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UNITED STATES DEPARTMENT OF EDUCATION
OFFICE OF SPECIAL EDUCATION AND REHABILITATIVE SERVICES
March 6, 1996
Assistant Superintendent
Division for Learning Support: Equity and Advocacy
State of Wisconsin
Department of Public Instruction
Madison, Wisconsin 53707
Dear Assistant Superintendent:
This is in response to your letter to the Office of Special
Education Programs (OSEP), dated December 14, 1995. In
your letter, you explain that Wisconsin is in the process of
developing a rule setting out criteria for multidisciplinary
teams to use in determining whether a student with an
impairment needs special education and related services
under Part B of the Individuals with Disabilities Education Act
(Part B), and seek guidance from this Office in connection
with this process. Your specific questions and OSEP's
responses follow. (1)
1. May Wisconsin establish reasonable criteria that
must be used by multidisciplinary teams in
determining whether a particular child with an
impairment defined under Part B needs special
education and related services by reason of such
impairment?
States may establish reasonable criteria for determining
whether students need special education and related services,
so long as individual determinations are made for each
student and the full range of the student's special educational
needs is considered. However, the State's criteria may not (1)
serve to diminish adherence to Part B's evaluation
procedures; or (2) operate to exclude any students who, in
the absence of the State's criteria, would be eligible for
services under Part B.
2. What limitations if any apply to such criteria?
3. If limitations apply to such criteria, what is the
authority upon which such limitations are based?
Since these questions are related, we have combined the
response.
The general limitations that are applicable to a State's criteria
for determining whether a student with an impairment needs
special education and related services are addressed in our
response to question 1 above. More specifically, in order to
meet Part B's definition of "children with disabilities," a
student must be evaluated as having an impairment specified
in 34 CFR 300.7 (a), and, by reason of the impairment, need
special education and related services. See 20 U.S.C. 1401
(a) (1); 34 CFR 300.7 (a). Public agencies must ensure that
the required evaluations of children suspected of having a
disability are conducted in accordance with 300.530-300.534, and
also, in the case of students suspected of
having learning disabilities, in accordance with the additional
procedures at 300.540-300.543.
The Part B regulations make explicit that before a disabled
student may be initially placed in a special education program,
a full and individual evaluation of the student's educational
needs must be conducted in accordance with the
requirements of 300.532. See 34 CFR 300.531. The
term "evaluation" means "procedures used in accordance
with 300.530-300.534 to determine whether a child has a
disability and the nature and extent of the special education
and related services that the child needs. The term means
procedures used selectively with an individual child and does
not include basic tests administered to or procedures used
with all children in a school, grade, or class." See 34 CFR
300.500 (b) (emphasis added).
The student's evaluation must be conducted by a
multidisciplinary team, including at least one teacher or other
specialist with knowledge in the area of suspected disability,
and no single procedure may be used as the sole criterion for
determining an appropriate educational program for a student.
See 34 CFR 300.532 (d) -(e). Although Part B contains no
explicit guidelines for determining whether a student with an
impairment needs special education, Part B does require full
and individual consideration of the unique needs of each
student as evaluations are conducted and determinations are
made about the nature and extent of each student's
educational needs.
In determining whether a child's impairment adversely affects
educational performance, the multidisciplinary team must
consider non-academic as well as academic areas. Therefore,
the assessment is more than the measurement of the child's
academic performance as determined by standardized
measures. While State operational criteria are useful in
determining whether a child needs special education and
related services because of an impairment, the
multidisciplinary team must have the ultimate authority to
make such determinations using their professional judgment
based on the child's evaluation.
4. If a child is receiving educational benefit as
described in Board of Education of the Hendrick
Hudson Central School District v. Rowley, 458
U.S. 176 (1982) in the regular education
program does the child under any circumstances
need special education?
As you know, in Bd. of Educ. of the Hendrick-Hudson Central
Sc. Dist. v. Rowley, 102 S.Ct. 3034 (1982), the Supreme Court held that the School District was not required to
provide a sign language interpreter to a deaf student, who
was performing above average in the regular classroom, and
rejected the parents' arguments that services under the Part B
of IDEA should be designed to maximize a student's potential.
