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Reauthorization of IDEA 2004

John NamkungSonoma County SELPA

May 20, 2005

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Goal of the Presentation Summary of major changes in IDEA

Definitions Highly Qualified Paperwork Reduction Private School Children Funding Overidentification and Disproportionality Early Intervening Services Medication

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Goal of the Presentation Participation in Assessments Evaluations/Reevaluations Specific Learning Disabilities IEP Content IEP Team Attendance IEP Amendments Multi-Year IEPs Transfer Students

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Goal of the Presentation Discipline Attorneys’ Fees Mediation/Dispute Resolution Federal and State Monitoring Optional Birth through Six Program

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It’s Not Over ‘til It’s Over

Regulations to Clarify the Statute Proposed regulations in May Public hearing on June 22 in Sacramento Final regulations by December

Alignment of California Education Code to IDEA 2004

California’s Participation in Pilot Programs Clarification from CTC regarding “Highly

Qualified” Special Education Teacher

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Resources NASDSE Side by Side

www.nasdse.org $15.00 No electronic version

Namkung Side by Side www.scoe.org/selpa Electronic version available Free!

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Resources Congressional Research Service Report for

Congress www.cde.ca.gov

IDEA Guide to Frequently Asked Questions http://edworkforce.house.gov

Department of Education Topical Briefs on IDEA 2004 www.cec.sped.org/cec_bn/briefs.html

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State Rulemaking Requirements Each State must identify in writing to

LEAs any rule, regulation or policy as a State-imposed requirement that is not required by the Act and regulations.

Each State must minimize the number of rules, regulations, and policies to which LEAs and schools are subject.

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Definitions

Assistive Technology Device Excludes a medical device that is surgically implanted,

or the replacement of such device Does not exclude “mapping” of a cochlear implant

Parent Adds “other relative” with whom the child is living

Related Services Interpreting services School nurse services

Ward of the State

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Definitions Highly Qualified

Requirements for Special Education teachers Full State certification No waivers Minimum of a bachelor’s degree

Special Education teachers teaching to alternative standards

Meet NCLB requirements for elementary, middle or secondary school teacher; or

Meet NCLB requirements for elementary teacher, or for instruction above elementary level, has appropriate subject matter knowledge as determined by the State.

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Definitions

Special Education teachers teaching multiple subjects

May meet NCLB requirements for any elementary, middle or secondary teacher who is new or not new to the profession; or

For teachers not new--demonstrate competence under NCLB which may include a single HOUSSE covering multiple subjects

For new teachers--demonstrate competence in other core academic subjects under NCLB which may include a single HOUSSE covering multiple subjects not later than 2 years after employment

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Definitions Special Education teachers who provide

consultative services to a highly qualified teacher

No right of action for failure to be highly qualified

No individual consequences for failure to be highly qualified

Consequences for LEAs Related personnel and paraprofessionals

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Paperwork Reduction Pilot Program

15 states California interested

Waivers not to exceed 4 years No waiver of civil rights requirements May not affect right of child to receive FAPE No waiver of procedural safeguards

Annual report to Congress beginning in 2006 with specific recommendations

Real meaning of IDEA

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Funding LEA Risk Pool

State option to establish high cost fund Innovative and effective ways of cost sharing Development of a state plan

Definition of high need child Cost is greater than 3 times the average per pupil

expenditure Eligibility criteria for LEA participation Funding mechanism

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Funding Authorization of Appropriations (What happened

to mandatory full funding?) $12,358,376,571 in 2005 $14,648,647,143 in 2006 $16,938,917,714 in 2007 $19,229,188,286 in 2008 $21,519,458,857 in 2009 $23,809,729,429 in 2010 $26,100,000,000 in 2011

Saturday night massacre $10,589,746 appropriated for 2005

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Funding Prohibition on states to use federal

funds for COLA and growth Impact on Governor’s budget for 2005-

2006

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Children in Private Schools Major change in responsibility of district where

the private school is located New reporting requirements to the state Major changes in consultation process

Determination of proportionate share of federal funds Consultation process throughout school year Provision of services Disagreement between LEA and private schools Written affirmation by representatives of private

schools

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Children in Private Schools

Complaint procedures Complaint by private school official Response by LEA Appeal to the Secretary of Education

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Charter School Students

Requirement to provide services on charter school site to the same extent as the LEA provides services on site to its other public schools Must a charter school create a specialized

program for a child?

