http://www.wadleighlaw.com/Articles/School/whats_new_about_new_ideia_050809.htm
What's New About the New IDEIA and
the Proposed Regulations
August 9, 2005
By Dean B. Eggert
This material was originally presented to the New Hampshire Association of Special
Education Administrators August 9, 2005.
A Word of Caution
No two cases are exactly alike. This material is designed to provide educators with a
broad understanding of certain aspects of the reauthorized I.D.E.A. This material does
not include every aspect of the law. You are strongly encouraged to seek a legal opinion
from your school district's legal counsel regarding any specific case. This material
became effective July 1, 2005, however, the regulations discussed in this material
are proposed and not yet final.
I - Overview
The purpose of this material is to equip the Administrator with a working knowledge of the
reauthorization of the Individuals with Disabilities Education Act. This material is not intended
to substitute for legal counsel nor is it intended to provide an exhaustive statement of the
Individuals with Disabilities Education Improvement Act of 2004 ("IDEIA"). The regulations
discussed in this material are proposed, subject to change, and not final.
II - The Legislative History
The efforts to reauthorize and amend the IDEA date back to early 2003. These efforts were
preceded and accompanied by vigorous lobbying efforts from a myriad of special interest groups.
On April 2, 2003, the House Subcommittee on Education Reform voted by voice vote to
favorably report H.R. 1350, as amended, to the Committee on Education and the Workforce. On
April 10, 2003, the full committee voted to favorably report H.R. 1350 to the House by a vote of
29 to 19. The Bill was then referred from the House to the Senate Committee on Health,
Education, Labor and Pensions.
On June 25, 2003 the Senate Committee voted 21-0 to approve S. 1248 as a substitute to H.R.
1350. On November 3, 2003, the Senate's IDEA Reauthorization bill, S. 1248, moved out of
Committee and onto the Senate Calendar for debate.
On November 21, 2003, the Senate passed a unanimous consent agreement on S. 1248. It
outlined the terms for bringing S. 1248 to the Senate floor for consideration. It also allowed
Republicans and Democrats to each offer four amendments.
On May 10, 2004, the Senate passed Senate Bill 1248 as amended. On July 15, 2004, the
Republican leadership of the House of Representatives Committee on Education and the
Workforce issued a press release expressing "profound
disappointment" that the Senate Democratic leaders were refusing to allow a House Senate
Conference. The press release pointed out that a very short window of opportunity exists for
Congress to vote on a compromised Bill before the end of the 108th Congressional Session. If no
vote occurred during the 108th Session, then the 109th Congress would have to repeat the
process from the beginning.
On October 8, 2004, the Speaker of the House appointed conferees to work with the Senate to
produce a final special Education Bill that President Bush could sign into law by the end of the
year.
On November 17, 2004, the House-Senate Conference Committee reached a consensus on
changes necessary to reauthorize the IDEA. On November 19, 2004, both the House and Senate
voted to reauthorize the IDEA. On December 3, 2004, President Bush signed the IDEIA into
law.
III - Effective Date
Many laws do not become effective upon passage, but instead set a future date upon which they
go into effect. The reauthorized IDEIA became effective July 1, 2005. The draft regulations
were published in the Federal Registry by the United States Department of Education on June 21,
2005. The period for comment closes on September 6, 2005.
IV - The Political Rhetoric
Throughout the reauthorization process, tension existed between the House and Senate. The titles
of the two different versions proposed by the House and Senate best illustrates the tension. The
House of Representatives entitled H.B. 1350, the "Improving Education Results for Children
with Disabilities Act of 2003." The Senate version assumed a more modest title, "The
Individuals with Disabilities Education Improvement Act of 2003 (now 2004)[IDEIA]."
There is no question that the House sought more sweeping reforms to the IDEA. According to
Congressman John A. Boehner, Chairman of the Committee on Education and the Workforce,
the IDEA was not simply being reauthorized, but was the subject of reform. According to
Boehner,
Over the past year we have focused on our principles for reform of IDEA. These
principles have served as a foundation of our work to improve the IDEA and will
continue to be our guide as we move ahead with the process. These principles are:
1. Increasing accountability and improving education results for students with
disabilities;
2. Reducing the paperwork burden;
3. Improving early intervention strategies;
4. Reducing over identification/misidentification of non-disabled children, including
minority youths;
5. Encouraging innovative approaches to parental involvement and parental choice;
6. Supporting general education and special education teachers;
7. Rewarding innovation and improved education results;
8. Restoring trust and reducing litigation;
9. Insuring school safety; and
10. Reforming special education finance and funding.
Id.
H.B. 1350 sought close reconciliation with the No Child Left Behind Act. According to Boehner,
With the passage of the No Child Left Behind Act (NCLB), children with disabilities
now have a greater opportunity to achieve their goals than ever before. We have raised
expectations and will hold school districts accountable for the annual progress of all their
students, including students with disabilities. HR 1350 carefully aligns the IDEA with
NCLB to ensure that students with disabilities are included in the accountability systems
of States and school districts.
Id.
The National Association of State Directors of Special Education (NASDSE), the National
School Board Association (NSBA) and numerous other national education organizations actively
lobbied Congress on desired reforms to the IDEA. A number of the stated Congressional goals
align with the legislative priorities proposed by the NASDSE. NASDSE developed nine (9)
focus areas for legislative consideration as follows:
1.
2.
3.
4.
5.
6.
7.
8.
9.
Accountability for results;
Unified system of education;
Interagency coordination;
Early intervention and preschool services;
Conflict Resolution System;
Access to services in charter schools and other choice options;
Discipline/positive behavior supports;
A conflict resolution system; and
Increased federal funding for the IDEA.
For more detail on the position maintained by the NASDSE, see www.nasdse.org.
V - Proposed Funding
The funding level proposed by President Bush for fiscal year 2004 was at 19%. The Republicans
claim credit for this increased funding observing that, "Since the GOP took control of the House
in 1995 federal funding, for special education has increased by 282%, compared to only 62%
during the previous eight years under Democrat control." See Press Release, "Committee on
Education
and
the
Workforce"
March
19,
2003,
http://edworkforce.house.gov\press\press108\03mar\idea031903.htm.
The IDEIA reaches 40% funding by Fiscal Year 2010.
VI - Section-by-Section Analysis of the "Individuals with Disabilities Education
Improvement Act of 2004 [IDEIA]"
The IDEIA amends most sections of the 1997 IDEA reauthorization.[1] The analysis set forth
below focuses on amendments impacting day-to-day practices of the special education
administrator, rather than those amendments affecting governmental functions.
A. Part A: General Provisions
The general provisions of the IDEIA 2004 are relevant to the educator because they contain
operational definitions of the law. They also contain language pertaining to congressional intent,
federal regulation through the Office of Special Education Programs [OSEP], the abrogation of
State sovereign immunity, and state level compliance.
1. Congressional Findings (Section 601)
There is a natural temptation to breeze by Congressional findings expressed in the preamble to
federal legislation. To do such however, is ill advised. The "Findings" made by Congress are the
primary indicators of Congressional intent in reauthorizing the IDEA.
There are some subtle changes worth noting in the new IDEA findings. For example, Congress
amended its key findings with regard to improving the "effectiveness" of the education of
children with disabilities. Congress now finds:
"...[T]hat the education of children with disabilities can be made more effective by -having high
expectations for such children and ensuring their access to the general education curriculum in
the regular classroom, to the maximum extent possible, in order to-(i) meet developmental goals and, to the maximum extent possible, the challenging expectations
that have been established for all children; and
(ii) be prepared to lead productive and independent adult lives, to the maximum extent possible;
(emphasis added)
Congress also affirms the significant role of "new" interventions, noting that effectiveness can be
enhanced by "(F) providing incentives for whole-school approaches, scientifically based early reading
programs, positive behavioral interventions and supports, 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;
There is also a new finding with regard to the role of assistive technology. The education of
children with disabilities can be made more effective by "(H) supporting the development and use of technology, including assistive technology devices
and assistive technology services, to maximize accessibility for children with disabilities."
Congress also made three new primary findings:
"(7) A more equitable allocation of resources is essential for the Federal Government to meet its
responsibility to provide an equal educational opportunity for all individuals.
(8) Parents and schools should be given expanded opportunities to resolve their disagreements
in positive and constructive ways.
(9) Teachers, schools, local educational agencies, and States should be relieved of irrelevant and
unnecessary paperwork burdens that do not lead to improved educational outcomes."
Congress specifically found limited English proficiency one of the most significant challenges
facing educators, observing:
"(A) The limited English proficient population is the fastest growing in our Nation, and the
growth is occurring in many parts of our Nation.
(B) Studies have documented apparent discrepancies in the levels of referral and placement of
limited English proficient children in special education.
(C) Such discrepancies pose a special challenge for special education in the referral of,
assessment of, and provision of services for, our Nation's students from non-English language
backgrounds."
2. Statement of Purpose
The statement of purpose is vital to understanding the obligations required of an educator by the
IDEA. There are some subtle changes as well to the statement of purpose. The purposes of this
title are-"(1)(A) to ensure that all children with disabilities have available to them a free appropriate
public education that emphasizes special education and related services designed to meet their
unique needs and prepare them for further education, employment, and independent living;
(B) to ensure that the rights of children with disabilities and parents of such children are
protected; and
(C) to assist States, localities, educational service agencies, and Federal agencies to provide for
the education of all children with disabilities;
(2) to assist States in the implementation of a statewide, comprehensive, coordinated,
multidisciplinary, interagency system of early intervention services for infants and toddlers with
disabilities and their families;
(3) to ensure that educators and parents have the necessary tools to improve educational results
for children with disabilities by supporting system improvement activities; coordinated research
and personnel preparation; coordinated technical assistance, dissemination, and support; and
technology development and media services; and
(4) to assess, and ensure the effectiveness of, efforts to educate children with disabilities."
3. Definitions (Section 602)
Most defined terms remain intact from the 1997 reauthorization. However, the following terms
are new or redefined:
a. "Assistive technology," Section 602(1). The term is limited to indicate
that it does not include "a medical device that is surgically implanted, or the replacement of such
a device. . ."
Query: where does that leave the question of programming a device such as a cochlear implant?
The Senate version of the bill excluded "programming" as well; this definition is not quite as
exclusionary. The proposed regulations appear to exclude "mapping" and programming a device
from the definition of a "related service."
Proposed Regulation §300.5 Assistive Technology Device (hereinafter PR): The term "assistive
technology" does not include a medical device that is surgically implanted, or replacement of
that device. See also Proposed Regulation for "Related Services."
b. "Core academic subjects," Section 602(4). The term "core academic subjects" has the meaning
given the term in section 9101 of the Elementary and Secondary Education Act of 1965 [NCLB].
PR §300.10 Core academic subjects: means English, reading or language arts, mathematics,
science, foreign languages, civics and government, economics, arts, history, and geography. (The
same as in 9101 of the Elementary and Secondary Education Act of 1965 [NCLB]).
c. "Highly qualified," Section 602(10). This new definition sets a standard for defining the
"highly qualified" special education teacher. As a general rule, a special education teacher must
hold "full State certification as a special education teacher (including certification obtained
through alternative routes to certification), and they must hold "at least a bachelor's degree."
The special education teacher who teaches to "alternative achievement standards" may either:
Meet the standard for a new or veteran teacher under NCLB at their level of instruction; or
Meet the school teacher certification requirements for an elementary teacher in the subject, or
in the case of instruction above the elementary level, demonstrate "subject matter knowledge
appropriate to the level of instruction being provided, as determined by the State, needed to
effectively teach to those standards."
The special education teacher who teaches multiple subjects (defined as two or more core
academic subjects) "exclusively to children with disabilities" may either:
"(i) meet the applicable requirements of NCLB for any elementary, middle, or secondary school
teacher who is new or not new to the profession; or
(ii) in the case of a teacher who is not new to the profession, demonstrate competence in all the
core academic subjects in which the teacher teaches in the same manner as is required for an
elementary, middle, or secondary school teacher who is not new to the profession under section
9101(23)(C)(ii) of such Act, which may include a single, high objective uniform State standard
of evaluation covering multiple subjects; or
(iii) in the case of a new special education teacher who teaches multiple subjects and who is
highly qualified in mathematics, language arts, or science, demonstrate competence in the other
core academic subjects in which the teacher teaches in the same manner as is required for an
elementary, middle, or secondary school teacher under section 9101(23)(C)(ii) of such Act,
which may include a single, high objective uniform State standard of evaluation covering
multiple subjects, not later than 2 years after the date of employment."
The definition of "highly qualified" also contains two protective provisions. The first provision
indicates that these standards shall not be construed to create a right of action on behalf of an
individual student or class of students for the failure of a particular State educational agency or a
local educational agency employee to be highly qualified. Second, qualification by an educator
under this definition of "highly qualified" means that they are deemed "highly qualified" for
purposes of NCLB.
PR §300.18 Highly Qualified Special Education Teacher: Specifies that "highly qualified"
applies only to public elementary school and secondary school special education teachers,
consistent with section 9101 of the NCLB. The Department of Education does not believe that
"highly qualified" requirements were intended to apply to private school teachers, even in
situations where a child with a disability is placed in, or referred to, a private school by a public
agency in order to carry out the public agency's responsibilities under this part.
Specifies that a teacher participating in an alternate route to a certification program would be
considered to be fully certified under certain circumstances. The standard to be applied to an
alternate route to certification program" is the same as under Title I of NCLB.
Reflects Congressional Conference Report intent that special education teachers who are only
providing consultative services to other teachers who are highly qualified to teach particular
academic subjects, could be highly qualified by meeting the special education qualifications
alone. This regulation clarifies that special education teachers who exclusively teach students
who are assessed based on alternate academic achievement standards, as permitted under Title I
of the NCLB, at a minimum, must have subject matter knowledge at the elementary level or
above, as determined by the State, needed to effectively teach to those standards.
This regulation permits special education teachers who teach core academic subjects exclusively
to children who are assessed against the alternate achievement standards to fulfill the highly
qualified teacher requirements of the NCLB as applied to an elementary school teacher, or, in the
case of instruction above the elementary level, to meet the requirements for an elementary school
teacher and have subject matter knowledge appropriate to the level of instruction being provided,
including at a minimum, subject matter knowledge at the elementary level or above, as
determined by the State, needed to effectively teach to those standards.
The proposed regulation does not specifically address the use of a separate "high objective
uniform State standard of evaluation" (HOUSSE) for special education teachers. However, note
21 in the Conf. Rpt. recognizes that some States have developed HOUSSE standards for special
education teachers and indicates that those separate HOUSSE standards should be permitted,
including single HOUSSE evaluations that cover multiple subjects, as long as those adaptations
of a State's HOUSSE for use with special education teachers would not establish a lesser
standard for the content knowledge requirements for special education teachers. The Department
of Education requests comment on whether additional regulatory action is needed on this point.
d. "Homeless children," Section 602(11). The definition under the IDEA is the same as under the
McKinney-Vento Homeless Assistance Act (42 USC 11434a).
PR §300.19 Homeless Children: Regulation reflects the Act.
e. "Limited English Proficient," 602(18). The term is defined in accord with the NCLB
definition.
PR §300.27 Limited English Proficient: Regulations reflects the Act.
f. "Parent," 602(23). The term "parent" now means:
"(A) a natural, adoptive, or foster parent of a child (unless a foster parent is prohibited by State
law from serving as a parent);
(B) a guardian (but not the State if the child is a ward of the State);
(C) an individual acting in the place of a natural or adoptive parent (including a grandparent,
stepparent, or other relative) with whom the child lives, or an individual who is legally
responsible for the child's welfare; or
(D) an individual assigned under either of those sections to be a surrogate parent.[2]
PR §300.30: Revises the current definition to better reflect the Act. Would reflect the provision
regarding State law limitations/prohibitions on when a foster parent can be considered a parent,
also adds language to recognize that similar restrictions may also exist in State regulations or in
contractual agreements between a State or local entity and the foster parent and should be
accorded similar deference.
