This material was originally presented to the New Hampshire Association of Special Education Administrators August 9, 2005.

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 Administrator with a working knowledge of the reauthorization of the Individuals with Disabilities Education Act. This material is not intended to substitute for legal counsel nor is it intended to provide an exhaustive statement of the Individuals with Disabilities Education Improvement Act of 2004 ("IDEIA"). The regulations discussed in this material are proposed, subject to change, and not final.

Return to Table of Contents

II - The Legislative History

The efforts to reauthorize and amend the IDEA date back to early 2003. These efforts were preceded and accompanied by vigorous lobbying efforts from a myriad of special interest groups.

On April 2, 2003, the House Subcommittee on Education Reform voted by voice vote to favorably report H.R. 1350, as amended, to the Committee on Education and the Workforce. On April 10, 2003, the full committee voted to favorably report H.R. 1350 to the House by a vote of 29 to 19. The Bill was then referred from the House to the Senate Committee on Health, Education, Labor and Pensions.

On June 25, 2003 the Senate Committee voted 21-0 to approve S. 1248 as a substitute to H.R. 1350. On November 3, 2003, the Senate's IDEA Reauthorization bill, S. 1248, moved out of Committee and onto the Senate Calendar for debate.

On November 21, 2003, the Senate passed a unanimous consent agreement on S. 1248. It outlined the terms for bringing S. 1248 to the Senate floor for consideration. It also allowed Republicans and Democrats to each offer four amendments.

On May 10, 2004, the Senate passed Senate Bill 1248 as amended. On July 15, 2004, the Republican leadership of the House of Representatives Committee on Education and the Workforce issued a press release expressing "profound

disappointment" that the Senate Democratic leaders were refusing to allow a House Senate Conference. The press release pointed out that a very short window of opportunity exists for Congress to vote on a compromised Bill before the end of the 108th Congressional Session. If no vote occurred during the 108th Session, then the 109th Congress would have to repeat the process from the beginning.

On October 8, 2004, the Speaker of the House appointed conferees to work with the Senate to produce a final special Education Bill that President Bush could sign into law by the end of the year.

On November 17, 2004, the House-Senate Conference Committee reached a consensus on changes necessary to reauthorize the IDEA. On November 19, 2004, both the House and Senate voted to reauthorize the IDEA. On December 3, 2004, President Bush signed the IDEIA into law.

Return to Table of Contents

III - Effective Date

Many laws do not become effective upon passage, but instead set a future date upon which they go into effect. The reauthorized IDEIA became effective July 1, 2005. The draft regulations were published in the Federal Registry by the United States Department of Education on June 21, 2005. The period for comment closes on September 6, 2005.

Return to Table of Contents

IV - The Political Rhetoric

Throughout the reauthorization process, tension existed between the House and Senate. The titles of the two different versions proposed by the House and Senate best illustrates the tension. The House of Representatives entitled H.B. 1350, the "Improving Education Results for Children with Disabilities Act of 2003." The Senate version assumed a more modest title, "The Individuals with Disabilities Education Improvement Act of 2003 (now 2004)[IDEIA]."

There is no question that the House sought more sweeping reforms to the IDEA. According to Congressman John A. Boehner, Chairman of the Committee on Education and the Workforce, the IDEA was not simply being reauthorized, but was 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 over identification/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.

H.B. 1350 sought close 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 education organizations actively lobbied Congress on desired reforms to the IDEA. A number of the stated Congressional goals align with the legislative priorities proposed by the NASDSE. NASDSE developed nine (9) focus areas for legislative consideration as follows:

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.

Return to Table of Contents

V - Proposed Funding

The funding level proposed by President Bush for fiscal year 2004 was at 19%. The Republicans claim 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, http://edworkforce.house.gov\press\press108\03mar\idea031903.htm.

The IDEIA reaches 40% funding by Fiscal Year 2010.

Return to Table of Contents

VI - Section-by-Section Analysis of the "Individuals with Disabilities Education Improvement Act of 2004 [IDEIA]"

The IDEIA amends most sections of the 1997 IDEA reauthorization.^[1] The analysis set forth below focuses on amendments impacting day-to-day practices of the special education administrator, rather than those amendments affecting governmental functions.

A. Part A: General Provisions

The general provisions of the IDEIA 2004 are relevant to the educator because they contain operational definitions of the law. They also contain language pertaining to congressional intent, federal regulation through the Office of Special Education Programs [OSEP], the abrogation of State sovereign immunity, and state level compliance.

1. Congressional Findings (Section 601)

There is a natural temptation to breeze by Congressional findings expressed in the preamble to federal legislation. To do such however, is ill advised. The "Findings" made by Congress are the primary indicators of Congressional intent in reauthorizing the IDEA.

