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 The Eligibility Determination: Who is entitled to an IEP?

a. Requesting an evaluation and parental consent

A parent, state educational agency, local educational agency, or "other state agency or local educational agency" may initiate a request for initial evaluation to determine if the child is a child with a disability. 20 U.S.C. § 1414(a)(1)(B). Except in cases where the child is a ward of the state and the parent lacks parental rights, parental consent is an absolute precondition to the conduct of an initial evaluation. If the parent does not consent to the initial evaluation or fails to respond, the district shall not be considered to be in violation of the requirement to make FAPE available to the child, at least as to the request for an evaluation or shall be required to convene an IEP meeting or develop an IEP for the child.

The practitioner will need to be aware of the differing consent requirements where the child is a "ward of the state" and not residing with the child's parent. Under such circumstances, the district is required to make "reasonable efforts to obtain the informed consent from the parent of the child for an initial evaluation to determine whether or not the child has a disability." However, there are three exceptions to the requirement to obtain written prior consent, when the child is a "ward of the state." They are as follows:

1. Despite reasonable efforts to do so, the district cannot find the parent;
   
   
2. The rights of the parent have been terminated; or
   
   
3. The rights of the parent to make educational decisions have been subrogated by a judge in accord with state law and consent for an initial evaluation has been given by an individual appointed by the judge to represent the child.

b. Eligibility determination

A team of qualified professionals and the parents must determine whether the child is a child with a disability. A copy of the evaluation report and the documentation of the eligibility determination must be given to the parents.

A child shall not be determined to be a child with a disability if the determinant factor for the determination is:

1. A lack of appropriate instruction in reading, including the essential components of reading instruction, as defined in Section 1208(3) of the Elementary and Secondary Education Act (ESEA) of 1965;
   
   
2. Lack of instruction in math; or
   
   
3. Limited English proficiency.

20 U.S.C. § 1414(b)(5).

Section 1208(3) of the ESEA refers to the definition of Essential Components of Reading Instruction in No Child Left Behind (NCLB), which defines essential components of reading instruction as explicit and systematic instruction in phonemic awareness, phonics, vocabulary developments, reading fluency, including oral reading skills, and reading comprehension strategies. 20 U.S.C. § 6368(3).

i. Specific learning disabilities

When determining whether a child has a specific learning disability, a LEA shall not be required to take into consideration whether a child has a severe discrepancy between achievement and intellectual ability in oral expression, listening comprehension, written expression, basic reading skill, reading comprehension, mathematical calculation, or mathematical reasoning. 20 U.S.C. § 1414(b)(6)(A).

The LEA may use a process that determines if the child responds to scientific, research-based intervention as a part of the evaluation procedures.

NCLB defines scientifically based research as "research that involves the application of rigorous, systematic, and objective procedures to obtain reliable and valid knowledge relevant to education activities and programs, and includes research that:

1. Employs systematic, empirical methods that draw on observation or experiment;
   
   
2. Involves rigorous data analyses that are adequate to test the stated hypothesis and justify the general conclusions drawn;
   
   
3. Relies on measurements or observational methods that provide reliable and valid data access across evaluators and observers, across multiple measurements and observations, and across studies by the same or different investigators;
   
   
4. Is evaluated using the experimental or quasi-experimental designs;
   
   
5. Ensures that experimental studies are presented in sufficient detail and clarity to allow for replication, and
   
   
6. Has been accepted by a peer-reviewed journal or approved by a panel of independent experts through a comparably rigorous, objective, and scientific review.

20 U.S.C. § 7707(b)(37).

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III - The Observation: Are you a trained observer?

At least one of the following individuals, trained in observation, must observe a child suspected of having a specific learning disability, in their learning environment, including the regular classroom setting, to document academic performance and behavior in the areas of disability:

1. Special education teacher;
   
   
2. General education teacher (other than the child's current teacher);
   
   
3. Another professional, such as a school psychologist, reading teacher, or educational therapist

Proposed regulation 34 C.F.R. § 300.310.

The individual conducting the observation must be "one member of the group," charged with the task of determining whether or not the child has a specific learning disability. When the child is either less than school age or out of school, the group member must observe the child in an "environment appropriate for a child of that age."

The proposed regulations are silent as to what it means to be "trained in observation." However, one can surmise that the area of training is in the area of identifying what a student's learning style, functional behaviors and potential learning weaknesses. This means that the observation needs to focus not simply on a summary of the child's activities in the classroom, but instead needs to move beyond the summary to include observations with regard to the manner in which the child learns and participates (or does not) participate in the learning process.

