A Report on the Status of the 2003 Reauthorization of the Individuals with Disabilities Education Act

This article was originally presented by the author to the New Hampshire Association of Special Education Administrators on April 18, 2003.

Table of Contents

I - Overview

The purpose of this material is to provide the special education administrator with the status of the efforts by Congress to reauthorize the Individuals with Disabilities Education Act. The reader is reminded that Congress has not yet completed its efforts to reform and reauthorize the Individuals with Disabilities Education Act and therefore, this material is time sensitive. This material is not intended to substitute for legal counsel nor is it intended to provide an exhaustive statement of the proposed reauthorization of the Individuals with Disabilities Education Act ("IDEA").

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II - What's in a Name?

The reauthorization of the IDEA has been accompanied with a new name. House Bill 1350 which both reforms and amends the IDEA is actually entitled "Improving Education Results for Children with Disabilities Act of 2003." The political motivation behind the new name is to affirm the concept that, "The Individuals with Disabilities Education Act has greatly succeeded in providing children with disabilities access to public schools." See Statement of Chairman John A. Boehner, Committee of Education and the Workforce, 108^th Congress April 9, 2003. The stated purpose of the name change is to affirm the principle that "[access] is no longer enough. Now more than ever, we must make sure that children with disabilities receive an education that maximizes their unique abilities and provides them with the tools they need for later success." Id. (Emphasis added).

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III - Legislative Status

On April 2, 2003, the Subcommittee on Education Reform, voted by voice vote to favorably report HR 1350 as amended to the Committee on Education and the Workforce. On April 10, 2003, the full committee voted to favorably report HR 1350 to the House by a vote of 29 to 19. The next steps in the legislative process will include moving the Bill to the House floor and then on to Conference with the Senate Committee.

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IV - The Political Rhetoric

According to Congressman John A. Boehner, Chairman of the Committee on Education and the Workforce, the IDEA is not simply being reauthorized, but also is the subject of reform. According to Boehner, "Over the past year we have focused on our principles for reform of IDEA. These principles have served as a foundation of our work to improve the IDEA and will continue to be our guide as we move ahead with the process. These principles are:

1. Increasing accountability and improving education results for students with disabilities;
2. Reducing the paperwork burden;
3. Improving early intervention strategies;
4. Reducing overidentification/misidentification of non-disabled children, including minority youths;
5. Encouraging innovative approaches to parental involvement and parental choice;
6. Supporting general education and special education teachers;
7. Rewarding innovation and improved education results;
8. Restoring trust and reducing litigation;
9. Insuring school safety; and
10. Reforming special education finance and funding." Id.

The 2003 version of the IDEA seeks reconciliation with the No Child Left Behind Act. According to Boehner, "With the passage of the No Child Left Behind Act (NCLB), children with disabilities now have a greater opportunity to achieve their goals than ever before. We have raised expectations and will hold school districts accountable for the annual progress of all their students, including students with disabilities. HR 1350 carefully aligns the IDEA with NCLB to ensure that students with disabilities are included in the accountability systems of States and school districts." Id.

The National Association of State Directors of Special Education (NASDSE), the National School Board Association (NSBA) and numerous other national organizations have actively lobbied Congress on desired reforms to the IDEA. A number of the stated congressional goals align with the legislative priorities set forth by NASDSE. NASDSE has developed nine (9) focus areas for legislative consideration. They include the following:

1. Accountability for results;
2. Unified system of education;
3. Interagency coordination;
4. Early intervention and preschool services;
5. Conflict Resolution System;
6. Access to services in charter schools and other choice options;
7. Discipline/positive behavior supports;
8. A conflict resolution system; and
9. Increased federal funding for the IDEA.

For more detail on the position maintained by the NASDSE see www.nasdse.org/lpriorites.

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V - Proposed Funding

The funding level proposed by President Bush for fiscal year 2004 is 19%. The Republicans are claiming credit for this increased funding observing that, "Since the GOP took control of the House in 1995 federal funding for special education has increased by 282%, compared to only 62% during the previous eight years under Democrat control." See Press Release, "Committee on Education and the Workforce March 19, 2003. ⁽¹⁾

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VI - Section -by-Section Analysis of the "Improving Education Results for Children with Disabilities Act."