There are some subtle changes worth noting in the new IDEA findings. For example, Congress amended its key findings with regard to improving the "effectiveness" of the education of children with disabilities. Congress now finds:

"...[T]hat the education of children with disabilities can be made more effective by -having high expectations for such children and ensuring their access to the general education curriculum in the regular classroom, to the maximum extent possible, in order to--

(i) meet developmental goals and, to the maximum extent possible, the challenging expectations that have been established for all children; and

(ii) be prepared to lead productive and independent adult lives, to the maximum extent possible; (emphasis added)

Congress also affirms the significant role of "new" interventions, noting that effectiveness can be enhanced by -

"(F) providing incentives for whole-school approaches, scientifically based early reading programs, positive behavioral interventions and supports, and early intervening services to reduce the need to label children as disabled in order to address the learning and behavioral needs of such children;

There is also a new finding with regard to the role of assistive technology. The education of children with disabilities can be made more effective by -

"(H) supporting the development and use of technology, including assistive technology devices and assistive technology services, to maximize accessibility for children with disabilities."

Congress also made three new primary findings:

"(7) A more equitable allocation of resources is essential for the Federal Government to meet its responsibility to provide an equal educational opportunity for all individuals.

(8) Parents and schools should be given expanded opportunities to resolve their disagreements in positive and constructive ways.

(9) Teachers, schools, local educational agencies, and States should be relieved of irrelevant and unnecessary paperwork burdens that do not lead to improved educational outcomes."

Congress specifically found limited English proficiency one of the most significant challenges facing educators, observing:

"(A) The limited English proficient population is the fastest growing in our Nation, and the growth is occurring in many parts of our Nation.

(B) Studies have documented apparent discrepancies in the levels of referral and placement of limited English proficient children in special education.

(C) Such discrepancies pose a special challenge for special education in the referral of, assessment of, and provision of services for, our Nation's students from non-English language backgrounds."

2. Statement of Purpose

The statement of purpose is vital to understanding the obligations required of an educator by the IDEA. There are some subtle changes as well to the statement of purpose. The purposes of this title are--

"(1)(A) to ensure that all children with disabilities have available to them a free appropriate public education that emphasizes special education and related services designed to meet their unique needs and prepare them for further education, employment, and independent living;

(B) to ensure that the rights of children with disabilities and parents of such children are protected; and

(C) to assist States, localities, educational service agencies, and Federal agencies to provide for the education of all children with disabilities;

(2) to assist States in the implementation of a statewide, comprehensive, coordinated, multidisciplinary, interagency system of early intervention services for infants and toddlers with disabilities and their families;

(3) to ensure that educators and parents have the necessary tools to improve educational results for children with disabilities by supporting system improvement activities; coordinated research and personnel preparation; coordinated technical assistance, dissemination, and support; and technology development and media services; and

(4) to assess, and ensure the effectiveness of, efforts to educate children with disabilities."

3. Definitions (Section 602)

Most defined terms remain intact from the 1997 reauthorization. However, the following terms are new or redefined:

a. "Assistive technology," Section 602(1). The term is limited to indicate

that it does not include "a medical device that is surgically implanted, or the replacement of such a device. . ."

Query: where does that leave the question of programming a device such as a cochlear implant? The Senate version of the bill excluded "programming" as well; this definition is not quite as exclusionary. The proposed regulations appear to exclude "mapping" and programming a device from the definition of a "related service."

Proposed Regulation §300.5 Assistive Technology Device (hereinafter PR): The term "assistive technology" does not include a medical device that is surgically implanted, or replacement of that device. See also Proposed Regulation for "Related Services."

b. "Core academic subjects," Section 602(4). The term "core academic subjects" has the meaning given the term in section 9101 of the Elementary and Secondary Education Act of 1965 [NCLB].

PR §300.10 Core academic subjects: means English, reading or language arts, mathematics, science, foreign languages, civics and government, economics, arts, history, and geography. (The same as in 9101 of the Elementary and Secondary Education Act of 1965 [NCLB]).

c. "Highly qualified," Section 602(10). This new definition sets a standard for defining the "highly qualified" special education teacher. As a general rule, a special education teacher must hold "full State certification as a special education teacher (including certification obtained through alternative routes to certification), and they must hold "at least a bachelor's degree."