The dispute in Rowley was not over whether the child needed
supplementary aids to benefit from regular class instruction,
but rather what aid was required in order to provide the child
with an "appropriate" public education. The Court did not
establish any one test for determining the adequacy of
educational benefits received by a child and neither has OSEP,
because it will vary for each individual student, depending on
his or her unique educational needs. However, the Court in
Rowley rejected the position that a student's advancement
from grade to grade in the regular education program
necessarily meant that the student was receiving a free
appropriate public education. Rowley, 102 S.Ct. at 3049
n.25. Therefore, OSEP does not interpret the Rowley decision
as relieving school districts of their obligations to provide
appropriate special education and related services to
individual disabled students who need them even though they
are advancing from grade to grade.
For example, in a situation where a student may be passing
from grade to grade but is suspected of having a specific
learning disability, it would be appropriate for the
multidisciplinary team to consider information about outside
or extra learning support provided to the child or about any
modifications or compensatory strategies used by the child
when assessing whether the child achieves commensurate
with his or her age and ability levels when provided with
learning experiences appropriate for the child's age and ability
levels. See 34 CFR 300.541 (a) (1). Such information may
indicate that the child's current educational achievement
reflects the service augmentation, not what the child's
achievement would be without such help. The information
may also bear on whether the child has a severe discrepancy
between achievement and ability that is not correctable
without special education and related services.
In your letter, you refer to a situation involving a student with
a physical impairment whose academic performance does not
appear to be adversely affected by the impairment, and who
does not require modifications to the regular educational
program. It is unclear, however, what you consider as
"modifications to the regular educational program."
Modifications required by a student with a physical
impairment may be as subtle as altering the regular class
curriculum or methods of instruction in order to accommodate
the student's impairment. If such modifications are
considered "specially designed instruction" because they
constitute individualized instruction planned for a particular
student, they could be deemed special education. The fact
that a student with a physical impairment performs well in
school does not necessarily mean that he or she does not
need special education and related services because of the
impairment. This determination would have to be made on a
case-by-case basis in light of the particular facts and
circumstances.
Courts also have expressly recognized that there are
situations where a public agency could conclude, based on
full consideration of the student's unique needs, that a
student placed in the regular educational environment and
making progress in that environment still needs special
education or related services in order to receive a free
appropriate public education. See e.g., Yankton School
District v. Schramm, 900 F. Supp. 1182, 23 IDELR 42 (D.
S.D. 1995); (instructional modifications and related services
provided to student with orthopedic impairment enabling her
to take regular classroom instruction constituted special
education); and Conrad Weiser Area School District v.
Thomas and Wendy L, 603 A.2d 701, 18 IDELR 730 (Pa.
Commw. Ct. 1992) (student classified as gifted also had
learning disability in written expression and thus, was found
eligible for special education services). In these instances, the
student's educational performance would be adversely
affected in the absence of these modifications.
5. What guidance can OSEP offer with regard to
the rule language we are developing relating to
determining the need for special education?
What models addressing the need for special
education have been reviewed, approved and/or
disapproved by OSEP in other states?
We trust that the guidance set forth above will provide
Wisconsin with a framework for rule development. In
addition, we would be happy to review any criteria that
Wisconsin develops in advance of the formal State plan
approval process. As long as the rule is consistent with Part
B, Wisconsin is free to use whatever criteria are helpful in
making educational decisions at the local level. I am not
aware that OSEP has previously approved specific rules
developed by other States which contained explicit criteria for
determining whether a student needs special education, and
therefore, am unable to furnish you with examples of specific
language that Wisconsin could include in the referenced rule.
We hope that this explanation is helpful, and stand ready to
provide technical assistance to Wisconsin throughout this rule
development process. If we can be of further assistance,
please let me know.
Sincerely,
Thomas Hehir, Director
Office of Special Education Programs
As you note in your December 14 letter, in determining
whether a child is eligible to receive special education
and related services under Part B, a public agency must determine: (1) whether
the child has an impairment, consistent with the
definitions at 34 CFR 300.7; and (2) having
determined that the child has an impairment, whether
the child needs special education and related services
by reason of such impairment. Because we understand
your questions to be directed solely to the latter
determination, we have confined our responses to that
issue.
Requests for a copy of the original letter, or questions
regarding the letter, may be directed to OSEP.
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