Guidance Letter Clarifies Key IDEA Issues School-based clinicians won a victory by gaining guidance from an agency of the U.S. Department of Education (ED) on three key areas of concern in the Individuals with Disabilities Education Improvement Act of 2004. The guidance, in the form of a letter to ASHA, provides important clarification regarding eligibility for ... School Matters
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School Matters  |   May 01, 2007
Guidance Letter Clarifies Key IDEA Issues
Author Notes
  • Kathleen Whitmire, director of school services, can be reached at kwhitmire@asha.org.
    Kathleen Whitmire, director of school services, can be reached at kwhitmire@asha.org.×
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School-Based Settings / Regulatory, Legislative & Advocacy / School Matters
School Matters   |   May 01, 2007
Guidance Letter Clarifies Key IDEA Issues
The ASHA Leader, May 2007, Vol. 12, 7-28. doi:10.1044/leader.SCM1.12062007.7
The ASHA Leader, May 2007, Vol. 12, 7-28. doi:10.1044/leader.SCM1.12062007.7
School-based clinicians won a victory by gaining guidance from an agency of the U.S. Department of Education (ED) on three key areas of concern in the Individuals with Disabilities Education Improvement Act of 2004. The guidance, in the form of a letter to ASHA, provides important clarification regarding eligibility for speech-language services when the student is not failing a course or grade; local or state requirements regarding rescheduling missed sessions; and decisions about service delivery options.
Issued in response to ASHA’s advocacy efforts, the ED’s guidance letter provides important clarification to state education agencies and local school districts as they implement the law. In developing their local policies and procedures, these agencies rely on three levels of federal oversight: the IDEA 2004 law, which provides a framework and mandates for special education; the 2006 regulations, which spell out the requirements for implementing the law; and—if implementation questions persist—the ED, which issues a letter of guidance through the Office of Special Education Programs (OSEP).
Eligibility
In its letter, OSEP responded to concerns of school-based members by reaffirming a letter issued May 30, 1980, which addressed eligibility for services. The 1980 letter clarified that “a speech/language impairment necessarily adversely affects educational performance when the communication disorder is judged sufficiently severe to require the provision of speech pathology services to the child…The extent of a child’s mastery of the basic skill of effective oral communication is clearly includable within the standard of ‘educational performance’ set by the regulations"—that is, academic failure is not a prerequisite for services.
This 1980 clarification has been helpful in light of calls from ASHA members who report that some state and local education agencies continue to require educational assessments of all children with speech-language disorders to determine eligibility for special education and related services. SLPs report that children are being denied services because their disability is not reflected in failing courses or grade retention. The 1980 statement is also consistent with the current 2006 IDEA Part B final regulations, which state that a free appropriate public education (FAPE) must be made available to a child with a disability who needs special education and related services even though the child is advancing from grade to grade and has not failed or been retained in a course or grade.
The recent guidance letter affirms that “it remains the Department’s position that the term ‘educational performance’ is not limited to academic performance.” The determination that a speech and language impairment adversely affects a child’s educational performance must be determined on a case-by-case basis, depending on the unique needs of the child, not based on discrepancies in age or grade performance in academic subject areas, according to the OSEP letter. The need for services must be decided based on functional, developmental, and academic information as stated in IDEA and the regulations. Services cannot be denied as a matter of policy because the adverse affect on educational performance is not reflected in grades or academic achievement, according to the letter.
“This is very important guidance for school-based clinicians recommending services for children with speech- language impairments that are not reflected in grades, particularly in instances of fluency, voice, dysphagia, or articulation disorders,” said Noma Anderson, ASHA president. “According to IDEA 2004, adverse effect can be documented in functional performance as well as academic achievement, and in academic, nonacademic, and extracurricular settings. This gives the SLP options in documenting the adverse impact of a communication disorder as the basis for needed services.”
Missed Sessions
ASHA requested clarification regarding treatment sessions missed due to the child’s absence from school, a class or school activity such as a field trip or an assembly, or absence of the SLP due to illness or family emergencies. This request was in response to members’ concerns about some state and local education agencies requiring the use of substitutes during the SLP’s absence, or requiring the SLP to schedule a make-up session when a session is missed.
In its response, OSEP acknowledged that states and local educational agencies are required to ensure that all children with disabilities receive a FAPE consistent with their individualized education programs (IEP) and encouraged agencies to consider the impact of the absence of a child or provider on the child’s progress toward meeting annual goals. However, OSEP stated that determination of whether an interruption in services constitutes a denial of FAPE must be made on a case-by-case basis.
Service Delivery Options
OSEP also responded to ASHA’s request for clarification about service delivery options. ASHA members have reported that some local education agencies place restrictions on service delivery choices, such as limiting speech-language services to include only small-group pull-out intervention, classroom-based services, or direct services. These restrictions prevent the IEP team from developing an education plan that meets the individual needs of the child, as services must meet a predetermined format. In addition, caseloads become inflated with children making limited or no progress because of inappropriate service delivery.
In the request to OSEP, ASHA noted that the regulations address this issue within the context of the continuum of alternative placements. For example, the discussion/comments section of the regulations states that “placement decisions must be based on the individual needs of each child with a disability. Public agencies, therefore, must not make placement decisions based on a public agency’s needs or available resources, including budgetary considerations and the ability of the public agency to hire and recruit qualified staff” (The Federal Register, p. 46587). The regulations also require a continuum of alternative placements, not a “one-size-fits-all” approach, and placement decisions cannot be made on factors such as category of disability, severity of disability, availability of special education and related services, configuration of the service delivery system, availability of space, or administrative convenience (The Federal Register, pp. 46587–46588).
In response, OSEP reiterated the regulations stating that the IEP team is responsible for developing a child’s IEP, including determining the anticipated frequency, location, and duration of the services. The guidance letter noted that ASHA’s examples of allowing only small-group instruction or direct services “are matters for consideration by the IEP team, based on a child’s individual and unique needs, and cannot be made as a matter of general policy by administrators, teachers, or others apart from the IEP team process.”
In a meeting with OSEP Director Alexa Posny on March 15 regarding this letter of guidance, she affirmed that this wording related to continuum of alternative placements also applies to the continuum of service delivery options. This guidance supports SLPs’ roles as part of the IEP team in determining the types of service delivery that will best meet the individual needs of the child and support progress toward meeting IEP goals.
During the meeting, Posny indicated that she has also copied the ASHA guidance letter to a variety of stakeholders, including state directors of special education, Part C coordinators, technical assistance and dissemination networks, and parent training institutes.
For more information on the guidance letter, contact Catherine Clarke, director of education and regulatory advocacy, at cclarke@asha.org or at 800-498-2071, ext. 4159. Visit the IDEA website for the full text of ASHA’s initial letter to OSEP and OSEP’s letter of guidance in response. Visit School Setting for more information on school-based practice.
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May 2007
Volume 12, Issue 6