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Early Intervening Services An LEA may use up to 15% of federal funds

for early intervening services Target population is K-3 students not

identified for special education who need academic and behavioral support

Annual reporting requirements # of students served # of students served who subsequently receive

special education services during preceding 2-year period

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Evaluation Timelines 60-day timeline for completion of evaluations

or within state timelines California’s 50 day timeline and exceptions

Exceptions to timelines If child enrolls in different LEA after start of the

evaluation and the new LEA is making sufficient progress on completing the evaluation, and parent and new LEA agree to a timeline; or

Parent repeatedly fails or refuses to produce the child for an evaluation

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Absence of Parental Consent If parent refuses consent for services, LEA

may not go to due process hearing to override non-consent.

Does not refer to initial services If parent refuses services or fails to respond

to request to provide consent, the LEA is not considered in violation of providing FAPE. LEA is not required to convene IEP meeting or

develop an IEP--doesn’t make sense.

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Consent for Wards of the State LEA must make reasonable efforts to obtain

informed consent for wards of the State who don’t reside with parents.

No informed consent required for initial evaluation from parent-- If parents can’t be located Rights of parents have been terminated Rights of parents to make educational decisions

have been subrogated and consent has been given by an individual appointed by the judge

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Screenings

Screening to determine appropriate instructional strategies for curriculum implementation shall not be considered to be an evaluation for eligibility for special education. What is a screening? Will a screening for an individual child be

allowed? If so, parental notice is important.

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Prohibition on Mandatory Medication

A child may not be required to obtain a prescription for medication as a condition of attending school, receiving an evaluation or receiving services under IDEA.

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Reevaluations

Reevaluations shall occur-- Not more frequently than once a year, unless parent

and LEA agree otherwise. At least once every 3 years, unless the parent and

LEA agree that a reevaluation is unnecessary. Will school districts be barred from conducting a reevaluation

if needed when a parent is threatening litigation and the school district has conducted an evaluation within the past year?

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Assessments for Transfer Students

Assessments for students who transfer from one school district to another within same year must be completed as expeditiously as possible.

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Eligibility Determination A child may not be determined to be a

child with a disability if the determinant factor is lack of appropriate instruction in reading, including the essential components of reading instruction as defined in NCLB.

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Specific Learning Disabilities In determining whether a child has SLD,

an LEA shall not be required to consider whether the child has a severe discrepancy between achievement and intellectual ability.

An LEA may use a response to research-based intervention as part of the evaluation process.

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Evaluations Before Change in Eligibility

Evaluation required before determining a child is no longer a child with a disability.

Exceptions-- Evaluation not required before graduation with a

diploma or before aging out of special education. In such cases, an LEA shall provide the child with a

summary of the child’s academic and functional performance, including recommendations on how to assist the child to meet postsecondary goals.

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Contents of IEP Benchmarks or short-term objectives only

required for students who take alternate assessments aligned to alternate achievement standards How about preschool children?

Progress reports toward meeting annual goals clarified. Concurrent with the issuance of report cards.

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Contents of IEP Statement of services, based on peer-

reviewed research to the extent practicable. Statement of transition services beginning at

age 14 is changed to age 16. Nothing in IDEA shall be construed to require

that additional information be included in an IEP beyond what is explicitly required in the law.

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IEP Team Attendance A member of the IEP team is not

required to attend in whole or in part-- If the parent and the LEA agree that his/her

attendance is not necessary because the member’s area of curriculum or related service is not being modified or discussed at the meeting.

Parent’s agreement must be in writing.

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IEP Team Attendance

A member of the IEP team may be excused when the meeting involves a modification to or discussion of the member’s area of curriculum or related service if-- The parent and the LEA agree. Parent consent must

be in writing. The members submits written input into the

development of the IEP. Invitation to the initial IEP meeting must be sent,

at parent request, to the part C coordinator or representative.

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Transfer Students Within the same state

LEA must provide comparable services, in consultation with the parents until the new LEA adopts the previous IEP, or develops and implements a new IEP.

Transfer outside the state LEA must provide comparable services, in

consultation with the parents until the new LEA conducts an evaluation, if necessary, and develops a new IEP, if appropriate.

