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Making the New Law a Reality: Issues for Implementing IDEA 2004 and the 2006 Regulations. Ann M. Alexander, Ph.D., J.D. Region 6 Technical Assistance Conference San Diego, California August 15, 2007.

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Making the New Law a Reality: Issues for Implementing IDEA 2004 and the 2006 Regulations

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Making the New Law a Reality: Issues for Implementing IDEA 2004 and the 2006 Regulations

Ann M. Alexander, Ph.D., J.D.

Region 6 Technical Assistance Conference

San Diego, California

August 15, 2007

What are the states doing, and why are they doing it?How do parent leaders support this work?

  • Revising rules, documents, policies

  • Expanding dispute resolution options

  • Supporting development of RTI systems

  • Supporting appropriate expansion of inclusive placements

  • Rethinking priorities


  • biological vs. natural parent (300.30) and other definitions

  • consent, consequences for withholding (300.300); outside agencies in transition planning (300.321); Medicaid (300.154)

  • participation in resolution sessions, consequences for failures (300.510)

  • state complaints, required information, copy to state dept. of ed., opportunity for district to respond (300.151-153)

  • parent entitled to one IEE per public agency evaluation (300.502)

  • conforming rules required for funding eligibility


  • resolution sessions are now required in due process unless both parties agree to waive

  • districts can propose resolution of dispute in complaint investigations, or parties can agree to mediate

  • early resolution can promote positive relationships, preserve resources

  • districts agree to actions they could not be ordered to take

  • districts likely to resolve unless confident they will prevail in due process

    APR: states must report % of successful mediations and resolution sessions in APR


  • RTI, any system for

    • providing scientific, research-based interventions based on a student’s academic/ behavior needs

    • measuring the student’s rate of learning (how fast) and level of learning (how much) over time to see whether the student responds

    • producing data that can be used to help determine whether a student has LD

  • states establish LD criteria; districts must use (300.307-311)

  • districts decide whether a student’s response to intervention will be used to determine LD (statutory authority)

  • “3-tier” models are prevalent, but not required:

    • universal screening

    • whole class interventions

    • student-specific, targeted interventions

    • moving toward special education referral decisions

    • “LD identification” models

  • other intervention models produce data without having a special education referral decision as the goal (though it can be an outcome)

  • “instructional consultation” is an example

    • teachers request assistance; contract with case manager; participate in curriculum-based assessment child; determine interventions; monitor progress

    • Improving instruction is goal

    • generates data that does measure rate of learning and level of learning -- useful in special education referral decisions

  • some kind of intervention system must be in place to satisfy eligibility criteria, regardless of approach used (RTI, discrepancy analysis, alternative)

    • controlling factor for eligibility cannot be lack of appropriate instruction in math or reading (300.306(b))

    • determination must be based on (300.309(b)):

      • data showing that prior to, or as part of, the referral process, the student was provided appropriate instruction in regular education settings, delivered by qualified personnel

      • data showing repeated formal assessments at reasonable intervals, reflecting student’s progress, provided to parents

  • If RTI is used, must describe (300.311) :

    • instructional strategies used

    • student-centered data collected

    • documentation that parents were notified

      • the state’s policies about the amount/nature of student performance data to be collected and the general education services to be provided

      • strategies for increasing rate of learning

      • parents’ right to request an evaluation

  • States are developing/disseminating policy statements

    • degree of specificity will vary

  • In addition to LD eligibility, what other reasons exist for supporting the development of RTI systems?

    • Research shows that intervening early with struggling learners:

      • improves instruction, student performance

      • reduces behavior problems

      • reduces disproportionality

    • May/may not lower LD identification rates

    • Increased performance may be difficult to discern in statewide assessments

      APR: states must report suspension/expulsion rates and disproportionality data in APR.


  • Knowledge and skills in general curriculum is NCLB measure of success

  • Strategies to increase likelihood students will learn general curriculum

    • increase time spent in general education classrooms

    • align special education curriculum to general education curriculum

      APR: states must report graduation/dropout/

      assessment/outcome data in APR


  • Influence of SPP/APR indicators

    “What gets measured, gets done.”

  • OSEP determinations of states’ status in meeting requirements of Part B (300.603)

  • Part B performance indicators -- graduation, dropout, assessment, suspension/expulsion, LRE, parent involvement, preschool and post-school outcomes, mediation and resolution success

  • actual performance against targets not addressed in OSEP determinations, but accurate/timely data are

  • Part B compliance indicators:

    • initial evaluation timelines

    • Part C to Part B transition – IEPs by 3rd Birthday

    • goals and transition services to support post-secondary goals (IEP in effect when student is 16)

    • no significant disproportionality that is the result of inappropriate identification/evaluation (in violation of Part B)

    • correction of all noncompliance within one year

    • complaint investigation and due process hearing timelines

  • Part B data indicator:

    • Timely and accurate data

    • SPP/APR indicator measurements are accurate and correct year of data is used

    • 618 data (child count, annual performance data)

  • OSEP Determinations:

  • Totality of state’s data in SPP/APR and other publicly available information

  • Whether state provided valid and reliable data that reflect measurement for each indicator

  • Whether state demonstrated compliance, or timely corrected noncompliance within one year (or progress over prior performance)

  • Whether state had other IDEA compliance issues identified previously through OSEP monitoring, audit or other activities

  • Meets Requirements

    • 95% compliance/correction within one year

    • timely and accurate data, or plan to obtain

    • no outstanding previous noncompliance/audit findings, etc.

    • Alaska, Hawaii, Oregon

  • Needs Assistance

    • 50-94% compliance/correction within one year

    • some data not timely/accurate, no plan

    • American Samoa, Guam, Marshall Islands, California, Idaho, Nevada

  • Needs Intervention

    • below 50% compliance/correction within one year

    • data not timely/accurate

    • outstanding previous noncompliance/audit findings, etc.

    • Washington, CNMI, FSM

  • Needs Substantial Intervention

    • substantial failure to comply which significantly affects “core requirements” such as delivery of services; or state informs OSEP it is unwilling to comply

    • none this year

  • States must make determinations for school districts (300.600(a))

  • Same categories must be used

  • Criteria can vary from federal criteria, but must include consideration of:

    • performance on compliance indicators

    • whether district data are valid, reliable, timely

    • uncorrected noncompliance from other sources

    • any audit findings

  • No timeline specified in law

  • Consequences

    • after two years of “needs assistance” one or more of following OSEP actions is required:

      • advise state of available TA

      • direct the use of state-level federal funds to areas needing assistance

      • require participation in TA activities

      • require review of data to ensure information is valid, reliable, submitted on timely basis

    • after two years of “needs intervention” OSEP can take any of the above actions, plus one or more of following is required:

      • require corrective action or improvement plan

      • require compliance agreement with OSEP

      • withhold funds; seek to recover funds; withhold further payments

How do parent leaders support this work?

  • Participate on task forces/committees

  • Provide leadership in Special Education Advisory Committees

  • Testify before boards/legislatures

  • Collaborate to design training/informational materials

  • Training -- arrange/participate in joint events

  • Disseminate information through newsletters

  • Continue to strengthen your own knowledge base

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