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IV - Changes to IEP Content: What will your 2006-07 IEPs look like?

a. What is an IEP?

An IEP is a written statement that includes a statement of the child's present levels of academic achievement and functional performance, including how the child's disability affects the child's involvement and progress in the general education curriculum." 20 U.S.C. § 1414(d)(1)(A)(i)(I)(aa).

IEPs must be in effect at the start of each school year. 20 U.S.C. § 1414(d)(2)(A).

b. Development of the IEP and consideration of special factors

In developing the IEP, the Team must now consider the functional needs of the child, as well as the child's academic and developmental needs. The special factors to be considered by the IEP Team remain the same. When a child's behavior impedes their learning or that of others, the Team is required to consider "the use of positive behavioral interventions and supports, and other strategies, to address that behavior."

It is important to note that the law explicitly states that it is the role of "the regular education teacher of the child, as a member of the IEP team,...to the extent appropriate" to determine "appropriate positive behavioral interventions and strategies and...supplementary aids and services, program modifications and support for school personnel..."

c. Progress

IEPs must contain "a description of how the child's progress toward meeting the annual goals . . . will be measured and when periodic reports on the progress the child is making toward meeting the annual goal (such as through the use of quarterly or other periodic reports, concurrent with the issuance of report cards) will be provided." 20 U.S.C. § 1414(d)(1)(A)(i)(III).

d. Benchmarks and short term objectives

Benchmarks and short-term objectives are now limited to those "children with disabilities who take alternate assessments aligned to alternate achievement standards."

e. Related services

The statement of the necessary special education and related services and supplementary aids and services shall be "based on peer-reviewed research to the extent practicable." 20 U.S.C. § 1414(d)(1)(A)(i)(IV).

f. Accommodations

The IEP must contain a "statement of any individual appropriate accommodations that are necessary to measure the academic achievement and functional performance of the child on State and districtwide assessments." 20 U.S.C. § 1414(d)(1)(A)(i)(VI)(aa).

g. Transition services

The IDEIA omits the formerly required transition service needs statement for 14-year-old children. Instead, "beginning not later than the first IEP to be in effect when the child is 16, and updated annually thereafter, [the IEP must contain] appropriate measurable postsecondary goals based upon age appropriate transition assessments related to training, education, employment, and, where appropriate, independent living skills, the transition services (including courses of study) needed to assist the child in reaching those goals; and beginning not later than 1 year before the child reaches the age of majority under State law, a statement that the child has been informed of the child's rights under [the IDEIA], if any, that will transfer to the child on reaching the age of majority." 20 U.S.C. § 1414(d)(1)(A)(i)(VI)(bb).

h. Rule of construction

A new "rule of construction" indicates that IEP content requirements should not be construed as requiring the insertion of additional information nor is the IEP Team required to include information under one component of a child's IEP that another component of the IEP already contains.

i. Proposed regulations

PR §300.320 Definition of Individualized Education Program [IEP]: This new section replaces and expands the cursory definition of the current regulations with a much more extensive definition of an IEP. While many of the provisions in the new definition of an IEP are taken from the current regulations (§§300.346-300.347), there are also modifications which reflect the new provisions of the Act. An IEP must include:

1. A statement of the child's present levels of academic achievement (cf "Educational Performance," and Functional Performance), including (i) how the child's disability affects their involvement and progress in the general education curriculum (note the word "education" has been inserted; or (ii) for preschool children, as appropriate, how the disability affects the child's participation in appropriate activities) (this section has not changed);
   
   
2. A statement of measurable annual goals including academic and functional goals designed to meet the child's needs that result from the child's disability to enable the child to be involved in and make progress in the general education curriculum and meet each of the child's other educational needs that result from the child's disability, for children with disabilities who take alternate assessments aligned to alternate achievement standards, a description of benchmarks or short term objectives;
   
   
3. A description of (i) how the child's progress toward meeting the annual goals described above will be measured; and (ii) when periodic reports will be made on the progress the child is making toward meeting the annual goals such as through these quarterly or other periodic reports, concurrent with the issuance of report cards will be provided;
   
   
4. A statement of the special education and related services and supplementary aids and services (based on peer reviewed research to the extent practicable) to be provided to the child or on behalf of the child and a statement of program modifications or supports for school personnel that will be provided to enable the child (i) to advance appropriately toward obtaining the annual goals; (ii) to be involved in and make progress in the general education curriculum, and participate in extracurricular and other non-academic activities; and (iii) to be educated and participate with other children with disabilities and non-disabled children in the "activities described in this section.";
   
   
5. An explanation of the extent, if any, to which the child will not participate with non-disabled children in the regular education environment ("regular class") and in the activities described in paragraph 4 above;
   
   
6. A statement of any individual appropriate accommodations that are necessary to measure the academic achievement and functional performance of the child on state assessment and district-wide assessment; and (ii) if the IEP Team determines that the child must take alternate assessments, a statement of why the child cannot participate in a regular assessment; and a statement that the particular alternate assessment selected is appropriate for the child; and
   
   
7. The projected date for the beginning of the special education services described for the child and the anticipated frequency, location and duration of those services and modifications.