Provides for a presumption that the natural or adoptive parent is be the parent for purposes of the
regulations unless that person does not have legal authority to make educational decisions for the
child, or there is a judicial order or decree specifying some other person to act as the parent
under Part B of the Act.
Provides that if a person or persons is specified in a judicial order or decree to act as the parent,
then that person would be the parent under Part B of the Act.
Would, however, exclude an agency involved in the education or care of the child from serving
as a parent.
g. "Related Services," 602(26). The definition of related services encompasses new services
added to the related services list. These include:
interpreting services; and
school nurse services designed to enable a child with a disability to receive a free appropriate
public education as described in the individualized education program of the child.
Congress specifically excepted from the definition of a "related service," a surgically implanted
medical device or the replacement of such device.
PR §300.34 Related Services: Reflects the Act and excepts from the definition of "related
service" the maintenance or "maximizing the function" of a surgically implanted medical device.
h. "Transition services," Section 602(32). The existing IDEA defines transition services as those
services designed "within an outcome-oriented process, which promotes movement from school
to post-school activities." The new definition of transition services refers to a coordinated set of
activities for a child with a disability that "is designed to be within a results-oriented process,
that is focused on improving the academic and functional achievement of the child with a
disability to facilitate the child's movement from school to post-school activities..." The Senate
sought to leaven transition services by reference to a student's "capabilities," but that effort did
not survive the House-Senate conference.
PR §300.42 Transition Services: Reflects the Act.
4. Requirements for Prescribing Regulations (Section 607)
This section now limits the ability of the Secretary of Education to issue regulations under the
new Act "only to the extent necessary to ensure that there is compliance with the specific
requirements of this Act." The Secretary's authority is also limited with regard to regulations,
policy letters and statements. She is prohibited from issuing any regulation, policy letter or
statement which:
violates or contradicts any provision of the IDEA; or
procedurally or substantively lessens the protections provided to children with disabilities.
According to the U.S.D.O.E., the current regulations were reviewed for continued necessity and
relevance in light of a number of factors: Whether statutory changes required changes to existing
regulations; whether changes in other laws, or the passage of time, and changed conditions
rendered the regulations obsolete or unnecessary; whether less burdensome alternatives or
greater flexibilitywas appropriate; and whether the regulation could be changed in light of
section 607(b) of the Act.
Query: Were regulatory sections retained that now go beyond the scope of the 2004
Reauthorization?
5. State Administration (New Section 608)
Congress amended Part A to add a new Section 608 entitled "State Administration." This Section
requires states to ensure that their state regulations conform to the purposes of the Act and
further requires that they shall "minimize the number of rules, regulations, and policies to which
the state's local educational agencies and schools are subject to under this Act." In a further effort
to align the reauthorization with the NCLB, the new State Administration section requires that,
"[a]ll state rules, regulations and policies pertaining to this Act shall support and facilitate local
educational agency and school-level systemic reform designed to enable children with
disabilities to meet the challenging State student academic achievement standards." See Section
608(b).
Clearly, Congress has tired of being the political focus of state criticism. As a result, state
departments are now required to identify in writing to their LEAs and the Secretary of Education
any rule, regulation, or policy that is a state-imposed requirement and not an IDEA or federal
regulation requirement.
6. Paperwork Reduction (Section 609)
This new section enables the Secretary of the USDOE to initiate a pilot program for up to 15
states, based on proposals from those states to reduce excessive paperwork and noninstructional
time burdens "that do not assist in improving educational and functional results for children with
disabilities." These pilot programs may not compromise the provision of FAPE nor may they
involve waiver of Section 615 procedural safeguards.
PRs: Forthcoming, not yet proposed.
B. Part B - Assistance for Education of All Children with Disabilities.
1. Granting Authority (Section 611)
The maximum amount available for awarding grants under this section for fiscal years 2005 and
2006 equals--
(A) the total number of children with disabilities in the State who are receiving special education
and related services-(i) aged 3 through 5, if the State was eligible for a grant under section 619; and
(ii) aged 6 through 21; multiplied by
(B) 40 percent of the average per-pupil expenditure in public elementary schools and secondary
schools in the United States.
The formula for fiscal year 2007 and subsequent fiscal years equals the number of children with
disabilities in the 2004-2005 school year in the State who received special education and related
services -(i) aged 3 through 5, if the State was eligible for a grant under section 619; and
(ii) aged 6 through 21; multiplied by
(C) 40 percent of the average per-pupil expenditure in public elementary schools and secondary
schools in the United States; adjusted by the rate of change in the sum of-(i) 85 percent of the change in the nationwide total of the population described in subsection
(d)(3)(A)(i)(II); and
(ii) 15 percent of the change in the nationwide total of the population described in subsection
(d)(3)(A)(I)(III).
This section allows the State to reserve funds to establish a "High Cost Fund" designed to relieve
LEAs from the extraordinary costs of educating a "high need child with a disability." In the
alternative, a State may use these funds for its existing catastrophic aid program.
This section also sets forth appropriated sums for ensuing years:
(1) $12,358,376,571 for fiscal year 2005;
(2) $14,648,647,143 for fiscal year 2006;
(3) $16,938,917,714 for fiscal year 2007;
(4) $19,229,188,286 for fiscal year 2008;
(5) $21,519,458,857 for fiscal year 2009;
(6) $23,809,729,429 for fiscal year 2010;
(7) $26,100,000,000 for fiscal year 2011; and
(8) such sums as may be necessary for fiscal year 2012 and each succeeding fiscal year.
2. State Eligibility for Federal Funding (Section 612)
Section 612 (20 USC §1412) sets forth criteria for state eligibility for federal funds. Congress
amended the state's burden of proof from "demonstrate[ing] to the satisfaction of the Secretary
that the state has in effect policies and procedures..." to "submit[ting] a plan that provides
assurances" to the Secretary of Education that "the state has policies and procedures to ensure
that it meets the enumerated IDEA requirements such as FAPE, Child Find, IEP development,
least restrictive environment, procedural safeguards, evaluations and confidentiality." A State
that provides early intervention services in accordance with Part C to a child is not required to
provide such child with a FAPE under Part B.
This regulatory section entitled State Eligibility requires that the State "provide assurances," to
the Secretary of Education that the State has in effect policies and procedures to comply with
each of the components of FAPE.
PR §300.100-300.124: Reflect the Act and remove the current requirement that States submit
copies of all State statutes, regulations, and other documents. Consistent with this approach,
these proposed regulations would eliminate from the current regulations throughout subpart B all
provisions requiring that policies and procedures be on file with the Secretary.
States must now demonstrate Child Find policies and procedures capable of finding homeless
children and "wards of the state" who are educationally disabled.
PR §300.111 Child Find: Reflects the Act.
a. Child Find and parentally-placed private school children.
The IDEIA focuses on the delivery of special education services to children enrolled in private
schools. There is a detailed regimen to the Child Find process for children enrolled by parents in
private schools located in the geographic jurisdiction of the school district. The reauthorization
sets forth the following criteria for this class of student:
Equitable participation.
The Child Find process must be designed to ensure the equitable participation of parentally
placed private school children and an accurate count of such children.
PR §300.131 Child Find for Parentally-Placed Private School Children with Disabilities:
Reflects the Act.
Child Find Activities.
The LEA is now required to "undertake activities similar to those activities undertaken for the
agency's public school children." See PR §300.131(c).
Cost.
The cost of carrying out Child Find duties with regard to children enrolled in private school,
including initial evaluations, may not be offset against the proportionate share of funds due and
owing the class of children enrolled by the parents in private schools. See PR §300.131(d).
Completion.
The Child Find process "shall be completed in a time period comparable to that for other
students attending public schools in the local education agency." See PR §300.131(d).
Service provision.
The LEA is required to provide special education and related services including direct services
determined in accord with a new requirements known as the "equitable services requirement." A
services plan must be developed and implemented for each private school child with a disability
"who has been designated by the LEA in which the private school is located" to receive special
education and related services. Each LEA must also maintain records which contain the
following information relative to parentally placed private school children:
1. The number of children evaluated;
2. The number of children determined to be children with disabilities; and
3. The number of children served.
PR §300.132 Provision of Services for Parentally-Placed Private School Children with
Disabilities - Basic Requirement: This section tracks the statutory language outlining the basic
requirement for the provision of services for parentally placed private school children with
disabilities. Requires that "provision is made for the participation of those children...under Part
B...by providing them with special education and related services, including direct services
determined in accordance with §300.137 [Equitable Services determined]..."
Expenditures requirement.
PR §300.133 Expenditures: This rule sets forth a formula to determine the amount each LEA
shall spend on providing special education and related services (including direct services) to
parentally placed private school children with disabilities. The formula is broken in to two
categories. For children age 3 through 21, the LEA must spend an amount that is the same
proportion of the LEAs total subgrant under section 611(g) of the Act as the number of private
school children with disabilities age 3 through 21 who are enrolled by their parents in private,
including religious, elementary schools and secondary schools in the LEA bear to the total
number of children with disabilities in its jurisdiction age 3 through 21.
For children age 3 through 5, the LEA must spend an amount that is the same proportion of the
LEAs total subgrant under Part C of the Act as the number of parentally placed private school
children with disabilities age 3 through 5 who are enrolled by their parents in private, including
religious, elementary schools and secondary schools located in the LEA bear to the total number
of children with disabilities in its jurisdiction age 3 through 5.
This proposed rule contains a "child count" requirement where each LEA must consult with
representatives of parentally placed private school children with disabilities in deciding how to
conduct the annual count of the number of parentally placed private school children with
disabilities and ensure that the count is conducted on any date between October 1 and December
1 of each year. The child count is then used to determine the amount the LEA must spend on
providing services to these children in the subsequent fiscal year.
Consultation.
There is a new obligation to consult "with private school representatives and representatives of
parents of children with disabilities parentally placed in private schools during the design and
development of special education and related services" in the following categories:
(i) The Child Find process and how parentally-placed private school children suspected of
having a disability can participate equitably, including how parents, teachers, and private school
officials will be informed of the process;
(ii) The determination of the proportionate share of federal funds available to serve parentally
placed private school children with disabilities, including the determination of how the amount
was calculated;
(iii) How parentally-placed children with disabilities identified through the Child Find process
can meaningfully participate in special education and related services; and
(iv) How, where, and by whom, special education related services will be provided for
parentally-placed private school children including a discussion of alternative service delivery
mechanisms, how such services will be apportioned if funds are insufficient and how and when
these collaborative decisions will be made.
(v) How, if the local educational agency disagrees with the views of the private school officials
on the provision of services or the types of services, whether provided directly or through a
contract, the local educational agency shall provide to private school officials a written
explanation of the reasons why the local educational agency chose not to provide services
directly or through a contract.
PR §300.134 Consultants: Reflects the Act.
Private School Complaints.
With these amendments comes a right on the part of a private school official to complain to the
state educational agency that the local education agency did not engage in "meaningful and
timely consultation, or did not give due consideration to the view of the private school official."
A procedure exists whereby the complaint is registered with the state educational agency and
subsequently the LEA must forward appropriate documentation to the state educational agency
reporting its response. If the private school official is dissatisfied with the state's decision he or
she may complain to the Secretary of Education, whereupon the State must forward the
"appropriate documentation" to the Secretary.
PR §300.136 Compliance: Reflects the Act and sets out the complaint process.
Provision of "Equitable Services."
The IDEIA coins a new phrase entitled "Equitable Services." These services are defined as either
direct or contracted special education services. There is an explicit requirement that special
education and related services, including materials and equipment, shall be "secular, neutral and
non-ideological."
PR §300.137 Equitable Services Determined: This new rule sets forth the standard for
determining equitable services. The rule acknowledges that there is "no individual right to
special education and related services;" stating "no private school child with a disability has an
individual right to receive some or all of the special education and related services that the child
would receive if enrolled in a public school." Policy level decisions about the services that will
be provided to parentally-placed private school children with disabilities are to be made in
accord with the student's service plan in conjunction with the consultation process; particularly,
the process for determining how a child can "meaningfully participate in special education and
related services." This regulation makes its clear that "the LEA must make final decisions with
respect to the services to be provided to eligible parentally-placed private school children with
disabilities." When a child has been designated to receive special education or related services
from an LEA, the LEA must:
(i) initiate and conduct meetings to develop, review and revise a services plan for the child; and
(ii) ensure that a representative of the private school attend each meeting. If the representative
cannot attend the LEA should use other methods to ensure participation such as individual or
conference telephone calls.
PR §300.138 Equitable Services Provided: Sets forth standards for "equitable service"
provision. They are as follows:
(i) The services provided to parentally-placed private school children with disabilities must be
provided by personnel meeting the HQT standards of the public school;
(ii) A parentally-placed private school child may receive a differing amount of services than a
child with a disability in a public school;
(iii) The service plan for the child must, "to the extent appropriate," meet the requirements of PR
§300.320 (an IEP or for a child ages 3 through 5 meet the requirements for an ISP) with respect
to the services provided; and
(iv) Be developed, reviewed and revised consistent with IEP review and revision criteria (PR
§§300.321-300.324).
b. Reimbursement for Education of children enrolled in private schools without consent of,
or referral by, the public agency.
Congress made a minor adjustment to an exception to the limitation on reimbursement arising
from a parent's failure to comply with the ten (10) business days prior notice requirement. The
original language of the IDEA prohibited reimbursement from being reduced or denied for
failure to provide notice if the parent was illiterate, could not write in English, or compliance
with the notice would likely result in physical or serious emotional harm to the child. These
prohibitions against reduction or denial were modified to turn on the "discretion of a court or a
hearing officer."
PR §300.148(d)(2)(i)&(ii) Exceptions for Reimbursement: Reflects the Act.
c. State complaint procedures.
The new IDEA regulations draw a distinction between state complaint procedures and a due
process complaint. The IDEA is not actually the source statute for the state complaint process.
Instead, the authority for the state complaint process arises from 20 USC 1221e-3. The state
complaint procedures and compliance requirements have been slightly changed. The changes
include the following:
1. The regulations now explicitly require an opportunity for a public agency to respond to a
complaint, including a chance to make a proposal to resolve the complaint, and, with the consent
of the parent, to engage the parent in mediation or other alternative means of dispute resolution;
2. The regulation has been changed to permit extension of the complaint resolution time frame of
60 days so that parties can engage in mediation or other alternative means of dispute resolution;
3. There is a mandatory set aside provision which requires that a state set aside a complaint until
the conclusion of a due process hearing;
4. There are new information requirements added similar to the basic notice requirement for
filing a due process complaint in order to give the public agency the information that will allow
it to attempt to resolve the complaint;
5. There is a limitation period of 1 year. The complaint must "allege a violation that occurred not
more than 1 year prior to the date that the complaint is received and the reference to longer
periods for continuing violations and for compensatory service claims have been stricken; and
6. The party filing the complaint must forward a copy of the complaint to the LEA or public
agency serving the child.
A significant substantive change has also been made to the complaint procedures. The proposed
regulation 300.151(b)(1) removes the reference to monetary reimbursement through the
complaint process.
d. New personnel standard.
H.R. 1350 proposed requiring states to enhance personnel standards to "ensure that special
education teachers who teach in core academic subjects are highly qualified in those subjects,
using the term as defined in NCLB." However, the Senate proposed a less rigid standard,
requiring that all special education teachers teaching "core academic subjects" be "highly
qualified" by the 2006-2007 school year. In the end, neither standard was included. Instead, the
IDEIA requires States to establish and maintain qualifications to ensure that personnel are
appropriately and adequately prepared and trained. This includes a requirement that personnel
have the content knowledge and skills to serve children with disabilities.
