TO: NDSC Members and Affiliated Parent Groups
FROM: Susan Goodman, Director, Governmental Affairs
DATE: September 14, 2006

Newsline Special:
I.D.E.A. Federal Regulations Issued

On August 14, 2006, the U.S. Department of Education issued its final regulations for the Individuals with Disabilities Education Act of 2004 (I.D.E.A.). These regulations, which provide the "cookbook" for implementation, are -- for the most part -- closely aligned with the law. That means that the regulations do not add to or take away from the law's requirements.

As you may recall, Congress substantially eroded a family's right to recourse under the law by imposing additional burdensome requirements on parents in the procedural safeguards, due process and discipline provisions. One such change is the addition of a new resolution meeting that delays the process for at least 30 days. Another is that notice requirements have been added for parents. Also, school districts have been given the ability to delay hearings. Unfortunately, these are just a few of the changes.

However, states may chose to provide more rights and protections, in some instances, than are currently in federal law. This is important because the IDEA 2004 contained many provisions which took away from rights and protections under IDEA 97. Now more than ever, parents need to be well versed on their rights and be aware of timelines and appropriate educational strategies.

Below is a summary of some of the changes. Beneath each, we've shared some actions that you can take to protect your child's rights and, in some cases, actions you and fellow advocates can take as the states rewrite their regulations to conform to the newly reauthorized law and regulations.

1. Evaluations
   1. Timeline
      States can now establish a time lime longer than the 60 days now in current law.
   2. Action
      Be aware of any effort by your state to adopt a longer timeline. If necessary, take action to ensure that your state does NOT adopt a longer timeline.
2. Individual Education Programs
   1. Content
      IDEA 2004 eliminated the requirement for short-term objectives or benchmarks to measure a child's progress towards his or her goals, except for children taking an alternative assessment aligned with alternate achievement standards.
   2. Action
      Parents should make sure that annual goals are specific, measurable and comprehensive even if the student is not taking the alternate assessment aligned with an alternate achievement standard.
      
      Parents may want to advocate for short-term objectives to be part of state regulations. Some states still require them and nothing in federal law prohibits the state from taking this action.
   3. Attendance at Meetings
      The law now allows a member of the IEP team to be excused if the parents agree in writing. The new provision, called "excusal" allows for any of the members of the team not to be present even if his or her area of the curriculum of service is being discussed. This includes: " the regular education teacher (if the child is or may be participating in the regular education environment); " not less than one special education teacher; " a representative of the public agency; " An individual who can interpret the instructional implications of evaluation results.
   4. Action
      Parents have the right to have all team members present. Their attendance is required and they can only be excused with the agreement of the parents and in writing. If the school proposes that a team member not be in attendance, parents should carefully consider whether he or she believes that is in the best interest of the student.
      
      Additionally, if a team member is excused, with the consent of the parent in writing and his or her service or area of the curriculum is being discussed, parents must receive a written report and recommendations prior to the meeting. This is not a simple non-participation exemption.
   5. Transfers
      Schools must provide "comparable" services to those on an already existing IEP when a student transfers schools either in or out of state.
      
