determined by the school officials. If the student is found to
be a student with a disability as a result of the evaluation and requires special education,
those services shall be provided in a setting deemed appropriate by the IEP committee.
Q. Can the homebound setting be used as an interim alternative setting in a discipline
case? (July 1999)
A. Homebound is the most restrictive setting on the continuum of services. The IDEA '97
regulations do not address this question specifically. Therefore there appears to be nothing in
the regulations that specifically prohibits the use of homebound as an interim alternative
educational setting. It is important to note, however that if such setting is considered it must
enable the child to continue to progress in the general curriculum and continue to receive
those services and modifications, including those described in the child's current IEP that
will enable the child to meet the goals set out in the IEP. The setting must also include
services and modifications designed to prevent the behavior that caused the disciplinary
removal from recurring.
Q. If a child with a disability is assigned to an in-school suspension program, do the
days of such assignment count as suspension days ? (July 1999)
A. An in-school suspension would not be considered a suspension day as long as the child is
afforded the opportunity to continue to appropriately progress in the general curriculum,
continue to receive the services specified in his/her IEP and continue to participate with
nondisabled children to the extent they would have in their current placement.
Q. Would suspension from the school bus be considered a suspension day? (July 1999)
A. It would depend upon whether the bus transportation is considered a related service and
included in the child's IEP. Therefore, if it is included, such transportation is determined
necessary to obtain access to the services in order for the child to receive a FAPE. In such
cases, the suspension from the bus is treated as a suspension day. If the bus transportation is
not part of the child's IEP, a bus suspension is not treated as a suspension day and the
parents of the child have the obligation to provide transportation. However, schools should
attend to whether the behavior on the bus needs to be addressed in a behavioral intervention
plan for the child.
Q. Who determines if a change of placement has occurred when the number of days of
suspension exceeds ten cumulative school days? (July 1999)
A. Neither the law nor the regulations speak directly to who makes the decision that a change
of placement has occurred when the days of cumulative suspension exceed ten school days.
However, when the interruption to the delivery of special education and access to the general
curriculum reaches the level that a student's program is being compromised, a review of the
suspension record must be completed. Since the IEP determines placement, the logical group
to consider the question is the IEP team. A parent, administrator, teacher, or advocate
should request an IEP team meeting to decide if a pattern of exclusion has been established
that would constitute a change in placement.
3. 2 Physical Restraint
Q. What should school personnel be aware of as they consider the use of physical
restraint with aggressive youngsters? (July 1999)
A. According to public school law (G.S. 115C-390), school personnel may use "reasonable force"
to maintain discipline. The exact phrasing is, "Principals, teachers, substitute teachers,
voluntary teachers, teacher aides and assistants and student teachers in the public schools of
this state may use reasonable force in the exercise of lawful authority to restrain or correct
pupils and maintain order." Under G.S. 115C-391 regarding corporal punishment,
suspension or expulsion of pupils, the following situations are described: "...Notwithstanding
any policy adopted pursuant to this section, school personnel may use reasonable force,
including corporal punishment, to control behavior or to remove a person from the scene in
those situations when necessary:
1. To quell a disturbance threatening injury to others;
2. To obtain possession of weapons or other dangerous objects on the person, or within
control, of a student;
3. For self-defense; or
4. For the protection of persons or property."
Physical restraint of students is a severe measure and its use is recommended only to prevent
a student from harming himself or others, or in accordance with the situations defined in law
as stated above. The duration of the restraint should occur only as long as is necessary for the
student to regain control over his/her behavior. Even in unanticipated situations, the restraint
should be used only by staff members trained in the proper, safe, and effective use of physical
restraint. It is recommended that the extent of each staff member's training be documented in
some manner. The expected use of physical restraint should be included in the student's IEP,
and the procedures and rationale for use should be clearly reviewed with the student and
parents/ guardian prior to implementation.
Whenever physical restraint is employed, the following documentation should be made:
1. What were the antecedent circumstances leading up to the incident?
2. What behavior warranted physical restraint?
3. When (time of day) did the restraint occur and how long (duration) did it last?
4. Who employed the restraint and what was the behavior of the student during the
5. What was the behavior of the student after the restraint?
6. After the restraint was completed, what was the resolution of the entire event?
A key word in these situations is the term reasonable. The following guidelines may be used to
interpret this term:
1. Was the rule being enforced (e.g., antecedents), a reasonable one? Was it being
enforced reasonably by the adult?
2. Was the form and extent of the teacher's response reasonable in terms of the type of
3. Was the form and extent of the teacher's response reasonable in terms of the
student's mental and physical condition?
