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Reauthorization of IDEA 2004 John Namkung Sonoma County SELPA May 20, 2005 Goal of the Presentation Summary of major changes in IDEA Definitions Highly Qualified Paperwork Reduction Private School Children Funding Overidentification and Disproportionality Early Intervening Services

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reauthorization of idea 2004

Reauthorization of IDEA 2004

John Namkung

Sonoma County SELPA

May 20, 2005

goal of the presentation
Goal of the Presentation
  • Summary of major changes in IDEA
    • Definitions
    • Highly Qualified
    • Paperwork Reduction
    • Private School Children
    • Funding
    • Overidentification and Disproportionality
    • Early Intervening Services
    • Medication
goal of the presentation3
Goal of the Presentation
  • Participation in Assessments
  • Evaluations/Reevaluations
  • Specific Learning Disabilities
  • IEP Content
  • IEP Team Attendance
  • IEP Amendments
  • Multi-Year IEPs
  • Transfer Students
goal of the presentation4
Goal of the Presentation
  • Discipline
  • Attorneys’ Fees
  • Mediation/Dispute Resolution
  • Federal and State Monitoring
  • Optional Birth through Six Program
it s not over til it s over
It’s Not Over ‘til It’s Over
  • Regulations to Clarify the Statute
    • Proposed regulations in May
    • Public hearing on June 22 in Sacramento
    • Final regulations by December
  • Alignment of California Education Code to IDEA 2004
  • California’s Participation in Pilot Programs
  • Clarification from CTC regarding “Highly Qualified” Special Education Teacher
  • NASDSE Side by Side
    • $15.00
    • No electronic version
  • Namkung Side by Side
    • Electronic version available
    • Free!
  • Congressional Research Service Report for Congress
  • IDEA Guide to Frequently Asked Questions
  • Department of Education Topical Briefs on IDEA 2004
state rulemaking requirements
State Rulemaking Requirements
  • Each State must identify in writing to LEAs any rule, regulation or policy as a State-imposed requirement that is not required by the Act and regulations.
  • Each State must minimize the number of rules, regulations, and policies to which LEAs and schools are subject.
  • Assistive Technology Device
    • Excludes a medical device that is surgically implanted, or the replacement of such device
    • Does not exclude “mapping” of a cochlear implant
  • Parent
    • Adds “other relative” with whom the child is living
  • Related Services
    • Interpreting services
    • School nurse services
  • Ward of the State
  • Highly Qualified
    • Requirements for Special Education teachers
      • Full State certification
      • No waivers
      • Minimum of a bachelor’s degree
    • Special Education teachers teaching to alternative standards
      • Meet NCLB requirements for elementary, middle or secondary school teacher; or
      • Meet NCLB requirements for elementary teacher, or for instruction above elementary level, has appropriate subject matter knowledge as determined by the State.
  • Special Education teachers teaching multiple subjects
    • May meet NCLB requirements for any elementary, middle or secondary teacher who is new or not new to the profession; or
    • For teachers not new--demonstrate competence under NCLB which may include a single HOUSSE covering multiple subjects
    • For new teachers--demonstrate competence in other core academic subjects under NCLB which may include a single HOUSSE covering multiple subjects not later than 2 years after employment
  • Special Education teachers who provide consultative services to a highly qualified teacher
  • No right of action for failure to be highly qualified
  • No individual consequences for failure to be highly qualified
  • Consequences for LEAs
  • Related personnel and paraprofessionals
paperwork reduction pilot program
Paperwork Reduction Pilot Program
  • 15 states
    • California interested
  • Waivers not to exceed 4 years
    • No waiver of civil rights requirements
    • May not affect right of child to receive FAPE
    • No waiver of procedural safeguards
  • Annual report to Congress beginning in 2006 with specific recommendations
  • Real meaning of IDEA
  • LEA Risk Pool
    • State option to establish high cost fund
    • Innovative and effective ways of cost sharing
    • Development of a state plan
      • Definition of high need child
      • Cost is greater than 3 times the average per pupil expenditure
      • Eligibility criteria for LEA participation
      • Funding mechanism
  • Authorization of Appropriations (What happened to mandatory full funding?)
