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APPENDIX A - Part IV
IV. Other Questions Regarding the Development and Content of IEPS
14. For a child with a disability receiving special education
for the first time, when must an IEP be developed--before or after
the child begins to receive special education and related services?
Section 300.342(b)(1) requires that an IEP be ``in effect before
special education and related services are provided to an eligible
child * * *'' (Italics added.)
The appropriate placement for a particular child with a
disability cannot be determined until after decisions have been made
about the child's needs and the services that the public agency will
provide to meet those needs. These decisions must be made at the IEP
meeting, and it would not be permissible first to place the child
and then develop the IEP. Therefore, the IEP must be developed
before placement. (Further, the child's placement must be based,
among other factors, on the child's IEP.)
This requirement does not preclude temporarily placing an
eligible child with a disability in a program as part of the
evaluation process--before the IEP is finalized--to assist a public
agency in determining the appropriate placement for the child.
However, it is essential that the temporary placement not become the
final placement before the IEP is finalized. In order to ensure that
this does not happen, the State might consider requiring LEAs to
take the following actions:
a. Develop an interim IEP for the child that sets out the
specific conditions and timelines for the trial placement. (See
paragraph c, following.)
b. Ensure that the parents agree to the interim placement before
it is carried out, and that they are involved throughout the
process of developing, reviewing, and revising the child's IEP.
c. Set a specific timeline (e.g., 30 days) for completing the
evaluation, finalizing the IEP, and determining the appropriate
placement for the child.
d. Conduct an IEP meeting at the end of the trial period in
order to finalize the child's IEP.
15. Who is responsible for ensuring the development of IEPs for
children with disabilities served by a public agency other than an
The answer as to which public agency has direct responsibility
for ensuring the development of IEPs for children with disabilities
served by a public agency other than an LEA will vary from State to
State, depending upon State law, policy, or practice. The SEA is
ultimately responsible for ensuring that all Part B requirements,
including the IEP requirements, are met for eligible children within
the State, including those children served by a public agency other
than an LEA. Thus, the SEA must ensure that every eligible child
with a disability in the State has FAPE available, regardless of
which State or local agency is responsible for educating the child.
(The only exception to this responsibility is that the SEA is not
responsible for ensuring that FAPE is made available to children
with disabilities who are convicted as adults under State law and
incarcerated in adult prisons, if the State has assigned that
responsibility to a public agency other than the SEA. (See
Although the SEA has flexibility in deciding the best means to
meet this obligation (e.g., through interagency agreements), the SEA
must ensure that no eligible child with a disability is denied FAPE
due to jurisdictional disputes among agencies.
When an LEA is responsible for the education of a child with a
disability, the LEA remains responsible for developing the child's
IEP, regardless of the public or private school setting into which
it places the child.
16. For a child placed out of State by an educational or non-
educational State or local agency, is the placing or receiving State
responsible for the child's IEP?
Regardless of the reason for the placement, the ``placing''
State is responsible for ensuring that the child's IEP is developed
and that it is implemented. The determination of the specific agency
in the placing State that is responsible for the child's IEP would
be based on State law, policy, or practice. However, the SEA in the
placing State is ultimately responsible for ensuring that the child
has FAPE available.
17. If a disabled child has been receiving special education
from one public agency and transfers to another public agency in the
same State, must the new public agency develop an IEP before the
child can be placed in a special education program?
If a child with a disability moves from one public agency to
another in the same State, the State and its public agencies have an
ongoing responsibility to ensure that FAPE is made available to that
child. This means that if a child moves to another public agency the
new agency is responsible for ensuring that the child has available
special education and related services in conformity with an IEP.
The new public agency must ensure that the child has an IEP in
effect before the agency can provide special education and related
services. The new public agency may meet this responsibility by
either adopting the IEP the former public agency developed for the
child or by developing a new IEP for the child. (The new public
agency is strongly encouraged to continue implementing the IEP
developed by the former public agency, if appropriate, especially if
the parents believe their child was progressing appropriately under
Before the child's IEP is finalized, the new public agency may
provide interim services agreed to by both the parents and the new
public agency. If the parents and the new public agency are unable
to agree on an interim IEP and placement, the new public agency must
implement the old IEP to the extent possible until a new IEP is
developed and implemented.
In general, while the new public agency must conduct an IEP
meeting, it would not be necessary if: (1) A copy of the child's
current IEP is available; (2) the parents indicate that they are
satisfied with the current IEP; and (3) the new public agency
determines that the current IEP is appropriate and can be
implemented as written.
If the child's current IEP is not available, or if either the
new public agency or the parent believes that it is not appropriate,
the new public agency must develop a new IEP through appropriate
procedures within a short time after the child enrolls in the new
public agency (normally, within one week).
18. What timelines apply to the development and implementation
of an initial IEP for a child with a disability?