4. Did the teacher exercise reasonable force without malice or personal ill will toward
Q. What is an appropriate seclusion or isolation time-out area? (July 1999)
A. The time-out space should be designed to ensure the safety, health, and well-being of the
student. The following are recommended.
1. The time-out space should be located in proximity to the teaching space where the
student is normally located so that direct observation by an adult is possible.
2. Doors to enclosed time-out space should swing outward into the major adjoining
3. Hardware that can trap a student should not be used.
4. Hardware that can be operated by a supervising adult to secure a door to a time-out
space should fall free by gravity upon release by the supervising adult.
5. Pressure on a door should not cause the hardware to bind, making the door
6. Time-out spaces should meet all state and local health and life safety codes.
7. Visual and auditory monitoring are required. Glass in any windows should be
impact resistant and shatterproof and should comply with ANSIZ97.1.
8. An enclose time-out space should be a minimum of 6' by 6'.
9. Floors, wall coverings and contents of the room should have Class A interior finishes
and should not produce toxic fumes if burned.
10. Walls should be completely free of objects. A lighting fixture equipped with a
minimum of a 75 watt bulb and screened to prevent tampering should be mounted
in the ceiling.
11. Room temperatures and ventilation should be comparable to and compatible with
the rest of the facility.
12. Heavily cushioned carpeting should be used on floors.
(Exceptional Children Facilities Planner, June 1998)
3.3 Use ofAversives
Q. Has the Exceptional Children Division taken any position regarding the use of
aversives as behavioral tools for children with disabilities? (August 1994)
A. The Exceptional Children Division has not taken any official position with regard to the use of
aversives. However, it is the opinion of the staff that there are very few, if any, occasions
when aversives are appropriate. On those rare occasions when they might be considered
appropriate, every effort must be made to assure that the parents/legal guardian are informed
and understand the proposed aversive strategies and their potential side effects before giving
consent. The IEP committee should review and document all less intrusive interventions
proven unsuccessful in modifying the behavior targeted by the aversive behavioral
intervention. The details for the implementation of the aversive behavioral intervention
should be written and contained in the child's IEP with clearly established timelines and
criteria for evaluating the effectiveness of the proposed strategy.
4.0 FINANCIAL RESPONSIBILITY
4. 1 Use of Funds (teacher licensure, teacher assignments)
Q. May state aid exceptional children funds be used to provide educational services for
students with disabilities in a hospital or home program? (September 1987)
A. Yes. There are three ways to fund the services:
(1) A school system may use a teacher position during the school day.
(2) A school system may employ one of its teachers to provide home services after the
instructional school day; this constitutes an extension of the employee's regular
workday. The hourly rate of pay for the extended services must be based on the
employee's present salary.
(3) A school system may contract with a teacher who is not one of its current employees.
The contract amount, (rate) between the school system and the contractor (non-
school employee) is an agreement between the two parties. These rates are
Q. May teacher assistants paid from exceptional children funds be assigned
responsibilities other than special education? (December 1988)
A. Teacher assistants who are paid fully from exceptional children funds may be assigned only to
provide supportive services within exceptional children programs.
Q. Can state exceptional children funds be used for extra pay for teachers for
incentives or bonuses? (July 1999)
A. No. State exceptional children funds may not. be used for this purpose.
Q. May an exceptional children resource teacher also work with children without
disabilities in the regular classroom? (July 1999)
A. An exceptional children resource teacher or any other exceptional children's teacher cannot
serve students without disabilities in a regular or special education classroom unless it is a
bonafide team teaching situation. However, IDEA '97 clarified incidental benefits by saying
that special education funds may be used to provide services and aids in a regular classroom or
other education-related setting to a student with a disability even if one or more nondisabled
children benefit from these services. Funds may also be used to develop and implement a fully
integrated and coordinated services system.
4.2 Residential Schools/ Private Schools
Q. Who hag. responsibility for the provision of services to students who are placed in
private, public, state-operated, or state-supported programs when the agency or
program where the child is placed determines that the child needs to be
mainstreamed fully or partially into the local school system? (March 1987)
A. The answer to this question depends on the type of program and whose decision it was to place
When a local board of education makes the decision to place a child in another public or
private school or facility, that school administrative unit (sending school/unit of legal
residence) has the ultimate responsibility for the special education of the child. This unit of
legal residence must enter into a contractual agreement with the public or private school or
facility that will serve the child. The contract must specify the special education services to be
provided and the duration of those services during the school year. All such contracts must be
negotiated prior to or at the beginning of each school year.