PR §300.156(a) Personnel Qualifications, General: Reflects the Act.
The final version of the law also requires personnel standards for "related service providers and
paraprofessionals," which "are consistent with any State-approved or State-recognized
certification, licensing, registration, or other comparable requirements that apply to the
professional discipline in which those personnel are providing special education or related
services." The state is also required to "take measurable steps to recruit, hire, train and retain
highly qualified personnel to provide special education and related services."
PR §300.156(b) Related Services, Personnel and Paraprofessionals: Reflects the Act.
PR §300.156(c) Qualifications for Special Education Teachers: Sets an HQT deadline of June
2006.
e. New performance goals.
Section 612(a)(15) requires that the state establish goals for the performance of children with
disabilities in the state that "are the same as the state's definition of adequate yearly progress,
including the state's objectives for progress by children with disabilities under Section
1111(b)(2)(C) of the Elementary and Secondary Education Act of 1965 (NCLB). These
standards must also address dropout rates, as well as such other factors as the state may
determine..." The new state standards must establish performance indicators the state will use to
assess progress towards achieving adequate yearly progress including "measurable annual
objectives for progress by children with disabilities under Section 1111(b)(2)(C) of the
Elementary and Secondary Education Act of 1965."
PR §300.157 Performance Goals and Indicators: Reflects the Act and changes the current twoyear State-reporting requirement to an annual reporting requirement.
f. Participation in Assessments.
As a general rule, all children with disabilities must be included in state and district-wide
assessment programs including assessments conducted in accord with No Child Left Behind,
"with appropriate accommodations and alternate assessments where necessary and as indicated
in their respective individualized education programs." The state is required to develop
guidelines for alternate assessments. Alternate assessments must conform with the State's
"challenging academic content and academic achievement standards" or must "measure the
achievement of students against alternate academic achievement standards" that are aligned with
the state's alternate academic achievement standards, as permitted under NCLB."
PR §300.160 Participation in Assessments: Reflects the Act.
g. District wide assessments and LEA reporting requirements.
In the case of district wide assessments, the IDEIA requires LEAs to make available to the public
and report to the public with the same frequency and detail as it reports on the assessment of
non-disabled children, the following:
(i) The number of children with disabilities participating in regular assessments and the number
of those children who were provided accommodations in order to participate in those
assessments;
(ii) The number of children with disabilities participating in alternate assessments;
(iii) The performance of children with disabilities on regular assessments and on alternative
assessments (if the number of children with disabilities participating in those assessments is
sufficient to yield statistically reliable information and reporting that information would not
reveal personally identifiable information about an individual student) compared with the
achievement of all children including children with disabilities on those assessments.
To the extent "feasible," states must use "universal design" principles in developing and
administering alternate assessments of children with disabilities.
PR §300.160 Participation in Assessments: Reflects the Act.
h. Instructional material.
States are required to adopt the National Instructional Materials Accessibility Standard for
purposes of providing instructional materials to blind persons or other persons with disabilities in
a timely manner after the Secretary of Education publishes the standard in the Federal Register.
Two (2) years from the IDEA 2003 date of enactment, the state must require instructional
material publishers, as part of the purchase agreement, to provide electronic files containing the
contents of the instructional materials using the National Instructional Materials Accessibility
Standard.
PR §300.172 Access to Instructional Materials: Reflects the Act.
Provides that nothing in this section would relieve an SEA of its responsibility to ensure that
children with disabilities who need instructional materials in accessible formats, but who do not
fall within the category of children for whom the SEA may receive assistance from the National
Instructional Materials Accessibility Center (NIMAC), receive those instructional materials in a
timely manner. Timely access to appropriate and accessible instructional materials is an inherent
component of public agencies' obligations under the Act to ensure that FAPE is available for
children with disabilities and that they participate in the general education curriculum as
specified in their IEPs.
Section 674(e)(3)(A) of the Act limits the authority of the NIMAC to provide assistance to SEAs
and LEAs in acquiring instructional materials for children who are blind, have visual disabilities,
are unable to read or use standard printed materials because of physical limitations, and children
who have reading disabilities that result from organic dysfunctions, as provided for in 36 CFR
§701.10(b).
However, SEAs and LEAs still have an obligation to provide accessible instructional materials in
a timely manner to other children with disabilities, who also may need accessible materials even
through SEAs and LEAs may not receive assistance for these children from NIMAC.
i. Over identification of minorities.
The State must adopt policies and procedures that prevent inappropriate identification or
disproportionate representation by race and ethnicity of children with disabilities.
PR §300.173 Overidentification and Disproportionality: Requires State policies and procedures
designed to prevent inappropriate over- identification and disproportionality. Incorporates new
provision in section 612(a)(24) of the Act. Requires States to have, consistent with section
618(d) of the Act, policies and procedures to prevent inappropriate over identification or
disproportionate representation by race and ethnicity of children as children with disabilities,
including children with disabilities with a particular impairment.
j. Prohibition on Mandatory Medication.
The SEA shall prohibit LEA personnel from requiring a child to obtain a prescription for a
substance covered by the Controlled Substances Act as a condition of attending school, receiving
an evaluation, or receiving services.
PR §300.174 Prohibition on Mandatory Medication: Would clarify that this provision does not
create a Federal prohibition against teachers and other school personnel consulting or sharing
with parents their observations on the student's functional or academic performance, and
behavior in the classroom or school, or the child's possible need for an initial evaluation for
special education and related services.
k. Partial Grandfathering of prior state plans.
To the extent a state has on file with the Secretary of Education policies and procedures that
comply with any portion of Section 612(a), the state will be deemed to have met that particular
requirement for purposes of receiving a grant.
PR §300.176 Exceptions for Prior State Plan: Mirrors the Act. See also §300.220.
l. Bypass for children in Private Schools.
This new section permits the Secretary of Education to bypass the LEA and contract for direct
service provision to disabled children in private schools when the Secretary determines that the
LEAhas substantially failed, or is unwilling to provide, equitable participation by private school
children in federal funds.
PR §300.190 By-pass General; §300.191 Provisions for Services Under a By-pass: The
proposed regulations regarding by-pass for children in private schools would incorporate
changes in section 612(f) of the Act and would represent the first amendments to these
regulations since they were adopted in 1984. Because the statutory changes related to the
participation of parentally-placed private school children with disabilities should make it more
likely that these procedures will be implemented, these proposed revisions would align the bypass provisions from Part B of the Act with the general by-pass procedures in the Department's
general administrative regulations that apply Titles I and IX of the ESEA. This alignment should
help to ensure consistent implementation of the by-pass provisions throughout the Department.
3. Local Education Agency [School District] Funding Eligibility (Section 613)
LEA funding eligibility remains conditioned on the LEA submitting a plan to the State that
addresses the same regulatory components imposed on the State Agency. Districts are given
latitude to use up to 15% of their funding for "early intervening services" for students K - 12
(with an emphasis on K-3) who do not meet the definition of "educationally disabled" but who
"need additional academic and behavioral support to succeed in a general education
environment."
PR §300.226 Early Intervening Services: Reflects the Act regarding the use of up to 15% of
funds for early intervening services.
There are a number of new provisions involving the LEA:
-Personnel must be "appropriately and adequately prepared," in accord with the IDEIA and
NCLB to meet the relevant standards for their profession.
PR §300.207 Personnel Development: Reflects the Act.
-The LEA may spend federal funds for special education and related services and supplementary
aides and services provided in the regular classroom to a child with a disability even if one or
more nondisabled students benefit from the service;
PR §300.208 Permissive Use of Funds: Reflects the Act and allows the LEA to spend federal
funds for early intervening services and high cost (special education students) risk sharing funds.
Congress removed from the statute the authority to use Part B funds to develop and implement
an integrated and coordinated services system.
-Monies may be spent to purchase technology for administrative case management;
PR §300.208(b) Administrative Case Management: Reflects the Act.
-Charter schools of an LEA may receive funds and use funds in the same manner as the LEA.
The LEA is required to provide special education and related services in its charter schools;
PR §300.209 Treatment of Charter Schools and their Students: Clarifies that children with
disabilities who attend public charter schools retain all rights afforded under this part.
Clarifies that, in providing services to children with disabilities attending charter schools that are
public schools of the LEA, the LEA must provide supplementary and related services on site at
the charter school to the same extent as it does at its other public schools.
Specifies that an LEA must provide funds under Part B of the Act to the LEA's charter schools
on the same basis as it provides funds to its other schools, including proportional distribution
based on the relative enrollment of children with disabilities, and that it must provide those funds
at the same time as the LEA distributes funds to its other public schools.
Provides that if the public charter school is a school of an LEA that receives funding under
§300.705, the LEA is responsible for ensuring that the requirements of Part B are met (unless
State law assigns that responsibility to some other entity).
Adds current regulation (regarding public charter schools that are LEAs), to specify that a charter
school covered by this paragraph is responsible for ensuring that the requirements of this part are
met, unless State law assigns that responsibility to some other entity.
Provides that if a public charter school is not an LEA receiving funding under this part or a
school that is part of an LEA receiving funding, the SEA is responsible for ensuring that the
requirements of this part are met.
-LEAs must establish a mechanism for easy exchange of records regarding to migratory children.
PR §300.213 Records regarding Migratory Children with Disabilities: Reflects the Act.
This section also provides that States may require that a local educational agency include in the
records of a child with a disability a statement of any current or previous disciplinary action that
has been taken against the child and transmit such statement to the same extent that such
disciplinary information is included in, and transmitted with, the student records of nondisabled
children. The statement may include a description of any behavior engaged in by the child that
required disciplinary action, a description of the disciplinary action taken, and any other
information that is relevant to the safety of the child and other individuals involved with the
child. If the State adopts such a policy, and the child transfers from one school to another, the
transmission of any of the child's records shall include both the child's current individualized
education program and any such statement of current or previous disciplinary action that has
been taken against the child.
4. Evaluations, Eligibility Determinations, Individualized Education Programs and
Educational Placements (Section 614)
a. Request for initial evaluation.
Congress amended Section 614(a)(1)(B) to clarify the fact that a parent, state educational
agency, "other state agency or local educational agency" may initiate a request for an initial
evaluation to determine if the child is a child with a disability.
The new law establishes criteria under which the forty-five (45) day time frame (a state time
frame) for initial evaluation does not apply. The time frame does not apply if:
1. The child has enrolled in the LEA after an evaluation has been started, but not completed in
the other school district;
2. The new school district is "making sufficient progress to ensure a prompt completion of the
evaluation, and the parent and subsequent LEA agree to a specific time when the evaluation will
be completed; or
3. The parent of a child repeatedly fails or refuses to produce the child for evaluation.
PR §300.301 Initial Evaluations (d) Exceptions: Exceptions to the time frame for evaluations.
b. Consent for services.
An agency responsible for making FAPE available to a child with a disability under Part B shall
seek to obtain informed consent from the parent before providing special education and related
services to the child. In the event of a lack of consent to the initial evaluation, the LEA "may
pursue the initial evaluation of the child through the procedures described in Section 615, except
to the extent inconsistent with state law relating to such parental consent."
PR §300.300 Parental Consent: Sets forth the requirement of parental consent for initial
evaluations, reevaluations, and the initial provision of services. This section replaces §300.505 of
the current regulations and incorporates the new requirements regarding parental consent
contained in section 614(a)(1)(D) of the Act.
Would retain the provision that consent for the initial evaluation may not be construed as consent
for the initial provision of special education and related services.
Would incorporate the provision in section 614(a)(1)(D)(i)(II) of the Act specifying that the
public agency responsible for making FAPE available to the child must seek to obtain informed
parental consent before the initial provision of special education and related services.
The proposed regulations use the term "initial provision" rather than the statutory term "receipt"
of special education and related services. This clarifies that consent does not need to be sought
every time a particular service is provided to the child, but must be received before "initial
provision." The proposed regulation continues to refer to consent for the initial provision of
services, in lieu of using the statutory language, which refers to "consent for placement for
receipt of special education and related services." This is consistent with the revised language of
the Act and the Department's position that placement refers to the provision of special education
services rather than as a specific place, such as a specific classroom or specific school.
PR §300.300 Parental Consent (c) Parental Consent for Reevaluations: Reflects the
requirement in current regulations that parental consent be obtained before a reevaluation.
However, in lieu of prescribing "reasonable measures," (and to reduce "regulatory burden,")
reference to the reasonable measures that public agencies must use in this situation, is removed.
As a practical matter, "because public agencies take seriously their obligation to obtain parental
consent for a reevaluation because of their ongoing obligation to ensure the provision of FAPE to
eligible students with disabilities, they typically would use a number of informal measures to
obtain such consent." Elimination of the reference to reasonable measures should give public
agencies increased flexibility to use measures they deem reasonable and appropriate.
Provides, as current regulations do, that public agencies are not required to obtain parental
consent before reviewing the existing data as part of an evaluation or reevaluation, or before
administering a test or evaluation that is administered to all children, unless consent is required
of parents of all children. Permits a State to maintain additional consent requirements, provided
its public agencies establish and implement effective procedures to ensure that the failure to
provide consent does not result in the failure to provide FAPE to a child with a disability.
If the parent does not consent or fails to respond, the LEA shall not be considered to be in
violation of the requirement to make available a Free Appropriate Public Education to the child,
at least as to those matters for which informed consent has been sought, nor shall it be required
to convene an IEP meeting or develop an IEP for the child.
PR §300.300 Parental Consent (b) Parental Consent for Services: Replaces current regulation
and reflects language in section 614(a)(1)(D)(ii) of the Act regarding absence of consent. As was
true under current regulations, the proposed regulations would provide that if a parent does not
provide consent or if the parent fails to respond to a request for consent, the public agency may
pursue the initial evaluation of a child by using the procedural safeguards in subpart E of these
proposed regulations, including applicable mediation and due process procedures, except to the
extent inconsistent with State law. However, consistent with the Department's position that
public agencies should use their consent override procedures only in rare circumstances,
proposed §300.300(a)(3) would clarify that a public agency is not required to pursue an initial
evaluation of a child suspected of having a disability if the parent does not provide consent for
the initial evaluation.
States and LEAs do not violate their obligation to locate, identify, and evaluate children
suspected of being children with disabilities under the Act if they decline to pursue an evaluation
to which a parent has failed to consent.
In addition, this regulation would permit consent override only for children who are enrolled in
public school or seeking to be enrolled in public school. For children who are home schooled or
placed in a private school by the parents at their own expense, consent override is not authorized.
The district can always use the override procedures to evaluate the child at some future time
should the parents choose to return their child to public school.
Of course, public agencies do have an obligation to actively seek parental consent to evaluate
private school (including home school, if considered a private school under State law) children
who are suspected of being children with disabilities under the Act. However, if the parents of a
private school child withhold consent for an initial evaluation, the public agency would have no
authority to conduct an evaluation and no obligation to consider that child as eligible for services
under proposed §§300.132 through 300.144.
Would incorporate the new requirement added by section 614(a)(1)(D)(ii)(II) of the Act that
prohibits a public agency from providing special education and related services by using the
procedural safeguards in subpart E of these proposed regulations if the parents fail to respond or
do not provide consent to services. Department of Education believes that the Act gives parents
the ultimate choice as to whether their child should receive special education and related
services, and this proposed regulation would reflect this statutory interpretation.
Would incorporate the new provision in section 614(a)(1)(D)(ii)(III) of the Act that relieves
public agencies of any potential liability for failure to convene an IEP meeting or for failure to
provide the special education and related services for which consent was requested but withheld.
Would incorporate current regulation and the Department's longstanding policy that a public
agency may not use a parent's refusal to consent to one service or activity as a basis for denying
the child any other service, benefit, or activity or the public agency, except as required by Part B
of the Act.
c. Consent for Wards of the State.