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V - IEP Team Members and Attendance

a. The IEP team

The IEP Team is comprised of the following individuals:

1. the parents of a child with a disability;
   
   
2. not less than 1 regular education teacher of such child (if the child is, or may be, participating in the regular education environment);
   
   
3. not less than 1 special education teacher, or where appropriate, not less than 1 special education provider of such child;
   
   
4. a representative of the local educational agency who
   
   
   1. is qualified to provide, or supervise the provision of, specially designed instruction to meet the unique needs of children with disabilities;
      
      
   2. is knowledgeable about the general education curriculum; and
      
      
   3. is knowledgeable about the availability of resources of the local educational agency
      
      
5. an individual who can interpret the instructional implications of evaluation results, who may be a member of the team described in clauses (ii) through (vi);
   
   
6. at the discretion of the parent or the agency, other individuals who have knowledge or special expertise regarding the child, including related services personnel as appropriate; and,
   
   
7. whenever appropriate, the child with a disability.

20 U.S.C. § 1414(d)(1)(B).

Upon request of the parent, the IEP Team must invite the Part C coordinator or other representatives to the initial IEP meeting to "assist with the smooth transition of services." 20 U.S.C. § 1414(d)(1)(D).

i. Recent decisions

M.L. v. Fedr'l Way Sch. Dist., 387 F.3d 1101 (9th Cir. 2004) failure to have at least one regular education teacher on the IEP team, when there was a possibility that the student might be placed in an integrated regular education classroom, was a critical defect in the constitution of the IEP team.

Deal v. Hamilton Co. Bd. of Ed., 392 F.3d 840 (6th Cir. 2004) finding for the parents - the failure to include at least one regular education teacher on the IEP team had a real impact on the decision-making process

What this means: the attendance of at least one regular education teacher is vitally important to the constitution of the IEP team.

b. Attendance

An exception process now qualifies the general Team attendance requirement. A member of the IEP Team shall not be required to attend an IEP meeting, in whole or in part, if that member, the parent of a child with a disability, and the local educational agency agree that the attendance of such member is not necessary because no modification to the member's area of the curriculum or related services is being modified or discussed in the meeting.

A member of the IEP Team may be excused from attending an IEP meeting, in whole or in part, when the meeting involves a modification to or discussion of the member's area of the curriculum or related services, if

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 or to excuse attendance shall be in writing.

20 U.S.C. § 1414(d)(1)(C).

i. Parent participation in meetings

The procedural safeguards have been amended to provide that a meeting does not include informal or unscheduled conversations involving public agency personnel and conversations on issues such as teaching methodology, lesson plans, or coordination of service provision if those issues are not addressed in the child's IEP. Finally, a meeting does not include preparatory activities that public agency personnel engage in to develop a proposal response to a parent proposal that will be discussed at a later meeting.

When conducting IEP team meetings and placement meetings the parent of a child with a disability and a LEA may agree to use alternative means of meeting participation, such as video conferences and conference calls. 20 U.S.C. § 1414(f).

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VI - The Summary of Performance

Evaluations are not required before termination of eligibility due to graduation from secondary school with a regular diploma or due to exceeding the age eligibility for a FAPE under State law. 20 U.S.C. § 1414(c)(5)(B)(i).

When a child whose eligibility terminates due to graduation from secondary school with a regular diploma or due to exceeding the age eligibility for a FAPE, the LEA shall provide the child with a summary of the child's academic achievement and functional performance, which shall include recommendations on how to assist the child in meeting the child's postsecondary goals. 20 U.S.C. § 1414(c)(5)(B)(ii).

The summary of the child's academic achievement connotes something more than an academic report card. Instead, it connotes a descriptive narrative outlining the levels of academic achievement. Similarly, the summary of the child's functional performance echoes back to changes in the scope of IEP content, such that IEP's are now required to contain measurable functional goals. The summary of functional performance should relate to the student's performance on their functional goals. Finally, the summary is required to include recommendations on how to assist the child in meeting the child's post-secondary goals. While this may, in some cases, be related to transition planning, the recommendation should include, but not be limited to accommodations which may be required in the child's post-secondary educational experience.

