A Fresh IDEA:A Discussion of the New 2004 IDEA

Regulations and Article IX

Lynn R. Zubov, Ph.DNC CAN Coordinator

Winston-Salem State UniversityNC CEC Mini-conference, June 2007

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Timeline

Dec 2004 President Bush sign IDEA 2004 into law

June 2005 Proposed regulations were released

Aug 2006 Final regulations were released

Oct 13, 2006 New regulations take effect

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Definitions IEP concerns Due process Private School

Definitions

New, Modified, and Crossed Referenced

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New Definitions

Core academic subjects English, civics & gov’t, reading/language arts,

math, science, geography, Foreign languages, history

Service Plan A written statement that describes the special

education and related services the LEA will provide to a parentally-placed child with a disability enrolled in a private school

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Modified Definitions

Child with a disability Tourette syndrome is now listed as a chronic

or acute health problem under other health impaired

Related Services The list of related services was expanded to

include “interpreting services” and “school nurse services”

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Modified Definitions

Interpreting services include Oral transliteration services Cued language services Sign language Transcription services

Assistive technology IDEA 2004 clarifies that surgically implanted devices are not

assistive technology devices (e.g. cochlear implants) National Instructional Material Accessibility Standards

(NIMAS) guides the production and electronic distribution of digital versions of textbooks and other instructional materials so they can be more easily converted to accessible formats, including Braille and text-to-speech.

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Modified Definitions

Supplementary aids and services Supplementary aids and services are now to

be provided in extracurricular and nonacademic settings in addition to the general education classes other education-related setting

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Cross-Referenced Definitions

Terms such as scientifically based research, universal design, limited English proficient, homeless children, etc are cross referenced to ESEA (Elementary and Secondary Education Act also known as NCLB)

Highly Qualified

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Highly Qualified Special Education Teachers To be a HQ special education teacher

The teachers has obtained full State certification as a special education teacher, or

Passed the State special education teacher licensing exam, and holds a license to teach in the State as a special education teacher, or

HQ for charter school, means that the teacher meets the certification or licensing requirements, if any in the State’s public charter school law, or

The teacher has not had the special education certification requirements waived on an emergency, temporary, or provisional basis; and has at least a bachelor’s degree

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Alternative Routes to Certification

The individual: receives high-quality professional development that is

sustained, intensive, and classroom-focused in order to have a positive and lasting impact on classroom instruction, before and while, teaching, and;

participates in a program of intensive supervision that consists of structured guidance and regular ongoing support for teachers or a teacher mentoring program; and

assumes functions as a teacher for a period no longer than three years, and

demonstrates satisfactory progress toward full certification, as prescribed by the State

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Highly Qualify for Those Teaching a Core Academic Subject For any public elementary or secondary special

education teacher teaching a core academic subject, the term “highly qualified” has the same meaning as ESEA. HQ means that the teacher may either: Meet the requirements of the NCLB and IDEA 2004; or Veteran teachers can demonstrate competence in all

the core academic subjects in which the teacher teaches in the same manner as is required for an general education teachers

A State may develop a separate HOUSSE for special education

IEP

Consent, Evaluation, Participation, and Eligibility

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Consent

As with IDEA 97, IDEA 2004, requires that parent(s)/guardian(s) provide informed consent prior to an initial evaluation.

However the definition of a parent has been clarified and expanded to include relatives with whom the child lives with who has legal responsibility for the child.

Consent must be given in written form however e-mail is acceptable mode of communication

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Consent and Evaluation

The timeline for initial evaluation is now 60 days from the date of parental consent (unless the State has an established timeline),

The 60-day timeline does not apply if: parent repeatedly fail to produced the child for

evaluation, or the child enrolls in another school district.

If a parent does not provide consent for services, the LEA cannot use consent override procedures and will not be considered in violation of FAPE.

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Eligibility

IDEA 2004 has only a few but important changes to eligibility.

A child may not be determined eligible of if the main reason for poor academic performance was a lack of appropriate instruction or limited English proficiency, as defined in NCLB.

The state can no longer require that a LEA use the discrepancy model.

LEAs may to use opt a response-to-intervention (RTI) model.

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Re-Evaluation

The LEA must seek consent for re-evaluations. However is consent is not provided the agency may use consent override procedures.

Re-evaluations occur at least once every three years but not more than once a year.

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IEP Participants

IDEA 2004 requires the same participants as the early law, however members of the team can be excused from all or part of the meeting, if The individual’s curricular area or related

service is not being addressed, or If the member provides written input for the

meeting. In both cases the LEA and the parent most

agree on the member’s absence

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IEP Participants

An IEP Team meeting can be held without the child’s parent(s) in attendance if the agency cannot convince the parents to attend

If so, detailed records of attempts must be kept.

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IEP Contents

There are two major changes, short-term objectives and transition planning

Short-term objective According to the new law, the IEP no longer

has to develop short-term objectives unless the child is participating in an alternative form of assessment

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IEP Contents

Transition planning According to the new law, the IEP team must

consider transition needs and develop a transition plan at age 16 instead of 14

Additionally, IDEA 2004 requires that students who graduate or age-out must be provided with a written summary of academic and functional skills that include recommendations for assisting the student with postsecondary goal.

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IEP

A student’s IEP can follow the student When a child moves from another state, the

receiving state must either adopt the prior IEP or promptly conduct an evaluation

Changes to the IEP may be made after the annual IEP team meeting without convening the entire IEP team meet if the parents and public agency agree However the IEP team must be informed of

any changes

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Mandatory Medication Prohibition

May not require a child to obtain a prescription of a controlled substance as a condition of attending school, receiving an evaluation, or receiving services under the IDEA.

