Pupil Personnel Directors/Special Education Directors. Release of Final Regulations Implementing IDEA 2004, Part B

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1 CLIENT ALERT TO: FROM: Pupil Personnel Directors/Special Education Directors Shipman & Goodwin LLP DATE: August 22, 2006 RE: Release of Final Regulations Implementing IDEA 2004, Part B On August 14, 2006, the U.S. Department of Education published final regulations implementing Part B of the Individuals with Disabilities Education Improvement Act of 2004 ( IDEA 2004 ). The regulations will take effect on October 13, The full text of the regulations is available at the U.S. Department of Education s website, Although many of the new regulations do little more than reiterate the changes made by IDEA 2004, there are a few noteworthy exceptions. Below we have provided a list of the significant highlights for you to share with district staff. Should you have any additional questions regarding the regulations, or IDEA 2004, please feel free to contact Julie Fay, at (860) , jcfay@goodwin.com. 1. Identification of Students with Specific Learning Disability Under IDEA 1997, a student could be identified as a student with a specific learning disability if the child was not achieving commensurate with his or her age and ability and if the team found that the child had a severe discrepancy between achievement and intellectual ability in certain areas. IDEA 2004 moves away from this severe discrepancy model in stating that a school district will not be required to take into consideration whether a child has a severe discrepancy between achievement and intellectual ability. Section 1414(b)(6)(A). While the new regulations stop short of actually prohibiting the use of the severe discrepancy model, 34 C.F.R reinforces this shift by providing that the State must not require the use of a severe discrepancy standard. Moreover, the regulation goes on to say that the State must permit the use of a process based on the child s responsiveness to scientific, research based interventions. Thus, the implementing regulations reinforce a clear movement - 1 -

2 away from the more formulaic comparison of achievement and ability levels towards a model based on the child s response to interventions. In addition, 34 C.F.R clarifies that a child may be identified as having a specific learning disability if the child is not achieving adequately for the child s age or to meet State-approved grade-level standards. This replaces prior language which looked at the child s achievement relative to his or her age and ability, rather than State standards. 2. Resolution Session The final regulations also reiterate IDEA 2004 s emphasis on full participation by parents and districts in resolution meetings. Specifically, 34 C.F.R states that if a parent who has filed a due process complaint fails to participate in a resolution meeting, the timelines for the resolution process and due process hearing will be delayed until the meeting is held. More importantly, the regulations permit a school district to request that the hearing officer dismiss the parent s due process complaint at the conclusion of the thirty (30) day resolution period if the parent refuses to participate in the resolution meeting despite reasonable, documented efforts by the agency to secure the parent s participation. On the other hand, if a district fails to hold the resolution session within fifteen (15) days after receiving notice of a parent s due process complaint, or fails to participate, the parent may request that the hearing officer begin the due process hearing timeline. 34 C.F.R Children Enrolled in Private Schools Consistent with IDEA 2004, the final regulations require each public agency to locate, identify, and evaluate all children with disabilities enrolled in private schools located in the school district served by the agency. This language is a change from prior law, which required districts to conduct child find and provide special education services to students who resided within the district, regardless of where the private school was located. In addition, 34 C.F.R (f) of the final regulations specifies that these child find and service obligations apply to all children who have been parentally placed in a private school, even those children who do not reside in the state in which the school is located. This undoubtedly was targeted at rebel states (such as Massachusetts) which were refusing to identify, evaluate or provide service plans to students enrolled at private schools if the students resided out-of-state. 4. Highly Qualified Teachers The Part B regulations adopt the NCLB requirements regarding highly qualified teachers with respect to special education teachers. However, 34 C.F.R (h) clarifies that the highly qualified requirements do not apply to private school teachers, even those hired or contracted by school districts to provide equitable services to - 2 -