The new and reformed version of the IDEA amends most sections of the 1997 IDEA reauthorization. ⁽²⁾ The analysis set forth below focuses on the amendments which impact the day-to-day practice of the special education administrator rather than those amendments which affect governmental functions.

A. Part A - General Provisions

While the reauthorization is given the short title "Improving Education Results for Children with Disabilities Education Act of 2003," Section 601 continues to state that the short title of the Act will be the "Individuals with Disabilities Education Act."

1. Definitions (Section 602)

Most of the defined terms remain intact from the 1997 reauthorization. However, the following new terms are defined.

a. Highly qualified, Section 602(9)

The term 'highly qualified' is defined as having the same meaning "as that term in Section 9101 of the Elementary and Secondary Education Act of 1965." This definition has been inserted to provide consistency and the standards for educators under the IDEA and the NCLB.

b. Parent and Community Training and Information Center, Section 602(22).

The definition of a "Parent Training and Information Center" has been expanded to include the term community, referring to the center as a "Parent and Community Training and Information Center."

2. Requirements for Prescribing Regulations (Section 607)

This section has been amended to limit the ability of the Secretary of Education to issue regulations under the new Act to those regulations which "are reasonably necessary to ensure that there is compliance with the specific requirements of this Act." The Secretary's authority has also been limited with regard to policy letters and statements indicating that "The Secretary may not issue policy letters or other statements (including on issues of national significance) that - (1) would violate or contradict any provision of this Act." In addition, all policy interpretations involving issues of national significance must now go through the regulatory process set forth in Section 553 of Title V, United States Code.

3. State Administration (New Section 608)

Part A has been amended to add a new Section 608 entitled "State Administration." This Section now requires states to ensure that their state regulations conform to the purposes of the Act and further requires that they shall "minimize the number of rules, regulations, and policies to which the state's local educational agencies and schools are subject to under this Act." In a further effort to align the reauthorization with the NCLB, the new State Administration section requires that, "[a]ll state rules, regulations and policies pertaining to this Act shall support and facilitate local educational agency and school-level systemic reform designed to enable children with disabilities to meet the challenging state student academic achievement standards." See Section 608(b).

4. GAO Review and Report

This new section requires that the Comptroller General shall conduct a review of all federal requirements under the IDEA and the requirements of a reasonable sample of state and local educational agencies relating to such Act, to determine which requirements result in excessive paperwork completion burdens for teachers, related service providers and school administrators. The General Accounting Office has been given two (2) years in which to report to Congress with the results of its review.

B. Part B - Assistance for Education of All Children with Disabilities.

1. Granting Authority (Section 611)

The maximum grant amount a state may receive is now subject to an additional limitation. The maximum amount of the grant a state may receive under Section 611 for a fiscal year "may not be based on the number of children ages 3-17, inclusive, in excess of 12% of the number of all children in that age range in the state." See Section 611(a)(3).

This Section modifies the "sliver grant" by requiring that the funds be used for grants to local education agencies ("LEA's") that are identified as in need of improvement as a result, in whole or in part, of the performance of the disaggregated group of students with disabilities. This targeting of funds is designed to provide consistency with the NCLB Act.

The identified state level activities now include the use of state level grants for voluntary binding arbitration processes as required by Section 612(a)(17) and 615(e), including providing for the cost of mediators, arbitrators and support personnel. The state is also permitted to use certain retained grant funds for the following activities:

Meeting performance goals established by the state under 612(a)(15);

Paperwork reduction activities including expanding the appropriate use of technology in the IEP process;

Development and maintenance of a comprehensive coordinated prereferral educational support system for students in kindergarten through grade 12 (with a particular emphasis on students in kindergarten through grade 3 who are not enrolled in special education, but who need support to succeed in a general education environment;

To support capacity building activities and improve the delivery of services by LEA's to improve results for children with disabilities to establish and implement cost and risk sharing funds, consortia or cooperatives to assist LEA's in providing high cost special education and related services; and

For subgrants to the LEA's with a particular emphasis on "local educational agencies in the State that are not adequately providing special education and related services to all children with disabilities residing in the areas they serve."

