OSEP Provides New Special Education Guidance


August 12th, 2019

The United States Department of Education’s Office of Special Education Programs (OSEP) recently issued informal guidance on a variety of special education is­sues in response to inquiries from schools. This guidance is summarized below.

IEP Team Meeting Participants

While the Individuals with Disabilities Education Act (IDEA) does not prohibit schools from inviting ad­ministrators to IEP Team meetings simply to observe, OSEP discourages the practice. Letter to Haller (OSEP, 5/2/19). School officials should be mindful of the con­fidential and often sensitive nature of IEP Team meet­ing discussions and should generally limit IEP meeting invitations to people who will “contribute to decisions about the appropriate services to be included in the IEP.” Therefore, absent parent consent, administrators generally should not attend IEP Team meetings unless they have knowledge or special expertise about a stu­dent or have been designated as the public agency representative to the IEP Team.

State Complaints for Disciplinary Challenges

Parents can use options other than the IDEA’s due process procedures to address alleged violations of the IDEA’s disciplinary provisions, such as the state complaint process. Letter to Zirkel (OSEP, 5/13/19). OSEP reminds school officials that the state complaint process is available to address any alleged IDEA viola­tion, even those matters that parents typically address through a due process complaint (e.g., manifestation determination review challenges). Additionally, both the state educational agency and hearing officers have broad authority when determining the appropriate remedy for an IDEA violation, including ordering com­pensatory education to remedy a student’s lost instructional time.

Independent Educational Evaluations (IEE)

The parents of a child with a disability have a right to an IEE if they disagree with an evaluation obtained by the school. For a child who has been found ineligible for special education and, therefore, is not a “child with a disability,” a parent is still entitled to an IEE at public expense if the parent disagrees with the school’s initial evaluation. Letter to Zirkel (OSEP, 5/2/19). If the par­ent obtains an independent evaluation at the parent’s expense and shares that evaluation result with the school, the school must convene an IEP Team meeting to consider the evaluation if it meets district criteria.

Evaluation Requests and Prior Written Notice

The IDEA requires schools to provide parents prior written notice any time a school:

  1. proposes to initiate or change the identification, evaluation, or educational place­ment of the student or the provision of a free appropriate public education (FAPE) to the student; or
  2. refuses to initiate or change the identification, evaluation, or educational placement of the student or the provision of FAPE to the student.

If a parent requests a special education evaluation and the school either grants or denies the evaluation, prior written notice must be given to the parent. Letter to Mills (OSEP, 5/2/19). The notice must include, among other things, an explanation of why the school either proposes or refuses to evaluate the student.

While a school may want to conduct a screening for the student in lieu of a formal special education evalua­tion, OSEP reminds school officials that screenings may not be used to delay or deny a necessary evaluation. If a student is referred for a screening after a parent re­quest for evaluation has been made, the screening does not replace the evaluation and does not alleviate the school’s responsibility to issue a prior written notice.