October 29, 1993

Concerned Parent

Indiana

Dear Parent:

This is in response to your letters dated April 17, 1992 and January 4,

1993 to Judy A. Schrag, former Director of the Office of Special

Education Programs ("OSEP"), concerning rules for Indiana Statewide

Testing for Educational Progress ("ISTEP"). In your letter on January

4, 1993, you also indicate that you have filed a complaint on a

separate issue with the In diana Department of Education ("IDE") and

have requested that OSEP track your complaint. We have contacted IDE

to determine the status of your complaint and have been advised that

IDE has issued its final decision on that complaint. Should you

disagree with that decision, you have the right request Secretarial

review pursuant to 34 CFR 300.661 (d) of the regulations t hat

contain the procedures applicable to complaints involving Part B of

Individuals with Disabiliti es Education Act (Part B). I hope you will

excuse the delay in my reply.

 

In your letter of April 17, 1992, you ask the following questions, each

which is restated here and followed by OSEP's response:

 

(1) May the Indiana State Board of Education require that student s

with disabilities participate in the ISTEP program if the

multidisciplinary par ticipate team determines that such testing is not

appropriate for the student?

 

The term "evaluation" is defined at 34 CFR 300.500 to mean

"procedures used in accordance with 300.500-300.534 to determine

whether a child has a disability and the nature and extent of the

special education and related services that the child needs. The term

m eans procedures used selectively with an individual child and does

not include basic tests administered to or procedures used with all

children in a school, grade, or class." 34 CFR 300.500 (b).

Therefore, under Part B, the purpose of an evaluation are to determine

whether an individual chil d (1) has a disability and (2) the nature

and extent of the special education and related services that the child

needs. There are a number of specific Part B requirements that govern

evaluations und er Part B, including the requirement that each child's

evaluation is conducted by a multidiscipli nary team, including at

least one teacher or other specialist with knowledge in the area of the

child's suspected disability. 34 CFR 300.532 (d). We have been

advised by officials of IDE that IST EP is not an "evaluation," as that

term is used in Part B, since ISTEP is analogous to "basic tests

administered to or procedures used with all children in school, grade,

or class." Therefore, none of the Part B evaluation requirements,

including the requirements for the multidisciplinary team, is

applicable to participation in ISTEP.

 

We note that while your inquiry refers to the role of the

"multidiscipli nary team," the Indiana rule refers to the case

conference committee, the equivalent of the individua lized education

program committee under Part B, and according to Indiana rules, the

multidisciplinary team and the case conference committee are separate

entities. Further, our review of the rules relevant to ISTEP indicates

that the case conference committee has the authority under specified

circumstances, to determine whether students with disabilities should

participate in IS TEP. In your inquiry, you expressed a concern that

these decisions would not be made by the person "most knowledgeable

about student." However, because according to Indiana rules, the case

conference committee consists of "public agency personnel, parents, and

others," we believe t hat decisions regarding participation of students

with disabilities in ISTEP are made by persons knowledgeable about the

child.

 

(2) May the Indiana State Board of Education require that student s

with disabilities be subject to remediation, retesting, or retention

based on the results of their ISTEP scores?

 

In your letter, you cite the regulation at 34 CFR 300.532 (e), which

provides that "[n]o single procedure be used as the sole criterion for

determining an appropriate program for a child." However, this

regulation is applicable only to evaluations used for the purpose of

making initial eligibility determinations and reevaluations to

determine a child's cont inued status as a child with a disability, and

inapplicable to general tests used with all children i n a school,

grade, or class. Therefore, we do not find that the cited provision of

the Indiana rule, which provides for remediation, including retention,

retesting, or summer programming for students with disabilities as a

result of their ISTEP scores be inconsistent with Part B.

 

(3) Is it proper for the SEA to make decisions regarding evaluati on

and programming of individual students without allowing the

participation of the multidisciplinary team, or decisions about ISTEP

testing and subsequent programming the province of the people most

knowledgeable about the student?

 

As noted above, it would be improper for participants of the

multidisciplinary team to make decisions regarding a student's

participation in ISTEP, since ISTEP is n ot subject to the evaluation

requirements of Part B. OSEP is fully supportive of Indiana's effort

to ensure that students with disabilities have the opportunity to

participate in ISTEP, as do nondisa bled students. Further, OSEP

believes that Indiana has made appropriate provisions for the

participat ion of the case conference committee, which consists of

individuals knowledgeable about the child, in decision regarding a

students's participation in ISTEP. In sum, we do not find the Indiana

r ule governing the participation of students with disabilities in

ISTEP to be inconsistent with Part B.

 

I hope that the above information has been helpful. If we can be of

fur ther assistance let me know.

 

Sincerely, Thomas Hehir Director Office of Special Education Programs