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U.S. Department of Education: Promoting Educational Excellence for all Americans

IEP Team (Sec. 300.321)

Comment: One commenter recommended that the regulations clarify whether regular education teachers are required at every IEP Team meeting.

Discussion: Consistent with Sec. 300.321(a)(2) and section 614(d)(1)(B)(ii) of the Act, a regular education teacher is a required member of an IEP Team if the child is, or may be, participating in the regular education environment. In such cases, the regular education teacher would be expected to attend each IEP Team meeting, unless the regular education teacher has been excused from attending a meeting, pursuant to Sec. 300.321(e) and section 614(d)(1)(C) of the Act. We do not believe further clarification is necessary.

Changes: None.

Comment: Many comments were received recommending that the IEP Team include additional members beyond those required by Sec. 300.321(a). Several commenters stated that occupational therapists should be part of the IEP Team because of their unique training in assisting children to learn in changing environments. A few commenters recommended that a recreation therapist or specialist be included on the IEP Team. Other commenters stated that a practitioner skilled in assistive technology should be included. Several commenters recommended that the IEP Team include individuals with knowledge or special expertise regarding the related services needs of a child.

Some commenters stated that individuals from the child welfare system should be included as members of the IEP Team and should be invited to attend IEP Team meetings when the purpose of the meeting is to consider transition services for a child who is a ward of the State or in the custody of the child welfare agency. The commenters recommended that the IEP Team should specifically include any of the following individuals: the child's attorney or guardian ad litem, court appointed special advocate, caseworker, foster parent, caretaker, or judge.

Discussion: It would be inappropriate to require that individuals with specific professional knowledge or qualifications attend all IEP Team meetings. These decisions should be made on a case-by-case basis in light of the needs of a particular child. Section 300.321(a)(6), consistent with section 614(d)(1)(B)(vi) of the Act, already allows other individuals who have knowledge or special expertise regarding the child, including related services personnel, as appropriate, to be included as members of a child's IEP Team at the discretion of the parent or the agency. Therefore, we decline to make the changes recommended by the commenters. However, it should be noted that if a public agency wishes to invite officials from another agency, such as officials of the child welfare agency that are not representing the child, the public agency must obtain parental consent for the individual to participate in the IEP Team meeting because confidential information about the child from the child's education records would be shared at the meeting.

Changes: None.

Comment: A few commenters recommended that the IEP Team include a representative of the private school or facility when an IEP is developed for a child in a private school.

Discussion: We believe the commenters' concerns are already addressed in the regulations. Section 300.325(a) requires that, before a public agency places a child with a disability in, or refers a child to, a private school or facility, the agency must initiate and conduct a meeting to develop an IEP for the child and must ensure that a representative of the private school or facility attends the meeting.

Changes: None.

Comment: A few commenters stated that the IEP Team should include other persons whose presence on the IEP Team would be beneficial to the child, regardless of their academic qualifications. Other commenters recommended that the IEP Team include credentialed and licensed personnel, even though it is important to recognize that people who are not credentialed have important roles to play.

Discussion: We believe the commenters' concerns are already addressed. Section 614(d)(1)(B)(vi) of the Act states that other individuals who have knowledge or special expertise regarding the child may be included as members of a child's IEP Team at the discretion of the parent or the agency. Consistent with Sec. 300.321(c), the party (parents or public agency) who invites the individual to be a member of the IEP Team determines the knowledge or special expertise of such individual.

Changes: None.

Comment: Several commenters recommended that the IEP Team include an IEP manager who would communicate with IEP members not in attendance, ensure that the IEP requirements are met, and assume responsibility for implementing the IEP.

Discussion: The Act does not require an IEP Team manager as a part of the IEP Team. While having one individual manage the provision of services under the IEP might be a good practice in particular circumstances, we decline to require IEP Team managers for all IEPs because, in many cases, it would be unnecessary. In addition, to ensure that all IEP Team members are aware of their responsibilities regarding the implementation of a child's IEP, Sec. 300.323(d) requires that the child's IEP be accessible to each regular education teacher, special education teacher, related services provider, and any other service provider who is responsible for its implementation.

Changes: None.

Comment: A few commenters recommended that the special education teacher on a child's IEP Team should be required to have expertise in the area of the child's disability. The commenters stated that this is especially important for children with dyslexia and children with other learning disabilities.

A few commenters recommended that the child's future teacher be required to attend an end-of-the-year IEP Team meeting.

Discussion: Section 612(d)(1)(B)(iii) of the Act requires that not less than one special education teacher of the child (or where appropriate, not less than one special education provider of the child) be included on the IEP Team. Decisions as to which particular teacher(s) or special education provider(s) are members of the IEP Team and whether IEP Team meetings are held at the end of the school year or some other time, are best left to State and local officials to determine, based on the needs of the child.

Changes: None.

Comment: A few commenters recommended defining "regular education environment" in Sec. 300.321(a)(2) to mean the regular classroom and the non-academic environment. A few commenters requested that the regulations require children to be in the regular classroom and in nonacademic activities with their nondisabled peers.

Discussion: It is not necessary to define "regular education environment" or to repeat that children with disabilities should be included in the regular classroom and in nonacademic activities with their nondisabled peers. The LRE requirements in Sec. Sec. 300.114 through 300.120, consistent with section 612(a)(5) of the Act, are clear that each public agency must ensure that, to the maximum extent appropriate, children with disabilities are educated with children who are nondisabled. Section 300.117, consistent with section 612(a)(5) of the Act, is clear that this includes nonacademic and extracurricular services and activities.