May still share observations of the student’s performance or behavior in the classroom or school with the parents.

Due Process

Procedural safeguards and disciplinary procedures

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Procedural Safeguards

A parent is entitled to only one independent educational evaluation at public expense each time the parent disagrees with the agency’s evaluation

Generally, procedural safeguards notice are given to the parents 1 time a year

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Complaints and Due Process

Mediation is option Districts are responsible for the expense of

mediation However, it cannot be used to prevent parents

from filling for a due process hearing. Complaints must be submitted within two

years from the date the parent is aware of the issue

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Complaints and Due Process

Reasonable attorney fees for parents who prevail at a due process hearing can be awarded.

However the SEA or LEA can be awarded attorney fees if the complaint was improper or intended to harass, cause unnecessary delay, or needlessly increase the cost of litigation.

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Discipline

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Disciplinary Procedures

May of the provisions of IDEA 97 remain in place.

However, “inflicting serious bodily injury” has been added to the special circumstances under which students can be placed in an interim setting for up to 45 days.

Additionally, the 45 day period is now 45 school days.

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Unique Circumstances

School personnel may consider any unique circumstances on a case-by-case basis when deciding to order a change in placement for a child violating a school conduct code.

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45-School Day Removal

Adds infliction of serious bodily injury to list of offenses (including drugs and weapons) resulting in the 45-school day removal to Interim Alternative Educational Setting.

Serious bodily injury means bodily injury that involves: A substantial risk of death; Extreme physical pain; Protracted and obvious disfigurement; or Protracted loss or impairment of a function of a

bodily member, organ or faculty.

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Manifestation Determination

Causation Standard – The behavior was caused by the disability: If the behavior had a direct or substantial

relationship to the disability; or If the behavior was the direct result of the

failure to implement the IEP

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Manifestation Determination

If the behavior was a manifestation of the child’s disability: IEP team must conduct a functional

behavioral assessment (FBA) and behavioral intervention plan (BIP) for the child, or review an existing plan and modify it as necessary to address the behavior.

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Manifestation Determination

If the behavior is a manifestation, the child is returned to the pre-discipline placement, unless the parent and LEA agree otherwise.

If the school decides to change placement, parent may request mediation or due process.

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Services During Removals

Specifies when: The child’s IEP Team determines services. School personnel, in consultation with at least

one of the child’s teachers, determine the extent to which services are needed.

The IEP Team determines the interim alternative educational setting

The LEA must give parental notice related to a disciplinary removal.

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Basis of Prior Knowledge

LEA had prior knowledge that a child is a child with a disability if, before the behavior that precipitated that disciplinary action occurred, the: Parent expressed concerns in writing to an

administrator or teacher; Parent requested an evaluation of the child in writing,

according NC Procedures; or Teacher or other school or LEA personnel expressed

to an administrator specific concerns about a pattern of behavior demonstrated.

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Exception to Prior Knowledge

LEA did not have prior knowledge if: The parent has not allowed a previous

evaluation of the student or has refused services; or

The student has been evaluated and determined ineligible for special education and related services.

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Expedited Hearing Timelines for Disciplinary Issues Adds a provision for due process hearings to

contest disciplinary actions. Hearing must occur within 20 school days of

the request for the hearing. The hearing officer’s decision must be

rendered within 10 school days after the hearing.

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Stay-Put

Due process hearings to contest disciplinary actions. The student remains in the discipline setting

pending the hearing officer’s decision or the expiration of the removal time, whichever occurs first, unless the parent and LEA agree otherwise.

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Appointment of Surrogates

For a child who is a ward of the state, the judge overseeing the child’s care may appoint the surrogate parent, provided that the person meets the non-employee standard.

In NC, parent must be invited unless an order terminating parental rights or rights to make educational decisions for student in DSS custody.

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Appointment of Surrogates

State [NCDPI] must make reasonable efforts to ensure that the LEA appoints a surrogate within 30 days after determination that the child needs a surrogate.

For an unaccompanied homeless youth, the LEA must appoint a surrogate. The term “unaccompanied youth” includes a

youth not in the physical custody of a parent or guardian.

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Qualifications of Surrogates

The surrogate shall not be an employee of NCDPI, the LEA, or any other agency that is involved in the education or care of the child, (e.g. DSS).

Private Schools

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Private Schools

IDEA 2004 states that the LEA where the private school is located, not the LEA of the child’s residence, is now responsible for the child find and the provision of services for students with disabilities placed in private schools.

This included children who go to private schools out-of-State.

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Private Schools

An LEA must spend the same proportion of Part B funds for parentally placed private school students with disabilities as the spend on the total number of students with disabilities in the LEA’s jurisdiction.

Additionally, unspent funds must be carried over. The private school may file a complaint with the SEA

that the LEA did not consult with the school in a meaningful manner

If dissatisfied with the SEA ruling, the private school may then file a complaint with the US Secretary of Education

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Private Schools

No FAPE guaranteed A student with a disability who attends a

private does not have an individual right to special education and related services Equitable services for these students are

determined through consultation between the LEA and the private school

Each parentally placed private school student must have a service plan Service plan only describes the specific

services offered to the student.

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Website

Ed.gov http://

www.ed.gov/about/offices/list/osers/index.html CEC website

http://www.cec.sped.org/AM/Template.cfm?Section=Home&TEMPLATE=/CM/ContentDisplay.cfm&CONTENTID=7498