The special education teacher who teaches to "alternative achievement standards" may either:

The special education teacher who teaches multiple subjects (defined as two or more core academic subjects) "exclusively to children with disabilities" may either:

"(i) meet the applicable requirements of NCLB for any elementary, middle, or secondary school teacher who is new or not new to the profession; or

(ii) in the case of a teacher who is not new to the profession, demonstrate competence in all the core academic subjects in which the teacher teaches in the same manner as is required for an elementary, middle, or secondary school teacher who is not new to the profession under section 9101(23)(C)(ii) of such Act, which may include a single, high objective uniform State standard of evaluation covering multiple subjects; or

(iii) in the case of a new special education teacher who teaches multiple subjects and who is highly qualified in mathematics, language arts, or science, demonstrate competence in the other core academic subjects in which the teacher teaches in the same manner as is required for an elementary, middle, or secondary school teacher under section 9101(23)(C)(ii) of such Act, which may include a single, high objective uniform State standard of evaluation covering multiple subjects, not later than 2 years after the date of employment."

The definition of "highly qualified" also contains two protective provisions. The first provision indicates that these standards shall not be construed to create a right of action on behalf of an individual student or class of students for the failure of a particular State educational agency or a local educational agency employee to be highly qualified. Second, qualification by an educator under this definition of "highly qualified" means that they are deemed "highly qualified" for purposes of NCLB.

PR §300.18 Highly Qualified Special Education Teacher: Specifies that "highly qualified" applies only to public elementary school and secondary school special education teachers, consistent with section 9101 of the NCLB. The Department of Education does not believe that "highly qualified" requirements were intended to apply to private school teachers, even in situations where a child with a disability is placed in, or referred to, a private school by a public agency in order to carry out the public agency's responsibilities under this part.

Specifies that a teacher participating in an alternate route to a certification program would be considered to be fully certified under certain circumstances. The standard to be applied to an alternate route to certification program" is the same as under Title I of NCLB.

Reflects Congressional Conference Report intent that special education teachers who are only providing consultative services to other teachers who are highly qualified to teach particular academic subjects, could be highly qualified by meeting the special education qualifications alone. This regulation clarifies that special education teachers who exclusively teach students who are assessed based on alternate academic achievement standards, as permitted under Title I of the NCLB, at a minimum, must have subject matter knowledge at the elementary level or above, as determined by the State, needed to effectively teach to those standards.

This regulation permits special education teachers who teach core academic subjects exclusively to children who are assessed against the alternate achievement standards to fulfill the highly qualified teacher requirements of the NCLB as applied to an elementary school teacher, or, in the case of instruction above the elementary level, to meet the requirements for an elementary school teacher and have subject matter knowledge appropriate to the level of instruction being provided, including at a minimum, subject matter knowledge at the elementary level or above, as determined by the State, needed to effectively teach to those standards.

The proposed regulation does not specifically address the use of a separate "high objective uniform State standard of evaluation" (HOUSSE) for special education teachers. However, note 21 in the Conf. Rpt. recognizes that some States have developed HOUSSE standards for special education teachers and indicates that those separate HOUSSE standards should be permitted, including single HOUSSE evaluations that cover multiple subjects, as long as those adaptations of a State's HOUSSE for use with special education teachers would not establish a lesser standard for the content knowledge requirements for special education teachers. The Department of Education requests comment on whether additional regulatory action is needed on this point.

d. "Homeless children," Section 602(11). The definition under the IDEA is the same as under the McKinney-Vento Homeless Assistance Act (42 USC 11434a).

PR §300.19 Homeless Children: Regulation reflects the Act.

e. "Limited English Proficient," 602(18). The term is defined in accord with the NCLB definition.

PR §300.27 Limited English Proficient: Regulations reflects the Act.

f. "Parent," 602(23). The term "parent" now means:

"(A) a natural, adoptive, or foster parent of a child (unless a foster parent is prohibited by State law from serving as a parent);

(B) a guardian (but not the State if the child is a ward of the State);

(C) an individual acting in the place of a natural or adoptive parent (including a grandparent, stepparent, or other relative) with whom the child lives, or an individual who is legally responsible for the child's welfare; or

(D) an individual assigned under either of those sections to be a surrogate parent.^[2]

PR §300.30: Revises the current definition to better reflect the Act. Would reflect the provision regarding State law limitations/prohibitions on when a foster parent can be considered a parent, also adds language to recognize that similar restrictions may also exist in State regulations or in contractual agreements between a State or local entity and the foster parent and should be accorded similar deference.

Provides for a presumption that the natural or adoptive parent is be the parent for purposes of the regulations unless that person does not have legal authority to make educational decisions for the child, or there is a judicial order or decree specifying some other person to act as the parent under Part B of the Act.

Provides that if a person or persons is specified in a judicial order or decree to act as the parent, then that person would be the parent under Part B of the Act.