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Transfer Students Transmittal of records

New school must take reasonable steps to promptly obtain school records from the previous school.

Previous school must take reasonable steps to promptly respond to request for records.

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Changes to the IEP In making changes to the IEP after the annual

IEP, the parents and LEA may agree not to convene an IEP meeting to make the changes, and instead may develop a written document to amend or modify the IEP. Include the process for reaching agreement.

Changes may be made by amending the IEP rather than redrafting the entire IEP. Upon request, the parent shall be given a revised copy of the IEP with the amendments incorporated.

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Multi-Year IEP Pilot Program 15 states may be authorized Multi-year IEP not to exceed 3 years and

designed to coincide with natural transition points Periods close in time to transition from preschool

to elementary, elementary to middle school, middle to secondary school, secondary school to post-secondary activities

Optional for parents Parent consent is required

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Multi-Year IEP Pilot Program Content of multi-year IEP

Measurable goals coinciding with natural transition points

Measurable annual goals for determining progress

Description of process for review and revision of each multi-year IEP

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Multi-Year IEP Pilot Program Review of multi-year IEP

At each natural transition point In other years, an annual review of the IEP to

determine level of progress If child is not making sufficient progress, the IEP

team must carry out a more thorough review of the IEP within 30 calendar days.

At parent request, the IEP team must conduct a review of the multi-year IEP rather than or subsequent to an annual review.

Will California submit a proposal?

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Alternative IEP Meeting Participation Parents and LEA may agree to

alternative means of meeting participation, such as video conferences and conference calls for- IEP team meetings Placement meetings Meetings to carry out administrative

matters (scheduling, exchange of witness lists, and status conferences)

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Due Process Complaints

2-year statute of limitations for due process hearing request or filing of complaint California has 3-year statute of limitations

Clarification regarding LEA requirement to provide due process complaint notice to parents

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Due Process Complaints Due process complaint notice deemed

sufficient unless the party receiving the notice notifies the hearing officer and the other party that the notice has not meet the requirements. Notice to hearing officer must be provided within

15 days of receiving the complaint. Within 5 days of receipt of the notification, the

hearing officer must make a determination and notify the parties in writing.

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Due Process Complaints If the LEA has not sent a prior written notice

regarding the subject of the hearing request, it must do so within 10 days of receiving the complaint.

Non-complaining party must send to the complainant a response that specifically addresses the issues raised in the complaint within 10 days, except as provided above.

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Due Process Complaints A party may amend the due process

complaint only if-- The other party consents in writing and is

given the opportunity to resolve the complaint through a resolution session; or

The hearing officer grants permission, except he/she may only grant permission at any time not later than 5 days before the due process hearing.

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Procedural Safeguards Notice Copy of procedural safeguards notice to be

given to parents only one time a year, except a copy must be given-- Upon initial referral or parental request for

evaluation Upon the first filing of a due process complaint Upon request by the parent.

Give to all current parents, effective July 1, 2005

LEA may place procedural safeguards notice on its internet website.

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Procedural Safeguards Notice Procedural safeguards notice must include--

Time period in which to make due process complaints

The opportunity for the LEA to resolve the complaint

Time periods in which to file civil actions Electronic mail--Parents may elect to receive

any notices required under the procedural safeguards section of IDEA by e-mail, if the LEA makes such option available.

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Mediation Agreements

In cases of a resolution of a dispute through mediation, the parties must execute a legally binding agreement that-- Is signed by both parties Is enforceable in any State or district court States that all discussion is confidential and

may not be used as evidence in any subsequent hearing or civil proceeding

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Resolution Session Prior to a due process hearing, the LEA

must convene a meeting of parents and relevant member(s) of the IEP team-- Within 15 days of receiving the notice of

the parents’ complaint Must include an LEA representative with

decision making authority May not include an LEA attorney unless

the parent brings an attorney

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Resolution Session The LEA is given the opportunity to resolve the

complaint The meeting is not required if the parents and the

LEA agree in writing to waive the meeting or agree to use a separate mediation process.

If there is no resolution of the complaint within 30 days of the receipt of the complaint, the due process hearing may occur.

If resolved, a written settlement agreement must be executed.

