At the end of January, the Office of Special Education Programs of the United States Department of Education issued several guidance letters that may be of interest to Impartial Hearing Officers. Although OSEP always cautions that “section 607(d) of IDEA prohibits the Secretary from issuing policy letters or other statements that establish a rule that is required for compliance with, and eligibility under, IDEA without following the rulemaking requirements of section 553 of the Administrative Procedure Act. Therefore, based on the requirements of IDEA section 607(e), this response is provided as informal guidance and is not legally binding,” the letters may provide helpful insights into the interpretation of IDEA requirements. Moreover, courts sometimes rely on the letters when reviewing hearing officer decisions. Here are two letters that merit attention:

(1) Letter to Nathan, 73 IDELR 240 (OSEP Jan. 29, 2019). This letter answers several questions about children not yet determined eligible for special education and related services under the IDEA, who are subject to student discipline but are deemed to be covered by the statute and thus have a claim to the protections of children with disabilities from some aspects of the ordinary student discipline.

The first question is whether, once it has been established that the child is one the school district is deemed to know is a child with a disability, may the district postpone the manifestation determination meeting until after the completion of the initial evaluation of the child or the initial IEP meeting, and must the evaluation be expedited. OSEP responds that within ten days of any decision to change the child’s placement due to a violation of school rules, the district, the parent, and the relevant members of the IEP team must conduct the MDR: “This provision does not include an exception to allow additional time to complete an evaluation prior to conducting the MDR.” The district may choose to expedite the evaluation of the child, but “under IDEA expedited evaluations are only required in situations where the LEA [Local Education Agency, typically a school district] is not deemed to have knowledge that the child may have a disability and a request is made for an evaluation of a child during the time period in which the child is subjected to disciplinary measures under 34 C.F.R. § 300.530. See 20 U.S.C. § 1415(k)(5)(D).”

Unsurprisingly, the second question is “If the LEA cannot postpone the MDR pending completion of the initial evaluation, how should the LEA conduct the MDR, given the fact that: 1) the LEA may have little to no information about the student’s disability; and 2) the purpose of the MDR is to determine whether the behavior is the result of the student’s disability?” OSEP expresses sympathy about the difficulty of making a manifestation determination without an IEP, but suggests that the meeting could consider “the information that served as the LEA’s basis of knowledge that the child may be a child with a disability under IDEA, such as concerns expressed by a parent, a teacher or other LEA personnel about a pattern of behavior demonstrated by the child. Based upon its review and consideration of the available information, the group would determine whether the conduct in question was caused by, or had a direct and substantial relationship to the child’s suspected disability. There is nothing in IDEA that would prevent the LEA from conducting the MDR in connection with its evaluation and eligibility determination, so long as the MDR is conducted within 10 school days of the decision to change the student’s placement due to a violation of a student code of conduct.”

The third question is whether posting the procedural safeguards notice on the district’s web site and providing a link in the suspension notice letter is sufficient notice of the parent’s right to assert due process protections. Here OSEP provides a definitive, negative answer:

Although IDEA permits an LEA to post a copy of the procedural safeguards notice on its web site, the public agency would not meet its obligation to provide a parent the notice of procedural safeguards by simply directing a parent to the web site. Rather, a public agency must still offer parents a printed copy of the procedural safeguards notice. If, however, a parent declines the offered printed copy of the notice and indicates a clear preference to obtain the notice electronically on his or her own from the agency’s web site, it would be reasonable for the public agency to document that it offered a printed copy of the notice and that the parent declined. Posting the procedural safeguards notice on a public agency’s web site is clearly optional and for the convenience of the public and does not replace the distribution requirements in IDEA.

(2) Letter to Wayne, 73 IDELR 263 (OSEP Jan. 29, 2019). This letter responds to an inquiry about the situation when a parent places a child with a disability at a private school and does not request special education from the public school district, but informs the public school that the child will continue attending the private school. The question is whether the public school must offer the child an IEP in the following school year and each year after that, even if the parent does not contact the public school district and request a free, appropriate public education. OSEP’s position is that the district does not have the obligation to do so. After cautioning that the IDEA’s child-find requirements place on the school district where the child’s parents live the ongoing responsibility to identify, locate, and evaluate children who may have a disability, including children in private schools, OSEP states, “If a determination is made through IDEA’s child find process that a child needs special education and related services and a parent makes clear his or her intent to keep the child enrolled in the private school, the LEA where the child’s parent resides, is not required to make FAPE available to the child.” The letter continues, “However, the LEA where the child’s parents reside must make FAPE available and be prepared to develop an IEP if the parent enrolls the child in public school.” The letter should be read against the background of the situation described by the questioner, in which the parent disclaims any interest in obtaining services from the public school. A parent may initiate contact with the school by asking for a reevaluation or making an inquiry about the availability of services, actions that require a response even if there has been no formal enrollment of the child in the school district.