The authorized appropriations under Part B (with the exception of Section 619) are as follows:

2. State Eligibility for Federal Funding (Section 612)

Section 612 is the Section which sets forth the criterion for state eligibility for federal funds. The state's burden of proof has been amended from "demonstrate[ing] to the satisfaction of the Secretary that the state has in effect policies and procedures..." to "reasonably demonstrate[ing] to" the Secretary of Education that the state has policies and procedures to ensure that it meets the core IDEA requirements such as FAPE, Child Find, IEP development, least restrictive environment, procedural safeguards, evaluations and confidentiality.

Section 612 has also been amended to increase the LEA's Child Find responsibilities with regard to children in private schools. The LEA is now required to "conduct a thorough and complete Child Find process to determine the number of parentally-placed children with disabilities attending private schools located in the district." LEA's are also now required to maintain in their records and provide to the state the number of children evaluated in private schools that have been determined to be children with disabilities and the number of children served by the district who have been enrolled in private schools by their parents.

The focus on the 2003 IDEA reauthorization clearly includes the delivery of certain services to children enrolled in private schools. There is a detailed regimen to the Child Find process for parentally placed private school children and the Reauthorization sets forth the following criterion for this class of student:

a. Equitable participation.

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.

b. Activities.

The LEA is now required to "undertake activities similar to those activities undertaken for its public school children."

c. Cost.

The cost of carrying out the 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.

d. Completion.

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."

f. Consultation.

There is a new obligation to consult "with representatives of children with disabilities parentally placed in private schools during the design and development of special education and related services in the following categories:

With these amendments comes a right on the part of a private school official to complain to the state educational agency that the local education agency did not engage in consultation that was "meaningful and timely, or did not give due consideration to the view of the private school official." There is a procedure whereby the complaint is registered with the state educational agency and the LEA is required to forward the appropriate documentation to the state educational agency reporting its response. If the private school official is dissatisfied with the decision of the state they may complain to the Secretary of Education.

g. Provision of special education services.

The IDEA explicitly allows the district to provide services through contracts with public and private agencies, organizations and institutions. There is an explicit requirement that special education and related services, including materials and equipment shall be "secular, neutral and non-ideological."

h. Education of children enrolled in private schools without consent of, or referral by, the public agency.

There has been a minor adjustment to one of the exceptions to the limitation on reimbursement arising from a parent's failure to comply with the ten (10) business days prior notice requirement. The original language of the IDEA prohibited reimbursement from being reduced or denied for failure to provide notice if the parent was illiterate, could not write in English, or compliance with the notice would likely result in physical or serious emotional harm to the child. Now as amended the prohibition against reduction or denial for these reasons has been modified to turn on the "discretion of a court or a hearing officer."

i. New personnel standard.

The state is now required to enhance its personnel standards to "ensure that special education teachers who teach in core academic subjects are highly qualified in those subjects."

j. New performance goals.

Section 612(a)(15) requires that the state establish goals for the performance of children with disabilities in the state that "are the same as the state's definition of adequate yearly progress, including the state's objectives for progress by children with disabilities under Section 1111(b)(2)(C) of the Elementary and Secondary Education Act of 1965. These standards must also address dropout rates, as well as such other factors as the state may determine..." The state standards must now establish performance indicators the state will use to assess progress towards achieving adequate yearly progress including "measurable annual objectives for progress by children with disabilities under Section 1111(b)(2)(C) of the Elementary and Secondary Education Act of 1965."

k. Assessments.

As a general rule, all children with disabilities are to be included in state and district wide assessment programs including assessments conducted in accord with No Child Left Behind, "with appropriate accommodations, where necessary and as indicated in their respective IEP's.

l. Districtwide assessments and LEA reporting requirements.

In the case of districtwide assessments, the LEA is now required to make available to the public and report to the public with the same frequency and in the same detail as it reports on the assessment of non-disabled children, the following:

m. Dispute resolution.

The state is required to have in effect systems of mediation and voluntary binding arbitration pursuant to Section 615(e).

n. Instructional material.

States are now required to adopt the National Instructional Materials Accessibility Standard for the purposes of providing instructional materials to blind persons or other persons with disabilities in a timely manner after the publication of the standard by the Secretary of Education and the Federal Register. Two (2) years from the date of enactment of the IDEA 2003, the state must require the publisher of instructional material, as part of any purchase agreement, to prepare and supply electronic files containing the contents of the instructional materials using the National Instructional Materials Accessibility Standard.

o. Grandfathering of prior state plans.