No mention of confidentiality of meeting Either party may void the agreement with 3 business days

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Hearing Officer Qualifications

A hearing officer may not be-- An employee of the State educational

agency or LEA involved in the education or care of the child; or

A person having a personal or professional interest that conflicts with his/her objectivity.

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Hearing Officer Qualifications A hearing officer must--

Possess knowledge of, and the ability to understand the laws and regulations governing special education

Possess the knowledge and ability to conduct hearings

Possess the knowledge and ability to render and write decisions in accordance with standard legal practice

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Subject Matter of Hearings Party requesting the hearing may not be

allowed to raise issues at the hearing that were not raised in the complaint notice, unless the other party agrees otherwise.

A parent may file a separate due process complaint on an issue separate from a due process complaint already filed.

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Timeline for Requesting Hearing

2-year statute of limitations does not apply if the parent was prevented from requesting the hearing due to-- Specific misrepresentations by the LEA

that it had resolved the problem forming the basis of the complaint; or

The LEA’s withholding of information from the parent that was required to be provided to the parent.

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Decision of the Hearing Officer A decision by the hearing officer shall be made on

substantive grounds based on whether the child received FAPE.

Procedural violations A hearing officer may find that a child did not receive

FAPE only if the procedural violations-- Impeded the child’s right to FAPE Significantly impeded the parents’ opportunity to participate in

the decision making process Caused a deprivation of educational benefits

A hearing officer may still order an LEA to comply with procedural requirements.

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Timeline for Bringing Civil Action

90 days from the date of the decision of the hearing officer to bring civil action, unless the state has a different timeline.

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Attorneys’ Fees Allows attorneys’ fees to an SEA or LEA for a

complaint that is frivolous, unreasonable, or without foundation.

Allows attorneys’ fees to an SEA or LEA for a complaint that was presented for an improper purpose, such as to harass, to cause unnecessary delay, or to needlessly increase the cost of litigation.

The resolution session is not considered a meeting convened as a result of an administrative hearing or judicial action.

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Discipline School personnel given authority to consider

any unique circumstance on a case-by-case basis when determining whether to order a change of placement.

School personnel may remove a child to an IAES, another setting, or suspension for not more than 10 school days, if such alternatives are applied to non-disabled students.

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Discipline If school personnel seek to change placement

beyond 10 school days, and the violation is not a manifestation of the disability, same disciplinary procedures for non-disabled students may be used as long as FAPE is provided. Student must receive educational services to enable

him/her to participate in the general curriculum and to progress toward meeting IEP goals.

Student must receive, as appropriate, a functional behavioral assessment, behavioral intervention services and modifications.

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Discipline Special circumstances--school personnel

may remove a student to an IAES for not more than 45 school days without the need for a manifestation determination for-- Carrying or possessing a weapon to or at school,

or to or at a school function. Possessing or using illegal drugs, or selling or

soliciting the sale of a controlled substance while at school or at a school function.

Inflicting serious bodily injury upon another person while at school or at a school function.

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Discipline

Serious bodily injury requires a showing of “substantial risk of death, extreme physical injury, protracted and obvious disfigurement, or protracted loss or impairment of function of a bodily member, organ or mental faculty.”

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Discipline Student must receive educational services to

enable him/her to participate in the general curriculum and to progress toward meeting IEP goals.

Student must receive, as appropriate, a functional behavioral assessment, behavioral intervention services and modifications

Manifestation determination--within 10 school days of any decision to change the placement of a student.

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Discipline

Criteria for manifestation determination has been changed to read--

If the conduct in question was caused by, or had a direct and substantial relationship to the child’s disability; or

If the conduct in question was the direct result of the LEA’s failure to implement the IEP

Previous criteria included the ability of the child to understand the impact and consequences of the behavior, and the ability of the child to control the behavior.

Conference committee report clarification

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Discipline If the conduct was a manifestation of the disability,

the IEP team must-- Conduct a functional behavioral assessment and

implement a behavioral intervention plan, if the assessment had not be conducted previously.

Review the behavioral intervention plan if such plan has been developed, and modify it as necessary.

Return the child to the placement from which he/she was removed, except for an IAES due to one of the special circumstances, unless the parents and the LEA agree otherwise.

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Discipline

Appeal Parent may request a hearing if he/she

disagrees with any decision of the LEA. LEA may request a hearing if it believes that

maintaining the current placement is substantially likely to result in injury to the child or to others.