It is the opinion of the Exceptional Children Division that once the specific services outlined in
the contract are in need of revision because of the child's changing needs, the unit of legal
residence should be notified by the serving agency that a revision is needed. The unit of legal
residence meets with the serving agency and decides what revisions are necessary. If the
decision is to place the child in the school system where the residential placement is located,
then the unit of legal residence should contract with that LEA for the services. On the other
hand, the unit of legal residence may also determine that the student is ready to return to its
unit for services. The main point is that the responsibility for the provision of special
education services and the decision as to what these services are lies with the school
administrative unit of the child's legal residence.
When a child is placed by the unit of legal residence in another school administrative unit, the
serving unit counts the child in average daily membership and the unit of legal residence
counts the child in the December and April headcounts.
State operated/supported programs receiving Title VI-B and other state funds are responsible
for the special education services provided to the children in their programs. When one of
these programs feels that a child could benefit from special education services in a local
education agency, the state-operated program should contact the school unit and discuss a
contractual arrangement for payment of the services the school unit is to provide. Other
arrangements, such as providing the school with an aide, could also be considered.
The Department of Health and Human Services is fiscally responsible for special education
and related services for children whose special needs are provided by facilities operated by the
Department. Duly placed means that students have been placed with the mutual agreement
of the local education agency, the Department of Health and Human Services school and the
parent/guardian or surrogate parent.
When children residing in facilities operated by the Department of Health and Human
Services are mainstreamed into a local education agency, then a local agreement should be
developed between the facility and the local education agency to establish fiscal responsibility.
Q. If a medical problem that is classified as Other Health Impaired requires treatment
and the parent unilaterally places the child outside the county, does the LEA have
any responsibility in funding such a placement? (April 1987)
A. When a student is placed in a facility for primarily medical reasons rather than educational
reasons, the local education agency is not required to pay for the residential placement.
Q. What obligation does an LEA have to provide special education and related services
to a student who has been enrolled in a program for preschool children with
disabilities, is presently eligible to enroll in public school kindergarten, but the
parent decides not to enroll the child and requests special education be provided?
A. The student, is not entitled to any special education if the student is kept at home or is placed
in a day care program that is not an educational program. If the LEA chooses of its own
volition to provide special education, the student may be counted as a visiting student on the
December and April 1 Headcounts for school-aged students. There are no provisions in federal
law to count school-aged students on the pre-school headcount even if the child has never been
enrolled in a K - 12 educational program. Compulsory attendance in North Carolina does not
commence until the student's 7th birthday.
4. 3 Third-Party Pa yments
Q. Can a LEA access parents' insurance to provide special education and/or related
services for a child with disabilities? (July 1999)
A. An LEA may access private insurance sources if the parents give permission after being
1. such access may limit the life-time benefits of the insurance policy; and
2. there is a clear understanding between the LEA and the parents over responsibility
for payment of any deductible expenses.
The LEA must pay for any required deductible, as well as the reduction in life-time benefits
that occurs because the LEA used the parents' insurance.
Q. Must an LEA provide special education evaluations for children enrolled by their
parents in private schools? (August 1994)
A. Yes. Child Find regulation, 34 CFR 300.125, requires that children with disabilities must be
identified, located, and evaluated, regardless of where they are enrolled in school or day care
settings. If the parent merely requests an evaluation for information purposes only and has no
intention of seeking special education, the LEA is not obligated to evaluate the child. This
requirement applies only to children suspected of having a disability; it does not apply to
parental requests for evaluations for gifted education.
4. 4 Headcount/ Pupil Accounting
Q. Can students who are reevaluated and determined ineligible for services remain in
the program for the remainder of the grading period? (May 1989)
A. Students who are reevaluated prior to headcount day and no longer qualify but remain in
exceptional children programs until the end of a grading period may not be counted on the
headcount. This does not apply to seniors who may be included on the headcount.
Q. What is the proper accounting of hospitalized/homebound students with disabilities?
A. In accordance with State Board of Education policy, as set forth in Procedures Governing
Programs and Services for Children with Disabilities , any student with a disability who
qualifies for homebound or hospitalized instruction should be placed by the IEP team and
should be coded 1H.
Q. When an exceptional child transfers to another LEA, must the sending local
education agency retain the original and complete record of an exceptional child for
audit purposes and send a copy to the receiving school? (February 1988)
A. While no federal or state regulations require that a local education agency maintain a set of
records for exceptional program purposes on exceptional students who transfer to another
school, adequate documentation to verify the headcount must be kept in the LEA. Adequate
documentation would consist of that information which FERPA says may be kept as
information when records are destroyed.
4. 5 Responsibilities and Liability
Q. Is the LEA obligated to pay for tutoring recommended by an independent evaluation
even though the student is not eligible for special services? (August 1988)
A. No. If the appropriate committees have reviewed the required information on the student and
determined that he/she is ineligible for an exceptional children's program, then neither the
parents nor the student has any rights under special education law (IDEA). The school system
cannot be asked to pay for tutoring.