Section 300.343(b) requires each public agency to ensure that
within a reasonable period of time following the agency's receipt of
parent consent to an initial evaluation of a child, the child is
evaluated and, if determined eligible, special education and related
services are made available to the child in accordance with an IEP.
The section further requires the agency to conduct a meeting to
develop an IEP for the child within 30 days of determining that the
child needs special education and related services.
Section 300.342(b)(2) provides that an IEP must be implemented
as soon as possible following the meeting in which the IEP is
19. Must a public agency hold separate meetings to determine a
child's eligibility for special education and related services,
develop the child's IEP, and determine the child's placement, or may
the agency meet all of these requirements in a single meeting?
A public agency may, after a child is determined by ``a group of
qualified professionals and the parent'' (see Sec. 300.534(a)(1)) to
be a child with a disability, continue in the same meeting to
develop an IEP for the child and then to determine the child's
placement. However, the public agency must ensure that it meets: (1)
the requirements of Sec. 300.535 regarding eligibility decisions;
(2) all of the Part B requirements regarding meetings to develop
IEPs (including providing appropriate notification to the parents,
consistent with the requirements of Secs. 300.345, 300.503, and
300.504, and ensuring that all the required team members participate
in the development of the IEP, consistent with the requirements of
Sec. 300.344;) and (3) ensuring that the placement is made by the
required individuals, including the parent, as required by
Secs. 300.552 and 300.501(c).
20. How frequently must a public agency conduct meetings to
review, and, if appropriate, revise the IEP for each child with a
A public agency must initiate and conduct meetings periodically,
but at least once every twelve months, to review each child's IEP,
in order to determine whether the annual goals for the child are
being achieved, and to revise the IEP, as appropriate, to address:
(a) Any lack of expected progress toward the annual goals and in the
general curriculum, if appropriate; (b) the results of any
reevaluation; (c) information about the child provided to, or by,
the parents; (d) the child's anticipated needs; or (e) other matters
A public agency also must ensure that an IEP is in effect for
each child at the beginning of each school year (Sec. 300.342(a)).
It may conduct IEP meetings at any time during the year. However, if
the agency conducts the IEP meeting prior to the beginning of the
next school year, it must ensure that the IEP contains the necessary
special education and related services and supplementary aids and
services to ensure that the student's IEP can be appropriately
implemented during the next school year. Otherwise, it would be
necessary for the public agency to conduct another IEP meeting.
Although the public agency is responsible for determining when
it is necessary to conduct an IEP meeting, the parents of a child
with a disability have the right to request an IEP meeting at any
time. For example, if the parents believe that the child is not
progressing satisfactorily or that there is a problem with the
child's current IEP, it would be appropriate for the parents to
request an IEP meeting.
If a child's teacher feels that the child's IEP or placement is
not appropriate for the child, the teacher should follow agency
procedures with respect to: (1) calling or meeting with the parents
or (2) requesting the agency to hold another IEP meeting to review
the child's IEP.
The legislative history of Public Law 94-142 makes it clear that
there should be as many meetings a year as any one child may need
(121 Cong. Rec. S20428-29 (Nov. 19, 1975) (remarks of Senator
Stafford)). Public agencies should grant any reasonable parent
request for an IEP meeting. For example, if the parents question the
adequacy of services that are provided while their child is
suspended for short periods of time, it would be appropriate to
convene an IEP meeting.
In general, if either a parent or a public agency believes that
a required component of the student's IEP should be changed, the
public agency must conduct an IEP meeting if it believes that a
change in the IEP may be necessary to ensure the provision of FAPE.
If a parent requests an IEP meeting because the parent believes
that a change is needed
in the provision of FAPE to the child or the educational placement
of the child, and the agency refuses to convene an IEP meeting to
determine whether such a change is needed, the agency must provide
written notice to the parents of the refusal, including an
explanation of why the agency has determined that conducting the
meeting is not necessary to ensure the provision of FAPE to the
Under Sec. 300.507(a), the parents or agency may initiate a due
process hearing at any time regarding any proposal or refusal
regarding the identification, evaluation, or educational placement
of the child, or the provision of FAPE to the child, and the public
agency must inform parents about the availability of mediation.
21. May IEP meetings be audio- or video-tape-recorded?
Part B does not address the use of audio or video recording
devices at IEP meetings, and no other Federal statute either
authorizes or prohibits the recording of an IEP meeting by either a
parent or a school official. Therefore, an SEA or public agency has
the option to require, prohibit, limit, or otherwise regulate the
use of recording devices at IEP meetings.
If a public agency has a policy that prohibits or limits the use
of recording devices at IEP meetings, that policy must provide for
exceptions if they are necessary to ensure that the parent
understands the IEP or the IEP process or to implement other
parental rights guaranteed under Part B. An SEA or school district
that adopts a rule regulating the tape recording of IEP meetings
also should ensure that it is uniformly applied.