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Discipline Hearing officer authority

May order a change in placement May return a child to the placement from

which he/she was removed May order a placement to an IAES for not

more than 45 school days if there is a substantial likelihood of injury to the child or to others.

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Discipline Placement during appeals--

The child shall remain in the IAES pending the decision of the hearing officer or until expiration of the time period in cases where a change of placements beyond 10 school days is allowed, unless the parent and the LEA agree otherwise.

Expedited hearing--an expedited hearing shall occur within 20 school days of the date the hearing is requested and shall result in a decision within 10 school days after the hearing.

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Discipline Protections for children not yet eligible for

special education--a child who has not been determined to be eligible for special education and who has engaged in a behavior that violates a code of student conduct may assert any of the protections available for special education students if the LEA had knowledge that the child was a child with a disability before the behavior occurred.

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Discipline Basis of knowledge--

If the parent has expressed concern in writing to supervisory or administrative personnel, or to a teacher of a child that the child is in need of special education services

If the parent has requested an evaluation of the child If the teacher or other LEA personnel has expressed

specific concerns about a pattern of behavior demonstrated by the child, directly to the director of special education or to other supervisory personnel of the LEA.

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Discipline Exception--An LEA is not deemed to have

knowledge that the child is a child with a disability if

The parent has not allowed an evaluation of the child, or

Refused special education services, or It was determined that the child was not a child

with a disability.

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Federal and State Monitoring

Focused monitoring on-- Improving educational results and

functional outcomes, and Ensuring that states meet the program

requirements most closely related to improving educational results

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Federal and State Monitoring Monitoring priorities

FAPE in LRE State exercise of general supervisory

authority in child find, monitoring, resolution sessions, mediation, voluntary binding arbitration, transition services

Disproportionality issues as a result of inappropriate identification.

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Federal and State Monitoring State performance plan due by

December 2005 Must be reviewed at least once every 6

years Must establish measurable and rigorous

targets for LEAs State must report annually to the public

on the performance of each LEA on the targets in the State’s performance plan.

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Federal and State Monitoring Upon approval of the state plan, the

Secretary will annually review the state’s performance report.

The Secretary will determine if the state-- Meets the requirements of IDEA Needs assistance Needs intervention Needs substantial intervention

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Prohibition Against Federal Mandates, Direction or Control

The Federal government may not mandate, direct, or control a state, LEA, or school’s specific instructional content, academic achievement standards and assessments, curriculum, or program of instruction.

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Model Forms Not later than the date the final

regulations are published, the Secretary will publish and widely disseminate-- A model IEP form A model IFSP form A model notice of procedural safeguards A model prior written notice form

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Disproportionality Additional data required on the incidence,

duration, and type of disciplinary actions, including suspensions and expulsions by race and ethnicity.

In case of determination of significant disproportionality with respect to identification and placement, the state shall-- Require an LEA to reserve the maximum amount

of federal funds allowed to provide comprehensive early intervening services, particularly to children in those groups significantly overidentified.

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Disproportionality Require the LEA to publicly report on the

revision of policies, practices, and procedures used in identification or placement of children in special education.

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Optional Birth Through Six Program

States may develop a system whereby parents of children eligible for preschool services under section 619, who were previously served under Part C, may choose to continue to receive Part C services until their children enter, or are eligible to enter kindergarten.

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Optional Birth Through Six Program

Part C services must include an educational component that promotes school readiness and incorporates preliteracy, language, and numeracy skills.

Annual notice must be given to Part C parents that includes-- A description of rights to receive services under

Part C or under Part B.

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Optional Birth Through Six Program

Explanation of the difference between the two programs

Applicable procedural safeguards Possible costs including any fees to be charged to

families under Part C Parents retain right to Part B services and FAPE Part B rules do not apply to preschoolers whose

parents elect to stay in the Part C system. FAPE is not required for such children.

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Optional Birth Through Six Program

Any state that elects this option must ensure an evaluation for early intervention services of a child who experiences a substantiated case of trauma due to exposure to family violence.

This option triggered when appropriation for Part C reaches $460 million. 15% of Part C funds shall be used to provide grants to states to carry out this program.

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Effective Dates of Implementation

December 3, 2004 for language regarding highly qualified teachers By the end of 2005-2006

July 1, 2005