TASH AND ALLIES RESPOND TO IDEA 2004
This article is distributed with permission. For additional information
about TASH and our public policy positions and activities, contact Jamie
Ruppmann at [email protected]
or visit our website www.TASH.org.
TASH, in collaboration with colleagues who have been working together
as The National Committee of Parents and Advocates to Protect IDEA have
developed the following letter and summary of key changes to Part B of
the Individuals with Disabilities Education Act signed into law by President
Bush on December 8, 2005.
We are hopeful that our collaborative work product will serve as a first
step or vehicle for reaching out to parents, students, advocates, and other
committed organizations and individuals, particularly at the State level,
in order to encourage their talking about the 2004 changes to IDEA with
their State legislators, policymakers and members of their school communities,
who also ought to be distressed by the erosion of rights, protections and
best practices for improving education of students with disabilities, with
a goal of working together to preserve and protect their stronger state
laws, regulations and policies. |
NATIONAL COMMITTEE OF PARENTS AND ADVOCATES
ORGANIZED TO PROTECT IDEA
December 14, 2004
Dear Parents and Advocates,
On December 3, 2004, President Bush signed the Individuals with Disabilities
Education Improvement Act of 2004. Throughout the past two years, the National
Committee of Parents and Advocates Organized to Protect IDEA worked diligently
in an effort to ensure that the best interests of children were preserved
in this reauthorization process. We appreciate your efforts and thank you
for your assistance.
Provisions that were very important to parents and advocates were lost
or significantly changed from the current law. This new law has many changes
that are likely to affect how education services are delivered to students
with disabilities.
It is extremely important for family members and other advocates to
understand the changes in the law and how these changes will make a difference
to students. To help, the National Committee of Parents and Advocates Organized
to Protect IDEA has developed the attached analysis of the new law for
your information.
It is important to understand that the next step in the process involves
rule making at the Federal level. We anticipate being involved in that
process and will keep you apprised, since your input will also be critical.
While that is happening, however, State Education Agencies and others will
likely be reviewing this new law to determine what impact it may have on
state laws and rules.
Soon you will receive information suggesting ideas for working at the
state level to preserve and protect the educational rights of children
with disabilities. Key discussions on implementation will soon shift to
states, where we hope you will continue to be involved.
Prepared Using Private Funds
IDEA 2004 SUMMARY
This is a summary of some of the most critical changes affecting children
with disabilities and their families in IDEA 2004, concentrating on the
IEP process, due process and the discipline provisions. How these changes
affect our children will depend, at least in part, on how the U.S. Department
of Education interprets them through policies and regulations and how they
are implemented at the state, district and school level. Most of these
changes will be effective as of July 1, 2005.
A new provision in the Act authorizes the Secretary to issue only regulations
necessary to secure compliance with the statute. This provision may limit
the Secretary’s authority to issue regulations that could be useful in
clarifying ambiguities. A new section of the Act also suggests that states
minimize the number of rules, regulations and policies to which the school
districts are subject.
This law, as amended by the 2004 changes, will not provide mandatory
full funding. Although the annual amounts now authorized (permitted) to
be spent on IDEA would achieve full funding in six years, that assumes
these amounts will actually be appropriated (spent), and explains why mandatory
funding of IDEA is so important. In fact, two days after Congress passed
the IDEA Conference Report with its “glide path to full funding” it appropriated
significantly less funding for special education than it had just promised.
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IEP
1. Short-term objectives.
2. IEP progress reports.
3. Transition information in IEP.
4. IEP attendance and participation.
5. Pilot program for multi-year IEPs.
6. Pilot program for paperwork reduction.
7. IEP team transition.
8. Transfers between school districts.
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DUE PROCESS
1. Procedural safeguards notice.
2. Statute of limitations.
3. Due process complaint notice.
4. Resolution session.
5. Attorney’s fees.
6. Qualifications for Hearing Officers.
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DISCIPLINE
1. Stay put.
2. Services to be received in interim alternative educational setting.
3. Manifestation Determination Review.
4. Special Circumstances.
5. 45 day limit.
6. Functional Behavioral Assessments.
7. Case-by-case determination.
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IEP PROCESS
1. Short-term objectives.
The long established obligation for IEP teams to spell out short-term objectives
for meeting each child’s measurable annual IEP goals no longer exists for
most children. Such short-term objectives are only required for the very
small percentage of children (generally less than 1% of students with disabilities)
who are taking alternate assessments aligned to alternate achievement standards.