Changes: None.

Comment: A few commenters stated that a special education provider should be allowed to substitute for a special education teacher only when the child does not have a special education teacher because the role of a special education teacher is different from the role of a special education provider.

Discussion: The recommended change is not appropriate. Section 300.321(a)(2) incorporates the language in section 614(d)(1)(B)(iii) of the Act and requires the IEP Team to include not less than one special education teacher, or where appropriate, not less than one special education provider. The special education provider may substitute when there is no special education teacher. However, the Act leaves open the possibility that there may be other appropriate circumstances when a special education provider could substitute for a special education teacher. These are decisions best left to State and local officials.

Changes: None.

Comment: A few commenters recommended that the regulations define "special education teacher" and "special education provider," as used in Sec. 300.321(a)(3).

Discussion: Section 300.321(a)(3), consistent with section 614(d)(1)(B)(iii) of the Act, requires that the IEP Team include not less than one special education teacher, or where appropriate, not less than one special education provider of the child. This is not a new requirement. The same requirement is in current Sec. 300.344(a)(3). As noted in Attachment I of the March 12, 1999 final regulations, the special education teacher or provider who is a member of the child's IEP Team should be the person who is, or will be, responsible for implementing the IEP. For example, if the child's disability is a speech impairment, the special education teacher or special education provider could be the speech language pathologist. We do not believe that further clarification is needed.

Changes: None.

Comment: Many commenters recommended that the regulations require the IEP Team to include a representative of the public agency who has the authority to commit resources. One commenter stated that the failure of this individual to attend an IEP Team meeting lengthens the decision-making process, delays services, and removes parents from equal participation in an IEP Team meeting.

Discussion: Section 300.321(a)(4) incorporates the language in section 614(d)(1)(B)(iv) of the Act and requires the IEP Team to include a representative of the public agency who is qualified to provide or supervise the provision of specially designed instruction to meet the unique needs of children with disabilities; is knowledgeable about the general education curriculum; and is knowledgeable about the availability of LEA resources.

A public agency may determine which specific staff member will serve as the agency representative in a particular IEP Team 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 described in the IEP will actually be provided. However, we do not need to regulate in the manner suggested, as the public agency will be bound by the IEP that is developed at an IEP Team meeting.

Changes: None.

Comment: One commenter recommended that the IEP Team include an individual who is qualified to conduct individual diagnostic assessments.

Discussion: Section 300.321(a)(5) follows the language in section 614(d)(1)(B)(v) of the Act and requires the IEP Team to include an individual who can interpret the instructional implications of evaluation results. An individual who is qualified to conduct a particular assessment does not necessarily have the skills or knowledge to assist the IEP Team in determining the special education, related services, and other supports that are necessary in order for the child to receive FAPE. Therefore, we do not believe that it is necessary to require that the IEP Team also include an individual who can conduct diagnostic assessments.

Changes: None.

Comment: A few commenters expressed concern that IEP Team meetings are being used by parent advocates to train parents of other children, and by attorneys to train their associates about the school's IEP process. In order to prevent this, these commenters stated that the regulations should identify the specific knowledge and expertise that an individual must have to be included on an IEP Team. One commenter expressed concern about confidentiality rights; the lack of credentials for advocates; and the lack of authority for a parent or school district to prevent advocates from participating in an IEP Team meeting.

Discussion: Section 614(d)(1)(B)(vi) of the Act allows other individuals who have knowledge or special expertise regarding the child to be included on a child's IEP Team. Section 300.321(c) provides that the determination of the knowledge or special expertise of these individuals must be made by the party (parents or public agency) who invited the individual to be a member of the IEP Team. We continue to believe that this determination is best left to parents and the public agency. We also believe that it would be inappropriate to regulate on the specific knowledge and expertise that an individual must have to be included on an IEP Team because it would be burdensome for both parents and public agencies.

Additionally, nothing in the Act prevents parents from consenting to have an observer who is not a member of the IEP Team present at the meeting, as the parent can consent to the sharing of confidential information about the child. With that exception, it should be emphasized that a person who does not have knowledge and special expertise regarding the child and who is not requested to be present at the IEP Team meeting by the parent or public agency would not be permitted to be a member of the IEP Team or be permitted to attend the IEP Team meeting as an observer.

Changes: None.

Comment: A few commenters recommended changing Sec. 300.321(a)(7) to clarify that a parent has the right to bring their child to any or all IEP Team meetings at any age.

Discussion: We do not believe that the additional clarification requested by the commenters is necessary. Section 614(d)(1)(B)(vii) of the Act clearly states that the IEP Team includes the child with a disability, whenever appropriate. Generally, a child with a disability should attend the IEP Team meeting if the parent decides that it is appropriate for the child to do so. If possible, the agency and parent should discuss the appropriateness of the child's participation before a decision is made, in order to help the parent determine whether or not the child's attendance would be helpful in developing the IEP or directly beneficial to the child, or both.

Until the child reaches the age of majority under State law, unless the rights of the parent to act for the child are extinguished or otherwise limited, only the parent has the authority to make educational decisions for the child under Part B of the Act, including whether the child should attend an IEP Team meeting.

Changes: None.