December 1, 1998
Brad Sneeden Deputy Superintendent
N. C. Department of Public Instruction 301 N. Wilmington Street Raleigh, North Carolina 27601-2835
Re: Advisory Opinion Regarding LEA Representative on the IEP Team; G.S. §§ 115C- 106(b), 115C-110, 115C-113(b) & (f)
Dear Brad:
By letter dated November 10, 1998, you requested an opinion as to who can serve as the LEA Representative required to be part of the IEP Team under special education law and regulations. It is our opinion that the current State Board rule on this point properly implements G.S. §§ 115C-106(b), 115C-110, 115C-113(b) & (f), and that the rule is consistent with IDEA and its regulations. This State Board rule permits the LEA to designate, as the LEA Representative to serve on the IEP Team, a person — including but not limited to a principal — who meets the enumerated qualifications. LEA discretion to designate must, however, be tempered by considerations of the extent of a given child’s needs and of the particular occasion triggering an IEP Team meeting, as illustrated in the federal regulations discussed below.
Article 9 of Chapter 115C establishes, as State policy, the provision of a free appropriate publicly supported education to every child with special needs, such education to include a system for identifying, evaluating, and implementing an individualized educational program for each child’s special needs. G.S. § 115C-106(b). It is also State policy that State regulations and practice with regard to children with special needs conform "with relevant federal law." G.S. § 115C106(b)(viii). Pursuant to G.S. § 115C-110(a), the State Board of Education "shall have general supervision and shall set standards, by rule or regulation, for the programs of special education to be administered by" the SBE and by LEAs.
More specifically, G.S. § 115C-113(b) requires LEAs to conduct an initial multi-disciplinary diagnosis and evaluation of a child who may have special needs "based on rules developed by the Board" and G.S. § 115C-113(f) requires LEAs to "prepare individualized educational programs for all children found to be children with special needs." G.S. § 115C-113(f) expressly mandates that the IEP "shall be developed in conformity with Public Law 94-142 and the implementing regulations issued by the United States Department of Education." Finally, G.S. § 115C-113(f) provides that the IEP is to be developed (and later reviewed when necessary) in meetings of designated personnel, including "a representative of the local educational agency who shall be qualified to provide, or supervise the provision of, specially designed instruction to meet the unique needs of such children." Under current federal law, the personnel involved in such an IEP meeting are known as the "IEP Team."
The federal statutory enumeration of the required personnel composition for a child’s IEP Team includes "a representative of the local educational agency who — (I) is qualified to provide, or supervise the provision of, specially designed instruction to meet the unique needs of children with disabilities; (II) is knowledgeable about the general curriculum; and (III) is knowledgeable about the availability of resources of the local educational agency." Section 1414(d)(1)(B)(iv) of the Act. Further guidance on the intention of this statutory language is found in the IDEA regulations.
Section 34 of the Code of Federal Regulations states that the IEP Team "means a group of individuals described in Sec. 300.344 that is responsible for developing, reviewing, or revising an IEP for a child with a disability." 34 C.F.R. § 300.15. Section 300.344(a)(1) identifies the LEA Representative as the person having the three sets of characteristics identified in section 1414(d)(1)(B)(iv), quoted in full above. Note 1 attached to § 300.344 mentions that "[e]ither the teacher [on the Team] or the agency representative should be qualified in the area of the child’s suspected disability."
The qualifications for the LEA Representative set forth in the applicable State Board rule track the federal statutory and regulatory language, as required by G.S. § 115C-113(f), in the following language:
[A] representative of the local educational agency [shall serve on the IEP Team] who
- (a)
- is qualified to provide or supervise the provision of specially designed instruction to meet the unique needs of children with disabilities;
- (b)
- is knowledgeable about the general curriculum; [and]
- (c)
- is knowledgeable about the availability of resources of the local educational agency.
.1504B.(1) Procedures Governing Programs and Services for Children with Disabilities (May 1998).
Looking to Appendix C to Part 300 — Notice of Interpretation and, more particularly, 34 C.F.R. § 300.344(a)(1) (App. C) gives some additional illumination on the designation of an appropriate LEA Representative. This federal regulation deals with the participation during IEP meetings of an LEA Representative by stating: "The public agency shall ensure that each [IEP] meeting includes . . . [a] representative of the public agency, other than the child’s teacher, who is qualified to provide, or supervise the provision of, special education." That same federal regulation then provides the following answer to the question: "Who can serve as the representative of the public agency at an IEP meeting?"
The representative of the public agency could be any member of the school staff, other than the child’s teacher, who is qualified to provide, or supervise the provision of, specially designed instruction to meet the unique needs of children with disabilities. (Section 602(a)(20) of the Act.) Thus, the agency representative could be (1) a qualified special education administrator, supervisor, or teacher (including a speech-language pathologist), or (2) a school principal or other administrator — if the person is qualified to provide, or supervise the provision of, special education.
Each State or local agency may determine which specific staff member will serve as the agency representative. However, the representative should be able to ensure that whatever services are set out in the IEP will actually be provided and that the IEP will not be vetoed at a higher administrative level within the agency. Thus, the person selected should have the authority to commit agency resources (i.e., to make decisions about the specific special education and related services that the agency will provide to particular child).
For a child with a disability who requires only a limited amount of special education, the agency representative able to commit appropriate resources could be a special education teacher, or a speech-language pathologist, other than the child’s teacher. For a child who requires extensive special education and related services, the agency representative might need to be a key administrator in the agency.
Note: IEP meetings for continuing placements could be more routine than those for initial placements, and, thus, might not require the participation of a key administrator. Appendix C, 34
C.F.R. § 300.344 (answer to Question 13).
As you can see, the extended discussion in Appendix C supports our opinion that the selection of the LEA Representative — under federal and State law and rules — is ultimately a matter of local discretion, although such discretion must of course be exercised consistent with the potential role of the LEA Representative on any particular child’s IEP Team. Such informed exercise of local discretion, on a case-by-case basis, is completely congruent with the goals of the IDEA.
signed by:
Thomas Ziko Special Deputy Attorney General
Joyce Rutledge
Associate Attorney General