Would, however, exclude an agency involved in the education or care of the child from serving as a parent.

g. "Related Services," 602(26). The definition of related services encompasses new services added to the related services list. These include:

Congress specifically excepted from the definition of a "related service," a surgically implanted medical device or the replacement of such device.

PR §300.34 Related Services: Reflects the Act and excepts from the definition of "related service" the maintenance or "maximizing the function" of a surgically implanted medical device.

h. "Transition services," Section 602(32). The existing IDEA defines transition services as those services designed "within an outcome-oriented process, which promotes movement from school to post-school activities." The new definition of transition services refers to a coordinated set of activities for a child with a disability that "is designed to be within a results-oriented process, that is focused on improving the academic and functional achievement of the child with a disability to facilitate the child's movement from school to post-school activities..." The Senate sought to leaven transition services by reference to a student's "capabilities," but that effort did not survive the House-Senate conference.

PR §300.42 Transition Services: Reflects the Act.

4. Requirements for Prescribing Regulations (Section 607)

This section now limits the ability of the Secretary of Education to issue regulations under the new Act "only to the extent necessary to ensure that there is compliance with the specific requirements of this Act." The Secretary's authority is also limited with regard to regulations, policy letters and statements. She is prohibited from issuing any regulation, policy letter or statement which:

According to the U.S.D.O.E., the current regulations were reviewed for continued necessity and relevance in light of a number of factors: Whether statutory changes required changes to existing regulations; whether changes in other laws, or the passage of time, and changed conditions rendered the regulations obsolete or unnecessary; whether less burdensome alternatives or greater flexibilitywas appropriate; and whether the regulation could be changed in light of section 607(b) of the Act.

Query: Were regulatory sections retained that now go beyond the scope of the 2004 Reauthorization?

5. State Administration (New Section 608)

Congress amended Part A to add a new Section 608 entitled "State Administration." This Section 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).

Clearly, Congress has tired of being the political focus of state criticism. As a result, state departments are now required to identify in writing to their LEAs and the Secretary of Education any rule, regulation, or policy that is a state-imposed requirement and not an IDEA or federal regulation requirement.

6. Paperwork Reduction (Section 609)

This new section enables the Secretary of the USDOE to initiate a pilot program for up to 15 states, based on proposals from those states to reduce excessive paperwork and noninstructional time burdens "that do not assist in improving educational and functional results for children with disabilities." These pilot programs may not compromise the provision of FAPE nor may they involve waiver of Section 615 procedural safeguards.

PRs: Forthcoming, not yet proposed.

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

1. Granting Authority (Section 611)

The maximum amount available for awarding grants under this section for fiscal years 2005 and 2006 equals--

(A) the total number of children with disabilities in the State who are receiving special education and related services--

(i) aged 3 through 5, if the State was eligible for a grant under section 619; and

(ii) aged 6 through 21; multiplied by

(B) 40 percent of the average per-pupil expenditure in public elementary schools and secondary schools in the United States.

The formula for fiscal year 2007 and subsequent fiscal years equals the number of children with disabilities in the 2004-2005 school year in the State who received special education and related services --

(i) aged 3 through 5, if the State was eligible for a grant under section 619; and

(ii) aged 6 through 21; multiplied by

(C) 40 percent of the average per-pupil expenditure in public elementary schools and secondary schools in the United States; adjusted by the rate of change in the sum of--

(i) 85 percent of the change in the nationwide total of the population described in subsection (d)(3)(A)(i)(II); and

(ii) 15 percent of the change in the nationwide total of the population described in subsection (d)(3)(A)(I)(III).

This section allows the State to reserve funds to establish a "High Cost Fund" designed to relieve LEAs from the extraordinary costs of educating a "high need child with a disability." In the alternative, a State may use these funds for its existing catastrophic aid program.

This section also sets forth appropriated sums for ensuing years:

(1) $12,358,376,571 for fiscal year 2005;

(2) $14,648,647,143 for fiscal year 2006;

(3) $16,938,917,714 for fiscal year 2007;

(4) $19,229,188,286 for fiscal year 2008;

(5) $21,519,458,857 for fiscal year 2009;

(6) $23,809,729,429 for fiscal year 2010;

(7) $26,100,000,000 for fiscal year 2011; and

(8) such sums as may be necessary for fiscal year 2012 and each succeeding fiscal year.

2. State Eligibility for Federal Funding (Section 612)

Section 612 (20 USC §1412) sets forth criteria for state eligibility for federal funds. Congress amended the state's burden of proof from "demonstrate[ing] to the satisfaction of the Secretary that the state has in effect policies and procedures..." to "submit[ting] a plan that provides assurances" to the Secretary of Education that "the state has policies and procedures to ensure that it meets the enumerated IDEA requirements such as FAPE, Child Find, IEP development, least restrictive environment, procedural safeguards, evaluations and confidentiality." A State that provides early intervention services in accordance with Part C to a child is not required to provide such child with a FAPE under Part B.