The new IDEIA defines a "ward of the state" as: a child who, as determined by the State where
the child resides, is a foster child, is a ward of the State, or is in the custody of a public child
welfare agency. When a child is a ward of the state and not residing with the child's parent, the
LEA is required to make "reasonable efforts" to obtain the informed consent from the parent of
the child for an initial evaluation to determine whether the child has a disability.
There are three exceptions to the requirement to obtain written prior consent:
Despite reasonable efforts to do so, the LEA cannot discover the whereabouts of the parent;
The rights of the parents of the child have been terminated; or
The rights of the parent to make educational decisions have been subrogated by a judge in
accordance with State law and consent for an initial evaluation has been given by an individual
appointed by the judge to represent the child.
A screening of a child by a teacher or specialist to determine appropriate instructional strategies
for curriculum implementation is not considered an evaluation for purposes of determining
eligibility and therefore does not require prior written consent under the IDEIA.
PR §300.300(a)(2)(i): Mirrors the statute.
d. Re-evaluations.
There are a number of minor changes to the re-evaluation process. The LEA is now required to
ensure a re-evaluation takes place "if the child's parent or teacher request a re-evaluation," but no
more than once a year unless the parent and LEA agree otherwise. At least once every three (3)
years, a re-evaluation must occur, unless the parent and LEA agree it is unnecessary. Reevaluations may be done without parental consent when the District demonstrates that it has
taken reasonablemeasures to obtain such consent and the child's parent has failed to respond.
PR §300.303 Reevaluations: Requires a public agency to ensure that a reevaluation is conducted
in accord with the new sections (300.304-300.311) pertaining to evaluation procedures.
Provides per the statute, that the reevaluation occur not more than once a year unless the parent
and the public agency agree otherwise. Continues the general requirement for three-year
reevaluations, except that in accordance with the Act, a parent and a public agency could agree
that a three-year reevaluation is unnecessary.
e. Evaluation procedures.
Written prior notice of proposed evaluation procedures remains a requirement. The 1997
Reauthorization required that the LEA "use a variety of assessment tools and strategies." With
the IDEIA 2004, the "additional requirements" regarding evaluation instruments have been
slightly modified. In the 1997 Reauthorization, test instruments were to be provided and
administered "in the child's native language or other mode of communication, unless it is clearly
not feasible to do so." Now these assessments and other evaluation measures shall be provided
and administered "in the language and form most likely to yield accurate information on what the
child knows and can do academically, developmentally, and functionally, unless it is not feasible
to so provide or administer." The test instruments shall be used for the purposes for which the
assessments or measures are "valid and reliable."
There is a new requirement that assessments of children with disabilities who transfer from one
school district to another in the same academic year are coordinated with such children's prior
and subsequent schools, as necessary and as expeditiously as possible, to ensure prompt
completion of full evaluations.
PR §300.304 Evaluation Procedures & .305 Additional Requirements for Evaluations and
Reevaluations: Incorporate the procedures governing conduct of evaluations in section 614(b)(2)
of the Act. Requires that the public agency use a variety of assessment tools and strategies,
including information provided by the parent, to gather relevant functional, developmental, and
academic information about the child.
Reiterates language from the current regulations, based on section 612(a)(6)(B) of the Act,
prohibiting the use of a single measure or assessment as the sole criterion for determining
whether a child is a child with a disability or for determining an appropriate educational program
for the child.
Now requires, in accordance with section 614(b)(2)(c) of the Act, that the public agency, in
conducting the evaluation, use technically sound instruments that may assess the relative
contribution of cognitive and behavioral factors, in addition to developmental factors.
Unlike the current regulations, which refer to standardized tests, the proposed regulations would
refer to assessments and other evaluation materials, which is the terminology used in section
614(b)(3) of the Act.
The new rules incorporate the provision in section 612(a)(6)(B) of the Act and continue the
longstanding requirement that procedures used for evaluation and placement of children with
disabilities not be discriminated against race or culture.
In order to provide information and guidance regarding evaluation and assessment in on
regulation, proposed §300.304(c)(1)(ii) would incorporate section 614(b)(3)(A)(ii) of the Act,
and also would include language from the requirement in section 612(a)(6)(B) of the Act
regarding the form of assessments and other evaluation materials used to assess limited English
proficient children under the Act. The proposed regulation would also require public agencies to
provide and administer assessments in the child's native language, including ensuring that the
form in which the test is provided or administered is most likely to yield accurate information on
what the child knows and can do academically, developmentally, and functionally, unless it is
clearly not feasible to provide or administer the assessment in this matter.
Proposed paragraph (c)(1)(iii) would reflect new language in section 614(b)(3)(A)(iii) of the Act,
which requires assessments or measures to be used for purposes that are valid and reliable. The
current regulation, which requires that the evaluation report include a description of the extent to
which the evaluation varied from standard conditions, has been removed from these proposed
regulations.
PR §300.304(c)(5): Would incorporate the new requirement from section 614(b)(3)(D) of the
Act that provides for expeditious coordination among school districts to better ensure prompt
completion of full evaluations for children with disabilities who transfer from one public agency
to another public agency in the same academic year.
PR §300.304(c)(6): Would continue to require that the evaluation be sufficiently comprehensive
to identify all of the child's special education and related services needs, whether or not
commonly linked to the disability category in which the child is classified. With regard to this
requirement, note 152 of the Conf. Rpt. states:
"Conferees intend the evaluation process for determining eligibility of a child under this Act to
be a comprehensive process that determines whether the child has a disability, and as a result of
that disability, whether the child has a need for special education and related services. As part of
the evaluation process, conferees expect the multi-disciplinary evaluation team to address the
educational needs of the child in order to fully inform the decisions made by the IEP Team when
developing the educational components of the child's IEP. Conferees expect the IEP Team to
independently review any determinations made by the evaluation team, and that the IEP Team
will utilize the information gathered during the evaluation to appropriately inform the
development of the IEP for the child."
A newly proposed Section 300.305 addresses the additional requirements for evaluations and
reevaluations, combining sections 300.533 and 300.534(c) of the current regulations. The
primary change to this combined regulation is a new paragraph which incorporates the
requirement of section 614(c)(5)(B)(ii) of the Reauthorization, requiring that the LEA provide a
summary of academic and functional performance including recommendations to assist the
student in meeting post-secondary goals, for students whose eligibility terminates because of
graduation with a regular high school diploma or because of exceeding the age eligibility for
FAPE under State law.
f. Determination of eligibility and educational need.
The IDEIA requires that the evaluation team determine "the educational needs of the child" and
not simply whether or not the child is a child with a disability.
PR §300.306 Determination of Eligibility: Reflects the Act. This proposed regulation continues
to provide that, upon completion of the administration of assessments and other evaluation
measures, a group of qualified professionals, including the child's parent, determine whether the
child is a child with a disability and the educational needs of the child. As is true under the
current regulation, the public agency would be required to provide a copy of the evaluation
report to the parent, including the documentation of determination of eligibility.
Incorporate the longstanding regulatory requirements that public agencies use a multifactored
approach in determining eligibility and placement and develop an IEP for a child found eligible
for services under the Act.
g. Amendment to the special rule for eligibility determination.
The 1997 Reauthorization precluded identifying the child as disabled if the determinate factor
was lack of instruction in reading. The IDEIA provides that a child shall not be determined to be
a child with a disability if the determinate factor of such determination is "lack of appropriate
instruction in reading, including in the essential components of reading instruction" as defined in
NCLB. The NCLB defines the "essential components of reading instruction" as explicit and
systematic instruction in (i) phonemic awareness;
(ii) phonics;
(iii) vocabulary development;
(iv) reading fluency, including oral reading skills; and
(v) reading comprehension strategy.
A child still may not be identified due to a lack of instruction in mathematics or limited English
proficiency.
PR §300.306(b) Special Rule for Eligibility Determination: Reiterates that a child must not be
determined to be a child with a disability under this part if the determinant factor is lack of
appropriate instruction in reading, including the essential components of reading instruction, lack
of instruction in math, or limited English proficiency, and if the child does not otherwise meet
the eligibility criteria under 300.8(a).
h. Minimization/elimination of the discrepancy model for specific learning disabilities.
A new provision indicates that when determining whether a child has a specific learning
disability the local education agency "shall not be required to take into consideration whether the
child has a severe discrepancy between achievement and intellectual ability in oral expression,
listening comprehension, written expression, basic reading skill, reading comprehension,
mathematical calculation or mathematical reasoning." In determining whether a child has a
specific learning disability, an LEA may "use a process which determines if a child responds to
scientific, research-based intervention" as a part of the evaluation procedures.
What constitutes "scientific, research-based intervention" is unclear. The No Child Left Behind
Act defines "scientifically based research," but does not explicitly define the term "scientific,
research-based intervention." "Scientific based research," according to NCLB:
1. Employs systematic empirical methods that draw on observation or experiment;
2. Involves rigorous data analyses that are adequate to test the stated hypotheses and justify the
general conclusions drawn;
3. Relies on measurements or observational methods that provide reliable and valid data from
evaluators and observers, cross-multiple measurements and observations, and across studies by
the same or different investigators;
4. Is evaluated using experimental or quasi-experimental designs;
5. Ensures that experimental studies are presented in sufficient detail and clarity to allow for
replication; and
6. Has been established by peer-review journal or approved by a panel of independent experts
through a comparably rigorous, objective and scientific review.
See NCLB, 20 USC 7707(b)(37).
PR §300.307 Specific Learning Disabilities: Revamps the criteria for a special learning
disability explicitly scrapping the use of the severe discrepancy model. The new rule requires
that a State must adopt consistent with the criterion for determining the existence of a specific
learning disability, criteria for determining whether a child has a specific learning disability. The
criteria adopted by the State:
(i) May prohibit the use of a severe discrepancy between intellectual ability and achievement;
(ii) May not require the use of the discrepancy model for determining whether a child has a
specific learning disability;
(iii) Must permit the use of a process that determines "if the child responds to scientific,
research-based intervention" as part of the evaluation procedures described in PR §300.304; and
(iv) May permit the use of other alternative research-based procedures for determining whether a
child has a specific learning disability.
The LEA is then required to use the State criteria to determine whether a child has a specific
learning disability.
PR §300.308 Group Members: Defines the constituent members of the group charged with
determining whether a child suspected of having a specific learning disability is a child with a
disability. The group must include the child's parents and "a group of qualified professionals"
that:
a. Is collectively qualified to(i) conduct, as appropriate individual diagnostic assessments in the areas of speech and language,
academic achievement, intellectual development, and social-emotional development;
(ii) interpret assessment and intervention data, and apply critical analysis to those data;
(iii) develop appropriate educational and transitional recommendations based on the assessment
data; and
(iv) deliver, and monitor specifically designed instruction and services to meet the needs of a
child with a specific learning disability.
This group should include:
1. A special education teacher;
2. The child's general education teacher; or if the child does not have a general education teacher,
a general education teacher qualified to teach a child of the child's age; and
3. "Other professionals," if appropriate, such as a school psychologist, reading teacher or
educational therapist.
PR §300.309 Determining the Existence of a Specific Learning Disability: This new rule
articulates three reasons why the "group" may determine that a child has a specific learning
disability. They may do such if:
1. The child does not achieve commensurate results with their age in one or more of the
following areas, when provided with learning experiences appropriate for the child's age:
Oral expression
Listening comprehension
Written expression
Basic reading skills
Reading fluency skills
Reading comprehension
Mathematics calculation
Mathematics problem solving; or
2. The child fails to make sufficient progress in meeting state-approved results when using a
"response to scientific, research-based intervention process, or the child exhibits a pattern of
strengths and weaknesses that the Team determines as relevant to the identification of a specific
learning disability. The pattern of strengths and weaknesses may be "in performance,
achievement, or both relative to intellectual development;" and
3. The group must determine that its findings under either 1 or 2 above are not primarily the
result of(i) a visual, hearing or motor disability;
(ii) mental retardation;
(iii) emotional disturbance;
(iv) cultural factors; or
(v) environmental or economic disadvantage.
§300.309(b) sets up a precondition to determination that a child suspected of having a specific
learning disability does indeed have the disability. The group must consider as part of their
evaluation data that demonstrates that:
(1) Either before or as a part of the referral process the child was provided appropriate, highquality research-based instruction in regular education settings, including instruction that was
delivered by qualified personnel; and
(2) Data based documentation of repeated assessments of achievement at reasonable intervals,
reflecting formal assessment of student progress during instruction was provided to the child's
parents.
When the preliminary process recited above results in the conclusion that the child has not made
adequate progress after "an appropriate period of time," a referral for an evaluation to determine
if the child needs special education and related services must be made. At that point, the time
lines for completion of the evaluation must be adhered to unless extended by mutual agreement
of the parents and the "group of qualified professionals."
PR §300.310 Observation: Refines the observation criteria requiring that the observation be
conducted by "one member of the group." This group member must be other than the child's
current teacher and must be "trained in observation." When a child is either of less than school
age or out of school, the group member must observe the child in an "environment appropriate
for a child of that age."
PR §300.311 Written Report: Sets forth criteria for a written report. When a child is suspected of
having a specific learning disability, the evaluation report and the "documentation of the
determination of eligibility" must include a statement of:
1. Whether the child has a specific learning disability;
2. The basis for making the determination including a written assurance that the determination
has been made in accord with eligibility criterion for a specific learning disability;
3. The relevant behavior, if any noted during the observation of the child in a relationship of that
behavior to the child's academic functioning; and
4. The educationally relevant medical findings, if any;
5. Whether the child achieves commensurate results with their age;
6. Whether there are strengths and weaknesses in performance or achievement or both or there
are strengths and weaknesses in performance or achievement or both relative to intellectual
development in the eight potential learning skills or areas that require special education and
related services; and
7. The instructional strategies used and the "student-centered data" collected if a response to
scientific, research-based intervention process was implemented.
There is a new certification requirement that each group member shall certify in writing whether
the report reflects his/her conclusion. When it does not reflect their conclusion, the group
member must subject "a separate statement presenting his/her conclusions."
i. Additional requirements for evaluation and re-evaluations.
An amendment to the additional requirements section reiterates that the IEP team must identify
what additional data if any are needed to determine not only disability, but "the educational
needs of the child." Evaluations must always take place as a pre-condition to a change in
eligibility, except where the child graduates or reaches the age limit for services. When a child
graduates or 'ages out,' the local educational agency shall provide the child with a summary of
the child's academic achievement and functional performance, which shall include
recommendations on how to assist the child in meeting the child's postsecondary goals. Districts
and parents may, by mutual agreement, continue to opt out of a re-assessment to determine
whether a child has a disability.
PR §300.305: Proposed §300.305(e)(3) reiterates this requirement.
j. Individualized Education Programs (IEPs).
The majority of the IEP components remain the same under the IDEIA. However, the
requirement of a description of benchmarks or short-term objectives is now limited to those
"children with disabilities who take alternate assessments aligned to alternate achievement
standards." The IEP must contain an indication of when periodic progress reports will be made to
the parents on the progress the child is making toward meeting the annual goals. A parenthetical
statement suggests the use of quarterly or other periodic reports, concurrent with the issuance of
report cards.
The statement of the necessary special education and related services and supplementary aids
and services shall be "based on peer-reviewed research to the extent practicable." A new "rule of
construction" indicates that IEP content requirements should not be construed as requiring the
insertion of additional information nor is the IEP Team required to include information under
one component of a child's IEP that another component of the IEP already contains.
The IDEIA omits the formerly required transition service needs statement for 14-year-old
children.
Both the Senate and House bills originally provided that in the case of a child whose behavior
impedes the child's learning or that of others, the Team is required to provide for positive
behavioral interventions and supports, [PBIS] and other strategies to address that behavior.