To the extent a state has on file with the Secretary of Education policies and procedures that comply with any portion of Section 612(a) the state will be deemed to have met that requirement for purposes of receiving a grant.

3. Local Education Funding Agency Eligibility (Section 613)

The option of an LEA to treat up to 20% of the amount of the funds it receives as "local funds" has been redefined to state that if the agency elects to do such, the agency "shall use those local funds to provide additional funding for programs under the Elementary and Secondary Education Act of 1965, including, but not limited to, programs that address student achievement, comprehensive school reform, literacy, teacher quality and professional development, school safety, before- and after-school learning opportunities." The local use of funds has also been extended to school districts for the following:

Development and implement a system of comprehensive coordinated prereferral education support services;

Establish and implement costs or risk sharing funds, consortia, or cooperatives for the agency itself or for local educational agencies working in consortium of which the local educational agency is a part, to pay for high cost special education and related services;

To purchase appropriate technology for record keeping, data collection and related case management activities of teachers and related services personnel providing services described in the IEP of children with disabilities for case management purposes;

For reasonable additional expenses (as determined by the LEA) of any necessary accommodations to allow children with disabilities who are being educated in a school identified for school improvement under No Child Left Behind to be provided supplemental educational services on an equitable basis.

The provision of services in charter school has also been further defined to require that charter schools that are public schools of the LEA should provide supplemental and related services on site at the charter school when the LEA has a policy of practice providing those same services on site in its other schools.

a. Purchase of instructional materials by LEA's.

LEA's will also be required to purchase instructional materials which use the National Instructional Materials Accessibility Standard no later than two (2) years after the date IDEA 2003 is enacted.

b. More on prereferral services.

An LEA may use up to, but not more than, 15% of the amount it receives for any fiscal year, in combination with other amounts (including amounts other than education funds) to develop and implement comprehensive coordinated prereferral educational support services for students in kindergarten through grade 12 (with a particular emphasis on students in grades kindergarten through grade 3) who have not been identified as needing special ed or related services, but who need additional academic and behavioral support to succeed in a general education environment.

The LEA is authorized to perform the following activities in implementing comprehensive coordinated prereferral education services:

1. Professional development for teachers to enable them to deliver scientifically-based academic and behavioral interventions, including scientifically-based literacy instruction;

2. Providing educational evaluations, services and supports, including scientifically-based literacy instructions;

3. Providing behavioral evaluations and services and supports, including positive behavioral interventions and supports [PBIS].

This subsection clearly goes onto state that it shall not be construed "to either limit or create a right to a free appropriate public education." Those districts which maintain a comprehensive prereferral program are required to annually report to the state the number of students served under the program and the number of students who subsequently receive special education and related services under the act during the preceding two year period. These comprehensive coordinated prereferral educational support services may be aligned with activities funded by and carried out under the Elementary and Secondary Education Act of 1965 such as the Reading First program, the early Reading First program, math supports, and behavior intervention supports that improve results for children with disabilities.

4. Evaluations, Eligibility Determinations, Individualized Education Programs and Educational Placements (Section 614)

a. Request for initial evaluation.

This section of the Act, Section 614(a)(1)(B) has been amended to clarify the fact that a parent, state educational agency, "other state agency as appropriate or local educational agency" may initiate a request for an initial evaluation to determine if the child has a disability.

b. Consent for services.

An agency responsible for making FAPE available to a child with a disability under Part B shall seek to obtain informed consent from the parent before providing special education and related services to the child. In the event of a lack of consent to the initial evaluation, the LEA "may pursue the initial evaluation of the child through the procedures described in Section 615, except to the extent inconsistent with state law relating to such parental consent." However, if the parent does not provide consent for special education services, or the parent fails to respond to a request to provide the consent, the LEA "shall not provide special education and related services to the child through the procedures described in Section 615." When there is an absence of consent for initial evaluation or services the LEA "shall not be required to convene an IEP meeting or develop an IEP;" and the LEA "shall not be considered to be in violation of any requirement under this part (including the requirement to make available a Free Appropriate Public Education to the child) with respect to: the lack of an initial evaluation of the child; an IEP meeting with respect to the child; or the development of an IEP for the child.

c. Re-evaluations.

