Letter of Inquiry - OSEP

I am writing in response to the letter to the

Office of Special Education Programs ("OSEP")

from you and your staff. Your inquiry is a

followup to our recent letter to you and seeks

further clarification of requirements in Part B

of the Education of the Handicapped Act ("EHA-

B") for providing extended school year services

("ESY") to children with handicapping

conditions.

Your current letter poses four (4) questions.

I will respond to them as follows:

Since EHA-B does not address a school

district's obligation to provide a full

continuum of placements, when providing

ESY services, how can the LRE requirements

at 34 CFR 300.550-300.556 apply, which

require a full continuum at 300.551?

Each child who receives a free appropriate

public education ("FAPE") under EHA-B,

including children receiving ESY services, must

be educated in the least restrictive setting

in which the child's IEP can be implemented.

34 CFR 300.550(b); 300.552. Because ESY

services are provided during a period of time

when the full continuum of placements is not

normally available for any students, the

Department does not require States to ensure

that a full continuum of placements is

available solely for the purpose of providing

ESY services. However, EHA-B does require that

options on the continuum be made available to

the extent necessary to implement a child's

IEP. 34 CFR 300.552(b).

What's the distinction between: (a)

School districts not being required to

establish public programs for

nonhandicapped children to meet the LRE

provisions, and (b) School districts

being required to purchase private

placements when it's determined that

interaction with nonhandicapped children

is required?

The distinction is that in situation (a), a

local education agency ("LEA") is not required

to establish public programs for the purpose of

providing ESY services if there are no public

programs for nonhandicapped children during

this time period. Under situation (b), an LEA

would have to purchase a private school

placement, if there was no available public

placement, and the private placement was

determined to be necessary to implement an

individual child's IEP for ESY services.

If interaction with nonhandicapped

children is the issue, and the private

placments you are suggesting are setting

for regular education students, (a) Is a

school district required to purchase

regular classroom settings from the

private section in order to meet the LRE

requirements, (b) What special

education/specially designed instruction

is being purchased, and (c) Can a

school district use Federal special

education funds to purchase a regular

education program?

Regarding questions 3(a) and 3(b), the LEA is

required to purchase private school placements

in a regular education setting if they are

required to implement a child's IEP. Each

child's placement determination must be

individualized and based upon the content of

the IEP. 34 CFR 300.552(a)(2); 300.346(c).

OSEP recognizes that a child's IEP for ESY

services will probably differ from the child's

regular IEP, since the purpose of the ESY

program is to prevent regression and recoupment

problems. Therefore, the placement needed to

implement the child's IEP for ESY services may

differ from the child's placement during the

regular school year.

Keeping this in mind, regarding question 3(c),

if a determination is made that a private

school is the appropriate placement in which to

implement an IEP for ESY services, Federal

funds can be used to pay for the services in

that situation.

If center-based programs are the only

options available within an LEA for ESY

services, and no regular education

services exist during the period ESY

services are being provided, what

modification would be required and could

be made in the program in order to meet

the LRE requirements?

The EHA-B does not address obligations of

school districts to modify existing programs to

ensure that a child's IEP for ESY services can

be implemented. Instead, such matters are left

to the discretion of State and local

educational authorities. Therefore, any

modifications which are necessary for center-

based programming in order to implement a

child's IEP for ESY services, must be

determined on a case-by-case basis.

I hope this information is helpful. Please

let us know if we can be of further assistance.

Judy A. Schrag, Ed.D., Director

Office of Special Education Programs