That language does not appear in the IDEIA.
PR §300.320 Definition of Individualized Education Program [IEP]: The original definition of
an IEP is cursory, at best. See §300.340(a). This new section replaces and expands the cursory
definition of the current regulations with a much more extensive definition of an IEP. While
many of the provisions in the new definition of an IEP are taken from the current regulations
(§§300.346-300.347), there are also modifications which reflect the new provisions of the Act.
An IEP must include:
1. A statement of the child's present levels of academic achievement (CF "Educational
Performance," and Functional Performance), including (i) how the child's disability affects their
involvement and progress in the general education curriculum (note the word "education" has
been inserted; or (ii) for preschool children, as appropriate, how the disability affects the child's
participation in appropriate activities) (this section has not changed);
2. A statement of measurable annual goals including academic and functional goals (CF
("measurable annual goals") designed to meet the child's needs that result from the child's
disability to enable the child to be involved in and make progress in the general education
curriculum and meet each of the child's other educational needs that result from the child's
disability, for children with disabilities who take alternate assessments aligned to alternate
achievement standards, a description of benchmarks or short term objectives;
3. A description of (i) how the child's progress toward meeting the annual goals described above
will be measured; and (ii) when periodic reports on the progress the child is making toward
meeting the annual goals such as through these quarterly or other periodic reports, concurrent
with the issuance of report cards will be provided;
4. A statement of the special education and related services and supplementary aids and
servicesbased on peer reviewed research to the extent practicable to be provided to the child or
on behalf of the child and a statement of program modifications or supports for school personnel
that will be provided to enable the child (i) to advance appropriately toward obtaining the annual
goals; (ii) to be involved in and make progress in the general education curriculum, and
participate in extracurricular and other non-academic activities; and (iii) to be educated and
participate with other children with disabilities and non-disabled children in the "activities
described in this section.";
5. An explanation the extent, if any, to which the child will not participate with non-disabled
children in the regular education environment (CF) "regular class" and in the activities described
in paragraph 4 above;
6. (i) A statement of any individual appropriate accommodations that are necessary to measure
the academic achievement and functional performance of the child on state assessment and
district-wide assessment; and (ii) if the IEP Team determines that the child must take alternate
assessments, a statement of why the child cannot participate in a regular assessment; and a
statement that the particular alternate assessment selected is appropriate for the child; and
7. The projected date for the beginning of the special education services described for the child
and the anticipated frequency, location and duration of those services and modifications.
The remainder of PR §300.320 reiterates the change in transition service planning and that the
IEP Team is not required to duplicate one component of a child's IEP that is already contained
under another provision of the IEP.
k. The IEP team.
The regular education teacher is still required to participate on the IEP team if the child is, or
may be participating in the regular education environment. The duty of the regular educator
remains the same: to participate in the development of the IEP, to determine appropriate positive
behavioral interventions and supports and other strategies, and the determination of
supplementary aids and services, program modifications and support for school personnel.
However, an exception process now qualifies the general Team attendance requirement. A
member of the IEP Team shall not be required to attend an IEP meeting, in whole or in part, if
that member, the parent of a child with a disability, and the local educational agency agree that
the attendance of such member is not necessary because no modification to the member's area of
the curriculum or related services is being modified or discussed in the meeting.
A member of the IEP Team may be excused from attending an IEP meeting, in whole or in part,
when the meeting involves a modification to or discussion of the member's area of the
curriculum or related services, if(i) that member, the parent, and the local educational agency consent to the excusal; and
(ii) the member submits in writing to the parent and the IEP Team input into the development of
the IEP prior to the meeting.
WRITTEN AGREEMENT AND CONSENT REQUIRED- A parent's agreement to waive
attendance or to excuse attendance shall be in writing.
PR §300.321 IEP Team (e) Team Attendance: Reflects the Act.
PR §300.321 IEP Team: This new rule would essentially replicate the current regulatory
requirements with regard to the composition of the IEP Team. PR §300.321(b) continues the
general requirement that a child participate in their transition services meetings. The new
regulation also incorporates the statutory changes with regard to when a member of the IEP
Team is required to attend an IEP meeting setting up the two part standard for when a member
may be excused; with the applicable standard turning on whether or not the member's area of the
curriculum or related service will be the subject of discussion or modification. Similarly, the
requirement that a Part C representative attend the initial IEP meeting is also incorporated into
this regulation. (See discussion below).
l. IEP Team and Part C Transition.
The IEP team is now required upon request of the parent to invite the Part C coordinator or other
representatives to the initial IEP meeting to "assist with the smooth transition of services."
PR §300.321(f) Initial Meeting for Child under Part C: Requires to ensure the child's smooth
transition, that an invitation to that meeting, at the request of the parent, be sent to the Part C
services coordinator or a representative of the Part C system.
m. Parental Participation
Generally, the statutory provisions and rules pertaining to parental participation remain the same.
PR §300.322(c) Other Methods to Ensure Parent Participation: Will now provide that if
neither parent can attend "the public agency must use other methods to ensure parent
participation, including individual or conference telephone calls consistent with the provisions of
PR §300.328 (pertaining to alternative means of meeting participation).
n. Programming for Children who transfer School Districts
This new section requires in the case of a child with a disability who transfers school districts
within the same academic year, who enrolls in a new school, and who had an IEP that was in
effect in the same State, the LEA to provide the child with a free appropriate public education,
including services comparable to those described in the previously held IEP, in consultation with
the parents until such time as the LEA adopts the previously held IEP or develops, adopts, and
implements a new IEP consistent with Federal and State law.
When a child transfers from out of state, within the same academic year, enrolls in a new school,
and has an IEP that was in effect in another State, the LEA shall provide the child with a free
appropriate public education, including services comparable to those described in the previously
held IEP, in consultation with the parents until such time as the local educational agency
conducts an evaluation, if determined to be necessary by such agency, and develops a new IEP,
if appropriate, consistent with Federal and State law.
Schools must take immediate steps to obtain and release records pertaining to transferring
students.
PR §300.323 (e) Program for Children who Transfer Public Agencies: Implements the new
requirements regarding programs for children who transfer public agencies within the same
academic year. The proposed regulation would require as to transfers in the same state that the
new school district provide the child with FAPE, including services comparable to those
described in a previously held IEP until the public agency adopts the previously held IEP or
develops, adopts, and implements a new IEP that is consistent with Federal and State law.
Proposed §300.323(e)(1)(ii) would incorporate a statutory change that requires, in the case of a
child who had an IEP in effect and who transfers from a public agency outside the State in the
same academic year, that the public agency provide the child with FAPE, including services
comparable to those described in the previously held IEP, until the public agency conducts an
evaluation of the child, if determined necessary by the public agency, and develops a new IEP
for the child, if appropriate, that is consistent with Federal and State law.
Proposed §300.323(e)(2) incorporates the new requirement in section 614(d)(2)(C)(ii) of the Act
regarding transmittal of education records to facilitate the transition of a child who transfers
public agencies within the same State. It also addresses the responsibility of the new public
agency and previously public agency to take reasonable steps regarding making prompt requests
for, and transmission of, education records consistent with 34 CFR 99.31(a)(2), implementing
FERPA.
o. Development of IEP and Consideration of Special Factors
In developing the IEP, the Team must now consider the functional needs of the child, as well as
the child's academic and developmental needs. The special factors to be considered by the IEP
Team remain the same. When a child's behavior impedes their learning or that of others, the
Team is still required to consider "the use of positive behavioral interventions and supports, and
other strategies, to address that behavior."
PR §300.324 Development, Review, and Revision of IEP: The Proposed Rule incorporates the
above-referenced changes. It also keeps intact the requirement that a regular education teacher of
the child (in their capacity as a member of the IEP Team) must participate in the review and
revision of the IEP for the child.
PR §300.324(c) incorporates the new obligation on the part of the LEA to reconvene the IEP
Team to identify alternative strategies to meet the transition objectives for the child set out in the
IEP in the event the participating agency fails to provide transition services.
p. Changes without a meeting.
In making changes to a child's IEP after the annual IEP meeting, the parent of a child with a
disability and the LEA may agree not to reconvene the IEP team and instead develop a written
document to amend or modify the child's current IEP. There is now a written presumption
encouraging the LEA "to the extent possible" to consolidate IEP team meetings for a child.
Similarly, amendments to an IEP may now be made by either the entire team, or by mutual
agreement of parent and LEA. The IEP may be amended through correspondence.
PR §300.324(a)(4): Would incorporate section 614(d)(3)(D) of the Act and would permit the
parent and the public agency to agree not to convene an IEP meeting to make changes to the
child's IEP after the annual IEP meeting for the school year has taken place. Instead, in
accordance with this new statutory provision, this proposed regulation would permit the parent
and the public agency to develop a written document to amend or modify the child's current IEP
without convening an IEP meeting.
Proposed §300.324(a)(5) addresses consolidation of IEP meetings and would require the public
agency, to the extent possible to encourage the consolidation of reevaluation meetings and other
IEP meetings for the child.
Proposed §300.324(a)(6) permits changes to the IEP to be made either by the entire IEP Team, or
in accordance with proposed $300.324(a)(4), by amending the IEP, rather than redrafting the
entire IEP. This proposed paragraph also provides that a parent who requests a copy of the
revised IEP be provided with the amended copy.
q. Multi-year IEPs.
The House version of the reauthorization offered multi-year IEPs for a period of up to 3 years.
The Senate version was much more conservative, allowing for a 3 year IEP for a child who has
attained the age of 18. The final version does far less; offering up to 15 states the opportunity to
propose a pilot project for multi-year IEPs.
r. Alternative means of meeting participation.
The parent of a child with a disability and the LEA may agree to conduct IEP and placement
meetings via "alternative means of meeting participation, such as video conferences and
conference calls."
PR §300.328 Alternative Means of Meeting Participation: Reflects the Act.
5. Procedural Safeguards (Section 615)
a. Protection for homeless children and wards of the state.
This section affords new protections to unaccompanied homeless children and children who are
wards of the state. The former are entitled to a surrogate appointed by the LEA, and the latter are
entitled to either a state or judicially appointed surrogate.
PR §300.519 Surrogate Parents: This new rule revises the current regulation concerning
surrogate parents in the following ways: First, it provides more precision by using the statutory
word "locate," rather than the current duty to "discovery the whereabouts" of the parent before
the duty of the LEA is triggered to seek a surrogate. The rule is also revised to create a clear duty
on the part of the LEA to ensure that the rights of a child are protected when they fall within the
definition of an "unaccompanied homeless youth," as defined in section 725(6) of the
McKinney-Vento Homeless Assistance Act (42 USC 11434(a)(6)).
Proposed Rule change 300.519(c) will provide that a judge overseeing a child's case can appoint
a surrogate if the child is a ward of the State. The language with regard to criteria for selection of
surrogate parents has been strengthened by removing the option for a public agency to select as a
surrogate and employee of a non-public agency that only provides non-educational care for the
child. This language was removed to ensure that surrogates do not have interests that conflict
with the interests of the child.
While not explicitly set forth in the statute, the Department of Education has relied on the
Conference Report to insert a provision which allows a "temporary surrogate" to be provided for
an unaccompanied homeless youth. The temporary surrogate may be "appropriate staff of
emergency shelters, transitional shelters, independent living programs and street outreach
programs. The temporary surrogate may be appointed until such time as a permanent surrogate
has been appointed. Finally, section 300.519(h) has been proposed which would impose a
requirement on the part of the SEA to make reasonable efforts to ensure the assignment of a
surrogate parent not more than 30 days after the public agency determines that the child needs a
surrogate.
b. Parent Participation in Meetings.
The procedural safeguards have been amended to provide that a meeting does not include
informal or unscheduled conversations involving public agency personnel and conversations on
issues such as teaching methodology, lesson plans, or coordination of service provision if those
issues are not addressed in the child's IEP. Finally, a meeting does not include preparatory
activities that public agency personnel engage in to develop a proposal response to a parent
proposal that will be discussed at a later meeting.
PR §300.501(b)(3): Mirrors this new provision.
c. Statute of Limitations on Due Process Complaints.
A due process complaint must now set forth an "alleged violation that occurred not more than 2
years before the date the parent or public agency knew or should have known about the alleged
action that forms the basis of the complaint, or, if the State has an explicit time limitation for
presenting such a complaint under this part, in such time as the State law allows." NH RSA 186C:16-b already sets forth a 2 year statute of limitations for New Hampshire.
PR §300.507(a)(2): Would reflect the new requirement in section 615(b)(6)(B) of the Act
concerning the time period for filing a request for a due process hearing after the alleged
violation has occurred. Proposed §300.507(b) would contain the information currently in the
regulations in §300.507(a)(3) on available free or low-cost legal or other relevant services, but
would be revised to refer to "requests a hearing" as opposed to "initiates a hearing."
There are certain exceptions to the 2 year limitation that benefit parents. The limitation period
shall not apply to a parent if the parent was prevented from requesting the hearing due to--
specific misrepresentations by the school district that it had resolved the problem forming the
basis of the complaint; or
the district's withholding of information from the parent that was required by the IDEIA to be
provided to the parent.
PR §300.511(e): Reflects the Act.
d. Content of Due Process Complaints.
The IDEIA obligates a parent to provide clear and specific notice to the district of the subject
matter of their due process request before they are entitled to a due process hearing.
PR §300.508 Due Process Complaint: Now requires that the public agency must have
procedures that require either party or the attorney representing a party to provide to the other
party a due process complaint. The party filing a due process complaint is obligated to forward a
copy of the complaint to the State educational agency. A party is not entitled to a hearing on the
due process complaint or for that matter, a resolution session, until the party or their attorney
files a due process complaint that meets the content requirements for a complaint. The complaint
must include the following information in order to be minimally sufficient:
1.
2.
3.
4.
The name of the child;
The address of the residence of the child;
The name of the school the child is attending;
In the case of a homeless child or youth, available contact information for the child and
the name of the school the child is attending;
5. A description of the nature of the problem if the child relating to the proposed or refused
initiation or change, including facts relating to the problem; and
6. A proposed resolution of the problem to the extent known and available to the party at the
time.
PR §300.509 Model Forms: Requires that SEAs develop a model form to assist parents in filing
a due process complaint, including the content of the complaint. Proposed §300.509 also would
require States to develop model forms for filing State complaints, consistent with the changes
regarding proposed §§300.151 through 300.153.
e. Written prior notice.
The House Bill streamlined the content of the written prior notice by no longer requiring "a
description of any other options that the agency considered and the reasons why those options
were rejected." The IDEIA reinserted the requirement to describe rejected options. In addition,
the House eliminated the requirement that the district provide a "description of any other factors
that are relevant to the agency's proposal or refusal." The IDEIA reinstated that requirement as
well.
PR §300.503 Prior Notice by the Public Agency; Content of Notice: The old provision
requiring that prior written notice be provided at the same time as parental consent is requested
has been removed because parental consent cannot be obtained without written prior notice.
Secondly, the content of the written prior notice has been changed. The written prior notice
contents have been amended to reflect the new statutory language in section 615(c)(1) of the Act,
which essentially contained the same written prior notice requirements as the 1997
Reauthorization.
f. New Procedure on Due Process Complaints.
The content of a due process complaint is deemed sufficient unless the party receiving the notice
notifies the hearing officer and the other party in writing within 15 days of receipt of the
complaint that the due process complaint is insufficient. Within 5 days of receipt of this notice,
the hearing officer must make a written determination on the face of the notice whether the
notice is sufficient and notify the parties accordingly.
The LEA is obligated to send a written response to a parent filing a due process complaint within
10days unless the LEA has previously sent a written prior notice that is the subject of the
complaint. This requirement potentially permits a district to cure a defect in written prior notice,
since the written response is identical in content to the requirements of a written prior notice.