    • $12,358,376,571 in 2005
    • $14,648,647,143 in 2006
    • $16,938,917,714 in 2007
    • $19,229,188,286 in 2008
    • $21,519,458,857 in 2009
    • $23,809,729,429 in 2010
    • $26,100,000,000 in 2011
  • Saturday night massacre
    • $10,589,746 appropriated for 2005
  • Prohibition on states to use federal funds for COLA and growth
    • Impact on Governor’s budget for 2005-2006
children in private schools
Children in Private Schools
  • Major change in responsibility of district where the private school is located
  • New reporting requirements to the state
  • Major changes in consultation process
    • Determination of proportionate share of federal funds
    • Consultation process throughout school year
    • Provision of services
    • Disagreement between LEA and private schools
    • Written affirmation by representatives of private schools
children in private schools18
Children in Private Schools
  • Complaint procedures
    • Complaint by private school official
    • Response by LEA
    • Appeal to the Secretary of Education
charter school students
Charter School Students
  • Requirement to provide services on charter school site to the same extent as the LEA provides services on site to its other public schools
    • Must a charter school create a specialized program for a child?
early intervening services
Early Intervening Services
  • An LEA may use up to 15% of federal funds for early intervening services
  • Target population is K-3 students not identified for special education who need academic and behavioral support
  • Annual reporting requirements
    • # of students served
    • # of students served who subsequently receive special education services during preceding 2-year period
evaluation timelines
Evaluation Timelines
  • 60-day timeline for completion of evaluations or within state timelines
    • California’s 50 day timeline and exceptions
  • Exceptions to timelines
    • If child enrolls in different LEA after start of the evaluation and the new LEA is making sufficient progress on completing the evaluation, and parent and new LEA agree to a timeline; or
    • Parent repeatedly fails or refuses to produce the child for an evaluation
absence of parental consent
Absence of Parental Consent
  • If parent refuses consent for services, LEA may not go to due process hearing to override non-consent.
  • Does not refer to initial services
  • If parent refuses services or fails to respond to request to provide consent, the LEA is not considered in violation of providing FAPE.
    • LEA is not required to convene IEP meeting or develop an IEP--doesn’t make sense.
consent for wards of the state
Consent for Wards of the State
  • LEA must make reasonable efforts to obtain informed consent for wards of the State who don’t reside with parents.
  • No informed consent required for initial evaluation from parent--
    • If parents can’t be located
    • Rights of parents have been terminated
    • Rights of parents to make educational decisions have been subrogated and consent has been given by an individual appointed by the judge
  • Screening to determine appropriate instructional strategies for curriculum implementation shall not be considered to be an evaluation for eligibility for special education.
    • What is a screening?
    • Will a screening for an individual child be allowed? If so, parental notice is important.
prohibition on mandatory medication
Prohibition on Mandatory Medication
  • A child may not be required to obtain a prescription for medication as a condition of attending school, receiving an evaluation or receiving services under IDEA.
  • Reevaluations shall occur--
    • Not more frequently than once a year, unless parent and LEA agree otherwise.
    • At least once every 3 years, unless the parent and LEA agree that a reevaluation is unnecessary.
      • Will school districts be barred from conducting a reevaluation if needed when a parent is threatening litigation and the school district has conducted an evaluation within the past year?
assessments for transfer students
Assessments for Transfer Students
  • Assessments for students who transfer from one school district to another within same year must be completed as expeditiously as possible.
eligibility determination
Eligibility Determination
  • A child may not be determined to be a child with a disability if the determinant factor is lack of appropriate instruction in reading, including the essential components of reading instruction as defined in NCLB.
specific learning disabilities
Specific Learning Disabilities
  • In determining whether a child has SLD, an LEA shall not be required to consider whether the child has a severe discrepancy between achievement and intellectual ability.