Q. May a school withhold a student's record because the student is not in good
standing? (January 1988)
A. A school cannot legally withhold a student's record from another school because of uncollected
fees or because the student is not in good standing. This method of retribution places the
hardship on the receiving school, not the student. Under the Buckley Amendment, the
parent/guardian or eligible student has a right to review cumulative folder information.
Special education folders are included and cannot be withheld. A school can deny
participation in graduation exercises or a certified copy of a transcript.
Q. Who has the legal obligation to provide special foods that may be needed by children
with severe disabilities? (July 1999)
A. Federal regulations governing the administration of child nutrition programs, 7 CFR Part
210.10 (g)(1), states the following:
(1) Medical or dietary needs. Schools shall make substitutions in foods listed in this
section for students who are considered to have a disability under 7 CFR part 15b and
whose disability restricts their diet. Schools may also make substitutions for students
who do not have a disability but who are unable to consume the regular lunch because
of medical or other special dietary needs. Substitutions shall be made on a case by case
basis only when supported by a statement of the need for substitutions that includes
recommended alternate foods, unless otherwise exempted by FCS. Such statement
shall, in the case of a student with a disability, be signed by a physician or, in the case of
a student who is not disabled, by a recognized medical authority. July 19, 1996.
Q. If a therapist performing needed medical services at school is provided by some
other party, what implications exist concerning liability for the school system?
A. The school system bears no responsibility for services it does not perform. Written
documentation from the parents that they give permission for the medical person to
administer the services at school should be secured. The school system's local school board
policy governs whether private providers are allowed to conduct therapy on school grounds.
Q. Can an LEA refuse homebound services to a student when a parent or legal
guardian is not in the home? (January 1992)
A. A school unit can require that an adult be present when the homebound teacher arrives to
provide services. The system might agree for parents to designate another responsible adult,
or the LEA might arrange to provide services at a site other than the home.
Q. When a physician states that a certified respiratory therapist must be with a student
at all times to perform necessary suctioning, is this an exceptional children
responsibility? (July 1999)
A. Only two types of services can be funded from special education money: special education and
related services. The emergence of medically fragile students into educational programs will
require further clarification and definition on a case by case basis as to when services are
medical and when they are educationally relevant. Medical services beyond diagnosis or
evaluation are excluded as related services and a local school administrative unit is not
required to provide such services. Related services have been defined by regulations to include
"health care services." Health care services are services which can be performed by persons
with appropriate training other than physicians.
The recent Supreme Court decision, Cedar Rapids Community School District v. Garret F. By
Charlene F. , adopted a bright-line test to determine when a requested service is a related
service which must be provided or an excluded medical service. The majority reasoned that
services such as catheterization, tracheostomy, ventilator setting checks, ambu bag
administrations as a back up to the ventilator, blood pressure monitoring, etc. are supportive
services necessary for the student to attend school. Medical services in IDEA are limited to
diagnostic and evaluation purposes. Since the services required by the student did not have to
be provided by a physician and were not diagnostic or evaluative in nature, they were not
medical and thus must be provided by the school system as a related health service.
If the student's IEP team determines that the student requires suctioning in order to be in
school and if the procedure can be performed by someone other than a physician, the therapy
must be provided by the school.
Q. Is a school system required to pay for out-of-state educational services for students
who were placed in a hospital for treatment by their parents? (April 1989)
A. According to the Office of the Attorney General, when a placement is made for medical reasons
without the assistance and cooperation of the local education agency, the local education
agency is not responsible for providing the cost of education and related services. In addition,
special education funds cannot be used to pay for educational costs in a hospital or any other
program that is not approved by the State Board of Education. Local education agencies would
be required to pay for an out-of-district or out-of-state placement only if (1) the LEA makes the
placement; (2) the parent has shown cause through a due process hearing as to why the child
cannot be placed in the district or state; or (3) the LEA agrees to the out-of-district placement.
If the student is identified as disabled according to North Carolina criteria, the parents are
entitled to due process rights and may exercise these rights if they feel that public school
placement is inappropriate. Of course, the school system would have to be given an
opportunity to evaluate the student. If the student is not identified according to North
Carolina criteria, the parents may file a due process hearing if there is a disagreement
between the parent and the agency on whether or not the child is an exceptional child.
Q. What is the LEA's responsibility to students confined to the hospital or home who
are not identified as students with special needs, but who are placed by their
parents in a short-term treatment facility for emotional problems? (October 1987)
A. Since the non-exceptional student is not covered by IDEA or G.S. 115C, article 9, there is no
requirement that home/hospital services must be provided and the parents have no due
process rights. In addition, the needs of these students should be addressed by regular
education. Under Section 504 of the Rehabilitation Act of 1973, a free appropriate public
education includes regular education as well as special education as defined in Section 504.