This response shall not be construed to prevent a District from alleging that the complaint notice
is insufficient.
There is also a generic requirement that a "non-complaining party shall, within 10 days of
receiving the complaint, send to the complainant a response that specifically addresses the issues
raised in the complaint."
A party may only amend their complaint if:
The other party consents in writing to such amendment and is given the opportunity to resolve
the complaint through a complaint resolution meeting; or
The hearing officer grants permission for amendment, but the hearing officer may not permit
amendment later than 5 days before a due process hearing occurs.
If an amended due process complaint notice is filed, the timelines for a due process hearing and
all responses recommence at the date of filing.
PR §300.508(d) Sufficiency of Complaint: This regulatory subsection provides that the
complaint will be deemed sufficient unless the party receiving the due process complaint notifies
the hearing officer and the other party in writing within 15 days of receipt of the due process
complaint that they believe the due process complaint does not meet the content requirements of
§300.508(b). The Hearing Officer then has 5 days in which to make a determination on the face
of the due process complaint as to whether the complaint meets the content requirements of
paragraph b and must "immediately notify the parties in writing of that determination."
Interestingly enough, a party may only amend its due process complaint if:
1. The other party consents in writing to the amendment and is given the opportunity to resolve
the due process complaint through a resolution meeting; or
2. The Hearing Officer grants permission except that the Hearing Officer may only grant
permission to amend at any time not later than 5 days before the due process hearing begins. The
filing of an amended due process complaint retriggers the 15 day time line for a resolution
meetings and the 30 days resolution period required under §300.510(b).
If the LEA has not submitted a prior written response under §300.503, the LEA must within 10
days of receiving the due process complaint send a response which includes the following:
1. An explanation of why they propose or refuse to take the action raised in the due process
complaint;
2. A description of other options that the IEP Team considered and the reasons why those
options were rejected;
3. A description of each evaluation procedure assessment record or report the agency used as the
basis for the proposed refused action; and
4. A description of the other factors that are relevant to the agency's proposed or refused action.
(Essentially this requires the issuance of a written prior notice within 10 days of the due process
complaint. However providing the answer within 10 days does not preclude the LEA from
asserting that the complaint was insufficient within the 15 day time period. When the district has
initiated due process, the party receiving the complaint must within 10 days of receiving the due
process complaint send to the other party a response that "specifically addresses the issues raised
in the due process complaint.")
g. Procedural Safeguards Notice.
To reduce the number of times that parents are inundated with procedural safeguard notices the
law now provides that notice shall be given to the parents once a year, except that a copy also
shall be given to the parents-upon initial referral or parental request for evaluation;
upon the first occurrence of the filing of a state complaint;
upon a request for a due process hearing; and
upon request by a parent.
The District may place a current copy of its procedural safeguards notice on its website, but the
law does not provide that website notice is sufficient notice. The substance of the notice will, of
course, have to reflect the changes to the IDEA.
PR §300.504 Procedural Safeguards: Mirrors the Act. The notice is now required to include an
explanation of the difference between State level complaints and a due process complaint.
h. Mediation.
There are some minor changes to the parameters of mediation. These changes codify provisions
that existed as a matter of common law in New Hampshire. Mediation agreements are now
referred to as "legally binding agreements." The agreement must state, "All discussions that
occurred during the mediation process shall be confidential and may not be used as evidence in
any subsequent due process hearing or civil proceeding." Mediation agreements are enforceable
in "any State court of competent jurisdiction" (the Superior Court) or in the United States District
Court.
PR §300.506 Mediation: New language is added providing that the mediation be made available
to resolve any dispute, including matters that arise before a party has requested a due process
hearing. In addition, proposed §300.506(b)(3)(ii) would replace current language in
§300.506(b)(2)(ii), regarding party involvement in the selection of mediators, with more general
language providing that the SEA select mediators on a random, rotational, or some other
impartial basis. Proposed §300.506(b)(2)(ii) should provide SEAs additional flexibility in
selecting mediators, while ensuring that mediators are impartial. Proposed §300.506(b)(6),
(b)(7), and (b)(8) would include new provisions from section 615(e)(2)(F) and (G) of the Act
concerning written agreements when mediation results in an agreement to resolve the dispute,
and confidentiality of mediation agreements. However, each of these provisions would clarify
that the limitation placed on the use of information discussed during mediation as evidence
would apply only to actions arising out of the same dispute. Proposed §300.506(b)(9) would be
added in light of note 208 of Conf. Rpt. indicating the Conference Committee's intention that
parties could be required to sign confidentiality pledges prior to the commencement of
mediation, without regard to whether the mediation ultimately resolves the dispute.
Proposed §300.506(c)(1) would permit employees of LEAs that are not involved in the education
or care of the child involved in the dispute being mediated to serve as mediators.
i. Impartial due process hearing.
1. Right to a Hearing upon receipt of a Complaint
The amendment to Section 615(f) requires that whenever a complaint is received the parents or
the district involved in the complaint shall have an opportunity for an impartial due process
hearing conducted by the SEA.
PR §300.511 Impartial Due Process Hearing: The rule clarifies the fact that it is a due
processcomplaint which gives rise to the opportunity for an impartial due process hearing. Note
however, that the subject matter of a complaint may also constitute the basis for a due process
hearing request. Under those circumstances, the State's action on the complaint will be stayed.
2. The Resolution Session
There is a new mandatory resolution session injected into the process. Within fifteen (15) days of
receiving notice of the parent's complaint the district is required to convene a meeting with the
parents to discuss their complaint and the specific issues that form the basis of the complaint.
The district is afforded the opportunity to resolve the complaint in that resolution session. The
meeting shall include a representative of the school district who has decision-making authority
for the district. The school district's attorney is prohibited from attending the meeting unless an
attorney accompanies the parent.
This resolution session must occur unless the parents and the district agree in writing to waive
the resolution meeting or they agree to mediate. If the district has not resolved the matter to the
parent's satisfaction within thirty (30) days, the due process hearing and hearing time lines will
commence. The resolution meeting is not considered "a meeting convened as a result of an
administrative hearing or judicial action nor is it considered "an administrative hearing or
judicial action" for purposes of attorney's fee entitlement. This produces a substantial incentive
for the resolution meeting.
If the meeting results in a resolution of the complaint, the parties shall execute a legally binding
settlement agreement that is, once again, enforceable in the State Superior Court or the United
States District Court. Each party is given a "review period" of three (3) business days of the
agreement's execution in which to "void such agreement."
PR §300.510 Resolution Process: Incorporates the requirement from section 615(f)(1)(B) of the
Act regarding the resolution sessions.
3. The Hearing Officer
The IDEIA now imposes qualifications for the position of a hearing officer. The hearing officer
shall, "at a minimum" possess:
knowledge of, and the ability to understand, the provisions of this title, Federal and State
regulations pertaining to this title, and legal interpretations of this title by Federal and State
courts;
the knowledge and ability to conduct hearings in accordance with appropriate, standard legal
practice; and
the knowledge and ability to render and write decisions in accordance with appropriate,
standard legal practice.
PR §300.511(c) Impartial Hearing Officer: Proposed §300.511(c)(2) incorporates the
regulatory language currently in §300.508(b) and (c) regarding the non-employee status of the
Hearing Officer and the requirement for the public agency to keep a list of hearing officers and
their qualifications.
4. Issue Preclusion
The IDEIA injects a new limitation on the due process hearing, indicating "the party requesting
the due process hearing shall not be allowed to raise issues at the due process hearing that were
not raised in the notice . . . unless the other party agrees otherwise." However, the concept of
issue preclusion does not prohibit a parent from filing a separate due process complaint on an
issue separate from that raised in the pending matter.
PR §300.511(d): Reflects the Act.
5. The due process decisional standard
The decision of the hearing officer must now "be based on a determination of whether or not the
child received a free appropriate public education." When the parent raises procedural issues, the
hearing officer may find that a child did not receive a free appropriate public education only if
the procedural inadequacies-(I) impeded the child's right to a free appropriate public education;
(II) significantly impeded the parents' opportunity to participate in the decision making process
regarding the provision of a free appropriate public education to the parents' child; or
(III) caused a deprivation of educational benefits.
This limitation on the scope of a hearing officer's decisional standard is not to be construed to
limit the hearing officer's ability to order the school district to comply with the IDEIA's
procedural safeguards.
PR §300.513 Hearing Decisions: This Proposed Rule reiterates the language in the statute with
regard to the standard for decision. Note 220 of the Congressional Conference Report states that
"The conferees intend to encourage the consolidation of multiple issues into a single complaint
where such issues are known at the time of the filing of the initial complaint." However,
Proposed §300.513(c) specifically indicates that parents shall not be precluded from filing a
separate due process complaint on an issue separate from a due process complaint already filed.
j. Decisional Time Frames.
PR §300.515 sets forth time frames in which decisions must be reached. The decision must be
rendered no later than 45 days after the expiration of the 30 day resolution under §300.515(b).
This includes both the decision having been reached and a copy of the decision having been
mailed to both parties.
k. The Right to Bring a Civil Action (The Appeal Process).
The IDEIA imposes a 90-day statute of limitations on appeals from due process decisions, but
defers to the local state if it has set its own limitation. In New Hampshire the limitation period is
currently 120 days. See NH RSA 186-C:16-b.
PR §300.516: Is essentially the same as the current §300.512 with updated references, but one
substantive change. Specifically, proposed §300.516(b) would added to reflect the new
requirement in section 615(i)(2)(B) of the Act that provides for a time limit of 90 days from the
date of the final State administrative decision to file a civil action, or if the State has an explicit
time limitation for bringing a civil action under Part B of the Act, in the time allowed by that
State law.
l. Attorneys' Fees.
A significant shift occurred in the leverage arising from the prevailing parents' right to recover
their reasonable attorneys' fees. A prevailing state educational agency or school district may
recover feesagainst the attorney of a parent who files a complaint or subsequent cause of action
that is frivolous, unreasonable, or without foundation, or against the attorney of a parent who
continued to litigate after the litigation clearly became frivolous, unreasonable, or without
foundation. A prevailing State educational agency or school district may recover fees against the
attorney of a parent, or against the parent, if the parent's complaint or subsequent cause of
action was presented for any improper purpose, such as to harass, to cause unnecessary delay, or
to needlessly increase the cost of litigation.
PR §300.517: Mirrors the statutory language.
m. Discipline Procedures.
1. Placement in Alternative Educational Settings [Student Discipline]
a. Ten (10) day options
The law now provides that school personnel may consider "any unique circumstances" on a
"case-by-case basis " when determining whether to order a change in placement for a child with
a disability "who violates a code of student conduct." School personnel may now remove a child
with a disability who violates a code of conduct from their current placement to:
an appropriate interim alternative educational setting;
another setting; or
suspension for not more than ten (10) days to the extent such alternatives are applied to children without disabilities.
PR §300.530 Authority of School Personnel: Notes 237-245 of the Conference Report provide
that, "[it] is the intent of the Conferees that when a student has violated a code of conduct school
personnel may consider any unique circumstances on a case-by-case basis to determine whether
a change of placement for discipline purposes is appropriate." Proposed Rule §300.530(b)
provides that removal of a child with a disability who violates a code of student conduct from
their current placement to an appropriate interim alternative educational setting, another setting,
or suspension should be for not more than 10 consecutive school days (to the extent those
alternatives are applied to children without disabilities), and for additional removals of not more
than 10 consecutive school days in that same school year for separate incidents of misconduct (as
long as those removals do not constitute a change of placement under §300.536). The Proposed
Rules go on to provide that after a child with a disability has been removed from his or her
current placement for 10 school days in the same school year during any subsequent days of
removal, the public agency [LEA] must provide services in accord with 300.530(d).
b. Changes in placement beyond ten (10) days: No manifestation of the child's disability
If school personnel seek to order a change in placement that would exceed 10 school days and
the behavior that gave rise to the violation of the school code is determined not to be a
manifestation of the child's disability:
the relevant disciplinary procedures applicable to children without disabilities may be applied
to the child in the same manner and for the same duration in which the procedures would be
applied to children without disabilities; except
that the child shall continue to receive FAPE, although it may be provided in an interim
alternative educational setting.
The interim alternative setting shall be determined by the IEP team.
PR §300.530(c): Incorporates the statutory provisions from section 615(k)(1)(C) and (D) of the
Act concerning removals for more than 10 days and the provision of services during periods of
removal. When a disciplinary change in placement is contemplated which would exceed 10
consecutive school days, if the behavior that gave rise to the violation of the school code is
determined not to be a manifestation of the child's disability, school personnel may discipline the
child in the same manner as the non-disabled child and for the same duration as the procedures
would be applied to the child without a disability except that removal for more than 10
consecutive school days will essentially trigger an obligation to provide services in the interim
alternative educational setting.
This rule provides that where a child has been removed for more than 10 school days in the same
school year, but not for more than 10 consecutive school days and not a change of placement,
school personnel, in consultation with at least one of the child's teachers, would determine the
extent to which services are needed, if any, and the location where needed services would be
provided. The USDOE "believes that this requirement is important to ensure that children with
disabilities in this situation receive appropriate services, while preserving the flexibility of school
personnel to move quickly to remove a child when needed and determine how best to address the
child's needs during these relatively brief periods of removal. The consultation by school
personnel with at least one of the child's teachers does not require that a meeting be held."
The rule further provides that the child's IEP Team determines appropriate services, including
the location of services when a child is removed for more than 10 consecutive school days, or the
removal otherwise is a change of placement. According to USDOE, "We believe that in
instances of these longer-term removals, the child's IEP Team should make the determination of
what services are appropriate for the child."
c. Defining a change of placement.
One of the challenges faced by any educator is to define when a change of placement occurs. PR
§300.356 entitled "Change of Placement Because of Disciplinary Removals," is similar to the
current Rule §300.519 in that it states: "A change of placement occurs if - (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 - (1) because the series of removals total more than 10 school days in a
school year; (2) because the child's behavior is substantially similar to the child's behavior in the
incidents that resulted in the series of removals, taken cumulatively, is determined, under
§300.530(f), to have been a manifestation of the child's disability; and (3) because of such
additional factors as the length of each removal, the total amount of time the child has been
removed, and the proximity of the removals to one another."
The new aspect to this rule is the additional provision indicating that a child's behavior, if
substantially similar to behavior in a series of incidents resulting in removal, if taken
cumulatively, is deemed to be a manifestation of their disability.
2. The Standard for Making a Manifestation Determination.
When any change in placement is contemplated for more than ten (10) school days because of a
violation of a code of student conduct the District, the parent, and "relevant" members of the IEP
Team must convene and review:
all relevant information in the student's file;
the child's IEP;
any teacher observations; and
any relevant information provided by the parents To determine:
if the conduct in question was caused by the child's disability; or
if the conduct in question had a direct and substantial relationship to, the child's disability; or
if the conduct in question was the direct result of the local educational agency's failure to
implement the IEP.
If either determination is in the affirmative Then the conduct shall be determined to be a manifestation of the child's disability.
PR §300.530(e) & (f): Incorporates the new requirements concerning manifestation
determinations from section 615(k)(1)(E) and (F) of the Act, with one addition. An introductory
phrase clarifies that a manifestation determination need not be conducted for removals for 10
consecutive school days or less or that do not otherwise constitute a change of placement. This
added language is consistent with the regulatory policy in current §300.523(a).
