The Legal Brief: U.S. Department of Education Reiterates Guidance Regarding Meeting the Needs of Highly Mobile Children

On November 10, 2022 the Office of Special Education and Rehabilitative Services (“OSERS”) issued a Letter to State Directors of Special Education on Ensuring a High-Quality Education for Highly Mobile Children, which addresses children experiencing frequent moves to new school districts, such as military children, migratory children, homeless children, and children in the foster care system. The specific areas addressed are concerns regarding timely and expedited evaluations and eligibility determinations, as well as timely provision of comparable services. 

When students transfer from one district to another, the receiving district often has no records. Information provided at enrollment may not include academic information. When students transfer, 34 CFR 300.323(g) requires public agencies to promptly exchange relevant records when a child changes school districts. Even if records are requested in an expeditious manner, the records received may not be complete and may not be shared internally in a timely manner. Obtaining records in a timely manner may require following up a request through TREx with phone calls. Once records are received by the school office, personnel need to note whether the student is eligible for special education or Section 504 and requires notification of special education personnel that there is a new special education student enrolling. 

For new students who may be having academic difficulties, the default response is often to begin the Response to Intervention (RTI) process. OSERS discusses the use of RTI. Often personnel may have little knowledge regarding the rigor of the previous school or other factors, such as a lack of educational opportunity that may impact a student’s performance. OSERS reiterates the requirement that RTI should not delay a needed evaluation once the parent has provided consent. Additionally, they strongly encourage completion of needed evaluations in an expedited manner, such as within 30 days whenever possible.  

When a child with an IEP transfers to a new school district, the new school district must initially provide a FAPE to the child, including the provision of services comparable to those described in the child’s IEP from the previous school district. 34 C.F.R. § 300.323(e)-(f). In the case of an in-state transfer student, the new school district must consult with the parents to provide comparable services until the new school district either adopts the child’s IEP from the previous school district or develops and implements a new IEP for the child. In the case of an out-of-State transfer student, the new school district must consult with the parents to provide comparable services until the new school district obtains an existing evaluation or conducts its own evaluation (if determined to be necessary by the new school district) and develops and implements a new IEP for the child. 34 C.F.R. § 300.323(f). This obligation to provide comparable services applies to highly mobile children and it applies to extended school-year services.

The requirement for comparable services includes related services and ESY services. The US DOE interprets “comparable services” to mean services that are similar or equivalent to those services that were described in the child’s IEP from the previous school district, including ESY services. The new school district may not refuse to provide ESY services to that child merely because the services would be provided during the summer. In the case of an in-State transfer student, ESY services deemed comparable services must be provided either for the duration of time determined appropriate by the newly-designated IEP Team or until the new school district adopts the child’s IEP from the previous school district or develops and implements a new IEP for the child.

Finally, although not part of the OSERS letter, school districts are required to have an MOU with any residential treatment facilities (RTCs) located within their boundaries. The MOU must contain the elements specified in 19 TAC §89.1115, that require collaboration, prompt notification and provision of specific records for every student placed in the residential treatment facility. An MOU can be essential as RTCs often have highly mobile populations with high needs and students may be moved to a different facility before an evaluation can be completed. While the students may have an evaluation conducted pursuant to their placement with CPS, it most likely does not meet the same standard needed for special education. 

For questions regarding ESY, RTCs or any other special education or 504 questions, please feel free to contact Leon|Alcala, PLLC for additional guidance.
 
Author: Hans Graff