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.

TABLE OF CONTENTS

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.

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II - Charter Schools and the IDEIA

a. What is a Charter School?

The IDEIA does not define the term "charter school." However, under the IDEIA, the definitions of elementary and secondary schools include 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).

In New Hampshire, charter schools are defined as "any public school which, in addition to providing educational services to pupils residing within its attendance area or district, chooses to accept pupils from other attendance areas within its district and from outside its district," and which "operates independent of any school board and [is] managed by a board of trustees. RSA 194-B:1, III, VI.

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. Charter Schools and LEAs

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.

LEAs must enter students with disabilities who are enrolled in a charter school into the New Hampshire Special Education System. Children attending charter schools are still subject to Child Find. The LEA is ultimately responsible for any failures to identify or refer a student who attends a charter school. Thus, LEAs should post Child Find notices in any charter school located within its District.

Charter school personnel should be apprised of the LEA's referral policies and procedures to ensure prompt referrals from charter school personnel who suspect that a student may have a disability.

LEAs may, and should, invite personnel from the charter school to students' IEP meetings. If the charter school teacher is the student's regular education teacher that teacher's participation on the team is mandatory. 20 U.S.C. § 1414(d)(1)(B)(ii).

The IDEIA contains a preference for placement in the least restrictive environment. 20 U.S.C. § 1412(a)(5). Currently, charter schools are not listed on New Hampshire's continuum of alternative learning environments. See N.H. R. Ed. 1115.04(b), Table 1100.2. It is possible that placement at a charter school would be appropriate for a child with disabilities. The LEA may need to determine, based on the school's charter, whether the charter school would provide an appropriate placement in the least restrictive environment.

LEAs must serve students attending charter schools in the same manner as the LEA serves children in other public schools. This may include the provisions of 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 supplementary and related services on site at its other public schools. This may also include transportation. "Pupils residing in a district in which a charter school is located shall be provided transportation to that school by the district on the same terms and conditions as provided for in RSA 189:6^[1] and RSA 189:8^[2] and that transportation is provided to pupils attending other public schools within that district." RSA 194-B:2, IX. Any added costs for providing transportation shall be borne by the charter school. Id. Districts are not obligated to provide transportation services for pupils attending an open enrollment school outside of the pupil's district of residence.

Pupils attending charter schools must be evaluated each year, and New Hampshire assessments are part of the evaluation process. RSA 194-B:8, V. Children attending charter schools may receive alternate assessments in accordance with their IEPs.

d. 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).

Pursuant to Proposed Regulation 34 CFR 300.18, for teachers teaching in public Charter Schools, "HQT" is defined as teachers who meet the requirements in their State's public charter school law.

New Hampshire's charter school law, RSA 194-B et. seq., provides that "[t]he teaching staff of a charter school shall consist of a minium of 50 percent of teachers either New Hampshire certified or having at least 3 years of teaching experience." RSA 194-B:14, IV.

e. 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 Surburban 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.

f. State law implications

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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III - Private Schools and the IDEIA

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 LEA where the private school is located is responsible for conducting Child Find activities for parentally placed private school children.

The IDEIA sets forth the following criteria for the Child Find process for children enrolled by parents in private schools located within the district:

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.

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).

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).

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).

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 §300.133 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.

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:

1. 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;
   
   
2. 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;
   
   
3. How parentally-placed children with disabilities identified through the Child Find process can meaningfully participate in special education and related services;
   
   
4. 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;
   
   
5. 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.

The US DOE has opined that consultations will involve discussions between the LEA, the private school representatives, and representatives of the parents. The discussion should involve key issues relating to the provision of special education and related services. A unilateral offer of services by an LEA with no opportunity for discussion is not adequate consultation.

After the consultation has occurred, the LEA must obtain a written affirmation signed by the representative of the participating private school.

Private school officials have the right 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.

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:

1. initiate and conduct meetings to develop, review and revise a services plan for the child; and
   
   
2. 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:

1. The services provided to parentally-placed private school children with disabilities must be provided by personnel meeting the HQT standards of the public school;
   
   
2. A parentally-placed private school child may receive a differing amount of services than a child with a disability in a public school;
   
   
3. 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
   
   
4. Be developed, reviewed and revised consistent with IEP review and revision criteria (PR §§300.321-300.324).

These services may be provided on-site at the private school, or at another location. Funds for equitable services may not be paid directly to the private school, although equipment and supplies may be temporarily placed at the private school if the LEA can ensure that the equipment and supplies are used only for Part B purposes and can be easily removed.

b. Additional requirements for parentally-placed children in private schools

The LEA is obligated to provide parentally placed children with equitable participation in the services funded with federal IDEA funds. Aside from Child Find, children enrolled in private schools by their parents are not entitled to receive all of the special education and related services they would receive if they attended a public school. However, the LEA may, at its discretion, provide additional services beyond those services mandated by the IDEIA.