3 parentally-placed private school students. In addition, the regulations permit states to develop a HOUSSE ( high objective uniform State standard for evaluation ) for special education teachers, provided that the evaluation process does not establish a lower standard for content knowledge requirements for special education teachers and that it meets all the requirements of a HOUSSE for regular education teachers. 34 C.F.R (d)(3). Finally, 34 C.F.R (g)(2) adds that a fully certified regular education teacher who subsequently becomes fully certified or licensed as a special education teacher is considered a new special education teacher when first hired as a special education teacher, thereby permitting the teacher to meet the new teacher requirements for special education teachers. Although some have expressed concern that this increased flexibility for special education teachers imposes a lesser standard, these exceptions recognize the difficulty special educators may have in meeting the highly qualified requirements in each of the multiple subjects they are typically expected to teach. 5. FAPE The final regulations clarify that school districts must make FAPE available to any child with a disability who is eligible for special education, even though the child has not failed or been retained in a course or grade, and is advancing from grade to grade. 34 C.F.R As with current regulations, FAPE continues to include the provision of physical education services, specially designed if necessary, for every child with a disability. However, under the new regulations, physical education need not be provided if the district does not provide physical education to children without disabilities in the same grades. 34 C.F.R With respect to nonacademic services, 34 C.F.R requires a district to take steps, including the provision of supplementary aids and services determined appropriate and necessary by the child s IEP team, to afford the child with a disability an equal opportunity to participate in those services and activities. Finally, in discussing the limitations of FAPE for certain ages, 34 C.F.R clarifies that the term regular high school diploma does not include an alternative degree that is not fully aligned with the State s academic standards, such as a certificate or a general educational development credential ( GED ). Once again, the IDEA continues to align itself with NCLB by adopting language referencing achievement based on statewide academic standards. 6. Neighborhood Schools/LRE Proposed regulations would have revised the provision requiring placement in a child s home school, by stating that a child s placement must be as close as possible to the child s home and that the child be educated in the school he or she would attend if nondisabled, unless the parent agrees otherwise. However, the final regulations remove this qualifying language, thus leaving the LRE placement requirements largely - 3 -

4 unchanged. As a result, only the IEP Team, and not the parents, can determine whether the child requires placement somewhere other than at the child s neighborhood school. 34 C.F.R AT/Cochlear Implants The final regulations provide much needed clarification regarding a district s responsibilities with respect to children with cochlear implants. These new regulations clarify that a cochlear implant, including the optimization of its functioning (i.e. mapping), maintenance, or replacement is not a related service as contemplated by the IDEA C.F.R In addition, the regulations specify that agencies are not responsible for the post-surgical maintenance, programming or replacement of the medical device that has been surgically implanted (or of an external component of the surgically implanted medical device). Notwithstanding, each agency is responsible for ensuring that hearing aids and external components of surgically implanted medical devices (i.e. cochlear implants) worn by children in school are functioning properly. In essence, agencies are required to routinely check an externally worn processor connected with a surgically implanted device to determine if the batteries are charged and the external processor is operating. 34 C.F.R Parent Participation in the IEP Team Consistent with the objective of the IDEA 2004 to achieve greater parental participation in the special education process, the final regulations impose an additional requirement upon school districts with regard to parental participation in IEP meetings. Specifically, a school district is required to take whatever action is necessary to ensure that a parent understands what occurs at an IEP meeting. This includes arranging for an interpreter for parents with deafness or whose native language is one other than English. 34 C.F.R Tourette Syndrome Section 34 C.F.R adds Tourette Syndrome to the list of chronic or acute health problems that may qualify a student as eligible under the category of Other Health Impaired. 10. Overriding Lack of Parent Consent for Evaluations Under the IDEA 2004, as well as the accompanying regulations, a school district may, but is not required to, pursue an initial evaluation by filing for due process if the parent does not provide consent or fails to respond to a request for consent for an initial evaluation. 34 C.F.R (a)(3). This ability to override a parent s lack of consent, however, is limited to parents of students enrolled in a public school. As clarified by the regulations, if a parent of a child who is home schooled or placed in a - 4 -

5 private school by the parents at their own expense does not provide consent for the initial evaluation or reevaluation, or the parent fails to respond to a request to provide consent, the district may not use the consent override procedure. 34 C.F.R (d)(4). The final regulations provide reassurance to districts by also adding that districts will not violate child find obligations if they decline to file for due process to seek an override of parental refusal for initial evaluation. 34 C.F.R. 300(c)(iii). 11. Overriding Parent Consent for Initial Services The IDEA continues to require districts to obtain parental consent before the initial provision of special education and related services. To add to this requirement, the final regulations also state that districts must make reasonable attempts to obtain informed parental consent for the initial provision of services. If such attempts fail, the regulations make clear that a district is prohibited from using due process procedures to override the lack of consent. 34 C.F.R (b). 12. Disciplinary Removals that Constitute a Change of Placement The regulations clarify the circumstances under which a series of disciplinary removals constitute a change in placement. IDEA 2004 regulations now explain that a change of a child s placement occurs when a) the removal is for more than 10 consecutive school days; or b) the child has been subjected to a series of removals that constitute a pattern (i) because the series of removals total more than 10 school days in a school year; (ii) because the child s behavior is substantially similar to the child s behavior in previous incidents that resulted in the series of removals; and (iii) because of such additional factors as the length of each removal, the total time the child has been removed, and the proximity of removals to one another. 34 CFR Expedited Due Process Hearings Instead of leaving it up to states to establish timelines for expedited due process hearings to review disciplinary decisions, the new regulations require that expedited hearings occur within twenty (20) school days of the date the hearing was requested. Decisions must be rendered within ten (10) school days after the hearing. These regulations further clarify that unless the parties agree to waive the resolution meeting or agree to mediate, the resolution session must take place within seven (7) days of receiving notice of the due process complaint. If the matter is not resolved to the satisfaction of both parties, the hearing may proceed with fifteen (15) days of receiving the complaint. 34 C.F.R (c). 14. Manifestation Determinations IDEA 2004 significantly altered the standards for determining whether a child s misconduct was a manifestation of the child s disability. Under these new standards, - 5 -

