IDEA 2004 Part B Regulations: Critical Issues

Introduction Received comments from more than 5500 commenters Compared to over 6000 comments in 1997 Consisted of three (3) major parts Regulations (25%) Analysis of comments and changes (70%) Other TA documents (5%)

DR/EIM–HPN(PS) D iscipline R/E RtI/EIS I EPs M onitoring H QT P rivate schools N IMAS PS Procedural Safeguards

DR/EIM–HPN(PS) Discipline RtI/EIS IEPs Monitoring HQT Private schools NIMAS Procedural Safeguards

Discipline

Key Issues: Discipline Adds new authority to consider unique circumstances, case-by-case basis Expands removal authority for serious bodily injury Establishes new standards for manifestation determinations

Key Issues: Discipline 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

Key Issues: Discipline Retains protections if “basis of knowledge” for children not yet determined eligible Establishes exceptions to the agency’s basis of knowledge Revises and clarifies due process hearing provisions including expedited hearing procedures for discipline

Response to Intervention (RTI) and Early Intervening Services (EIS)

Key Issues: RTI Must not require the use of a severe discrepancy Must permit the use of a process based on the child’s response to scientific, research-based intervention, and May permit the use of other alternative research-based procedures for determining whether a child has SLD

Key Issues: RTI SLD identification - Components of Comprehensive Evaluation RTI does not replace a comprehensive evaluation Must use a variety of data-gathering tools and strategies even if RTI is used Results of RTI may be one component of the information reviewed

Key Issues: RTI SLD identification - Components of Comprehensive Evaluation (cont) Must use a variety of assessment tools/strategies Cannot rely on single procedure as the sole criterion for determining eligibility Each State must develop criteria to determine whether a child has a disability

Key Issues: EIS Committee Report: …and early intervening services to reduce the need to label children as disabled in order to address the learning and behavioral needs of such children

Key Issues: EIS Adds “early intervening services” for: Not more than 15% of amount LEA receives K-12 with an emphasis on K-3 Not currently identified Those students who need additional academic and behavioral support to succeed in general education environment Allows child previously identified to receive EIS

Key Issues: EIS Significant disproportionality by race/ethnicity: In the case of a determination of significant disproportionality…reserve the maximum amount of funds…to provide…early intervening services to serve children in the LEA, particularly, but not exclusively…children in those groups that were significantly overidentified

Key Issues: EIS Allows the following activities: Professional development The provision of: Educational and behavioral evaluations Services Supports Scientifically-based literacy instruction

Key Issues: EIS Relationship to FAPE: Nothing in this section shall be construed to either limit or create a right to FAPE under Part B or to delay appropriate evaluation of a child suspected of having a disability Regardless of LEA use of funds for EIS, FAPE remains an entitlement

Individualized Education Programs (IEPs) and Changes in Initial Evaluations and Reevaluations

Key Issues: IEPs/Evals Not everyone must attend an IEP Team meeting If the area discussed is not being modified Parents and school agree in writing Written information shared prior to the meeting Requires that if changes are made to an IEP without an IEP meeting, the public agency must ensure that the child’s IEP team is informed of the changes

Key Issues: IEPs/Evals Contents of IEP If IEP Team determines the child must take an alternate assessment, it must include a statement of why the child cannot participate and why the particular alternate assessment selected is appropriate for the child Deleted the requirement for a statement of secondary transition service needs beginning at age 14

Key Issues: IEPs/Evals Students who transfer Within State and between States, must share IEP to ensure implementation and FAPE is provided for children with disabilities when transfer is from one public agency to another

Key Issues: IEPs/Evals A public agency may pursue an initial evaluation by utilizing Part B’s procedural safeguards, however, the public agency does not violate obligations to locate, identify and evaluate the child if it does not pursue initial evaluation

Key Issues: IEPs/Evals An initial evaluation must be conducted within: 60 days of receiving parental consent for the evaluation; or The timeframe established by the State, if the State has established such a timeframe

Monitoring, Enforcement and Technical Assistance

Key Issues: Monitoring New provisions puts primary focus of State’s monitoring activities on: Improving education results and functional outcomes Ensuring that public agencies meet program requirements, particularly those most closely related to improving educational results

Key Issues: Monitoring Must monitor: The provision of FAPE in the LRE A State’s exercise of general supervision, including: Child find Effective monitoring Use of resolution meetings and mediation A system of transition services

Key Issues: Monitoring Must monitor: Disproportionate representation of racial and ethnic groups in special education and related services, to the extent the representation is the result of inappropriate identification