Q. What is the school system's responsibility for providing orientation and mobility
services for students who are visually impaired? (July 1999)
A. It is the responsibility of the school system to provide orientation and mobility if a student's
IEP states that such is needed. The system can provide the service or it may contract with an
outside entity if no one on staff is qualified.
Q. If a student with disabilities wishes to take physical education as an elective beyond
the one (1) unit required for graduation, does the local education agency have to
offer an adapted course if P.E. electives are offered to the regular students? (April
A. Yes. Special education as set forth in federal regulations includes instruction in physical
education, which is provided as a matter of course for all children without disabilities enrolled
in school. The provision in federal regulations is to assure that whatever action is necessary is
taken in order that physical education services are available to all children with disabilities.
It is expected that physical education, specially designed where necessary, is to be provided as
an integral part of the education program of every child with disabilities. As we interpret this,
if physical education is offered as an elective to children without disabilities, then such
services must also be available to students with disabilities. The determination as to whether
the course provided is to be adapted should be specified in the child's individualized education
Q. What are the responsibilities/liabilities of school nurses and other school personnel
who administer health services and provide some health care to students?
A. Federal and state laws require persons administering health services (such as clean
intermittent catheterization, mucus suctioning) to be appropriately trained and to use correct
procedures. The North Carolina Nurse Practice Act and the North Carolina Nurses' Licensing
Board enact which procedure can be performed by which person, i.e., Registered Nurse,
Licensed Practical Nurse, or Certified Nurse Assistant. State law (G.S. 115C-307) provides
that if correct procedures are followed and persons are appropriately trained, no public school
employee shall be liable in civil damages for any such act or for any omission relating to such
act unless such act or omission amounts to gross negligence, wanton conduct or intentional
The Attorney General's Office has ruled that if correct procedures are followed and personnel
are appropriately trained, the state will defend local school administrative unit employees
sued for negligence in performing these services and will pay monetary judgements if they are
found liable. This provision was provided for in Chapter 971 of the 1979 Session Laws.
There is no federal or state requirement that school nurses must work under the supervision of
a physician. They should only administer drugs or medication prescribed by a doctor but are
not bound to be supervised in the school setting by a physician. IDEA requires local boards of
education to provide related services as are necessary for students with disabilities to benefit
from their education. Related services include health care services.
Q. What is the school system's responsibility to pay for private psychological
counseling for an exceptional student when the parents obtained the counseling
services? (May 1989)
A. Under federal and state laws, the special education and related services needs of an
exceptional child must be determined by a committee. Regulation 300.535 of IDEA states that
the placement decision must be made by a group of persons, including persons knowledgeable
about the child, the meaning of evaluation data, and the placement options. It further states
that if it is determined by the team of persons that the child needs special education and
related services, an individualized education program (IEP) team must develop an IEP for the
child. The child's parents must be invited as participants in the IEP meeting. The IEP must
specify the special education and related services that the child is to receive.
Parents may not arbitrarily determine the related services an exceptional child needs. When
such a unilateral decision is made, the school system is not obligated to pay for the services.
The school system would be obligated to pay for the services only if:
1. the IEP team recommends the services because they are necessary for the child to
benefit from special education; or
2. the parents have shown cause through a due process hearing that the related
services are required for the child to benefit from special education and that the
school system cannot provide the services
A general rule of thumb is that what the LEA recommends through its various teams is what
the LEA is fiscally responsible for.
Q. Must an LEA provide speech-language services for a child who is otherwise being
educated at home by his parents? (July 1994)
A. Home instruction as a means of educating a child is legal, and a home school is considered the
same as a private school as long as the parent has registered with the Department of Non-
Public Instruction. The LEA shall give the same consideration to a request for special
education from a home school that it affords any other private school. Note: Special education
for students in private schools is a federal regulation and relates to VI-B services.
Q. Who is financially responsible for the cost of damage to school or personal property
resulting from a BED student's aggressive behavior? (August 1988)
A. General Statute 115C-523 of Public School Laws applies to any child who destroys school
property. This statute states that "the parents or legal guardians of any minor are liable for
any gross negligence or willful damage or destruction of school property by that minor to the
extent of five thousand dollars ($5,000). The Board of Education shall make written demand
upon the parent or legal guardian as a prerequisite to bringing suit." No other federal or state
laws are known which prohibit applying the above statute to children with disabilities.