6 the behavior is a manifestation of the child s disability only if: 1) the conduct in question was caused by, or had a direct and substantial relationship to the child s disability; OR 2) the conduct in question was the direct result of the district s failure to implement the IEP. 34 C.F.R (e). The new regulations clarify that if the district, parent(s) and members of the IEP Team determine that the conduct was a result of the district s direct failure to implement the IEP, the district must take immediate steps to remedy those deficiencies. This requirement is in addition the district s existing obligations to return the child to the placement from which the child was removed and to conduct a functional behavioral assessment and develop (or revise) a behavioral intervention plan. 34 C.F.R (e)(3); (f). 15. Removals Existing regulations governing the removal of a child with a disability for disciplinary reasons have been revised to clarify a district s obligations to provide services to a child once the child has been removed for more than ten (10) total days in a school year. According to 34 C.F.R (d)(4), after a child with a disability has been removed for ten (10) school days in the same school year, if the current removal is for not more than ten (10) consecutive days and is not a change in placement, school personnel, in consultation with at least one of the child s teachers, determine the extent to which services are needed to allow the child to progress in the general education curriculum and to progress towards meeting the goals set out in the child s IEP. If the removal is for more than ten (10) consecutive days or is a change in placement, the IEP team determines the appropriate services. With any luck, these revisions will assist districts in better understanding the disciplinary process with respect to special education students. 16. Stay-put During Disciplinary Appeals As with the proposed regulations, the final regulations reiterate the provision in the IDEA 2004 that effectively eliminates the traditional concept of stay-put except in cases where an IEP team determines that the behavior is a manifestation of the student s disability. 34 CFR Specifically, both the statute and the accompanying regulations now provide that during an appeal of a disciplinary action, the child remains in the interim alternative educational setting (i.e. the disciplinary placement) pending the decision of the hearing officer of the expiration of the time period imposed by the disciplinary action. 17. Child Find Complaints Section of the new regulations clarifies that due process complaint procedures also apply to complaints that a district has failed to meet the child find requirements under the IDEA, including complaints that the district failed to locate, identify and/or evaluate a child who has been parentally placed in a private school

7 Such complaints must be filed with the school district where the private school is located, with a copy to the State Educational Agency. 18. Independent Educational Evaluations IDEA 2004 continues to provide parents with a right to an independent educational evaluation ( IEE ) at public expense if they disagree with the evaluation obtained by the district. The regulations clarify that the parent is entitled to only one IEE at public expense each time the district conducts and evaluation with which the parent disagrees. 34 C.F.R Amendments to an IEP Under IDEA 2004, parents and a school district may agree to amend a child s IEP, outside of the IEP Team process. Final regulations impose an additional obligation on districts to ensure that the child s IEP Team is informed of those changes made to the IEP through this amendment process. 34 C.F.R (a)(4). 20. Excusal of IEP Team Members In an effort to try and provide increased flexibility to school districts, IDEA 2004 permits the excusal of members of a child s IEP Team under certain circumstances. Specifically, a team member may be excused if the parent and district agree in writing that the person s attendance is not necessary because the person s area of curriculum or related services is not being modified or discussed. An IEP Team member whose area of curriculum or services is being discussed may be excused if the parent and district agree in writing, but only if the person also submits written input into the development of the IEP prior to the meeting. New regulations clarify that these excusal requirements apply only to the regular education teacher, the special education teacher, the district representative, and the individual who can interpret the implications of evaluation results. 34 C.F.R v.02 S1-7 -