Key Issues: Monitoring Requires each State to: Submit its performance plan to the Secretary for approval Review its performance plan at least once every six years, and submit any amendments to the Secretary

Key Issues: Monitoring Annually the Secretary will determine if States: Meet requirements Need assistance Need intervention Need substantial intervention

Highly Qualified Teachers

Key Issues: HQT Special education teachers must obtain full State certification as a special education teacher or Pass the State special education teacher licensing exam, and hold a license to teach in the State as a special education teacher

Key Issues: HQT HQT in a charter school means that the teacher meets the certification and licensing requirements, if any, set forth in the State’s Public charter school law

Key Issues: HQT Alternate route to certification Receives high-quality professional development that is sustained, intensive and classroom-focused Participates in a program of intensive supervision with structured guidance and regular ongoing support or a teacher mentor program Assumes functions as a teacher only for a specified period of time not to exceed three years and Demonstrates satisfactory progress toward full certification as prescribed by the State

Key Issues: HQT Special education teachers who teach core academic subjects: Must hold a special education certificate/license Hold a minimum of a bachelor’s degree and Must demonstrate subject-matter competency in each subject taught

Key Issues: HQT Special education teachers teaching: To alternate achievement standards must meet the NCLB standards for elementary, middle or secondary school teachers who are new or not new to the profession or Meet the NCLB requirements applied to elementary teachers and have subject matter knowledge appropriate to the level of instruction being provided and needed to effectively teach to those standards

Key Issues: HQT Establishes a separate high objective uniform State standard of evaluation (HOUSSE) for special education teachers Does not apply to teachers hired by private elementary and secondary schools, including private school teachers hired or contracted by LEAs to provide equitable services to parentally-placed private school children with disabilities

Children with Disabilities Enrolled by Their Parents in Private Schools

Key Issues: Private Schools Maintains: No individual right to services Equitable participation based on timely and meaningful consultation affirmed in writing Proportionate share of funds spent or carried over A services plan, not an IEP

Key Issues: Private Schools Adds that an LEA where the private school is located is responsible for child find and provision of services Clarifies that preschool children with disabilities aged 3-5 can be considered parentally-placed children if it is considered an elementary school Clarifies that private school personnel do not have to meet the HQT requirements

Key Issues: Private Schools States that the consent override procedures are unavailable Requires informed consent for disclosure of evaluations between the LEA of the parent’s residence and the LEA where the private school is located

National Instructional Materials Accessibility Standard (NIMAS)

Key Issue: NIMAS …Timely access to appropriate and accessible instructional materials is inherent in a public agency’s obligation under IDEA to ensure that FAPE is available to all children with disabilities to enable them to participate in the general curriculum consistent with their IEPs

Key Issues: NIMAS Clarifies that States must adopt the NIMAS, published on July 19, 2006 Clarifies that a State is required to establish a State definition of “timely manner,” – regardless of whether the State does or does not coordinate with the NIMAC All 50 States coordinated with NIMAC

Key Issues: NIMAS Requires the SEA to ensure that all public agencies take all reasonable steps to provide those materials at the same time as other children receive instructional materials

Key Issues: NIMAS LEAs are responsible for ensuring that children with disabilities who need instructional materials in accessible formats, but who do not fall within the definition of children who are eligible to receive materials under this regulation must receive them in a timely manner.

Procedural Safeguards: Dispute Resolution and Notice

Key Issues: Procedural Safeguards Stipulates that due process complaints must allege a violation that occurred not more than two years before the date the parent or public agency knew or should have known about the alleged action

Key Issues: Procedural Safeguards Requires the public agency to convene a resolution meeting within 15 days of receipt of a due process complaint and that it: Ensures the process is effective and not used to delay or deny the right to a due process hearing Clarifies requirements for participation in a resolution meeting and consequences

Key Issues: Procedural Safeguards Stipulates that if the LEA has not resolved the due process complaint to the satisfaction of the parent within 30 days of the receipt of the due process complaint, the due process hearing may occur.

Key Issues: Procedural Safeguards Clarifies that discussions that occur during the mediation process must be confidential and may not be used as evidence in any subsequent due process hearing or civil proceeding of any Federal court or State court

Key Issues: Procedural Safeguards Clarifies that the SEA must provide the public agency with the opportunity to respond to the complaint filed with the SEA, including at a minimum: At the discretion of the public agency, a proposal to resolve the complaint, and An opportunity for a parent who has filed a complaint and the public agency to voluntarily engage in mediation The Department developed a model procedural safeguards notice

For more information: http://idea.ed.gov

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