The LEA where the private school is located is responsible for conducting Child Find, including initial evaluations, of all parentally-placed private school children suspected of having a disability, including children who reside out of the district and/or State. If the parentally-placed child is eligible for services under the IDEIA, then the district of residence is responsible for providing a FAPE. Thus, if a parent decides to remove the child from the private school, the district of residence must offer a FAPE, including ESY services where appropriate.

The requirements for children in parental, private placements apply to children attending private elementary and secondary schools. See 20 U.S.C. § 1412(a)(10)(i)-(ii). The US DOE has opined that the IDEIA requirements pertaining to parentally-placed children attending private schools apply to children with disabilities aged 3 through 5 if the private school falls under the State definition of elementary education.

Although kindergarten is not mandatory in New Hampshire, New Hampshire defines elementary education as kindergarten through grade 8. Therefore, private kindergartens are included in the IDEIA's private school requirements. This is the case even when a district does not operate a public kindergarten. The LEA where the private kindergarten is located is responsible for ensuring that the provisions of the IDEIA are carried out.

New Hampshire's definition of elementary education does not include preschool. Thus, for children attending private pre-schools the LEA where the child resides is responsible for Child Find activities.

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IV - IEP Meeting Attendance

A member of the IEP Team may be excused from attending an IEP meeting, in whole or in part, if the parent of a child with a disability and the local educational agency agree that the attendance of such member is not necessary because the member's area of curriculum or related services is not being modified or discussed, or because the member has submitted input to the team in writing. Such agreements must be in writing. 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

1. that member, the parent, and the local educational agency consent to the excusal; and
   
   
2. 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 at all or part of a meeting shall be in writing. A sample form is attached as Exhibit A.

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V - A Closer Look at the District of Liability: In re Juvenile 2004-789-A, -B, 04-789 (N.H. April 7, 2006)

The New Hampshire Supreme Court recently issued a decision that provides a bright-line test for determining the district of liability pursuant to RSA §§ 193:27-29. In re Juvenile 2004-789-A, -B, 04-789 (N.H. April 7, 2006).

Facts: On October 27, 2003, a petition for abuse and neglect was filed, alleging that Juvenile B had been neglected by his mother. Prior to the filing of this petition, Juvenile B lived in Manchester with his mother. The child's father is hospitalized out-of-state. On or about October 27, the child's mother left Juvenile B in the care of a friend in Manchester; she was admitted to a nursing home in Sullivan County on October 28. She remained there until April 2005. The Sullivan County Nursing Home is located within the Unit School District.

Pursuant to a court order, on October 31 "legal supervision" was awarded to DCYF. At the same time, the court ordered that the child remain with the mother's friend while DCYF investigated. On November 4, the court found "reasonable cause to believe" that Juvenile B was neglected, and awarded legal custody to DCYF, with orders to place him in a licensed and certified out-of-home placement. DCYF placed him in the Nashua Children's Home on November 10. Prior to that time, Juvenile B had lived and attended school in Manchester.

Procedural Background: The District Court held that Unity was the sending district, pursuant to RSA 193:27, IV.

Legal Framework: RSA 197:23, IV defines "sending district" as follows:

the school district in which a child most recently resided . . . if such child is not in the legal custody of a parent or if the parent resides outside the state; if the child is retained in the legal custody of a parent residing within the state, 'sending district' means the school district in which the parent resides. When custody is transferred subsequent to the original placement of a child in a home for children, . . . the 'sending district' shall be, from the change in legal custody or guardianship forward, that district in which the child resided at the time of the original placement.

RSA 197:23, IV, above, contains two definitions. The first definition applies when a child is not in the legal custody of a parent or if the parent resides outside the state. The second definition applies when the child remains in the legal custody of a parent residing within the state.

The sending district's liability for educational expenses of a child placed in a home for children is described in 193:29, I, which reads, in relevant part:

For any child placed and cared for in any home for children or health care facility, the sending district shall make payments to the receiving district . . .