This regulatory section entitled State Eligibility requires that the State "provide assurances," to the Secretary of Education that the State has in effect policies and procedures to comply with each of the components of FAPE.

PR §300.100-300.124: Reflect the Act and remove the current requirement that States submit copies of all State statutes, regulations, and other documents. Consistent with this approach, these proposed regulations would eliminate from the current regulations throughout subpart B all provisions requiring that policies and procedures be on file with the Secretary.

States must now demonstrate Child Find policies and procedures capable of finding homeless children and "wards of the state" who are educationally disabled.

PR §300.111 Child Find: Reflects the Act.

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 reauthorization sets forth the following criteria for this class of student:

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.

PR §300.131 Child Find for Parentally-Placed Private School Children with Disabilities: Reflects the Act.

Child Find Activities.

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).

Cost.

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).

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." See PR §300.131(d).

Service provision.

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 §300.132 Provision of Services for Parentally-Placed Private School Children with Disabilities - Basic Requirement: This section tracks the statutory language outlining the basic requirement for the provision of services for parentally placed private school children with disabilities. Requires that "provision is made for the participation of those children...under Part B...by providing them with special education and related services, including direct services determined in accordance with §300.137 [Equitable Services determined]..."

Expenditures requirement.

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.

Consultation.

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:

(i) 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;

(ii) 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;

(iii) How parentally-placed children with disabilities identified through the Child Find process can meaningfully participate in special education and related services; and

(iv) 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.

(v) 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.

PR §300.134 Consultants: Reflects the Act.

Private School Complaints.

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 "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.

PR §300.136 Compliance: Reflects the Act and sets out the complaint process.

Provision of "Equitable Services."

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:

(i) initiate and conduct meetings to develop, review and revise a services plan for the child; and

(ii) 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:

(i) The services provided to parentally-placed private school children with disabilities must be provided by personnel meeting the HQT standards of the public school;

(ii) A parentally-placed private school child may receive a differing amount of services than a child with a disability in a public school;

(iii) 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

(iv) Be developed, reviewed and revised consistent with IEP review and revision criteria (PR §§300.321-300.324).

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

Congress made a minor adjustment to an exception 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. These prohibitions against reduction or denial were modified to turn on the "discretion of a court or a hearing officer."

PR §300.148(d)(2)(i)&(ii) Exceptions for Reimbursement: Reflects the Act.

c. State complaint procedures.

The new IDEA regulations draw a distinction between state complaint procedures and a due process complaint. The IDEA is not actually the source statute for the state complaint process. Instead, the authority for the state complaint process arises from 20 USC 1221e-3. The state complaint procedures and compliance requirements have been slightly changed. The changes include the following:

1. The regulations now explicitly require an opportunity for a public agency to respond to a complaint, including a chance to make a proposal to resolve the complaint, and, with the consent of the parent, to engage the parent in mediation or other alternative means of dispute resolution;

2. The regulation has been changed to permit extension of the complaint resolution time frame of 60 days so that parties can engage in mediation or other alternative means of dispute resolution;

3. There is a mandatory set aside provision which requires that a state set aside a complaint until the conclusion of a due process hearing;

4. There are new information requirements added similar to the basic notice requirement for filing a due process complaint in order to give the public agency the information that will allow it to attempt to resolve the complaint;

5. There is a limitation period of 1 year. The complaint must "allege a violation that occurred not more than 1 year prior to the date that the complaint is received and the reference to longer periods for continuing violations and for compensatory service claims have been stricken; and

6. The party filing the complaint must forward a copy of the complaint to the LEA or public agency serving the child.

A significant substantive change has also been made to the complaint procedures. The proposed regulation 300.151(b)(1) removes the reference to monetary reimbursement through the complaint process.

d. New personnel standard.

H.R. 1350 proposed requiring states to enhance personnel standards to "ensure that special education teachers who teach in core academic subjects are highly qualified in those subjects, using the term as defined in NCLB." However, the Senate proposed a less rigid standard, requiring that all special education teachers teaching "core academic subjects" be "highly qualified" by the 2006-2007 school year. In the end, neither standard was included. Instead, the IDEIA requires States to establish and maintain qualifications to ensure that personnel are appropriately and adequately prepared and trained. This includes a requirement that personnel have the content knowledge and skills to serve children with disabilities.

PR §300.156(a) Personnel Qualifications, General: Reflects the Act.