The No Child Left Behind Act (NCLB) limits participation on these assessments
to students with the most significant cognitive disabilities. NCLB also
provides that both grade-level and alternate achievement standards should
be aligned with state content standards. Parents should ensure that their
child’s academic IEP goals are also aligned with these standards. Short-term
objectives are essential stepping stones toward these goals for all students
with disabilities, not just a very small percentage.
In states that offer alternate assessments aligned to alternate achievement
standards, it is the IEP team that determines whether a child fits the
criteria for students with the most significant cognitive disabilities.
Parents, as members of the IEP team, may feel pressure to agree that their
child fits these criteria in order to retain short-term objectives. Such
pressure directly undermines the accountability provisions of NCLB.
Even if these short-term objectives are not mandated by law, all parents
can still request their child’s IEP team to identify them. IDEA 2004 still
requires a description of how progress toward meeting will be measured
and parents can contend that short-term objectives are the answer. Without
short term objectives parents will have virtually no way of measuring whether
their children are making progress in achieving their annual goals and
will not be informed participants in their child’s education. In addition,
teachers will not have a guide as to the intervening steps that should
be taken towards achieving these goals and when they should be taken. Teachers
will also have great difficulty developing meaningful progress reports
to the parents.
2. IEP progress reports.
The progress the child is making toward meeting the annual goals must be
reported, but there is no longer a reference to “the extent to which the
progress is sufficient to attain the goal by the end of the year.” This
information seems especially important to parents and teachers if there
is a shared commitment to help all children learn to high standards set
for all. Parents may see progress all year only to realize in June that
the progress was not sufficient to meet the goal.
3. Transition information in IEP.
The amendments clarify that the transition process for a student with a
disability now begins at age 16 and is not merely a plan for transition.
Parents should request that the student’s IEP, when appropriate, include
a statement of inter-agency responsibilities and any needed linkages since
this language is no longer in the statute.
4. IEP attendance and participation.
A new section allows IEP team members to be excused from attendance if
their area is not being discussed. When this section is read with new provisions
allowing alternate means of meeting participation (e.g. conference calls),
consolidation of reevaluation meetings and other IEP meetings, and a pilot
program authorizing up to 15 states to use multi-year IEPs, the combined
effect is a revolution in the traditional IEP meeting. Some say these are
positive changes. Others are concerned that these provisions will limit
cross fertilization of ideas and undermine the interdisciplinary nature
of IEP meetings (team members each bring areas or “disciplines” of expertise
to the table).
While written parental consent is required before these actions can
occur, parents may find that they are under considerable pressure to provide
their consent. At least once a year the parents should be able to get all
the members of their child’s team in one room, all sharing ideas for the
benefit of the child. The potential richness of these conversations can
not be anticipated in written reports submitted by excused members and
conference calls do not allow for the same flow of ideas. You never know
which IEP team member will turn the tide of a meeting.
5. Pilot program for multi-year IEPs.
The Secretary of Education is authorized to approve proposals from up to
15 states to allow local school districts to offer, with parental consent,
a multi-year IEP, not to exceed 3 years. This option will limit parent
participation in their child's education by not having a comprehensive
annual IEP review, except in certain situations. Also, 3-year IEPs will
contain multi-year goals which can be expected to be less specific and
harder to measure than annual goals –especially when benchmarks and short-term
objectives are no longer required for all but those students with the most
significant cognitive disabilities.
Another serious problem is that the required elements under IDEA for
these multi-IEPs are not as inclusive as for annual IEPs. This is true
with respect to statements on progress reports, accommodations, supplementary
aids and services and more. While, the states may include these as required
elements in the multi-year IEPs, IDEA does not mandate that they do so.
Parents in these states will have to consent to the 3-year IEPs that must
be reviewed at natural transition points by the IEP team. Therefore, it
will be critical that parents are informed, knowledgeable and well prepared
to deal with any pressure that may be put on them.