3. The Consequences of the affirmative Manifestation Determination
If there is a determination that the child's conduct was a manifestation of their educational
disability, the IEP Team shall:
(i) conduct a functional behavioral assessment, and implement a behavioral intervention plan for
such child, provided that the local educational agency had not conducted such assessment prior
to such determination before the behavior that resulted in a change in placement;
(ii) if the child already has such a behavioral intervention plan, review the plan and modify it, as
necessary, to address the behavior; and
(iii) except under "special circumstances" return the child to the placement from which the
child was removed, unless the parent and the local educational agency agree to a change of
placement as part of the modification of the behavioral intervention plan.
4. "Special Circumstances" allowing for removal to an interim alternative educational
setting
The child may be removed from the placement by school personnel and placed by the IEP Team
in an Alternative Educational setting for up to forty-five (45) school days without regard to the
manifestation determination in cases where the child has:
carried or possessed a weapon on school premises or functions;
knowingly possessed, used, sold, solicited the sale of, illegal drugs or controlled substances at
school or a school function; or
inflicted serious bodily injury upon another person at school, on school premises, or at a
school function.
No later than the date of the disciplinary decision the district shall notify the parents of the
decision and of the procedural safeguards. This decision is appealable, but the child remains in
the alternative setting pending appeal. In addition, Districts may also seek orders from a Hearing
Officer for placement in an alternative educational setting when the District, "believes that
maintaining the current placement of the child is substantially likely to result in injury to the
child or to others."
PR §300.530(g) & (h): Incorporates the requirements from section 615(k)(1)(G) and (H) of the
Act, which address the circumstances under which school personnel can remove a child for not
more than 45 school days, including the new authority to remove a child who has inflicted
serious bodily injury upon another person while at school, on school premises, or at a school
function under the jurisdiction of an SEA or LEA.
These sections contain parental notification requirements with definitions drawn from section
615(d)(7) of the Act. The Act uses the definition of "serious bodily injury" from section 1365 of
title 18, United States Code (i.e., "bodily injury which involves (A) a substantial risk of death;
(B) extreme physical pain;
(C) protracted or obvious disfigurement; or
(D) protracted loss or impairment of the function of a bodily member, organ, or mental faculty").
The rule reflects two significant statutory changes relating to the authority of school personnel to
remove children with disabilities to interim alternative educational settings. First, the Act now
gives school personnel the authority to remove students who have inflicted serious bodily injury
to interim alternative educational settings. Under previous law, school personnel were only
authorized to remove students to alternative settings for misconduct involving: 1) the use and
possession of weapons; and 2) the knowing possession, sale, or use of illegal drugs or controlled
substances. The Act added the commission of serious bodily injury to this list. In cases involving
serious bodily injury, school personnel would be able to unilaterally remove children with
disabilities to interim alternative educational settings for up to 45 school days without having to
request a hearing officer review of the facts to determine whether or not the student is
substantially likely to harm himself or others. Second, the 45-day rule has changed. Under
previous law, students could not be removed to interim alternative settings for more than 45
days. Now, under the Act, the comparable time limitation is 45school days.
5. Protection for children not yet eligible for special education services.
A child who is determined to be ineligible for special education services is generally not entitled
to IDEIA protection. However, the IDEIA provides that the parents of the child may assert the
protections of the IDEIA if the local education agency had knowledge that the child was a child
with a disability before the behavior that precipitated the disciplinary action occurred. The
IDEIA goes on to establish standards for when a district has a "basis of knowledge." The district
must afford the child IDEIA protection if:
(i) the parent of the child has expressed concern in writing to supervisory or administrative
personnel of the appropriate educational agency, or a teacher of the child, that the child is in need
of special education and related services;
(ii) the parent of the child has requested an evaluation of the child pursuant to section
614(a)(1)(B); or
(iii) the teacher of the child, or other personnel of the local educational agency, has expressed
specific concerns about a pattern of behavior demonstrated by the child, directly to the director
of special education of such agency or to other supervisory personnel of the agency.
A district is not deemed to have knowledge if the parent of the child has:
not allowed an evaluation of the child; or
has refused services; or
the child was evaluated and it was determined that the child did not have an educational
disability.
If a district is deemed not to have knowledge of a child's disability, then it may discipline the
child as it disciplines any nondisabled child. The district, however, may not turn a blind eye to a
child's needs even if it is determined not to have knowledge of a child's disability. If an
evaluation is requested, the evaluation shall be conducted "in an expedited manner," but the child
shall remain in the placement determined by school authorities pending the results of the
evaluation. If the results indicate that the child has an educational disability, then the child shall
be offered special education and related services.
PR §300.534 Protection for Children not yet Eligible: Reflects the statute.
n. Reporting a crime and transmitting records.
This section remains unchanged. An agency reporting a crime committed by a child with a
disability shall ensure that copies of the special education and disciplinary records of the child
are transmitted for consideration by the appropriate authorities to whom the agency reports the
crime.
o. Electronic Mail.
A parent of a child with a disability may elect to receive notices required under the IDEIA by an
electronic mail (e-mail) communication, if the district makes such option available.
6. Monitoring, Enforcement, Withholding and Judicial Review (Section 616)
The amended Section 616 creates a monitoring enforcement system for the IDEA in order to
meet the stated goal of "improving the Department of Education's ability to monitor compliance
with the Act." The monitoring section requires that within one (1) year each State shall have in
place a performance plan that evaluates that State's efforts to implement the requirements and
purposes of this part and describes how the State will improve such implementation.
7. Administration (Section 617)
This section contains a new prohibition against federal mandates, direction or control, stating:
"Nothing in this title shall be construed to authorize an officer or employee of the Federal
Government to mandate, direct, or control a State, local educational agency, or school's specific
instructional content, academic achievement standards and assessments, curriculum, or program
of instruction."
The Secretary of Education is also required to develop the following model forms:
(1) a model IEP form;
(2) a model individualized family service plan (IFSP) form;
(3) a model form of the notice of procedural safeguards notice;
(4) a model form of the prior written notice described in subsections (b)(3) and (c)(1) of section
615 that is consistent with the requirements of this part and is sufficient to meet such
requirements.
8. State Program Information Reporting Requirements (Section 618)
The state information reporting requirements now include a duty to report to the Secretary of
Education the following additional data:
The number of mediations held;
The number of settlement agreements reached; and
The number of children referred to interim alternative education settings pursuant to disciplinary
action.
In addition, this section requires that districts having "significant disproportionality with regard
to the identification of children as children with disabilities, with placement of particular
educational settings of such children," to reserve the maximum amount of funds available under
Section 613(f) to provide comprehensive coordinated pre-referral support services to serve
children in the LEA, particularly children in groups that were significantly "over identified."
9. Preschool grants (Section 619)
This provision remains geared off of Fiscal Year 1997 funding.
C. Part C - Infants and Toddlers with Disabilities, Sections 631-638 of the IDEA (20 USC
§1431-1438).
There are no major changes to this provision. Section 636, pertaining to the IFSP, adds new
requirements to the IFSP, including a statement of the measurable results or outcomes expected
to be achieved for the infant or toddler and the family, including pre-literacy and language skills,
as developmentally appropriate for the child, and the criteria, procedures, and time lines used to
determine the degree to which progress toward achieving the results or outcomes is being made
and whether modifications or revisions of the results or outcomes or services are necessary;
D. Part D - National Activities to Improve Education of Children with Disabilities, Sections
650-674.
The high points of Part D are as follows:
A National Center for Special Education Research at the Institute for Education Sciences is
established to carry out special education research.
The Secretary of Education is required to support projects regarding of behavioral supports,
improved alignment, compatibility and development of assessments and alternate assessments,
and teacher training to address the needs of students with different learning styles.
The Secretary is required to assess the implementation of the reauthorized Act and the
effectiveness of state and local programs.
Return to Table of Contents
VII - Conclusion
The final form of the IDEIA 2004 presents not only new tools, but also new challenges to the
educator and administrator. The full implications of the Act remain to be seen, and the meaning
of certain provisions will not be completely defined until the Secretary of Education publishes
the final regulations.
Notes:
1.
Technically, the 1997 reauthorization lapsed in 2002, except as to Part B. Part B did not
actually require reauthorization.
2.
Except as used in sections 615(b)(2) and 639(a)(5).
A Deeper Look Into Some of the New
IDEIA Requirements
March 17, 2006
By Dean B. Eggert
A Word of Caution
No two cases are exactly alike. This material is designed to provide educators with a
broad understanding of certain aspects of the reauthorized I.D.E.A. This material does
not include every aspect of the law. You are strongly encouraged to seek a legal opinion
from your school district's legal counsel regarding any specific case. This material
became effective July 1, 2005, however, the regulations discussed in this material are
proposed and not yet final.
I - Overview
The purpose of this material is to equip the Special Education Administrator with a deeper
knowledge of some of the more subtle nuances of the Individuals with Disabilities Education
Improvement Act of 2004 ("IDEIA"). This material is not intended to substitute for legal
counsel nor is it intended to provide an exhaustive statement of the IDEIA. The regulations
discussed in this material are proposed, subject to change, and not final.
Return to Table of Contents
II The Eligibility Determination: Who is entitled to an IEP?
a. Requesting an evaluation and parental consent
A parent, state educational agency, local educational agency, or "other state agency or local
educational agency" may initiate a request for initial evaluation to determine if the child is a
child with a disability. 20 U.S.C. § 1414(a)(1)(B). Except in cases where the child is a ward of
the state and the parent lacks parental rights, parental consent is an absolute precondition to the
conduct of an initial evaluation. If the parent does not consent to the initial evaluation or fails to
respond, the district shall not be considered to be in violation of the requirement to make FAPE
available to the child, at least as to the request for an evaluation or shall be required to convene
an IEP meeting or develop an IEP for the child.
The practitioner will need to be aware of the differing consent requirements where the child is a
"ward of the state" and not residing with the child's parent. Under such circumstances, the
district is required to make "reasonable efforts to obtain the informed consent from the parent
of the child for an initial evaluation to determine whether or not the child has a disability."
However, there are three exceptions to the requirement to obtain written prior consent, when
the child is a "ward of the state." They are as follows:
1. Despite reasonable efforts to do so, the district cannot find the parent;
2. The rights of the parent have been terminated; or
3. The rights of the parent to make educational decisions have been subrogated by a judge
in accord with state law and consent for an initial evaluation has been given by an
individual appointed by the judge to represent the child.
b. Eligibility determination
A team of qualified professionals and the parents must determine whether the child is a child
with a disability. A copy of the evaluation report and the documentation of the eligibility
determination must be given to the parents.
A child shall not be determined to be a child with a disability if the determinant factor for the
determination is:
1. A lack of appropriate instruction in reading, including the essential components of
reading instruction, as defined in Section 1208(3) of the Elementary and Secondary
Education Act (ESEA) of 1965;
2. Lack of instruction in math; or
3. Limited English proficiency.
20 U.S.C. § 1414(b)(5).
Section 1208(3) of the ESEA refers to the definition of Essential Components of Reading
Instruction in No Child Left Behind (NCLB), which defines essential components of reading
instruction as explicit and systematic instruction in phonemic awareness, phonics, vocabulary
developments, reading fluency, including oral reading skills, and reading comprehension
strategies. 20 U.S.C. § 6368(3).
i. Specific learning disabilities
When determining whether a child has a specific learning disability, a LEA shall not be
required to take into consideration whether a child has a severe discrepancy between
achievement and intellectual ability in oral expression, listening comprehension, written
expression, basic reading skill, reading comprehension, mathematical calculation, or
mathematical reasoning. 20 U.S.C. § 1414(b)(6)(A).
The LEA may use a process that determines if the child responds to scientific, research-based
intervention as a part of the evaluation procedures.
NCLB defines scientifically based research as "research that involves the application of
rigorous, systematic, and objective procedures to obtain reliable and valid knowledge relevant
to education activities and programs, and includes research that:
1. Employs systematic, empirical methods that draw on observation or experiment;
2. Involves rigorous data analyses that are adequate to test the stated hypothesis and justify
the general conclusions drawn;
3. Relies on measurements or observational methods that provide reliable and valid data
access across evaluators and observers, across multiple measurements and observations,
and across studies by the same or different investigators;
4. Is evaluated using the experimental or quasi-experimental designs;
5. Ensures that experimental studies are presented in sufficient detail and clarity to allow
for replication, and
6. Has been accepted by a peer-reviewed journal or approved by a panel of independent
experts through a comparably rigorous, objective, and scientific review.
20 U.S.C. § 7707(b)(37).
Return to Table of Contents
III - The Observation: Are you a trained observer?
At least one of the following individuals, trained in observation, must observe a child suspected
of having a specific learning disability, in their learning environment, including the regular
classroom setting, to document academic performance and behavior in the areas of disability:
1. Special education teacher;
2. General education teacher (other than the child's current teacher);
3. Another professional, such as a school psychologist, reading teacher, or educational
therapist
Proposed regulation 34 C.F.R. § 300.310.
The individual conducting the observation must be "one member of the group," charged with
the task of determining whether or not the child has a specific learning disability. When the
child is either less than school age or out of school, the group member must observe the child in
an "environment appropriate for a child of that age."
The proposed regulations are silent as to what it means to be "trained in observation."
However, one can surmise that the area of training is in the area of identifying what a student's
learning style, functional behaviors and potential learning weaknesses. This means that the
observation needs to focus not simply on a summary of the child's activities in the classroom,
but instead needs to move beyond the summary to include observations with regard to the
manner in which the child learns and participates (or does not) participate in the learning
process.
Return to Table of Contents
IV - Changes to IEP Content: What will your 2006-07 IEPs look like?
a. What is an IEP?
An IEP is a written statement that includes a statement of the child's present levels of academic
achievement and functional performance, including how the child's disability affects the child's
involvement and progress in the general education curriculum." 20 U.S.C. §
1414(d)(1)(A)(i)(I)(aa).
IEPs must be in effect at the start of each school year. 20 U.S.C. § 1414(d)(2)(A).
b. Development of the IEP and consideration of special factors
In developing the IEP, the Team must now consider the functional needs of the child, as well as
the child's academic and developmental needs. The special factors to be considered by the IEP
Team remain the same. When a child's behavior impedes their learning or that of others, the
Team is required to consider "the use of positive behavioral interventions and supports, and
other strategies, to address that behavior."
It is important to note that the law explicitly states that it is the role of "the regular education
teacher of the child, as a member of the IEP team,...to the extent appropriate" to determine
"appropriate positive behavioral interventions and strategies and...supplementary aids and
services, program modifications and support for school personnel..."
c. Progress
IEPs must contain "a description of how the child's progress toward meeting the annual goals . .