Any recording of an IEP meeting that is maintained by the public
agency is an ``education record,'' within the meaning of the Family
Educational Rights and Privacy Act (``FERPA''; 20 U.S.C. 1232g), and
would, therefore, be subject to the confidentiality requirements of
the regulations under both FERPA (34 CFR part 99) and part B
Parents wishing to use audio or video recording devices at IEP
meetings should consult State or local policies for further
22. Who can serve as the representative of the public agency at
an IEP meeting?
The IEP team must include a representative of the public agency
who: (a) Is qualified to provide, or supervise the provision of,
specially designed instruction to meet the unique needs of children
with disabilities; (b) is knowledgeable about the general
curriculum; and (c) is knowledgeable about the availability of
resources of the public agency (Sec. 300.344(a)(4)).
Each public agency may determine which specific staff member
will serve as the agency representative in a particular IEP meeting,
so long as the individual meets these requirements. It is important,
however, that the agency representative have the authority to commit
agency resources and be able to ensure that whatever services are
set out in the IEP will actually be provided.
A public agency may designate another public agency member of
the IEP team to also serve as the agency representative, so long as
that individual meets the requirements of Sec. 300.344(a)(4).
23. For a child with a disability being considered for initial
provision of special education and related services, which teacher
or teachers should attend the IEP meeting?
A child's IEP team must include at least one of the child's
regular education teachers (if the child is, or may be participating
in the regular education environment) and at least one of the
child's special education teachers, or, if appropriate, at least one
of the child's special education providers (Sec. 300.344(a)(2) and
Each IEP must include a statement of the present levels of
educational performance, including a statement of how the child's
disability affects the child's involvement and progress in the
general curriculum (Sec. 300.347(a)(1)). At least one regular
education teacher is a required member of the IEP team of a child
who is, or may be, participating in the regular educational
environment, regardless of the extent of that participation.
The requirements of Sec. 300.344(a)(3) can be met by either: (1)
a special education teacher of the child; or (2) another special
education provider of the child, such as a speech pathologist,
physical or occupational therapist, etc., if the related service
consists of specially designed instruction and is considered special
education under applicable State standards.
Sometimes more than one meeting is necessary in order to
finalize a child's IEP. In this process, if the special education
teacher or special education provider who will be working with the
child is identified, it would be useful to have that teacher or
provider participate in the meeting with the parents and other
members of the IEP team in finalizing the IEP. If this is not
possible, the public agency must ensure that the teacher or provider
has access to the child's IEP as soon as possible after it is
finalized and before beginning to work with the child.
Further, (consistent with Sec. 300.342(b)), the public agency
must ensure that each regular education teacher, special education
teacher, related services provider and other service provider of an
eligible child under this part (1) has access to the child's IEP,
and (2) is informed of his or her specific responsibilities related
to implementing the IEP, and of the specific accommodations,
modifications, and supports that must be provided to the child in
accordance with the IEP. This requirement is crucial to ensuring
that each child receives FAPE in accordance with his or her IEP, and
that the IEP is appropriately and effectively implemented.
24. What is the role of a regular education teacher in the
development, review and revision of the IEP for a child who is, or
may be, participating in the regular education environment?
As required by Sec. 300.344(a)(2), the IEP team for a child with
a disability must include at least one regular education teacher of
the child if the child is, or may be, participating in the regular
education environment. Section 300.346(d) further specifies that the
regular education teacher of a child with a disability, as a member
of the IEP team, must, to the extent appropriate, participate in the
development, review, and revision of the child's IEP, including
assisting in--(1) the determination of appropriate positive
behavioral interventions and strategies for the child; and (2) the
determination of supplementary aids and services, program
modifications, and supports for school personnel that will be
provided for the child, consistent with 300.347(a)(3)
Thus, while a regular education teacher must be a member of the
IEP team if the child is, or may be, participating in the regular
education environment, the teacher need not (depending upon the
child's needs and the purpose of the specific IEP team meeting) be
required to participate in all decisions made as part of the meeting
or to be present throughout the entire meeting or attend every
meeting. For example, the regular education teacher who is a member
of the IEP team must participate in discussions and decisions about
how to modify the general curriculum in the regular classroom to
ensure the child's involvement and progress in the general
curriculum and participation in the regular education environment.
Depending upon the specific circumstances, however, it may not
be necessary for the regular education teacher to participate in
discussions and decisions regarding, for example, the physical
therapy needs of the child, if the teacher is not responsible for
implementing that portion of the child's IEP.
In determining the extent of the regular education teacher's
participation at IEP meetings, public agencies and parents should
discuss and try to reach agreement on whether the child's regular
education teacher that is a member of the IEP team should be present
at a particular IEP meeting and, if so, for what period of time. The
extent to which it would be appropriate for the regular education
teacher member of the IEP team to participate in IEP meetings must
be decided on a case-by-case basis.