Decision: The Court held that the relevant time frame for determining which district is the sending district should be based upon when the child is actually placed and cared for in any home for children or health care facility. Until a child is actually placed and cared for in a home for children, there is no sending district, no receiving district, and consequently, no financial liability for that child.

Noting that at the time of his placement on November 10, 2003, Juvenile B was in the legal custody of DCYF the Court concluded that the sending district would be the school district in which Juvenile B most recently resided. The Court affirmed that the term 'resided' "refers to the place where a child actually lived, rather than to legal residence of domicile." Citing In re Gary B., 124 N.H. 28, 32 (1983). Prior to his placement, Juvenile B lived in Manchester. Thus, the Court held that Manchester was the sending district.

What this means: In a dispute between districts as to which district is the sending district, the determination will be based on the date of the original actual placement in the home for children. When the child is not in the legal custody of his parents, the district in which the child most recently resided will be the district where the child actually lived, regardless of whether the child is a legal resident of that district.

A copy of this decision is available at:

http://www.courts.state.nh.us/supreme/opinions/2006/juven025.pdf

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VI - The Summary of Performance

A Summary of Performance is required under the IDEIA. Pursuant to the IDEIA, for a child whose eligibility under special education terminates due to graduation with a regular diploma, or due to exceeding the age of eligibility, the local education 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. 20 U.S.C. § 1414(c)(5)(B)(ii).

The IDEIA does not require a Summary of Performance for students who are graduating with a modified diploma or another diploma or certificate. As a Best Practice, however, Districts should provide a Summary of Performance for these students as well.

The summary should be completed by a teacher, guidance counselor, transition specialist.

The summary of the child's academic achievement connotes a descriptive narrative outlining the levels of academic achievement in areas such as literacy, mathematics, English, reasoning, processing, communication, etc. The summary of functional performance should relate to the student's performance on their functional goals. This summary should describe behaviors in different environments - interaction with peers at school, in the community, self-determination, mobility, safety, etc. Finally, the summary is required to include recommendations on how to assist the child in meeting the child's post-secondary goals. For example, attending college orientation, meeting with a counselor at a college, completing employment applications, etc. The recommendation should also include accommodations which may be required in the child's post-secondary educational experience.

A sample summary of performance form is attached as Exhibit C.

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VII - Amending the IEP

The IEP Team must hold at least one annual meeting. However, the parent and LEA may agree not to convene a meeting to amend or modify an IEP and instead may make amendments or modifications in writing. 20 U.S.C. § 1414 (d)(3)(D).

Upon request, the parent shall be provided with a revised copy of the IEP with the amendments incorporated. (F).

It will be important to document, in writing, that the parent and the LEA agreed not to convene a meeting to amend/modify the IEP. A sample form is attached as Exhibit B. In the alternative, the IEP could be amended to permit the parent and LEA to indicate their agreement on the IEP itself.

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VIII - The Regulatory Authority of the State

In amending Part A, Congress added a new section entitled "State Administration." 20 U.S.C. § 1407. This Section requires states to ensure that their rules, regulations and policies conform to the purposes of the Act. It also requires states to "minimize the number of rules, regulations, and policies to which the [LEAs] and schools . . . are subject [to] under [the Act]."

In a further effort to align the reauthorization with the NCLB, this section requires that "[s]tate rules, regulations, and policies under this [Act] shall support and facilitate local educational agency and school-level systemic improvement designed to enable children with disabilities to meet the challenging State student academic achievement standards." 20 U.S.C. § 1407(b) (emphasis added).

The new section also requires states to identify in writing to the LEAs any rules, regulations, or policies, that are State-imposed and not required by the Act or the Federal regulations.

The areas under which the IDEIA and the proposed federal regulations permit states to impose their own requirements include, but are not limited to, the following:

Each LEA will be informed as to the extent to which any New Hampshire rules, regulations, or policies differ from the requirements of the IDEIA and/or the proposed rules.

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Notes:

1. RSA 189:6 provides that "[t]he local school district shall furnish transportation to all pupils in grade 1 through grade 8 who live more than 2 miles from the school to which they are assigned. The local school board may furnish transportation to kindergarten pupils, pupils in grades above the eighth or to any pupils residing less than 2 miles from the school to which they are assigned, when it finds that this is appropriate, and shall furnish it when so directed by the commissioner of education."