  • An LEA may use a response to research-based intervention as part of the evaluation process.
evaluations before change in eligibility
Evaluations Before Change in Eligibility
  • Evaluation required before determining a child is no longer a child with a disability.
  • Exceptions--
    • Evaluation not required before graduation with a diploma or before aging out of special education.
      • In such cases, an LEA shall provide the child with a summary of the child’s academic and functional performance, including recommendations on how to assist the child to meet postsecondary goals.
contents of iep
Contents of IEP
  • Benchmarks or short-term objectives only required for students who take alternate assessments aligned to alternate achievement standards
    • How about preschool children?
  • Progress reports toward meeting annual goals clarified.
    • Concurrent with the issuance of report cards.
contents of iep32
Contents of IEP
  • Statement of services, based on peer-reviewed research to the extent practicable.
  • Statement of transition services beginning at age 14 is changed to age 16.
  • Nothing in IDEA shall be construed to require that additional information be included in an IEP beyond what is explicitly required in the law.
iep team attendance
IEP Team Attendance
  • A member of the IEP team is not required to attend in whole or in part--
    • If the parent and the LEA agree that his/her attendance is not necessary because the member’s area of curriculum or related service is not being modified or discussed at the meeting.
    • Parent’s agreement must be in writing.
iep team attendance34
IEP Team Attendance
  • A member of the IEP team may be excused when the meeting involves a modification to or discussion of the member’s area of curriculum or related service if--
    • The parent and the LEA agree. Parent consent must be in writing.
    • The members submits written input into the development of the IEP.
  • Invitation to the initial IEP meeting must be sent, at parent request, to the part C coordinator or representative.
transfer students
Transfer Students
  • Within the same state
    • LEA must provide comparable services, in consultation with the parents until the new LEA adopts the previous IEP, or develops and implements a new IEP.
  • Transfer outside the state
    • LEA must provide comparable services, in consultation with the parents until the new LEA conducts an evaluation, if necessary, and develops a new IEP, if appropriate.
transfer students36
Transfer Students
  • Transmittal of records
    • New school must take reasonable steps to promptly obtain school records from the previous school.
    • Previous school must take reasonable steps to promptly respond to request for records.
changes to the iep
Changes to the IEP
  • In making changes to the IEP after the annual IEP, the parents and LEA may agree not to convene an IEP meeting to make the changes, and instead may develop a written document to amend or modify the IEP.
    • Include the process for reaching agreement.
  • Changes may be made by amending the IEP rather than redrafting the entire IEP. Upon request, the parent shall be given a revised copy of the IEP with the amendments incorporated.
multi year iep pilot program
Multi-Year IEP Pilot Program
  • 15 states may be authorized
  • Multi-year IEP not to exceed 3 years and designed to coincide with natural transition points
    • Periods close in time to transition from preschool to elementary, elementary to middle school, middle to secondary school, secondary school to post-secondary activities
  • Optional for parents
  • Parent consent is required
multi year iep pilot program39
Multi-Year IEP Pilot Program
  • Content of multi-year IEP
    • Measurable goals coinciding with natural transition points
    • Measurable annual goals for determining progress
    • Description of process for review and revision of each multi-year IEP
multi year iep pilot program40
Multi-Year IEP Pilot Program
  • Review of multi-year IEP
    • At each natural transition point
    • In other years, an annual review of the IEP to determine level of progress
    • If child is not making sufficient progress, the IEP team must carry out a more thorough review of the IEP within 30 calendar days.
    • At parent request, the IEP team must conduct a review of the multi-year IEP rather than or subsequent to an annual review.
  • Will California submit a proposal?
alternative iep meeting participation
Alternative IEP Meeting Participation
  • Parents and LEA may agree to alternative means of meeting participation, such as video conferences and conference calls for-
    • IEP team meetings
    • Placement meetings
    • Meetings to carry out administrative matters (scheduling, exchange of witness lists, and status conferences)
due process complaints
Due Process Complaints
  • 2-year statute of limitations for due process hearing request or filing of complaint
    • California has 3-year statute of limitations
  • Clarification regarding LEA requirement to provide due process complaint notice to parents
due process complaints43
Due Process Complaints
  • Due process complaint notice deemed sufficient unless the party receiving the notice notifies the hearing officer and the other party that the notice has not meet the requirements.