. will be measured and when periodic reports on the progress the child is making toward
meeting the annual goal (such as through the use of quarterly or other periodic reports,
concurrent with the issuance of report cards) will be provided." 20 U.S.C. §
1414(d)(1)(A)(i)(III).
d. Benchmarks and short term objectives
Benchmarks and short-term objectives are now limited to those "children with disabilities who
take alternate assessments aligned to alternate achievement standards."
e. Related services
The statement of the necessary special education and related services and supplementary aids
and services shall be "based on peer-reviewed research to the extent practicable." 20 U.S.C. §
1414(d)(1)(A)(i)(IV).
f. Accommodations
The IEP must contain a "statement of any individual appropriate accommodations that are
necessary to measure the academic achievement and functional performance of the child on
State and districtwide assessments." 20 U.S.C. § 1414(d)(1)(A)(i)(VI)(aa).
g. Transition services
The IDEIA omits the formerly required transition service needs statement for 14-year-old
children. Instead, "beginning not later than the first IEP to be in effect when the child is 16, and
updated annually thereafter, [the IEP must contain] appropriate measurable postsecondary
goals based upon age appropriate transition assessments related to training, education,
employment, and, where appropriate, independent living skills, the transition services
(including courses of study) needed to assist the child in reaching those goals; and beginning
not later than 1 year before the child reaches the age of majority under State law, a statement
that the child has been informed of the child's rights under [the IDEIA], if any, that will transfer
to the child on reaching the age of majority." 20 U.S.C. § 1414(d)(1)(A)(i)(VI)(bb).
h. Rule of construction
A new "rule of construction" indicates that IEP content requirements should not be construed as
requiring the insertion of additional information nor is the IEP Team required to include
information under one component of a child's IEP that another component of the IEP already
contains.
i. Proposed regulations
PR §300.320 Definition of Individualized Education Program [IEP]: This new section replaces
and expands the cursory definition of the current regulations with a much more extensive
definition of an IEP. While many of the provisions in the new definition of an IEP are taken
from the current regulations (§§300.346-300.347), there are also modifications which reflect
the new provisions of the Act. An IEP must include:
1. A statement of the child's present levels of academic achievement (cf "Educational
Performance," and Functional Performance), including (i) how the child's disability
affects their involvement and progress in the general education curriculum (note the
word "education" has been inserted; or (ii) for preschool children, as appropriate, how
the disability affects the child's participation in appropriate activities) (this section has
not changed);
2. A statement of measurable annual goals including academic and functional goals
designed to meet the child's needs that result from the child's disability to enable the
child to be involved in and make progress in the general education curriculum and meet
each of the child's other educational needs that result from the child's disability, for
children with disabilities who take alternate assessments aligned to alternate
achievement standards, a description of benchmarks or short term objectives;
3. A description of (i) how the child's progress toward meeting the annual goals described
above will be measured; and (ii) when periodic reports will be made on the progress the
child is making toward meeting the annual goals such as through these quarterly or
other periodic reports, concurrent with the issuance of report cards will be provided;
4. A statement of the special education and related services and supplementary aids and
services (based on peer reviewed research to the extent practicable) to be provided to
the child or on behalf of the child and a statement of program modifications or supports
for school personnel that will be provided to enable the child (i) to advance
appropriately toward obtaining the annual goals; (ii) to be involved in and make
progress in the general education curriculum, and participate in extracurricular and
other non-academic activities; and (iii) to be educated and participate with other
children with disabilities and non-disabled children in the "activities described in this
section.";
5. An explanation of the extent, if any, to which the child will not participate with nondisabled children in the regular education environment ("regular class") and in the
activities described in paragraph 4 above;
6. A statement of any individual appropriate accommodations that are necessary to
measure the academic achievement and functional performance of the child on state
assessment and district-wide assessment; and (ii) if the IEP Team determines that the
child must take alternate assessments, a statement of why the child cannot participate in
a regular assessment; and a statement that the particular alternate assessment selected is
appropriate for the child; and
7. The projected date for the beginning of the special education services described for the
child and the anticipated frequency, location and duration of those services and
modifications.
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V - IEP Team Members and Attendance
a. The IEP team
The IEP Team is comprised of the following individuals:
1. the parents of a child with a disability;
2. not less than 1 regular education teacher of such child (if the child is, or may be,
participating in the regular education environment);
3. not less than 1 special education teacher, or where appropriate, not less than 1 special
education provider of such child;
4. a representative of the local educational agency who
i.
is qualified to provide, or supervise the provision of, specially designed
instruction to meet the unique needs of children with disabilities;
ii.
is knowledgeable about the general education curriculum; and
iii.
is knowledgeable about the availability of resources of the local educational
agency
5. an individual who can interpret the instructional implications of evaluation results, who
may be a member of the team described in clauses (ii) through (vi);
6. at the discretion of the parent or the agency, other individuals who have knowledge or
special expertise regarding the child, including related services personnel as
appropriate; and,
7. whenever appropriate, the child with a disability.
20 U.S.C. § 1414(d)(1)(B).
Upon request of the parent, the IEP Team must invite the Part C coordinator or other
representatives to the initial IEP meeting to "assist with the smooth transition of services." 20
U.S.C. § 1414(d)(1)(D).
i. Recent decisions
M.L. v. Fedr'l Way Sch. Dist., 387 F.3d 1101 (9th Cir. 2004) failure to have at least one regular
education teacher on the IEP team, when there was a possibility that the student might be
placed in an integrated regular education classroom, was a critical defect in the constitution of
the IEP team.
Deal v. Hamilton Co. Bd. of Ed., 392 F.3d 840 (6th Cir. 2004) finding for the parents - the
failure to include at least one regular education teacher on the IEP team had a real impact on
the decision-making process
What this means: the attendance of at least one regular education teacher is vitally important to
the constitution of the IEP team.
b. Attendance
An exception process now qualifies the general Team attendance requirement. A member of the
IEP Team shall not be required to attend an IEP meeting, in whole or in part, if that member,
the parent of a child with a disability, and the local educational agency agree that the
attendance of such member is not necessary because no modification to the member's area of
the curriculum or related services is being modified or discussed in the meeting.
A member of the IEP Team may be excused from attending an IEP meeting, in whole or in
part, when the meeting involves a modification to or discussion of the member's area of the
curriculum or related services, if
i.
that member, the parent, and the local educational agency consent to the excusal; and
ii.
the member submits in writing to the parent and the IEP Team input into the
development of the IEP prior to the meeting.
WRITTEN AGREEMENT AND CONSENT REQUIRED- A parent's agreement to waive
attendance or to excuse attendance shall be in writing.
20 U.S.C. § 1414(d)(1)(C).
i. Parent participation in meetings
The procedural safeguards have been amended to provide that a meeting does not include
informal or unscheduled conversations involving public agency personnel and conversations on
issues such as teaching methodology, lesson plans, or coordination of service provision if those
issues are not addressed in the child's IEP. Finally, a meeting does not include preparatory
activities that public agency personnel engage in to develop a proposal response to a parent
proposal that will be discussed at a later meeting.
When conducting IEP team meetings and placement meetings the parent of a child with a
disability and a LEA may agree to use alternative means of meeting participation, such as video
conferences and conference calls. 20 U.S.C. § 1414(f).
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VI - The Summary of Performance
Evaluations are not required before termination of eligibility due to graduation from secondary
school with a regular diploma or due to exceeding the age eligibility for a FAPE under State
law. 20 U.S.C. § 1414(c)(5)(B)(i).
When a child whose eligibility terminates due to graduation from secondary school with a
regular diploma or due to exceeding the age eligibility for a FAPE, the LEA shall provide the
child with a summary of the child's academic achievement and functional performance, which
shall include recommendations on how to assist the child in meeting the child's postsecondary
goals. 20 U.S.C. § 1414(c)(5)(B)(ii).
The summary of the child's academic achievement connotes something more than an academic
report card. Instead, it connotes a descriptive narrative outlining the levels of academic
achievement. Similarly, the summary of the child's functional performance echoes back to
changes in the scope of IEP content, such that IEP's are now required to contain measurable
functional goals. The summary of functional performance should relate to the student's
performance on their functional goals. Finally, the summary is required to include
recommendations on how to assist the child in meeting the child's post-secondary goals. While
this may, in some cases, be related to transition planning, the recommendation should include,
but not be limited to accommodations which may be required in the child's post-secondary
educational experience.
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VII - "Plug and Play" IEPs: The portable student
a. Transfers within the same State
Children with a disability who transfer school districts within the same academic year, who
enroll in a new school, and who had an IEP that was in effect in the same State, the LEA shall
provide such child with a FAPE, including services comparable to those described in a
previously held IEP, in consultation with the parents until such time as the LEA adopts the
previously held IEP or develops, adopts, and implements a new IEP that is consistent with
Federal and State law. 20 U.S.C. § 1414(d)(2)(C)(i)(I).
b. Transfers to different states
In the case of a child with a disability who transfers school districts within the same academic
year, who enrolls in a new school, and who had an IEP that was in effect in another State, the
local educational agency shall provide such child with a free appropriate public education,
including services comparable to those described in the previously held IEP, in consultation
with the parents until such time as the local educational agency conducts an evaluation
pursuant to subsection (a)(1), if determined to be necessary by such agency, and develops a
new IEP, if appropriate, that is consistent with Federal and State law. 20 U.S.C. §
1414(d)(2)(C)(i)(II).
c. Transmittal of records
To facilitate the transition for a child who transfers within the same State, or to a different
State, the new school in which the child enrolls shall take reasonable steps to promptly obtain
the child's records, including the IEP and supporting documents and any other records relating
to the provision of special education or related services to the child, from the previous school in
which the child was enrolled and the previous school in which the child was enrolled shall take
reasonable steps to promptly respond to such request from the new school.
d. Assessments
LEA's must ensure that assessments of children with disabilities who transfer from one school
district to another school district in the same academic year are coordinated with such
children's prior and subsequent schools, as necessary and as expeditiously as possible, to ensure
prompt completion of full evaluations.
It is important to note however, that the forty-five (45) day time frame for initial evaluations is
tolled if:
1. The child has enrolled in the LEA after an evaluation has been started, but not
completed in the other school district;
2. The school district is "making sufficient progress to ensure a prompt completion of the
evaluation, and the parent and subsequent district agree to a specific time when the
evaluation will be completed;" or
3. The parent of a child repeatedly fails or refuses to produce the child for evaluation.
e. Proposed regulations
PR §300.323 (e) Program for Children who Transfer Public Agencies: Implements the new
requirements regarding programs for children who transfer public agencies within the same
academic year. The proposed regulation would require as to transfers in the same state that the
new school district provide the child with FAPE, including services comparable to those
described in a previously held IEP until the public agency adopts the previously held IEP or
develops, adopts, and implements a new IEP that is consistent with Federal and State law.
PR §300.323(e)(1)(ii) would incorporate a statutory change that requires, in the case of a child
who had an IEP in effect and who transfers from a public agency outside the State in the same
academic year, that the public agency provide the child with FAPE, including services
comparable to those described in the previously held IEP, until the public agency conducts an
evaluation of the child, if determined necessary by the public agency, and develops a new IEP
for the child, if appropriate, that is consistent with Federal and State law.
PR §300.323(e)(2) incorporates the new requirement in section 614(d)(2)(C)(ii) of the Act
regarding transmittal of education records to facilitate the transition of a child who transfers
public agencies within the same State. It also addresses the responsibility of the new public
agency and previously public agency to take reasonable steps regarding making prompt
requests for, and transmission of, education records consistent with 34 CFR 99.31(a)(2),
implementing FERPA.
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VIII - Charter Schools and the IDEA
a. What is a Charter School?
The IDEIA does not define the term "charter school." However, under the IDEIA, the
definition of elementary and secondary schools includes public elementary and secondary
charter schools. A public charter school may be a LEA, a public school of an LEA, or an entity
that is neither an LEA nor a public school of an LEA. Proposed Regulation 34 C.F.R. §
300.209(b)-(d).
Proposed regulation 34 C.F.R. § 300.7 refers to the definition of charter school contained in the
Elementary and Secondary Education Act of 1965, 20 U.S.C. § 6301 ("ESEA").
The ESEA defines charter school as "a public school that
1. in accordance with a specific State statue authorizing the granting of charters to schools,
is exempt from significant State or local rules that inhibit the flexible operation and
management of public schools, but not from any rules relating to the other requirements
of this paragraph;
2. is created by a developer as a public school, or is adapted by a developer from an
existing public school, and is operated under public supervision and direction;
3. operates in pursuit of a specific set of educational objectives determined by the school's
developer and agreed to by the authorized public chartering agency;
4. provides a program of elementary or secondary education, or both;
5. is nonsectarian in its programs, admissions policies, employment practices, and all other
operations, and is not affiliated with a sectarian school or religious institution;
6. does not charge tuition;
7. complies with the Age Discrimination Act of 1975 [42 USCS §§ 6101 et seq.], title VI
of the Civil Rights Act of 1964 [42 USCS §§ 2000d et seq.], title IX of the Education
Amendments of 1972, section 504 of the Rehabilitation Act of 1973 [29 USCS § 794],
and part B of the Individuals with Disabilities Education Act [20 USCS §§ 1411 et
seq.];
8. is a school to which parents choose to send their children, and that admits students on
the basis of a lottery, if more students apply for admission than can be accommodated;
9. agrees to comply with the same Federal and State audit requirements as do other
elementary schools and secondary schools in the State, unless such requirements are
specifically waived for the purpose of this program;
10. meets all applicable Federal, State, and local health and safety requirements;
11. operates in accordance with State law; and
12. has a written performance contract with the authorized public chartering agency in the
State that includes a description of how student performance will be measured in charter
schools pursuant to State assessments that are required of other schools and pursuant to
any other assessments mutually agreeable to the authorized public chartering agency
and the charter school.
20 USCS § 7221i(1).
b. Charter schools and the IDEIA
Children with disabilities who attend public charter schools and their parents retain all IDEIA
rights granted to children who attend other public schools. Proposed regulation 34 C.F.R. §
300.209(a).
LEAs are required to serve children with disabilities attending those schools in the same
manner as the LEA serves children with disabilities in its other schools, including providing
supplementary and related services on site at the charter school to the same extent to which the
LEA has a policy or practice of providing such services on site at its other public schools. 20
U.S.C. § 1413(a)(5)(A).
If the public charter school is an LEA, then the charter school is responsible for ensuring that
the requirements of this part are met, unless the State assigns the responsibility to another
entity. Proposed regulation 34 C.F.R. § 300.209(c). If the public charter school is not an LEA
or part of an LEA, then the SEA is responsible for ensuring that the requirements of the IDEIA
are met. Id. at § 300.209(d).
States may use funds to carry out alternate programming for children with disabilities attending
charter schools. 20 U.S.C. § 1411(e)(2)(C)(ix).
c. Does the HQT requirement apply to Charter schools?
The U.S. DOE has opined that charter school teachers must hold at least a bachelor's degree
and must demonstrate competence in the core academic areas in which they teach. However,
No Child Left Behind does not require that charter school teachers be fully certified. Rather,
charter school teachers must only meet the requirements of the State's public charter school
law, which may differ from the requirements for full State certification. See U.S. Dep't of Ed.
Improving Teacher Quality Non-Regulatory Guidance, Revised August 3, 2005 (Q/A #A-27).
d. Recent decisions
IDEA Pub. Charter Sch. v. D.C., 374 F.Supp.2d 158 (D. D.C. 2005)
Facts: parents of a child attending a public school authorized the school to complete an
evaluation. Before the evaluation was complete, the child transferred to the charter school. The
charter school completed the evaluations and requested a due process hearing, seeking
reimbursement from the district.
Held: charter school, which was an LEA, could not obtain reimbursement from the school
district; hearing officer did not have jurisdiction over a dispute between two LEAs
York Suburban Sch. Dist. v. S.P., (P.A. Commonwealth Ct. 2005): parents brought suit against
a school district seeking compensatory services and subsequently enrolled their child in a
charter school. Held: enrollment in a charter school did not render the state-law action against
the school district moot.
e. State law implications
NH RSA 194-B establishes the law in New Hampshire with regard to Charter Schools.
Fundamentally, charter schools may be created either by vote of the legislative body or in the
alternative, by approval through the State Board of Education. NH RSA 194-B:8(I) provides
that, "A charter school shall not discriminate nor violate individual civil rights in any matter
prohibited by law. A charter school shall not discriminate against any educationally disabled
pupil." Arguably, this one sentence sufficiently invokes an obligation on the part of the public's
charter school to comply with the Individuals with Disabilities Education Improvement Act.
Interestingly enough, NH RSA 194-B:6 provides that, "No host, sending, or receiving district
shall be held liable for damages in an action to recover for: (a) bodily injury, personal injury, or
property damage as defined in RSA 507-B:1, or (b) for failure to educate pupils, where such
actions arise out of the establishment or operation of a charter school."
With the IDEA Reauthorization and its provisions pertaining directly to the responsibilities of
school districts for public charter schools, it will necessary to reconcile these provisions with
the LEA's obligation to ensure the delivery of services in the public charter school.
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