There are a number of minor changes to the re-evaluation process. The LEA is now required to ensure that a re-evaluation takes place "if the child's parent or teacher request a re-evaluation," but no more than once a year unless the parent and LEA agree otherwise. A re-evaluation must be conducted at least once every three (3) years, unless the parent and LEA agree that a re-evaluation is unnecessary.

d. Evaluation procedures.

The 1997 Reauthorization required that the LEA "use a variety of assessment tools and strategies," the substitute language for that provision is the requirement that the LEA "use multiple up-to-date measures and assessments." The "additional requirements" regarding evaluation instruments have been slightly modified. In the 1997 Reauthorization test instruments were to be provided and administered "in the child's native language or other mode of communication, unless it is clearly not feasible to do so." Now these assessments and other evaluation measures are to be provided and administered "to the extent practicable, in the language and form most likely to yield accurate academic and developmental data." The instruments are to be used for the purposes for which the assessments or measures are "valid and reliable."

e. Determination of eligibility and educational need.

The 2003 Reauthorization seeks to focus on determining "the educational needs of the child" and not simply the determination of whether or not the child is a child with a disability.

f. Amendment to the special rule for eligibility determination.

The 1997 Reauthorization precluded determining the child to have a disability if the determinate factor was lack of instruction in reading. The 2003 Reauthorization provides that a child shall not be determined to be a child with a disability if the determinate factor such determination is "lack of scientifically-based instruction practices and programs that contain the essential components of reading instruction (as that term is defined in Section 1208(3) of the Elementary and Secondary Education Act of 1965)."

g. Minimization of the discrepancy model for specific learning disabilities.

A new provision has been added which indicates that when determining whether a child has a specific learning disability the local education agency "shall not be required to take into consideration whether the 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." In determining whether a child has a specific learning disability an LEA may "use a process which determines if a child responds to scientific, research-based intervention."

h. Additional requirements for evaluation and re-evaluations.

The additional requirements section has been amended to reiterate the fact that the IEP team is required to identify what additional data if any are needed to determine not only disability, but "the educational needs of the child."

i. Individualized Education Programs (IEPs).

The focus of this section is now on academic achievement. As amended, it phases out the requirement that an IEP include benchmarks or short term objectives by the 2005-2006 school year. It does allow students subject to "alternate achievement standards" to continue to have benchmarks or short term objectives included in their IEP beyond that date.

The required statement of the special education and related services and supplementary aids and services is now required to be "based on peer-reviewed research to the extent practicable." A new "rule of construction" has been added indicating that the 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 is already contained under another component of their IEP.

j. The IEP team.

The language regarding the participation of a regular education teacher has been amended to still require their attendance, but that attendance requirement has been qualified with the language, "but such teacher shall not be required to attend a meeting or part of a meeting of the IEP team involving issues not related to the child's participation in the regular education environment, nor shall multiple regular education teachers, if the child has more than one regular education teacher, be required to attend a meeting or part of a meeting, of the IEP team."

k. Consideration of the IFSP.

The IEP team is now required to consider the IFSP in developing the IEP for a child who will turn age three (3) during the school year and the IFSP may serve as the IEP for the child if using that plan as the IEP is "consistent with state policy; and...agreed to by the agency and the child's parents."

There is also a new provision indicating that the parent of a child with a disability and the LEA may jointly excuse any member of the IEP team from attending all or part of an IEP meeting if they agree that the member's attendance is not necessary. The IEP team is required to obtain the member's input prior to an IEP meeting from which the member is excused.

Similarly, in making changes to a child's IEP after the annual IEP meeting, the parent of a child with a disability and the LEA may agree not to reconvene the IEP team and instead develop a written document to amend or modify the child's current IEP. There is now a written presumption encouraging the LEA "to the extent possible" to consolidate IEP team meetings for a child. Similarly, amendments to an IEP may now be made by either the entire team, or by mutual agreement of parent and LEA, the IEP may be amended through correspondence.

l. Multi-year IEPs.