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VII - "Plug and Play" IEPs: The portable student

a. Transfers within the same State

Children with a disability who transfer school districts within the same academic year, who enroll in a new school, and who had an IEP that was in effect in the same State, the LEA shall provide such child with a FAPE, including services comparable to those described in a previously held IEP, in consultation with the parents until such time as the LEA adopts the previously held IEP or develops, adopts, and implements a new IEP that is consistent with Federal and State law. 20 U.S.C. § 1414(d)(2)(C)(i)(I).

b. Transfers to different states

In the case of a child with a disability who transfers school districts within the same academic year, who enrolls in a new school, and who had an IEP that was in effect in another State, the local educational agency shall provide such child with a free appropriate public education, including services comparable to those described in the previously held IEP, in consultation with the parents until such time as the local educational agency conducts an evaluation pursuant to subsection (a)(1), if determined to be necessary by such agency, and develops a new IEP, if appropriate, that is consistent with Federal and State law. 20 U.S.C. § 1414(d)(2)(C)(i)(II).

c. Transmittal of records

To facilitate the transition for a child who transfers within the same State, or to a different State, the new school in which the child enrolls shall take reasonable steps to promptly obtain the child's records, including the IEP and supporting documents and any other records relating to the provision of special education or related services to the child, from the previous school in which the child was enrolled and the previous school in which the child was enrolled shall take reasonable steps to promptly respond to such request from the new school.

d. Assessments

LEA's must ensure that assessments of children with disabilities who transfer from one school district to another school district in the same academic year are coordinated with such children's prior and subsequent schools, as necessary and as expeditiously as possible, to ensure prompt completion of full evaluations.

It is important to note however, that the forty-five (45) day time frame for initial evaluations is tolled if:

1. The child has enrolled in the LEA after an evaluation has been started, but not completed in the other school district;
   
   
2. The school district is "making sufficient progress to ensure a prompt completion of the evaluation, and the parent and subsequent district agree to a specific time when the evaluation will be completed;" or
   
   
3. The parent of a child repeatedly fails or refuses to produce the child for evaluation.

e. Proposed regulations

PR §300.323 (e) Program for Children who Transfer Public Agencies: Implements the new requirements regarding programs for children who transfer public agencies within the same academic year. The proposed regulation would require as to transfers in the same state that the new school district provide the child with FAPE, including services comparable to those described in a previously held IEP until the public agency adopts the previously held IEP or develops, adopts, and implements a new IEP that is consistent with Federal and State law.

PR §300.323(e)(1)(ii) would incorporate a statutory change that requires, in the case of a child who had an IEP in effect and who transfers from a public agency outside the State in the same academic year, that the public agency provide the child with FAPE, including services comparable to those described in the previously held IEP, until the public agency conducts an evaluation of the child, if determined necessary by the public agency, and develops a new IEP for the child, if appropriate, that is consistent with Federal and State law.

PR §300.323(e)(2) incorporates the new requirement in section 614(d)(2)(C)(ii) of the Act regarding transmittal of education records to facilitate the transition of a child who transfers public agencies within the same State. It also addresses the responsibility of the new public agency and previously public agency to take reasonable steps regarding making prompt requests for, and transmission of, education records consistent with 34 CFR 99.31(a)(2), implementing FERPA.

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VIII - Charter Schools and the IDEA

a. What is a Charter School?

The IDEIA does not define the term "charter school." However, under the IDEIA, the definition of elementary and secondary schools includes public elementary and secondary charter schools. A public charter school may be a LEA, a public school of an LEA, or an entity that is neither an LEA nor a public school of an LEA. Proposed Regulation 34 C.F.R. § 300.209(b)-(d).

Proposed regulation 34 C.F.R. § 300.7 refers to the definition of charter school contained in the Elementary and Secondary Education Act of 1965, 20 U.S.C. § 6301 ("ESEA").

