Analysis
of Comments, Discussions and Changes from Attachment 1
Comment: Some commenters requested that, in implementing the IEP for disabled students in school-funded placements outside of the school district, the cost of trips, phone calls, and other expenses incurred by parents should be covered. Some commenters stated that they are not reimbursed for official long-distance phone calls made regarding their child's needs or for trips to attend special IEP meetings. According to a commenter, onedistrict will pay for the cost of driving the student to school, but not for the cost of the return trip of the parents.
Several commenters requested that the definition of "physical education" in proposed §300.24(b)(2)(ii) be amended to change "adaptive" to "adapted," because the term was used in the original regulations, and no rationale has been provided for changing it.
Some commenters expressed support for the definition of "specially designed instruction" as written, while other commenters expressed support with modification. Other commenters took exception to the definition, characterizing it as overly prescriptive. Other commenters recommended dropping the reference to methodology, citing case law and the legislative history in support of their view that methodology should not be included in this definition.
A few commenters stated that the definition of "vocational education" in proposed §300.24(a)(3) was not complete, and requested that it be amended to comply with the definition in the Carl D. Perkins Vocational and Applied Technology Education Act. Other commenters objected to including "vocational education" within the definition of "special education," asserting that there is no statutory authority to do so. Other commenters recommended that some minor modifications be made to the current definition.
A few commenters requested that the regulations clarify the difference between accommodations that do not change the content of the curriculum and modifications that do change it. Other commenters requested that access to the general curriculum be to the maximum extent appropriate for the child. A few commenters recommended adding clarifying language to accommodate the distinction between providing disabled students with a meaningful opportunity to meet the standards and actually meeting the standards, and stated that the Act recognizes this distinction by referencing involvement and progress in the general curriculum. Some commenters supported the note to proposed §300.24 (that a related services provider may be a provider of specially designed instruction if State law permits). Other commenters stated that the note should be deleted to eliminate the possibility that individuals may interpret it to mean that the term "child with a disability," as defined under proposed §300.7, might include children who need only a related service.
Discussion: It is not necessary to revise the definition of "at no cost" under paragraph (b)(1) of this section, since that definition already addresses the comment relating to the cost of trips, phone calls, and other expenses incurred by parents of disabled children when those children are placed outside the school district by a public agency. If the school district places the child, and the IEP team determines that the costs of phone calls and trips are relevant to the student's receipt of FAPE, the public agency placing the child would be expected to pay for such expenses.
Paragraph (b)(2) concerning "physical education" should be amended to substitute the word "adapted" for the word "adaptive," since this is the term that was in the original regulations.
With regard to the definition of "specially designed instruction," some changes should be made. The committee reports to Pub. L. 105-17 make clear that specific day-to-day adjustments in instructional methods and approaches are not normally the sort of change that would require action by an IEP team. Requiring an IEP to include such a level of detail would be overly-prescriptive, impose considerable unnecessary administrative burden, and quite possibly be seen as encouraging disputes and litigation about rather small and unimportant changes in instruction. There is, however, a reasonable distinction to be drawn between a mode of instruction, such as cued speech, which would be the basis for the goals, objectives, and other elements of an individual student's IEP and should be reflected in that student's IEP, and a day-to-day teaching approach, i.e., a lesson plan, which would not be intended to be included in a student's IEP.
Case law recognizes that instructional methodology can be an important consideration in the context of what constitutes an appropriate education for a child with a disability. At the same time, these courts have indicated that they will not substitute a parentally-preferred methodology for sound educational programs developed by school personnel in accordance with the procedural requirements of the IDEA to meet the educational needs of an individual child with a disability.
In light of the legislative history and case law, it is clear that in developing an individualized education there are circumstances in which the particular teaching methodology that will be used is an integral part of what is "individualized" about a student's education and, in those circumstances will need to be discussed at the IEP meeting and incorporated into the student's IEP. For example, for a child with a learning disability who has not learned to read using traditional instructional methods, an appropriate education may require some other instructional strategy.
Other students' IEPs may not need to address the instructional method to be used because specificity about methodology is not necessary to enable those students to receive an appropriate education. There is nothing in the definition of "specially designed instruction" that would require instructional methodology to be addressed in the IEPs of students who do not need a particular instructional methodology in order to receive educational benefit. In all cases, whether methodology would be addressed in an IEP would be an IEP team decision.
Other changes to the definition of "specially designed instruction" are not needed. The distinction between accommodations that change the general curriculum and those that do not, as one commenter requests, would be difficult to make because of the individualized nature of these determinations. Regardless of the reasons for the accommodation or modification, it must be provided if necessary to address the special educational needs of an individual student.
The words "maximum extent appropriate" should not follow the reference to participation in the general curriculum, because such a qualification would conflict with the Act's IEP requirements and the unequivocal emphasis on involvement and progress of students with disabilities in the general curriculum, regardless of the nature or significance of the disability.
The term "vocational education" in paragraph (b)(5) should not be amended to conform to the definition in the Carl D. Perkins Vocational and Applied Technology Education Act. The definition of "vocational education" in the proposed regulations should be retained in these final regulations since it reflects the definition of that term contained in the original regulations for this program published in 1977. While the regulatory definition includes all of the activities in the Perkins Act definition, the substitution of the definition from the Perkins Act would be too limiting since that definition would not encompass those activities included in the current definition. The inclusion of "vocational education" in the definition of "special education" is needed to ensure that students with disabilities receive appropriate, individually-designed vocational educational services to facilitate transition from school to post-school activities.
In light of the general decision not to use notes in these final regulations, the note following this section of the NPRM should be removed. The removal of this note, however, should not be construed as altering eligibility requirements under these regulations -- namely (1) a child is an eligible child with a disability under Part B if the child has a covered impairment and requires special education by reason of the impairment; and (2) a child with a disability can receive a related service only if that service is required to assist the child to benefit from special education. However, consistent with §300.26(a)(2), any related service that is considered special education rather than a related service under State standards may be considered as special education. A provision has been added under the definition of "child with a disability" to reflect this concept.
Changes: Paragraph (a)(2) has been amended to add travel training to the elements contained in the definition of "special education," and a separate definition of travel training has been added to paragraph (b)(4) as discussed in this attachment under §300.24. Paragraph (b)(2) concerning physical education has been revised to substitute the word "adapted" for the word "adaptive." Paragraph (b)(3) has been revised to make clear that adaptations to instruction, in the form of specially designed instruction, are made as appropriate to the needs of the child. The note following this section of the NPRM has been removed, and the substance of the note is reflected in the above discussion.