Q. In the event that a BED student runs away from school and the parents and police
have been contacted, can the school be held liable if the child is hurt or hurts
someone else during the period of time he/she is missing? (August 1988)
A. No, unless negligence on the part of school personnel occurred.
Q. If a BED student is suspended, taken home, or placed on homebound services and is
left unsupervised, can the school be held liable if the student endangers himself or
another while at home or in the community during school hours? (August 1988)
A. No, if the school system has followed established procedures regarding suspensions for all
students under public school laws and those procedures specific to the suspension of children
with special needs and has adopted policy regarding suspension and expulsion.
5.0 GENERAL EDUCATION REQUIREMENTS
5. l State Testing Program
Q. Are teachers of the educable mentally Disabled (EMD) and learning disabled (LD)
required to follow the Standard Course of Study and are these students subject to
end-of-course testing? (July 1999)
A. Yes. If students with disabilities expect to receive a high school diploma they must follow the
standard course of study and take the end-of-course tests. The curriculum may be modified
according to the IEP to meet student needs, but the course content is expected to parallel that
which is found in the Standard Course of Study and the course code (i.e., SIMS) will be the
same. Because of the large number of modifications that are available for the State Testing
Program, there should be few, if any, requests for exemption from testing.
Q. What children with disabilities are automatically exempt from the State Testing
Program which includes end-of-grade and end-of-course tests? (July 1999)
A. No students with disabilities are automatically exempt from the State Testing Program. A
decision to exempt or provide accommodations is made on a case-by-case basis by the IEP
team. Decisions about exemption must be made at the time of annual review of the IEP, not
when the testing schedule is about to begin.
Q. Which students are required to take End-of-Course tests? (August 1994)
A. All students, including students with disabilities, who are in membership in any Standard
Course of Study for which an End-of-Course test has been developed are required to take the
Q. Are modifications available for the North Carolina Testing Program? (August 1994)
A. Yes. Refer to the most recent edition of Testing Modifications for Students with Disabilities
for the types of modifications that are available and the categories of disabilities for which
they are recommended.
Q. What are chance scores? (August 1994)
A. Chance scores are scores students would receive by answering questions randomly. Chance
scores are employed when a school system does not meet the 95 percent participation rule. A
chance score's highest yield is 25 percent.
Q. What are the alternate assessments that are referred to in the test modification
manual? (July 1999)
A. The North Carolina Alternate Assessment Portfolio is a part of the overall state assessment
program designed to improve planning, instruction, and accountability for students with
severe cognitive disabilities.
5. 2 GRAD UA TION REP I UREMENTS
Q. If an exceptional student graduates from high school with a graduation certificate,
does not pass the competency test and is not twenty-one years old, may the student
re-enroll and continue his/her education in the public school until the age of twenty-
one? (July 1999)
A. IDEA '97 emphasized that a student who receives an exit document other than a standard
diploma is entitled to return to school to the age of 21, and with the agreement of the LEA,
may attend school through the age of 21.
Q. In order for a student with learning disabilities to be exempt from the Algebra I
requirement, must he/she be identified as learning disabled in the specific area of
mathematics (i.e. a 15 point discrepancy or an alternative discrepancy in the area of
mathematics)? (July 1999)
A. In order to be eligible for exemption from the Algebra I graduation requirement, a student
must be identified as learning disabled in the area of mathematics with a 15 point discrepancy
or an alternative discrepancy. This means that all evaluations for a specific learning disability
must be in place, and an eligibility team report, including all dissenting opinions, must be
available. This report must unequivocally rule out any other learning problems that are
primarily the result of visual, hearing, or motor disabilities, of mental retardation, of
emotional disturbance, or of environmental, cultural, or economic disadvantage as the primary
reason for a student's substantial discrepancy between aptitude and achievement in the area
of mathematics. The learning disability is manifested by substantial difficulties in the
acquisition and use of mathematics skills (e.g. mathematics calculation or mathematics
reasoning) which result in his/her inability to master algebra.
School systems are reminded that an exemption from algebra does not waive the requirement
for three units of math in order to receive a standard high school diploma.
Q. Does the IEP team have any authority in granting diploma credit for courses? (July
A. Graduation requirements are established by the State Board of Education and become a part
of the North Carolina Administrative Code following public hearings and final State Board
approval and adoption. In order for a student with disabilities to be eligible for a standard
high school diploma, he/she must be enrolled in required courses that teach the standard
course of study and must take the end-of-course test for those courses in which an EOC is
required. Failure to complete the State Board requirements will result in some other type of
exit document, i.e., a graduation certificate which documents the student was enrolled in
courses which met the general content area requirements but not the requirements of the
standard course of study, a certificate of achievement which indicates that the student met all
of the course and unit requirements for a diploma but did not pass the competency exam, or an
attendance certificate which is a locally developed exit document. The IEP guarantees the
right to a free appropriate public education, it does not guarantee a diploma.
