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UNITED STATES DEPARTMENT OF EDUCATION
OFFICE OF SPECIAL EDUCATION AND REHABILITATIVE SERVICES
Letter of Inquiry - OSEP
I am writing in response to the letter to the Office
of Special Education Programs ("OSEP") from you and
your staff. Your inquiry is a followup to our recent
letter to you and seeks further clarification of
requirements in Part B of the Education of the
Handicapped Act ("EHA- B") for providing extended
school year services ("ESY") to children with
handicapping conditions.
Your current letter poses four (4) questions. I will respond to them as follows:
Since EHA-B does not address a school district's
obligation to provide a full continuum of placements,
when providing ESY services, how can the LRE
requirements at 34 CFR 300.550-300.556 apply, which
require a full continuum at 300.551?
Each child who receives a free appropriate public
education ("FAPE") under EHA-B, including children
receiving ESY services, must be educated in the least
restrictive setting in which the child's IEP can be implemented. 34 CFR
300.550(b); 300.552. Because ESY services are provided
during a period of time when the full continuum of
placements is not normally available for any students,
the Department does not require States to ensure
that a full continuum of placements is
available solely for the purpose of providing ESY
services. However, EHA-B does require that options on
the continuum be made available to the extent
necessary to implement a child's IEP. 34 CFR
300.552(b).
What's the distinction between: (a) School districts not being required to
establish public programs for nonhandicapped
children to meet the LRE provisions, and (b) School
districts being required to purchase private
placements when it's determined that
interaction with nonhandicapped children is required?
The distinction is that in situation (a), a local
education agency ("LEA") is not required to establish
public programs for the purpose of providing ESY
services if there are no public programs for
nonhandicapped children during this time period. Under
situation (b), an LEA would have to purchase a private
school placement, if there was no available public
placement, and the private placement was
determined to be necessary to implement an individual
child's IEP for ESY services.
If interaction with nonhandicapped children is the
issue, and the private placments you are suggesting
are setting for regular education students, (a) Is a
school district required to purchase regular
classroom settings from the private section in order
to meet the LRE requirements, (b) What special
education/specially designed instruction is
being purchased, and (c) Can a school district use
Federal special education funds to purchase a regular
education program?
Regarding questions 3(a) and 3(b), the LEA is required
to purchase private school placements in a regular
education setting if they are required to implement a
child's IEP. Each child's placement determination must
be individualized and based upon the content of
the IEP. 34 CFR 300.552(a)(2); 300.346(c). OSEP
recognizes that a child's IEP for ESY services will
probably differ from the child's regular IEP, since
the purpose of the ESY program is to prevent
regression and recoupment problems. Therefore, the
placement needed to implement the child's IEP for ESY
services may differ from the child's placement during
the regular school year.
Keeping this in mind, regarding question 3(c), if a
determination is made that a private school is the
appropriate placement in which to implement an IEP for
ESY services, Federal funds can be used to pay for the
services in that situation.
If center-based programs are the only options
available within an LEA for ESY services, and no
regular education services exist during the period ESY
services are being provided, what modification
would be required and could be made in the program in
order to meet the LRE requirements?
The EHA-B does not address obligations of school
districts to modify existing programs to ensure that a
child's IEP for ESY services can be implemented.
Instead, such matters are left to the discretion of
State and local educational authorities. Therefore,
any modifications which are necessary for center-
based programming in order to implement a
child's IEP for ESY services, must be determined on a
case-by-case basis.
I hope this information is helpful. Please let us know
if we can be of further assistance.
Judy A. Schrag, Ed.D., Director
Office of Special Education Programs
Requests for a copy of the original letter, or
questions regarding the letter, may be directed to OSEP.
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