    • Notice to hearing officer must be provided within 15 days of receiving the complaint.
    • Within 5 days of receipt of the notification, the hearing officer must make a determination and notify the parties in writing.
due process complaints44
Due Process Complaints
  • If the LEA has not sent a prior written notice regarding the subject of the hearing request, it must do so within 10 days of receiving the complaint.
  • Non-complaining party must send to the complainant a response that specifically addresses the issues raised in the complaint within 10 days, except as provided above.
due process complaints45
Due Process Complaints
  • A party may amend the due process complaint only if--
    • The other party consents in writing and is given the opportunity to resolve the complaint through a resolution session; or
    • The hearing officer grants permission, except he/she may only grant permission at any time not later than 5 days before the due process hearing.
procedural safeguards notice
Procedural Safeguards Notice
  • Copy of procedural safeguards notice to be given to parents only one time a year, except a copy must be given--
    • Upon initial referral or parental request for evaluation
    • Upon the first filing of a due process complaint
    • Upon request by the parent.
      • Give to all current parents, effective July 1, 2005
  • LEA may place procedural safeguards notice on its internet website.
procedural safeguards notice47
Procedural Safeguards Notice
  • Procedural safeguards notice must include--
    • Time period in which to make due process complaints
    • The opportunity for the LEA to resolve the complaint
    • Time periods in which to file civil actions
  • Electronic mail--Parents may elect to receive any notices required under the procedural safeguards section of IDEA by e-mail, if the LEA makes such option available.
mediation agreements
Mediation Agreements
  • In cases of a resolution of a dispute through mediation, the parties must execute a legally binding agreement that--
    • Is signed by both parties
    • Is enforceable in any State or district court
    • States that all discussion is confidential and may not be used as evidence in any subsequent hearing or civil proceeding
resolution session
Resolution Session
  • Prior to a due process hearing, the LEA must convene a meeting of parents and relevant member(s) of the IEP team--
    • Within 15 days of receiving the notice of the parents’ complaint
    • Must include an LEA representative with decision making authority
    • May not include an LEA attorney unless the parent brings an attorney
resolution session50
Resolution Session
  • The LEA is given the opportunity to resolve the complaint
  • The meeting is not required if the parents and the LEA agree in writing to waive the meeting or agree to use a separate mediation process.
  • If there is no resolution of the complaint within 30 days of the receipt of the complaint, the due process hearing may occur.
  • If resolved, a written settlement agreement must be executed.
    • No mention of confidentiality of meeting
    • Either party may void the agreement with 3 business days
hearing officer qualifications
Hearing Officer Qualifications
  • A hearing officer may not be--
    • An employee of the State educational agency or LEA involved in the education or care of the child; or
    • A person having a personal or professional interest that conflicts with his/her objectivity.
hearing officer qualifications52
Hearing Officer Qualifications
  • A hearing officer must--
    • Possess knowledge of, and the ability to understand the laws and regulations governing special education
    • Possess the knowledge and ability to conduct hearings
    • Possess the knowledge and ability to render and write decisions in accordance with standard legal practice
subject matter of hearings
Subject Matter of Hearings
  • Party requesting the hearing may not be allowed to raise issues at the hearing that were not raised in the complaint notice, unless the other party agrees otherwise.
  • A parent may file a separate due process complaint on an issue separate from a due process complaint already filed.
timeline for requesting hearing
Timeline for Requesting Hearing
  • 2-year statute of limitations does not apply if the parent was prevented from requesting the hearing due to--
    • Specific misrepresentations by the LEA that it had resolved the problem forming the basis of the complaint; or
    • The LEA’s withholding of information from the parent that was required to be provided to the parent.
decision of the hearing officer
Decision of the Hearing Officer
  • A decision by the hearing officer shall be made on substantive grounds based on whether the child received FAPE.