The final version of the law also requires personnel standards for "related service providers and paraprofessionals," which "are consistent with any State-approved or State-recognized certification, licensing, registration, or other comparable requirements that apply to the professional discipline in which those personnel are providing special education or related services." The state is also required to "take measurable steps to recruit, hire, train and retain highly qualified personnel to provide special education and related services."

PR §300.156(b) Related Services, Personnel and Paraprofessionals: Reflects the Act.

PR §300.156(c) Qualifications for Special Education Teachers: Sets an HQT deadline of June 2006.

e. 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 (NCLB). These standards must also address dropout rates, as well as such other factors as the state may determine..." The new state standards must 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."

PR §300.157 Performance Goals and Indicators: Reflects the Act and changes the current two-year State-reporting requirement to an annual reporting requirement.

f. Participation in Assessments.

As a general rule, all children with disabilities must be included in state and district-wide assessment programs including assessments conducted in accord with No Child Left Behind, "with appropriate accommodations and alternate assessments where necessary and as indicated in their respective individualized education programs." The state is required to develop guidelines for alternate assessments. Alternate assessments must conform with the State's "challenging academic content and academic achievement standards" or must "measure the achievement of students against alternate academic achievement standards" that are aligned with the state's alternate academic achievement standards, as permitted under NCLB."

PR §300.160 Participation in Assessments: Reflects the Act.

g. District wide assessments and LEA reporting requirements.

In the case of district wide assessments, the IDEIA requires LEAs to make available to the public and report to the public with the same frequency and detail as it reports on the assessment of non-disabled children, the following:

(i) The number of children with disabilities participating in regular assessments and the number of those children who were provided accommodations in order to participate in those assessments;

(ii) The number of children with disabilities participating in alternate assessments;

(iii) The performance of children with disabilities on regular assessments and on alternative assessments (if the number of children with disabilities participating in those assessments is sufficient to yield statistically reliable information and reporting that information would not reveal personally identifiable information about an individual student) compared with the achievement of all children including children with disabilities on those assessments.

To the extent "feasible," states must use "universal design" principles in developing and administering alternate assessments of children with disabilities.

PR §300.160 Participation in Assessments: Reflects the Act.

h. Instructional material.

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

PR §300.172 Access to Instructional Materials: Reflects the Act.

Provides that nothing in this section would relieve an SEA of its responsibility to ensure that children with disabilities who need instructional materials in accessible formats, but who do not fall within the category of children for whom the SEA may receive assistance from the National Instructional Materials Accessibility Center (NIMAC), receive those instructional materials in a timely manner. Timely access to appropriate and accessible instructional materials is an inherent component of public agencies' obligations under the Act to ensure that FAPE is available for children with disabilities and that they participate in the general education curriculum as specified in their IEPs.

Section 674(e)(3)(A) of the Act limits the authority of the NIMAC to provide assistance to SEAs and LEAs in acquiring instructional materials for children who are blind, have visual disabilities, are unable to read or use standard printed materials because of physical limitations, and children who have reading disabilities that result from organic dysfunctions, as provided for in 36 CFR §701.10(b).

However, SEAs and LEAs still have an obligation to provide accessible instructional materials in a timely manner to other children with disabilities, who also may need accessible materials even through SEAs and LEAs may not receive assistance for these children from NIMAC.

i. Over identification of minorities.

The State must adopt policies and procedures that prevent inappropriate identification or disproportionate representation by race and ethnicity of children with disabilities.

PR §300.173 Overidentification and Disproportionality: Requires State policies and procedures designed to prevent inappropriate over- identification and disproportionality. Incorporates new provision in section 612(a)(24) of the Act. Requires States to have, consistent with section 618(d) of the Act, policies and procedures to prevent inappropriate over identification or disproportionate representation by race and ethnicity of children as children with disabilities, including children with disabilities with a particular impairment.

j. Prohibition on Mandatory Medication.

The SEA shall prohibit LEA personnel from requiring a child to obtain a prescription for a substance covered by the Controlled Substances Act as a condition of attending school, receiving an evaluation, or receiving services.

PR §300.174 Prohibition on Mandatory Medication: Would clarify that this provision does not create a Federal prohibition against teachers and other school personnel consulting or sharing with parents their observations on the student's functional or academic performance, and behavior in the classroom or school, or the child's possible need for an initial evaluation for special education and related services.

k. Partial 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 particular requirement for purposes of receiving a grant.

PR §300.176 Exceptions for Prior State Plan: Mirrors the Act. See also §300.220.

l. Bypass for children in Private Schools.

This new section permits the Secretary of Education to bypass the LEA and contract for direct service provision to disabled children in private schools when the Secretary determines that the LEAhas substantially failed, or is unwilling to provide, equitable participation by private school children in federal funds.