6. Pilot program for paperwork reduction.
The Secretary of Education is authorized to grant waivers of statutory
and regulatory requirements, for a period not to exceed 4 years, to 15
states proposing to reduce excessive paperwork and non-instructional time
burdens. The Secretary is prohibited from waiving requirements related
to civil rights or the right of a child to a free appropriate public education
(FAPE). How this process is implemented is a matter of special concern
to parents, who worry that many requirements in the IEP process which parents
consider to be related to civil rights and FAPE, may be seen as contributors
to the paperwork burden. Another significant concern is that “pilot” implies
that this is the first step toward expanding these programs beyond the
15 states.
7. IEP team transition.
Parents of a child transitioning from Part C services (early childhood)
to part B services (school-age) can request an invitation to the initial
IEP meeting be sent to representatives of the Part C system to assist with
a smooth transition of services. This provision doesn’t require a Part
C representative to attend but it does encourage collaboration.
8. Transfers between school districts.
Services comparable to those described in the IEP in effect before a child’s
transfer must be provided by the new school district. These services must
continue until the previous IEP is adopted, or a new IEP is developed,
adopted and implemented, in the case of a transfer in the same state or
until a new IEP is developed, in the case of a transfer outside the state.
This new provision will help parents of transferring students know what
they can expect from their new schools.
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DUE PROCESS
1. Procedural safeguards notice.
The procedural safeguards notice will be distributed only once a year except
that a copy will be distributed upon initial referral, when a parent makes
a request for an evaluation, when a due process complaint has been filed
or if a parent requests a copy. The notice will no longer be automatically
distributed with the IEP team notice or upon reevaluation. This is only
a problem if parents are unaware of their rights, including the right to
request this notice if they need one.
2. Statute of limitations.
Parents now have two years in which to exercise their due process rights
after they knew or should have known that an IDEA violation has occurred.
The interpretation of the language “should have known” will be critical.
3. Due process complaint notice.
Parents who feel their child’s educational rights are being compromised
must file a complaint with the school district (with a copy to the state)
identifying the name and contact information of the child, describing the
nature of the problem with supporting facts and a proposed resolution.
A new provision provides that the school district shall file a response
within 10 days unless the district within 15 days notifies the state hearing
officer that it is challenging the sufficiency of the parent’s due process
complaint notice. The State hearing officer has 5 more days to make a finding.
In addition to the obvious delay, of particular concern is that the complexity
of filing for due process may have a chilling effect on parents.
4. Resolution session.
Parents must go through a mandatory "resolution session" before due process.
The school district will convene a meeting with the parents and relevant
members of the IEP team within 15 days of when the school district receives
the parent’s due process complaint. The school district has 30 days from
the time the complaint is filed to resolve the complaint to the satisfaction
of the parents, after which a due process hearing can occur.
This provision may encourage school systems to wait until a due process
complaint is filed before trying to resolve issues. Attorney's fees are
not reimbursed for work related to the resolution session.
5. Attorney’s fees.
Parent's attorneys may be responsible for paying the school system attorney's
fees if a cause of action in a due process hearing or court action is determined
to be frivolous, unreasonable, or without foundation. Parents may be responsible
for the school system's attorney fees if a cause of action was presented
for any improper purpose, such as to harass or to cause unnecessary delay
or needless increase in the cost of litigation. Obviously, parents should
not file frivolous or improper causes of action, but it is important that
school districts not use these changes in the law to intimidate parents.
This could have a chilling effect on parents obtaining legal representation
and filing valid complaints to improve their children’s education.
6. Qualifications for Hearing Officers.
A positive change is that there are now explicit qualification requirements
for Hearing Officers.
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DISCIPLINE
1. Stay put.
The right of a student with a disability to "stay put" in his/her current
educational placement pending an appeal is eliminated for alleged violations
of the school code that may result in a removal from the student’s current
educational placement for more than 10 days. Previously the law only denied
“stay-put” rights to students with disabilities involved in drugs, weapons
or other dangerous behavior or activity. The right to “stay put” while
a parent challenges the manifestation determination or proposed placement
is a critical element to ensuring a student’s continued free appropriate
public education in the least restrictive environment.
Moving back and forth between the current placement and an interim alternative
educational setting during an appeal can have a significant negative impact
on achievement for children who already have difficulty adjusting to transitions.