6.0 PRESCHOOL CHILDREN WITH DISABILITIES
6.1.1 Screening/ Evaluation/ Identification
Q. What constitutes an educational evaluation for a preschool child suspected of
having a speech-language problem? (April 1992)
A. If a child has been screened and appears to have a speech-language disability, an educational
evaluation is required. Based on severity, an educational evaluation could include interviews,
observations, diagnostic tests, and other appropriate formal and informal measurements
which will identify strengths and needs. The more severe the child's involvement, the more
comprehensive the educational evaluation should be.
Q. When does the 90-day timeline for placement decisions for a preschool child with a
disability actually begin? (July 1999)
A. Upon receipt of the referral, appropriate persons sign and date the form and the 90-day
(calendar) timeline begins.
Q. When is a preschool child with a disability considered a transfer student and when
is he/she a candidate for initial placement? (July 1999)
A. A preschool child with a disability is a transfer student if that child at age three or four was:
(1) determined eligible;
(2) given rights under 94-142; and
(3) served in special education by an LEA, state operated program, or other program.
All regulations that apply to the transfer of a disabled school-age child would then apply to a
preschool disabled child. Services may continue according to the child's current IEP or IFSP
until the IEP team reviews, revises, and amends the IEP/TFSP if necessary.
A 3-4 year old child in a private program or a program under Part C (Infant/Toddler Program)
who has never received rights under P. L. 94-142, or one who has never been in a program
must be treated as an initial placement. The IEP team shall place such a child according to
Q. Can a kindergarten student be reclassified as LD, BED, or EMD when the child was
evaluated and classified as preschool developmentally delayed/atypical in the late
spring or early summer? (July 1999)
A. Reevaluation is the focus in this case. The IEP team must review existing information,
following the reevaluation process described in Procedures Governing Programs and Services
for Children with Disabilities , and the team, including the parent, makes the decision as to
which category of disability is appropriate based on the eligibility criteria. At the present
time, kindergarten children labeled preschool delayed/atypical do not have to be reevaluated
until prior to entry into the first grade.
Q. Who is responsible for having an early childhood transition meeting and must a
representative of the public schools be present? (July 1999)
A. If a child is enrolled in the Infant-Toddler Program, then generally the child service
coordinator or early interventionist is responsible for calling the transition meeting 90 days
before the child's third birthday. If it is thought that the child will be eligible for Part B
services, a representative of the school system should be present.
6. 1 .2 Placement Procedures
Q. If a child who is enrolled in a Part C program turns three during the school year,
may he/she continue in the Part C program for the remainder of the year? (July
A. Yes. The child may remain in the Part C program, subsidized through Part C funds or a
combination of Part C and Part B funds, for the remainder of the school year or until the
transition period to the Part B program has been completed.
Q: Can an IFSP be used in place of an IEP when the child transitions from the Part C
program to the Part B program for preschool children with disabilities? (July 1999)
A. The IFSP may be used provided it meets the requirements of both the IFSP and the IEP. The
school system must provide the parents with a detailed explanation of the differences between
the two, and if the parents select the IFSP, the school system must contain written consent
from the parents.
Q. Who may serve as the regular teacher at the IEP meeting for a preschool child with
a disability? (July 1999)
A. If the child is enrolled in a regular early childhood program such as child care, head start,
private preschool or Title I, and the teacher or director of that program is present, then that
person may serve as the regular early childhood teacher. If the child is not enrolled in a
regular early childhood program, then the birth-kindergarten teacher may serve as both the
regular and the special education teacher. If the child is going to a transition kindergarten,
then the kindergarten teacher may be the most appropriate person to serve as the regular
Q. Must a regular education teacher be present at the IEP meeting for children who
are being served at home? (July 1999)
A. Yes. Since the IEP has not been written, a decision has not been made that the child will be
served at home. Therefore a regular teacher should be invited.
6. 1. 4 Placement Setting /LRE/ Pupil-Teacher Ratios
Q. What options are available to help an LEA serve a preschool child with disabilities
in the least restrictive environment? (July 1999)
A. If the IEP states that the appropriate placement of a preschool child with disabilities is with
other children, then the school must work with the parents to provide a center-based option
which could include such programs as one offered by the LEA, Head Start, Title I, or a private
preschool program. If the program is one that is not operated by the public schools, the parent
would enroll the child in the program and the LEA would either:
(1) take the special education service to the child;
(2) place a teacher and/or teacher assistant in the program; or
(3) contract with the program to provide services if it has a program approved by the
Special education and related services would be the responsibility of the LEA, and parents
would be responsible for other provisions such as day care. The courts have not required LEAs
to implement programs for non-handicapped 3-4 year olds in order to provide disabled children
education in the least restrictive environment.