25. If a child with a disability attends several regular
classes, must all of the child's regular education teachers be
members of the child's IEP team?
No. The IEP team need not include more than one regular
education teacher of the child. If the participation of more than
one regular education teacher would be beneficial to the child's
success in school (e.g., in terms of enhancing the child's
participation in the general curriculum), it would be appropriate
for them to attend the meeting.
26. How should a public agency determine which regular education
teacher and special education teacher will be members of the IEP
team for a particular child with a disability?
The regular education teacher who serves as a member of a
child's IEP team should be a teacher who is, or may be, responsible
for implementing a portion of the IEP, so that the teacher can
participate in discussions about how best to teach the child.
If the child has more than one regular education teacher
responsible for carrying out a portion of the IEP, the LEA may
designate which teacher or teachers will serve as IEP team
member(s), taking into account the best interest of the child.
In a situation in which not all of the child's regular education
teachers are members of
the child's IEP team, the LEA is strongly encouraged to seek input
from the teachers who will not be attending. In addition,
(consistent with Sec. 300.342(b)), the LEA must ensure that each
regular education teacher (as well as each special education
teacher, related services provider, and other service provider) of
an eligible child under this part (1) has access to the child's IEP,
and (2) is informed of his or her specific responsibilities related
to implementing the IEP, and of the specific accommodations,
modifications and supports that must be provided to the child in
accordance with the IEP.
In the case of a child whose behavior impedes the learning of
the child or others, the LEA is encouraged to have a regular
education teacher or other person knowledgeable about positive
behavior strategies at the IEP meeting. This is especially important
if the regular education teacher is expected to carry out portions
of the IEP.
Similarly, the special education teacher or provider of the
child who is a member of the child's IEP team should be the person
who is, or will be, responsible for implementing the IEP. If, for
example, the child's disability is a speech impairment, the special
education teacher on the IEP team could be the speech-language
27. For a child whose primary disability is a speech impairment,
may a public agency meet its responsibility under Sec. 300.344(a)(3)
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?
Yes, if speech is considered special education under State
standards. As with other children with disabilities, the IEP team
must also include at least one of the child's regular education
teachers if the child is, or may be, participating in the regular
28. Do parents and public agencies have the option of inviting
any individual of their choice be participants on their child's IEP
The IEP team may, at the discretion of the parent or the agency,
include ``other individuals who have knowledge or special expertise
regarding the child * * *'' (Sec. 300.344(a)(6), italics added).
Under Sec. 300.344(a)(6), these individuals are members of the IEP
team. This is a change from prior law, which provided, without
qualification, that parents or agencies could have other individuals
as members of the IEP team at the discretion of the parents or
Under Sec. 300.344(c), the determination as to whether an
individual has knowledge or special expertise, within the meaning of
Sec. 300.344(a)(6), shall be made by the parent or public agency who
has invited the individual to be a member of the IEP team.
Part B does not provide for including individuals such as
representatives of teacher organizations as part of an IEP team,
unless they are included because of knowledge or special expertise
regarding the child. (Because a representative of a teacher
organization would generally be concerned with the interests of the
teacher rather than the interests of the child, and generally would
not possess knowledge or expertise regarding the child, it generally
would be inappropriate for such an official to be a member of the
IEP team or to otherwise participate in an IEP meeting.)
29. Can parents or public agencies bring their attorneys to IEP
meetings, and, if so under what circumstances? Are attorney's fees
available for parents' attorneys if the parents are prevailing
parties in actions or proceedings brought under Part B?
Section 300.344(a)(6) authorizes the addition to the IEP team of
other individuals at the discretion of the parent or the public
agency only if those other individuals have knowledge or special
expertise regarding the child. The determination of whether an
attorney possesses knowledge or special expertise regarding the
child would have to be made on a case-by-case basis by the parent or
public agency inviting the attorney to be a member of the team.
The presence of the agency's attorney could contribute to a
potentially adversarial atmosphere at the meeting. The same is true
with regard to the presence of an attorney accompanying the parents
at the IEP meeting. Even if the attorney possessed knowledge or
special expertise regarding the child (Sec. 300.344(a)(6)), an
attorney's presence would have the potential for creating an
adversarial atmosphere that would not necessarily be in the best
interests of the child.
Therefore, the attendance of attorneys at IEP meetings should be
strongly discouraged. Further, as specified in Section
615(i)(3)(D)(ii) of the Act and Sec. 300.513(c)(2)(ii), Attorneys'
fees may not be awarded relating to any meeting of the IEP team
unless the meeting is convened as a result of an administrative
proceeding or judicial action, or, at the discretion of the State,
for a mediation conducted prior to the request for a due process