Parents must remain vigilant and ensure that their children continue to
be provided the educational programming and services they need to make
progress toward meeting their IEP goals. If this progress is negatively
affected, the school may recommend a change to a more restrictive setting
for the future. In addition, for purposes of reporting Adequate Yearly
Progress under the No Child Left Behind Act, individual schools do not
have to count children who are transferred to alternative settings and
are, therefore, not in the same school for the full academic year. This
could create an incentive for disciplinary actions against students with
disabilities.
2. Services to be received in interim alternative educational setting.
A child is entitled to receive programming and services necessary to enable
him or her to receive a free appropriate public education consistent with
section 612(a)(1) during the period in which he/she is in an interim alternative
education setting. Under IDEA 2004, the student must be provided services
to enable him or her to continue to participate in the general education
curriculum and to progress toward meeting the goals in the IEP. The new
provision replaced language requiring that a child in an interim alternative
educational setting receive services and modifications, including those
described in the student’s current IEP which will enable the child to meet
the goals in the IEP. The change in language cannot be interpreted as diluting
any of these services that are consistent with the definition of FAPE because
a student with a disability must continue to receive FAPE during the period
of removal from his/her current educational placement.
3. Manifestation Determination Review.
Before IDEA 2004, the burden was on the school district to show that the
behavior resulting in a disciplinary action was not a manifestation of
the child’s disability before being allowed to apply the same disciplinary
procedures as they use for non-disabled children. The burden of proof for
the manifestation determination review has now been shifted to the parents
who have to prove that the behavior was caused by or had a direct and substantial
relationship to the disability. The language requiring the IEP team to
consider whether the disability impaired the child’s ability to control
or to understand the impact and consequences of the behavior has been deleted.
The language that gave the school an incentive to address behavior appropriately
by requiring the IEP team to consider whether the IEP was appropriate has
also been deleted.
Because the amendments to IDEA make it easier for schools to remove
children for non-dangerous, non-weapon, non-drug related behaviors, and
place the burden on parents to prove the connection between behavior and
disability, parents will need to pay careful attention to the behavioral
needs of their child in developing the IEP.
Even if the child has not previously been subjected to disciplinary
exclusion, parents may need to anticipate, to consider and spell out any
concerns they may have about their child’s possible emotional and behavioral
responses particularly when they are not provided the supports and services
they may need.
4. Special Circumstances.
Since 1997, IDEA had expressly authorized schools to unilaterally remove
children to an interim alternative educational setting for as long as 45
days for offenses involving drugs and weapons –even if the behavior was
a manifestation of the student’s disability. In addition, a hearing officer
could make the same decision if it was determined based on a preponderance
of the evidence that keeping the child in his/her current placement was
substantially likely to result in injury to the child or others. Although
school authorities have always had the authority to respond to an emergency
and to unilaterally remove any student with or without a disability who
is causing serious bodily injury to another, now schools can also unilaterally
remove children for 45 days for “inflicting serious bodily injury.” This
term is defined as involving a substantial risk of death; extreme physical
pain; protracted and obvious disfigurement; or protracted loss or impairment
of the function of a bodily member, organ, or mental faculty.
The hearing officer in determining whether to remove a child because
maintaining his/her current placement is substantially likely to result
in injury to self or others is no longer required to consider whether the
school district’s proposed change in placement is based on a preponderance
of the evidence. In addition, the amended statute no longer requires the
hearing officer to consider whether the school has made reasonable efforts
to minimize the risk of harm, including the use of supplementary aids and
services. These changes, to the degree they have the effect of punishing
the child even if proper supports could have prevented the problem, arguably
violate Section 504 of the Rehabilitation Act.
5. 45 day limit.
The 45 calendar day limit on the removal for these offenses has been changed
to 45 school days, which is significantly longer [now 9 instead of 6 weeks
of school at a critical time when students with disabilities are being
held accountable for meeting high state standards.]
6. Functional Behavioral Assessments.
The requirement for Functional Behavioral Assessments and Behavioral Intervention
Plans are maintained in the discipline provisions.
7. Case-by-case determination.
A paragraph has been added to the discipline provisions, which states that
school personnel can consider any unique circumstances on a case-by-case
basis when determining whether to change the placement of a child with
a disability who violates a school code of conduct. This is a good provision
for parents to quote when they are having trouble proving that their child’s
behavior is a manifestation of the disability. It serves to remind the
school personnel that common sense should prevail and all circumstances
should be considered.
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