1. Presented By: Eric G. Rodriguez
Recent OSEP Letters: Transfer Students, Transition Assessment, and MDRs
Presented By: Eric G. Rodriguez

2. Letter to Siegel (2/21/19)
When a student moves into a new LEA during the summer, is the new LEA is required to hold an individualized education program (IEP) Team meeting prior to the start of the school year?
Rule - If a child with a disability, who had an IEP that was in effect in a previous public agency in the same State, transfers to a new public agency in the same State, and enrolls in a new school within the same school year, the new public agency, in consultation with the parents, must provide a free appropriate public education to the child. This includes providing services comparable to those described in the child's IEP from the previous public agency, until the new public agency either --
(1) adopts the child's IEP from the previous public agency; or
(2) develops, adopts, and implements a new IEP that meets the applicable requirements

3. Letter to Siegel (2/21/19)
Yes, but what if the student transfers to the new LEA during the summer?
OSEP says, “This provision does not specifically address a situation where a child with a disability transfers to a new public agency during the summer. However, IDEA also requires that at the beginning of each school year, each LEA, State educational agency, or other State agency, must have in effect, for each child with a disability in the agency's jurisdiction, an IEP.”

4. Letter to Siegel (2/21/19)
How a public agency meets this requirement is a matter to be decided by each individual new public agency.
If the parent requests that the new public agency convene the IEP Team prior to the start of the school year and the public agency refuses to do so, the agency must provide written notice to the parent of the refusal.
The prior written notice must include, among other content, an explanation of why the agency determined that conducting the meeting is not necessary to ensure the provision of appropriate services to the student.

5. Letter to Olex (2/22/19)
Is parental consent is required prior to conducting "age appropriate transition assessments" referenced in the IDEA Part B transition services provisions?
“In general, IDEA does not require a public agency to obtain parental consent before conducting those assessments, unless the assessments are part of an initial evaluation or reevaluation.”

6. Letter to Olex (2/22/19)
Rule - Under 34 C.F.R. § (b), beginning with the first individualized education program (IEP) to be in effect when a child turns 16, or younger if determined appropriate by the IEP Team, and updated annually thereafter, the IEP must include: (1) appropriate measurable postsecondary goals based on age appropriate transition assessments related to training, education, employment, and where appropriate, independent living skills; and (2) the transition services, including courses of study, needed to assist the child in reaching those goals.

7. Letter to Olex (2/22/19)
Rule - IDEA requires a public agency to obtain parental consent prior to conducting an initial evaluation or reevaluation.
Rule - Parental consent is not required before reviewing existing evaluation data on the child as part of an evaluation or a reevaluation or administering a test or other evaluation that is administered to all children unless, before administration of that test or evaluation, consent is required of parents of all children.

8. Letter to Olex (2/22/19)
“Further, we believe that generally, parental consent is not required prior to conducting an age appropriate transition assessment because the purpose of the assessment is to develop appropriate postsecondary IEP goals and not to determine whether a child has or continues to have a disability, and the nature and extent of the special education and related services that the child needs.”
“If, however, the IEP Team determines that a reevaluation of the child is warranted in order to obtain additional data, based on the student's educational or related services needs including improved academic achievement and functional performance, the public agency is required to obtain parental consent.”

9. Letter to Nathan (2/29/19)
Once it has been established that a child is a child who the local educational agency (LEA) is deemed to know is a child with a disability, can the LEA postpone the manifestation determination review meeting until after the completion of the initial evaluation or the initial individualized education program (IEP) Team meeting?

10. Letter to Nathan (2/29/19)
Rule - a school is deemed to have knowledge that a student has a disability when --
(i) the parent of the child has expressed concern in writing to supervisory or administrative personnel of the appropriate educational agency, or a teacher of the child, that the child is in need of special education and related services;
(ii) the parent of the child requested an evaluation of the child pursuant to section 1414(a)(1)(B) of this title; or
(iii) the teacher of the child, or other personnel of the LEA, has expressed specific concerns about a pattern of behavior demonstrated by the child directly to the director of special education of such agency or to other supervisory personnel of the agency.

11. Letter to Nathan (2/29/19)
Rule - If a child engages in behavior that violates a code of student conduct prior to a determination of his or her eligibility for special education and related services and the public agency is deemed to have knowledge of the child's disability, the child may assert the disciplinary protections under IDEA, including the manifestation determination review (MDR) provisions even if the child has not been found eligible for special education and related services.

12. Letter to Nathan (2/29/19)
“Thus, within 10 school days of any decision to change the placement of a child with a disability because of a violation of a code of student conduct, [the ARD committee] must conduct an MDR. This provision does not include an exception to allow additional time to complete an evaluation prior to conducting the MDR.”

13. Letter to Nathan (2/29/19)
If the LEA cannot postpone the MDR pending completion of the initial evaluation, how should the LEA conduct the MDR, given the fact that: 1) the LEA may have little to no information about the student's disability; and 2) the purpose of the MDR is to determine whether the behavior is the result of the student's disability?

14. Letter to Nathan (2/29/19)
“It would still be possible for the LEA to convene a group of knowledgeable persons, as determined by the parent and the LEA, who would be able to conduct the MDR even before the LEA has made its eligibility determination, if the LEA cannot conduct the evaluation before the MDR. The group would likely consider the information that served as the LEA's basis of knowledge that the child may be a child with a disability under IDEA, such as concerns expressed by a parent, a teacher or other LEA personnel about a pattern of behavior demonstrated by the child.”

15. Letter to Nathan (2/29/19)
“Based upon its review and consideration of the available information, the group would determine whether the conduct in question was caused by, or had a direct and substantial relationship to the child's suspected disability. There is nothing in IDEA that would prevent the LEA from conducting the MDR in connection with its evaluation and eligibility determination, so long as the MDR is conducted within 10 school days of the decision to change the student's placement due to a violation of a student code of conduct. “

16. Eric G. Rodriguez
Phone: | Fax:

17. The information in this presentation was prepared by Walsh Gallegos Treviño Russo & Kyle P.C. It is intended to be used for general information only and is not to be considered specific legal advice. If specific legal advice is sought, consult an attorney.
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