PR §300.190 By-pass General; §300.191 Provisions for Services Under a By-pass: The proposed regulations regarding by-pass for children in private schools would incorporate changes in section 612(f) of the Act and would represent the first amendments to these regulations since they were adopted in 1984. Because the statutory changes related to the participation of parentally-placed private school children with disabilities should make it more likely that these procedures will be implemented, these proposed revisions would align the by-pass provisions from Part B of the Act with the general by-pass procedures in the Department's general administrative regulations that apply Titles I and IX of the ESEA. This alignment should help to ensure consistent implementation of the by-pass provisions throughout the Department.

3. Local Education Agency [School District] Funding Eligibility (Section 613)

LEA funding eligibility remains conditioned on the LEA submitting a plan to the State that addresses the same regulatory components imposed on the State Agency. Districts are given latitude to use up to 15% of their funding for "early intervening services" for students K - 12 (with an emphasis on K-3) who do not meet the definition of "educationally disabled" but who "need additional academic and behavioral support to succeed in a general education environment."

PR §300.226 Early Intervening Services: Reflects the Act regarding the use of up to 15% of funds for early intervening services.

There are a number of new provisions involving the LEA:

-Personnel must be "appropriately and adequately prepared," in accord with the IDEIA and NCLB to meet the relevant standards for their profession.

PR §300.207 Personnel Development: Reflects the Act.

-The LEA may spend federal funds for special education and related services and supplementary aides and services provided in the regular classroom to a child with a disability even if one or more nondisabled students benefit from the service;

PR §300.208 Permissive Use of Funds: Reflects the Act and allows the LEA to spend federal funds for early intervening services and high cost (special education students) risk sharing funds.

Congress removed from the statute the authority to use Part B funds to develop and implement an integrated and coordinated services system.

-Monies may be spent to purchase technology for administrative case management;

PR §300.208(b) Administrative Case Management: Reflects the Act.

-Charter schools of an LEA may receive funds and use funds in the same manner as the LEA. The LEA is required to provide special education and related services in its charter schools;

PR §300.209 Treatment of Charter Schools and their Students: Clarifies that children with disabilities who attend public charter schools retain all rights afforded under this part.

Clarifies that, in providing services to children with disabilities attending charter schools that are public schools of the LEA, the LEA must provide supplementary and related services on site at the charter school to the same extent as it does at its other public schools.

Specifies that an LEA must provide funds under Part B of the Act to the LEA's charter schools on the same basis as it provides funds to its other schools, including proportional distribution based on the relative enrollment of children with disabilities, and that it must provide those funds at the same time as the LEA distributes funds to its other public schools.

Provides that if the public charter school is a school of an LEA that receives funding under §300.705, the LEA is responsible for ensuring that the requirements of Part B are met (unless State law assigns that responsibility to some other entity).

Adds current regulation (regarding public charter schools that are LEAs), to specify that a charter school covered by this paragraph is responsible for ensuring that the requirements of this part are met, unless State law assigns that responsibility to some other entity.

Provides that if a public charter school is not an LEA receiving funding under this part or a school that is part of an LEA receiving funding, the SEA is responsible for ensuring that the requirements of this part are met.

-LEAs must establish a mechanism for easy exchange of records regarding to migratory children.

PR §300.213 Records regarding Migratory Children with Disabilities: Reflects the Act.

This section also provides that States may require that a local educational agency include in the records of a child with a disability a statement of any current or previous disciplinary action that has been taken against the child and transmit such statement to the same extent that such disciplinary information is included in, and transmitted with, the student records of nondisabled children. The statement may include a description of any behavior engaged in by the child that required disciplinary action, a description of the disciplinary action taken, and any other information that is relevant to the safety of the child and other individuals involved with the child. If the State adopts such a policy, and the child transfers from one school to another, the transmission of any of the child's records shall include both the child's current individualized education program and any such statement of current or previous disciplinary action that has been taken against the child.

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

a. Request for initial evaluation.

Congress amended Section 614(a)(1)(B) to clarify the fact that a parent, state educational agency, "other state agency or local educational agency" may initiate a request for an initial evaluation to determine if the child is a child with a disability.

The new law establishes criteria under which the forty-five (45) day time frame (a state time frame) for initial evaluation does not apply. The time frame does not apply 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 new school district is "making sufficient progress to ensure a prompt completion of the evaluation, and the parent and subsequent LEA 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.

PR §300.301 Initial Evaluations (d) Exceptions: Exceptions to the time frame for evaluations.

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."