  • Procedural violations
    • A hearing officer may find that a child did not receive FAPE only if the procedural violations--
      • Impeded the child’s right to FAPE
      • Significantly impeded the parents’ opportunity to participate in the decision making process
      • Caused a deprivation of educational benefits
  • A hearing officer may still order an LEA to comply with procedural requirements.
timeline for bringing civil action
Timeline for Bringing Civil Action
  • 90 days from the date of the decision of the hearing officer to bring civil action, unless the state has a different timeline.
attorneys fees
Attorneys’ Fees
  • Allows attorneys’ fees to an SEA or LEA for a complaint that is frivolous, unreasonable, or without foundation.
  • Allows attorneys’ fees to an SEA or LEA for a complaint that was presented for an improper purpose, such as to harass, to cause unnecessary delay, or to needlessly increase the cost of litigation.
  • The resolution session is not considered a meeting convened as a result of an administrative hearing or judicial action.
  • School personnel given authority to consider any unique circumstance on a case-by-case basis when determining whether to order a change of placement.
  • School personnel may remove a child to an IAES, another setting, or suspension for not more than 10 school days, if such alternatives are applied to non-disabled students.
  • If school personnel seek to change placement beyond 10 school days, and the violation is not a manifestation of the disability, same disciplinary procedures for non-disabled students may be used as long as FAPE is provided.
    • Student must receive educational services to enable him/her to participate in the general curriculum and to progress toward meeting IEP goals.
    • Student must receive, as appropriate, a functional behavioral assessment, behavioral intervention services and modifications.
  • Special circumstances--school personnel may remove a student to an IAES for not more than 45 school days without the need for a manifestation determination for--
    • Carrying or possessing a weapon to or at school, or to or at a school function.
    • Possessing or using illegal drugs, or selling or soliciting the sale of a controlled substance while at school or at a school function.
    • Inflicting serious bodily injury upon another person while at school or at a school function.
  • Serious bodily injury requires a showing of “substantial risk of death, extreme physical injury, protracted and obvious disfigurement, or protracted loss or impairment of function of a bodily member, organ or mental faculty.”
    • Student must receive educational services to enable him/her to participate in the general curriculum and to progress toward meeting IEP goals.
    • Student must receive, as appropriate, a functional behavioral assessment, behavioral intervention services and modifications
  • Manifestation determination--within 10 school days of any decision to change the placement of a student.
  • Criteria for manifestation determination has been changed to read--
    • If the conduct in question was caused by, or had a direct and substantial relationship to the child’s disability; or
    • If the conduct in question was the direct result of the LEA’s failure to implement the IEP
  • Previous criteria included the ability of the child to understand the impact and consequences of the behavior, and the ability of the child to control the behavior.
  • Conference committee report clarification
  • If the conduct was a manifestation of the disability, the IEP team must--
    • Conduct a functional behavioral assessment and implement a behavioral intervention plan, if the assessment had not be conducted previously.
    • Review the behavioral intervention plan if such plan has been developed, and modify it as necessary.
    • Return the child to the placement from which he/she was removed, except for an IAES due to one of the special circumstances, unless the parents and the LEA agree otherwise.
  • Appeal
    • Parent may request a hearing if he/she disagrees with any decision of the LEA.
    • LEA may request a hearing if it believes that maintaining the current placement is substantially likely to result in injury to the child or to others.
  • Hearing officer authority
    • May order a change in placement
    • May return a child to the placement from which he/she was removed
    • May order a placement to an IAES for not more than 45 school days if there is a substantial likelihood of injury to the child or to others.
  • Placement during appeals--
    • The child shall remain in the IAES pending the decision of the hearing officer or until expiration of the time period in cases where a change of placements beyond 10 school days is allowed, unless the parent and the LEA agree otherwise.
  • Expedited hearing--an expedited hearing shall occur within 20 school days of the date the hearing is requested and shall result in a decision within 10 school days after the hearing.
