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    26 IDELR 179
    Foley, Letter to (FAPE)
    Office of Special Education Programs
    Honorable Mark A. Foley
    Member, House of Representatives
    4440 PGA Boulevard, Suite 406
    Palm Beach, FL 33410
    Digest of Inquiry
    [Date Not Provided]

    • What information can be provided regarding the provision of a FAPE to a preschool child?

    Digest of Response
    July 24, 1996
    Districts Must Provide FAPE To All Eligible Children Under Part B OSEP initially noted that if the child was eligible for special education services it would be in accordance with Part B. Under Part B, once an eligible child with a disability reaches the age of three, that child is entitled to a FAPE. OSEP specified for the inquirer the relevant definitions of "children with disabilities" and "related services." The eligibility and placement process was noted to be a decision made by the local school district. OSEP went over the definition of FAPE as stated in 34 C.F.R. 300.8 and reiterated that school districts must provide a FAPE at no cost to each eligible child. The rules regarding insurance payments for services were also provided to the inquirer. Lastly, OSEP informed the inquirer of the available complaint processes, either a due process hearing or the filing of a complaint with the state educational agency.

    Text of Inquiry Omitted

    Text of Response
    This is in response to your letter to Assistant Secretary for Legislation and Congressional Affairs Kay Casstevens requesting information on behalf of your constituents, [ ]. [ ] contacted you because they believe their grandson is not receiving a free appropriate public education. A member of my staff contacted [ ] on the telephone regarding his letter. The following information should be helpful for the [ ].

    The Individuals with Disabilities Education Act (IDEA) includes two State-administered grant programs: The Program for Infants and Toddlers with Disabilities and Their Families (Part H) for infants and toddlers with disabilities from birth to three years and the Grants to States Program (Part B) for children with disabilities beginning at age three. Under Part H of IDEA, infants and toddlers with disabilities below age three are eligible to receive early intervention services in accordance with an individualized family service plan (IFSP).

    Since [ ] is now [ ] years old, if [ ] is eligible for services under IDEA, it would be under the Part B program. A copy of the regulations governing Part B of IDEA and referenced throughout this letter is enclosed for your constituent's information.

    Children who have been receiving services under Part H are not automatically eligible at age three for a preschool special education program in the local school district. A State is not required to have the same definition of "disabilities" or the same eligibility criteria for Part H and Part B. Under Part B, children with specified disabilities, as determined according to Federal law and State standards, are eligible to receive a free appropriate public education upon reaching their third birthday. The term "children with disabilities" means those children evaluated in accordance with the evaluation requirements of Part B as having mental retardation, hearing impairments including deafness, speech or language impairments, autism, traumatic brain injury, other health impairments, specific learning disabilities, deaf-blindness, or multiple disabilities, and who because of those impairments need special education and related services. The regulations provide further definitions of the disabilities. See 34 CFR 300.7

    The term "related services" means transportation and such developmental, corrective, and other supportive services as are required to assist a child with a disability to benefit from special education and includes speech pathology and audiology, psychological services, physical and occupational therapy, recreation, early identification and assessment, counseling services, and medical services for diagnostic or evaluative purposes. The term also includes school health services, social work services in schools, and parent counseling and training. See 34 CFR 300.16

    The process for determining eligibility for special education, and the subsequent decision regarding placement and types of special education and related services to be provided a child, are determined on an individual basis at the local school district level. The special education and related services a child needs are contained in an individualized education program (IEP) which must be developed by a team that includes the parent. See 34 CFR 300.340-300.346. School districts are responsible for providing the special education and related services in accordance with a child's IEP at no cost to parents.

    The term "free appropriate public education" means special education and related services that are provided at public expense under public supervision and without charge; meet the standards of the State educational agency, include preschool, elementary school, or secondary school; and are provided in conformity with an IEP that meets the requirements of Part B. See 34 CFR 300.8. The Department interprets the requirements that a free appropriate public education be provided "without charge" or "without cost" to mean that local school districts may not compel parents to file claims with the parents' private insurance company if filing the claim would pose a realistic threat that the parents would suffer a financial loss. Financial loss would occur if:

      (1) Parents would realize a decrease in available lifetime coverage or any other benefit under an insurance policy;
      (2) Parents would realize an increase in premiums or the discontinuation of the policy; or
      (3) Parents would have out-of-pocket expenses such as the payment of a deductible amount incurred in filing a claim.

    A school district may not deny services that are identified on a child's IEP because a family's insurance does not pay for the service or because a family does not consent to filing of insurance where it would result in some financial loss to the family. Under Part B a parent may request an impartial due process hearing on the identification, evaluation or educational placement of their child, or the provision of a free appropriate public education to their child. See 34 CFR 300.500-300.515. Parents may also file a written complaint with the State educational agency if they believe the local school district has violated a requirement under Part B. See 34 CFR 300.662. In Florida, written complaints should be submitted to:
    Mrs. Shan Goff
    Bureau for Education for Exceptional Children
    Florida Department of Education
    Florida Education Center
    325 West Gaines Street, Suite 614
    Tallahassee, Florida 32399-0400

    [ ] may also contact Florida's coordinator of preschool special education programs:
    Mrs. Nancy Thomas
    Pre-Kindergarten Early Intervention Programs
    Office of Early Intervention and School Readiness
    Division of Public Schools
    Florida State Department of Education
    325 W. Gaines Street, Suite 754
    Tallahassee, Florida 32399-0400

    The Office of Special Education Programs funds a Parent Training and Information Center in each State. In Florida, the Wades may contact the Family Network on Disability, 5510 Gray Street, Suite 220, Tampa, Florida 33609; telephone (813) 289-1122 or FAX (813) 286-8614.
    Please contact this Office if we can be of further assistance.

    Thomas Hehir
    Office of Special Education Programs



26 IDELR 179

Requests for a copy of the original letter, or questions regarding the letter, may be directed to OSEP.  

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