Q. What does "general curriculum" mean for a preschool child with disabilities? (July
A. According to the definitions in federal regulations, the general curriculum for preschoool
children means those activities in which typically developing children participate. In
reviewing those activities with regard to children with disabilities, the IEP team must consider
how the disability affects the child's participation in those activities. Appropriate activities
refer to age-relevant developmental abilities or milestones that typically developing children
of the same age would be performing or would have achieved. These activities are discussed in
the NC Guide for the Early Years .
Q. What is a regular early childhood program? (July 1999)
A. Regular early childhood programs for preschool in NC may include public school programs
such as Title I, Even Start and fee for service programs. Non-public school programs may
include child care (center or home), private preschool (church or other), Head Start or Smart
6.1.5 Related Services
Q. Must the IEP for a preschool child with a disability contain an annual goal for a
related service if the parents refuse the service offered by the LEA and purchase
that service from another provider? (April 1992)
A. If a preschool child with a disability is in need of a related service to benefit from special
education, the LEA should develop the IEP to reflect this need. The parents may, if they wish,
choose to reject the LEA service and unilaterally access their own resources. Such a decision
should be documented on the IEP.
Q. May a preschool child with a disability receive occupational therapy and/or physical
therapy without receiving special education? (April 1992)
A. An LEA may not provide a related service unless a child is receiving special education.
6.1.6 REEV ALU AT10N
Q. A child with a disability is eligible for kindergarten and enters school, but has not
been enrolled previously in a preschool program for children with disabilities.
However, the child has evaluations that were completed during his/her fourth year
of age. Does the child have to be reevaluated before entering first grade? (July
A. No, the child with disabilities enters the program as a school-age child and is treated as an
initial referral. Therefore, he/she will not require reevaluation until three years from the date
of initial placement. The evaluations which were completed when the child was four may be
used for initial placement if the data are current within one year and include the required
Q. If a four year old preschool child with disabilities is placed in a preschool program
on the basis of evaluations completed during that year, must the child be
reevaluated prior to entry into the first grade? (July 1999)
A. Yes. All preschool children with disabilities who are identified as delayed/atypical must be re-
evaluated prior to entry into the first grade even if the evaluations are not three years old.
This may be subject to change if the definition of developmentally delayed is adopted as a
category in lieu of delayed/atypical and the age is extended.
6. 1. 10 Free Appropriate Public Education
Q. Is a child who is enrolled in a program for preschool children with disabilities
automatically qualified for extended school year services? (July 1999)
A . No. In order for a preschool child with a disability to qualify for ESY, the child must meet the
same criteria as a school-age student. This decision is made at the time of the annual review,
or if that is not an appropriate time, the IEP team must set a date by which the team will
reconvene to consider ESY.
6.2.2 PROCEDURAL SAFEGUARDS
Note: See procedural safeguards for school-age students. Procedural safeguards are the same
for both groups.
6. 4. 1 1 'se of Funds (teacher certification, teacher assignments, funding)
Q. When a preschool child with a disability is placed in a self-contained multi-age
classroom, what type of licensure is the teacher of the self-contained class required
to hold? (April 1992)
A. The teacher in the self-contained classroom is required to obtain birth-kindergarten licensure
only if 50 percent or more of the class are preschool child with disabilities. It is recommended
that a teacher in a self-contained classroom who does not have a background in the education
of preschool children with disabilities receive training in the area or that a teacher who has
preschool disabled or birth-kindergarten licensure provide consultation to the teacher in the
Q. Are preschool federal funds still allocated according to the December 1 headcount?
A. No. Preschool federal grant funds are now allocated according to a formula which includes a
75% block grant, with the remainder dispersed based on census and a poverty index.
6. 4. 5 Responsibility and Liability
Q. When a preschool child with disabilities resides in one school district and goes to a
private preschool or child care center located in another school district, what is the
responsibility of the school district in which the child resides? (July 1999)
A. The LEA of residence has three options:
1. according to the needs indicated on the IEP, the LEA may offer appropriate services
to the child within its own jurisdiction and the parent has the right to refuse these
2. the LEA may contract with the school district in which the child attends day care to
provide appropriate services within that school district; or
3. by action of the local school boards, the educational responsibility for the child may
be transferred from the LEA of residence to the LEA in which the child attends day
The LEA has an obligation to provide services in its own attendance areas. Numbers 2 and 3
Q. Who is responsible for providing transportation to preschool children with
disabilities who attend preschool satellite or day programs operated by the
Department of Human Resources? (July 1999)
A. Effective July 1, 1999, the program that includes the child on its headcount and operates the
program the child attends is responsible for transportation. Therefore, the School for the Deaf
or Governor Morehead School must provide transportation.
Exceptional Children Division