  • Protections for children not yet eligible for special education--a child who has not been determined to be eligible for special education and who has engaged in a behavior that violates a code of student conduct may assert any of the protections available for special education students if the LEA had knowledge that the child was a child with a disability before the behavior occurred.
  • Basis of knowledge--
    • If the parent has expressed concern in writing to supervisory or administrative personnel, or to a teacher of a child that the child is in need of special education services
    • If the parent has requested an evaluation of the child
    • If the teacher or other LEA personnel has expressed specific concerns about a pattern of behavior demonstrated by the child, directly to the director of special education or to other supervisory personnel of the LEA.
  • Exception--An LEA is not deemed to have knowledge that the child is a child with a disability if
    • The parent has not allowed an evaluation of the child, or
    • Refused special education services, or
    • It was determined that the child was not a child with a disability.
federal and state monitoring
Federal and State Monitoring
  • Focused monitoring on--
    • Improving educational results and functional outcomes, and
    • Ensuring that states meet the program requirements most closely related to improving educational results
federal and state monitoring72
Federal and State Monitoring
  • Monitoring priorities
    • FAPE in LRE
    • State exercise of general supervisory authority in child find, monitoring, resolution sessions, mediation, voluntary binding arbitration, transition services
    • Disproportionality issues as a result of inappropriate identification.
federal and state monitoring73
Federal and State Monitoring
  • State performance plan due by December 2005
    • Must be reviewed at least once every 6 years
    • Must establish measurable and rigorous targets for LEAs
  • State must report annually to the public on the performance of each LEA on the targets in the State’s performance plan.
federal and state monitoring74
Federal and State Monitoring
  • Upon approval of the state plan, the Secretary will annually review the state’s performance report.
  • The Secretary will determine if the state--
    • Meets the requirements of IDEA
    • Needs assistance
    • Needs intervention
    • Needs substantial intervention
prohibition against federal mandates direction or control
Prohibition Against Federal Mandates, Direction or Control
  • The Federal government may not mandate, direct, or control a state, LEA, or school’s specific instructional content, academic achievement standards and assessments, curriculum, or program of instruction.
model forms
Model Forms
  • Not later than the date the final regulations are published, the Secretary will publish and widely disseminate--
    • A model IEP form
    • A model IFSP form
    • A model notice of procedural safeguards
    • A model prior written notice form
  • Additional data required on the incidence, duration, and type of disciplinary actions, including suspensions and expulsions by race and ethnicity.
  • In case of determination of significant disproportionality with respect to identification and placement, the state shall--
    • Require an LEA to reserve the maximum amount of federal funds allowed to provide comprehensive early intervening services, particularly to children in those groups significantly overidentified.
  • Require the LEA to publicly report on the revision of policies, practices, and procedures used in identification or placement of children in special education.
optional birth through six program
Optional Birth Through Six Program
  • States may develop a system whereby parents of children eligible for preschool services under section 619, who were previously served under Part C, may choose to continue to receive Part C services until their children enter, or are eligible to enter kindergarten.
optional birth through six program80
Optional Birth Through Six Program
  • Part C services must include an educational component that promotes school readiness and incorporates preliteracy, language, and numeracy skills.
  • Annual notice must be given to Part C parents that includes--
    • A description of rights to receive services under Part C or under Part B.
optional birth through six program81
Optional Birth Through Six Program
    • Explanation of the difference between the two programs
    • Applicable procedural safeguards
    • Possible costs including any fees to be charged to families under Part C
  • Parents retain right to Part B services and FAPE
  • Part B rules do not apply to preschoolers whose parents elect to stay in the Part C system. FAPE is not required for such children.
optional birth through six program82
Optional Birth Through Six Program
  • Any state that elects this option must ensure an evaluation for early intervention services of a child who experiences a substantiated case of trauma due to exposure to family violence.
  • This option triggered when appropriation for Part C reaches $460 million. 15% of Part C funds shall be used to provide grants to states to carry out this program.
effective dates of implementation
Effective Dates of Implementation
  • December 3, 2004 for language regarding highly qualified teachers
    • By the end of 2005-2006
  • July 1, 2005