The ESEA defines charter school as "a public school that

1. in accordance with a specific State statue authorizing the granting of charters to schools, is exempt from significant State or local rules that inhibit the flexible operation and management of public schools, but not from any rules relating to the other requirements of this paragraph;
   
   
2. is created by a developer as a public school, or is adapted by a developer from an existing public school, and is operated under public supervision and direction;
   
   
3. operates in pursuit of a specific set of educational objectives determined by the school's developer and agreed to by the authorized public chartering agency;
   
   
4. provides a program of elementary or secondary education, or both;
   
   
5. is nonsectarian in its programs, admissions policies, employment practices, and all other operations, and is not affiliated with a sectarian school or religious institution;
   
   
6. does not charge tuition;
   
   
7. complies with the Age Discrimination Act of 1975 [42 USCS §§ 6101 et seq.], title VI of the Civil Rights Act of 1964 [42 USCS §§ 2000d et seq.], title IX of the Education Amendments of 1972, section 504 of the Rehabilitation Act of 1973 [29 USCS § 794], and part B of the Individuals with Disabilities Education Act [20 USCS §§ 1411 et seq.];
   
   
8. is a school to which parents choose to send their children, and that admits students on the basis of a lottery, if more students apply for admission than can be accommodated;
   
   
9. agrees to comply with the same Federal and State audit requirements as do other elementary schools and secondary schools in the State, unless such requirements are specifically waived for the purpose of this program;
   
   
10. meets all applicable Federal, State, and local health and safety requirements;
    
    
11. operates in accordance with State law; and
    
    
12. has a written performance contract with the authorized public chartering agency in the State that includes a description of how student performance will be measured in charter schools pursuant to State assessments that are required of other schools and pursuant to any other assessments mutually agreeable to the authorized public chartering agency and the charter school.

20 USCS § 7221i(1).

b. Charter schools and the IDEIA

Children with disabilities who attend public charter schools and their parents retain all IDEIA rights granted to children who attend other public schools. Proposed regulation 34 C.F.R. § 300.209(a).

LEAs are required to serve children with disabilities attending those schools in the same manner as the LEA serves children with disabilities in its other schools, including providing supplementary and related services on site at the charter school to the same extent to which the LEA has a policy or practice of providing such services on site at its other public schools. 20 U.S.C. § 1413(a)(5)(A).

If the public charter school is an LEA, then the charter school is responsible for ensuring that the requirements of this part are met, unless the State assigns the responsibility to another entity. Proposed regulation 34 C.F.R. § 300.209(c). If the public charter school is not an LEA or part of an LEA, then the SEA is responsible for ensuring that the requirements of the IDEIA are met. Id. at § 300.209(d).

States may use funds to carry out alternate programming for children with disabilities attending charter schools. 20 U.S.C. § 1411(e)(2)(C)(ix).

c. Does the HQT requirement apply to Charter schools?

The U.S. DOE has opined that charter school teachers must hold at least a bachelor's degree and must demonstrate competence in the core academic areas in which they teach. However, No Child Left Behind does not require that charter school teachers be fully certified. Rather, charter school teachers must only meet the requirements of the State's public charter school law, which may differ from the requirements for full State certification. See U.S. Dep't of Ed. Improving Teacher Quality Non-Regulatory Guidance, Revised August 3, 2005 (Q/A #A-27).

d. Recent decisions

IDEA Pub. Charter Sch. v. D.C., 374 F.Supp.2d 158 (D. D.C. 2005)

Facts: parents of a child attending a public school authorized the school to complete an evaluation. Before the evaluation was complete, the child transferred to the charter school. The charter school completed the evaluations and requested a due process hearing, seeking reimbursement from the district.

Held: charter school, which was an LEA, could not obtain reimbursement from the school district; hearing officer did not have jurisdiction over a dispute between two LEAs

York Suburban Sch. Dist. v. S.P., (P.A. Commonwealth Ct. 2005): parents brought suit against a school district seeking compensatory services and subsequently enrolled their child in a charter school. Held: enrollment in a charter school did not render the state-law action against the school district moot.

e. State law implications

NH RSA 194-B establishes the law in New Hampshire with regard to Charter Schools. Fundamentally, charter schools may be created either by vote of the legislative body or in the alternative, by approval through the State Board of Education. NH RSA 194-B:8(I) provides that, "A charter school shall not discriminate nor violate individual civil rights in any matter prohibited by law. A charter school shall not discriminate against any educationally disabled pupil." Arguably, this one sentence sufficiently invokes an obligation on the part of the public's charter school to comply with the Individuals with Disabilities Education Improvement Act.

Interestingly enough, NH RSA 194-B:6 provides that, "No host, sending, or receiving district shall be held liable for damages in an action to recover for: (a) bodily injury, personal injury, or property damage as defined in RSA 507-B:1, or (b) for failure to educate pupils, where such actions arise out of the establishment or operation of a charter school."

With the IDEA Reauthorization and its provisions pertaining directly to the responsibilities of school districts for public charter schools, it will necessary to reconcile these provisions with the LEA's obligation to ensure the delivery of services in the public charter school.