The LEA will be permitted to offer the parent of a child with a disability the option of developing a "comprehensive multi-year IEP, not to exceed three (3) years, that is designed to cover the natural transition points for the child." There is also a unique process for review and revision of the multi-year IEP. The IEP team is required to conduct a review of the child's multi-year IEP "at each of the child's natural transition points." Those years which are identified as being "other than a child's natural transition point," the IEP team conducts a "streamlined annual review process." When the team analyzes a child's progress at their "natural transition point, and determines that the child is not making sufficient progress toward the goals described in the IEP," the team is required to meet and review the IEP within thirty (30) days.

There is also a "parental preference" which indicates that at the request of a parent the IEP team shall conduct a full review of the child's multi-year IEP rather than a streamlined annual review. The term "natural transition points," is defined to mean "those periods that are close in time to the transition of a child with a disability from preschool to elementary grades, from elementary grades to middle or junior high school grades to high school grades, and from high school grades to post-secondary activities, but in no case longer than three years."

m. Alternative means of meeting participation.

The parent of a child with a disability and the LEA may agree to conduct IEP and placement meetings via "alternative means of meeting participation, such as videoconferences and conference calls."

5. Procedural Safeguards (Section 615)

a. Additional procedural protections.

The procedures designed to guarantee procedural safeguards with respect to the provisions of FAPE have been amended to include voluntary binding arbitration. In addition, the parameters of the complaint process have been expanded and further defined. A complaint must now "set forth a violation that occurred not more than one (1) year before the complaint is filed." The parent of a child with a disability or the attorney representing the child is now required to provide notice to the LEA of the complaint. The notice must include the name of the child (or in the case of a homeless child available contact information for the child), and the name of the school the child is attending. In addition, the complaint must set forth instead of a "description of the nature of the problem," a description "of the specific issues regarding the nature of the problem with the child..." A parent is also now obligated to provide clear and specific notice to the district of the matter before they are entitled to a due process hearing.

b. Written prior notice.

The content of the written prior notice has been streamlined, no longer requiring "a description of any other options that the agency considered and the reasons why those options were rejected." In addition, there is no longer the requirement that the district provide a "description of any other factors that are relevant to the agency's proposal or refusal."

c. Procedural safeguards notice.

Section 615(d) is proposed to be amended to limit the number of times the procedural safeguards notice should be sent out to the initial referral for evaluation: annually; and upon the request of a parent. There is no longer the requirement to provide a safeguards notice with each IEP meeting or re-evaluation. The safeguards notice must now include information on early dispute resolution and voluntary binding arbitration. A reference to "state-level appeals," has now been omitted.

d. Voluntary binding arbitration.

The state is now required to establish procedures for all parties to disputes to resolve their dispute through voluntary binding arbitration. Voluntary binding arbitration must be made available when a due process hearing is requested. The LEA or state agency has a duty to ensure the parents who choose to use voluntary binding arbitration understand that the arbitration is in lieu of a due process hearing. The arbitration shall be conducted in accord with state law, or if there is no applicable state law, in a manner consistent with the revised Uniform Arbitration Act. NH R.S.A. 542 governs arbitration in New Hampshire.

e. Impartial due process hearing.

Section 615(f) has been amended to require that whenever a complaint is received the parents or the LEA involved in the complaint shall have an opportunity for an impartial due process hearing to be conducted by the state educational agency. There is a new mandatory resolution session injected into the process. Within fifteen (15) days of receiving notice of the parent's complaint the LEA is required to convene a meeting with the parents where the parents of the child discuss their complaint and the specific issues that form the basis of the complaint. The LEA is afforded the opportunity to resolve the complaint in that resolution session. This must occur unless the parents and the LEA agree in writing to waive the resolution meeting. If the LEA has not resolved the matter to the parent's satisfaction within thirty (30) days, the due process hearing will commence. The resolution meeting is not considered "a meeting convened as a result of an administrative hearing or judicial action nor is it considered "an administrative hearing or judicial action" for purposes of attorneys fee entitlement. This produces a substantial incentive for the resolution meeting.

f. The due process hearing.

The proposed reauthorization injects a new limitation on the due process hearing indicating that "the parents of the child shall not be allowed to raise issues at the due process hearing that were not raised in the complaint or discussed during the resolution meeting unless the LEA agrees otherwise." The decision of the hearing officer must now "be based on a determination of whether or not the child received a free appropriate public education."

g. Due process safeguards.

The right to be accompanied and advised by counsel has been explicitly expanded to include "non-attorney advocates."

h. Interim alternative educational settings.

