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

IEPs for children who transfer from another State (new Sec. 300.323(f)) (proposed Sec. 300.323(e)(1)(ii))

Comment: One commenter requested clarification regarding the responsibilities of LEAs who receive a child transferring from out of State.

Discussion: When a child transfers from another State, new Sec. 300.323(f) (proposed Sec. 300.323(e)(1)(ii)), consistent with section 614(d)(2)(C)(i)(II) of the Act, requires the LEA, in consultation with the parents, to provide the child with FAPE, including services comparable to those in the IEP from the previous public agency, until such time as the new public agency conducts an evaluation (if determined to be necessary) and adopts a new IEP.

Changes: None.

Comment: Several commenters requested that the regulations clarify what happens when a child transfers to a State with eligibility criteria that are different from the previous public agency's criteria.

Discussion: Under Sec. 300.323(f)(1), if the new public agency determines that an evaluation of the child is necessary to determine whether the child is a child with a disability under the new public agency's criteria, the new public agency must conduct the evaluation. Until the evaluation is conducted, Sec. 300.323(f) requires the new public agency, in consultation with the parent, to provide the child with FAPE, including services comparable to those described in the IEP from the previous public agency. The specific manner in which this is accomplished is best left to State and local officials and the parents to determine. We do not believe that any further clarification is necessary.

Changes: None.

Comment: One commenter requested clarification about whether parental consent must be obtained for the new public agency to evaluate a child with an IEP who transfers from another State. Another commenter requested that the regulations clarify that an evaluation of a child who transfers from another State is considered a reevaluation.

One commenter requested that the regulations address circumstances in which comparable services are considered unreasonable in the State receiving the child. Some commenters stated that the stay-put provision should be imposed by the new State if the parent disagrees with the new public agency about the comparability of services.

Discussion: New Sec. 300.323(f) (proposed Sec. 300.323(e)(1)(ii)), consistent with section 614(d)(2)(C)(i)(II) of the Act, states that, in the case of a child with a disability who enrolls in a new school in another State, the public agency, in consultation with the parents, must provide FAPE to the child, until such time as the public agency conducts an evaluation pursuant to Sec. Sec. 300.304 through 300.306, if determined necessary by the public agency, and develops a new IEP, if appropriate, that is consistent with Federal and State law. The evaluation conducted by the new public agency would be to determine if the child is a child with a disability and to determine the educational needs of the child. Therefore, the evaluation would not be a reevaluation, but would be an initial evaluation by the new public agency, which would require parental consent. If there is a dispute between the parent and the public agency regarding what constitutes comparable services, the dispute could be resolved through the mediation procedures in Sec. 300.506 or, as appropriate, the due process hearing procedures in Sec. Sec. 300.507 through 300.517. We believe these options adequately address circumstances in which comparable services are considered unreasonable.

With regard to the comment that the stay-put provisions should be imposed by the new State if the parent disagrees with the new public agency about the comparability of services, stay-put would not apply, because the evaluation is considered an initial evaluation and not a reevaluation.

Changes: None.

Comment: A few commenters requested clarification regarding the responsibilities of the new public agency for a child with a disability who moves during the summer.

Discussion: Section 614(d)(2)(a) is clear that at the beginning of each school year, each LEA, SEA, or other State agency, as the case may be, must have an IEP in effect for each child with a disability in the agency's jurisdiction. Therefore, public agencies need to have a means for determining whether children who move into the State during the summer are children with disabilities and for ensuring that an IEP is in effect at the beginning of the school year.

Changes: None.

Comment: Some commenters requested clarification regarding what a new public agency should do when a child's IEP is developed (or revised) by the child's previous public agency at the end of a school year (or during the summer), for implementation during the next school year, and the child moves to the new public agency before the next school year begins (e.g., during the summer).

Discussion: This is a matter to be decided by each individual new public agency. However, if a child's IEP from the previous public agency was developed (or reviewed and revised) at or after the end of a school year for implementation during the next school year, the new public agency could decide to adopt and implement that IEP, unless the new public agency determines that an evaluation is needed. Otherwise, the newly designated IEP Team for the child in the new public agency could develop, adopt, and implement a new IEP for the child that meets the applicable requirements in Sec. Sec. 300.320 through 300.324.

Changes: None.