      The term "comparable" is not defined. Parents should ensure that the services that are being given are of the quality, level and intensity of those previously provided.
3. Procedural Safeguards
   Note-all of these procedures require close attention on the part of the parent. For example, if the notice of a due process hearing does not include the proper elements, according to the law, it will not be sufficient to begin the process. Parents wanting to file a due process complaint should, if possible, seek the help of a special education lawyer or an advocate experienced in the field (see below). The requirements of a due process complaint notice are listed below. A sample complaint is contained in the regulations. Also, you may wish to contact the parent training and information center in your state (www.taalliance.org) or the NDSC at 800-232-NDSC.
   1. Notice
      Requires either party to provide notice to the other party.
      1. Procedures that require either party, or the attorney representing a party, to provide due process complaint notice in accordance with subsection (c)(2) (which shall remain confidential)--
         1. to the other party, in the complaint filed under paragraph (6), and forward a copy of such notice to the State educational agency; and
         2. that shall include--
            1. the name of the child, the address of the residence of the child (or available contact information in the case of a homeless child), and the name of the school the child is attending;
            2. in the case of a homeless child or youth (within the meaning of section 725(2) of the McKinney-Vento Homeless Assistance Act (42 U.S.C. 11434a(2)), available contact information for the child and the name of the school the child is attending;
            3. a description of the nature of the problem of the child relating to such proposed initiation or change, including facts relating to such problem; and
            4. a proposed resolution of the problem to the extent known and available to the party at the time.
      2. A requirement that a party may not have a due process hearing until the party, or the attorney representing the party, files a notice that meets the requirements of subparagraph (A)(ii).
         [20 U.S.C. 1415 (b)(7) (A)] and [20 U.S.C. 1415 (b)(7) (B)]
   2. Mediation
      Each public agency is required to establish procedures and allow any party to resolve disputes through the mediation process. The mediation process is voluntary, cannot be used to deny or delay a hearing on a due process complaint, or to deny any rights under the Act and must be conducted by a qualified and impartial mediator.
      • Discussions that occur during the process must be kept confidential and cannot be used as evidence in any subsequent actions.
      • If the parties resolve the dispute through mediation, the parties must execute a legally binding agreement.
   3. Resolution Meeting
      This is a new provision in the law which requires that a meeting be held within 15 days of receiving notice of a due process complaint and prior to the initiation of a due process hearing. The purpose of the meeting is "for the parent of the child to discuss the due process complaint, and the facts that form the due process complaint, so that the local education agency (LEA) has the opportunity to resolve the dispute that is the basis for the complaint."
      • Agreements are enforceable in Court.
      • If parents do not participate in the resolution meeting, the LEA may ask a hearing officer to dismiss the complaint.
      • If the LEA refuses to hold the meeting the parents may seek the hearing officer to begin the due process hearing.
   4. Statue of Limitations
      The new IDEA provisions now impose that due process complaints must be filed within two years of the time a parent "should have known" about a violation of the law (failure to provide a free appropriate public education). Parents then have 90 days after a hearing officer's decision to file a civil action in court, unless the state has an explicit limitation for bringing civil actions under state law.
   5. Action
      If the state has a shorter timeline, parents should advocate for the 90 day time period in federal law when the state regulations are written. Short period of time.
4. Discipline
   1. Manifestation Determination
      The law has procedural requirements that must be followed when the school attempts to change the placement of a student for "violation of a school code of conduct." However, since an earlier reauthorization of the law in 1997, Congress made it easier to remove students from their educational setting because of behavioral challenges which may or may not be a result of the student's disability.
      
      The law requires that in these cases the IEP team to determine if the behavior was a manifestation of (result of) a disability. In IDEA `97 the following factors needed to be considered:
      • Observations of the child;
      • Evaluation and diagnostic results;
      • Whether the IEP and placement were appropriate;
      • Whether the IEP was being carried out
      • Ability of the child to understand consequences of and impact of his or her behavior; and,
      • Ability to control his or her behavior.
      If the behavior was a manifestation (result) of his or her disability as determined by the above standard, the student could remain in the current educational placement if the behavior did not involve weapons, drugs or substantial injury to self or others.
      
      IDEA 2004 still requires that a manifestation determination be made but has significantly reduced the factors that must be considered. Also, thee is not more of a burden on parents to prove that the behavior was a manifestation of the disability - parents as always should be prepared with support for this position.
      
      
   2. Action
      • Parents should advocate for use of the standard used in IDEA `97 to be included in state regulations.
      • If your child has behavioral challenges, parents should insist, when developing a child's educational program, that a functional behavioral assessment be conducted and a positive behavioral support plan developed. Currently the law requires that, under "Consideration of Special Factors," the IEP team shall, in the case of a child whose behavior impedes the child's learning or that of others, consider the use of positive behavioral interventions and supports, and other strategies to address that behavior."
      With development of proper supports, a student's behavioral challenges can be usually be or eliminated.