This section has been amended to allow school personnel discretion over the discipline of all student misbehavior for up to forty-five (45) school days (unless state law requires a longer period of time for discipline). The purpose of this change is "to ensure the safety and appropriate educational atmosphere in the schools under the jurisdiction of the LEA. The removal however, must be consistent with the removal which would occur for nondisabled students. The amended section indicates that the removal is permitted "to the extent such alternative and such duration would be applied to children without disabilities, which may include consideration of unique circumstances on a case-by-case basis."

The child with a disability must continue to receive educational services "selected so as to enable the child to continue to participate in the general education curriculum, although in another setting, and to progress toward meeting the goals set out in the child's IEP and the child shall "continue to receive behavioral intervention services designed to address the behavior violation so that it does not recur."

This change moots out the need for a hearing officer to order a change in placement for not more than forty-five (45) days, reposing the authority within the LEA. The forty-five (45) day alternative educational setting for the child is to be determined by the IEP team.

The manifestation determination process has been eliminated. The parent retains a right of appeal with regard to any decision regarding placement or punishment including duration of the punishment. The role of the hearing officer is to "determine whether the decision regarding such action was appropriate." During the parental appeal the child remains within the interim alternative educational setting unless the parent and the state or LEA agree otherwise.

6. Monitoring, Enforcement, Withholding and Judicial Review (Section 616)

Section 616 has been amended to create a new monitoring enforcement system for the IDEA in order to meet the stated goal of "improving the Department of Education's ability to monitor compliance with the Act." The monitoring section sets forth required indicators related to academic achievement, graduation and dropout rates. In addition, the Secretary is allowed to set forth other "permissive indicators of compliance and success under the IDEA."

7. Administration (Section 617)

This section has been amended to authorize a pilot program for ten (10) states to reduce paperwork and requires an annual report to Congress on the progress of the pilot. The Secretary of Education is required to develop model forms for the IEP, prior written notice and procedural safeguards notice. The pilot is set "for a period of time not to exceed four (4) years."

8. State Program Information Reporting Requirements (Section 618)

The state information reporting requirements have been expanded to include a duty to report to the Secretary of Education the following additional data:

In addition this section requires that districts having "significant disproportionality with regard to the identification of children as children with disabilities, with placement of particular educational settings of such children," are required to reserve the maximum amount of funds available under Section 613(f) to provide comprehensive coordinated prereferral support services to serve children in the LEA, particularly children in those groups that were significantly "overidentified."

9. Preschool grants.

This provision remains level funded at $500,000,000 for fiscal year 2004.

C. Part C - Infants and Toddlers with Disabilities, Sections 631-638 of the IDEA (20 USC 1431-1438.

There are no major changes to this provision. Section 636, pertaining to the IFSP, adds new requirements to the IFSP, including goals for the development of preliteracy and language skills and a plan for the appropriate transition of services for the child's entrance into school.

D. Part D - National Activities to Improve Education of Children with Disabilities, Sections 651-674.

The high points of Part D are as follows:

VII - Additional Related Legislation

On March 20, 2003 Representatives Jim DeMint (Republican, SC) and House Education and Workforce Committee Chairman, John Boehner (Republican, OH) introduced the IDEA Parental Choice Act of 2003. The stated intent of the legislation is to increase parental involvement and parental choice in special education by providing "innovative strategies for educational flexibility and school choice for children with disabilities. The purpose of the Bill is to "encourage states to develop innovative, flexible choice programs for children with disabilities and permits states that have such programs to allow federal funds to follow the child based on the parent's choice." The Bill would also allow parents to choose to keep their children in the same program from ages 0-5. Under current law children may make a program transition at age 3. This goal would be effectuated by allowing states to expand the eligibility of Part C from children with disabilities ages 0-2, to children with disabilities age 0-5, in order to permit parents to leave their preschooler in the Part C program with their current providers, including private providers.

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VIII - Conclusion

The final form of the IDEA 2003 Reauthorization remains to be seen. However, the current iteration of the Reauthorization presents not only new benefits, but new challenges to the special education administrator.

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Notes:

1. http:\\edworkforce.house.gov\press\press108\03mar\idea031903.htm

2. Technically, the 1997 reauthorization lapsed in 2002.