PR §300.300 Parental Consent: Sets forth the requirement of parental consent for initial evaluations, reevaluations, and the initial provision of services. This section replaces §300.505 of the current regulations and incorporates the new requirements regarding parental consent contained in section 614(a)(1)(D) of the Act.

Would retain the provision that consent for the initial evaluation may not be construed as consent for the initial provision of special education and related services.

Would incorporate the provision in section 614(a)(1)(D)(i)(II) of the Act specifying that the public agency responsible for making FAPE available to the child must seek to obtain informed parental consent before the initial provision of special education and related services.

The proposed regulations use the term "initial provision" rather than the statutory term "receipt" of special education and related services. This clarifies that consent does not need to be sought every time a particular service is provided to the child, but must be received before "initial provision." The proposed regulation continues to refer to consent for the initial provision of services, in lieu of using the statutory language, which refers to "consent for placement for receipt of special education and related services." This is consistent with the revised language of the Act and the Department's position that placement refers to the provision of special education services rather than as a specific place, such as a specific classroom or specific school.

PR §300.300 Parental Consent (c) Parental Consent for Reevaluations: Reflects the requirement in current regulations that parental consent be obtained before a reevaluation. However, in lieu of prescribing "reasonable measures," (and to reduce "regulatory burden,") reference to the reasonable measures that public agencies must use in this situation, is removed. As a practical matter, "because public agencies take seriously their obligation to obtain parental consent for a reevaluation because of their ongoing obligation to ensure the provision of FAPE to eligible students with disabilities, they typically would use a number of informal measures to obtain such consent." Elimination of the reference to reasonable measures should give public agencies increased flexibility to use measures they deem reasonable and appropriate.

Provides, as current regulations do, that public agencies are not required to obtain parental consent before reviewing the existing data as part of an evaluation or reevaluation, or before administering a test or evaluation that is administered to all children, unless consent is required of parents of all children. Permits a State to maintain additional consent requirements, provided its public agencies establish and implement effective procedures to ensure that the failure to provide consent does not result in the failure to provide FAPE to a child with a disability.

If the parent does not consent or fails to respond, the LEA shall not be considered to be in violation of the requirement to make available a Free Appropriate Public Education to the child, at least as to those matters for which informed consent has been sought, nor shall it be required to convene an IEP meeting or develop an IEP for the child.

PR §300.300 Parental Consent (b) Parental Consent for Services: Replaces current regulation and reflects language in section 614(a)(1)(D)(ii) of the Act regarding absence of consent. As was true under current regulations, the proposed regulations would provide that if a parent does not provide consent or if the parent fails to respond to a request for consent, the public agency may pursue the initial evaluation of a child by using the procedural safeguards in subpart E of these proposed regulations, including applicable mediation and due process procedures, except to the extent inconsistent with State law. However, consistent with the Department's position that public agencies should use their consent override procedures only in rare circumstances, proposed §300.300(a)(3) would clarify that a public agency is not required to pursue an initial evaluation of a child suspected of having a disability if the parent does not provide consent for the initial evaluation.

States and LEAs do not violate their obligation to locate, identify, and evaluate children suspected of being children with disabilities under the Act if they decline to pursue an evaluation to which a parent has failed to consent.

In addition, this regulation would permit consent override only for children who are enrolled in public school or seeking to be enrolled in public school. For children who are home schooled or placed in a private school by the parents at their own expense, consent override is not authorized. The district can always use the override procedures to evaluate the child at some future time should the parents choose to return their child to public school.

Of course, public agencies do have an obligation to actively seek parental consent to evaluate private school (including home school, if considered a private school under State law) children who are suspected of being children with disabilities under the Act. However, if the parents of a private school child withhold consent for an initial evaluation, the public agency would have no authority to conduct an evaluation and no obligation to consider that child as eligible for services under proposed §§300.132 through 300.144.

Would incorporate the new requirement added by section 614(a)(1)(D)(ii)(II) of the Act that prohibits a public agency from providing special education and related services by using the procedural safeguards in subpart E of these proposed regulations if the parents fail to respond or do not provide consent to services. Department of Education believes that the Act gives parents the ultimate choice as to whether their child should receive special education and related services, and this proposed regulation would reflect this statutory interpretation.

Would incorporate the new provision in section 614(a)(1)(D)(ii)(III) of the Act that relieves public agencies of any potential liability for failure to convene an IEP meeting or for failure to provide the special education and related services for which consent was requested but withheld.

Would incorporate current regulation and the Department's longstanding policy that a public agency may not use a parent's refusal to consent to one service or activity as a basis for denying the child any other service, benefit, or activity or the public agency, except as required by Part B of the Act.

c. Consent for Wards of the State.

The new IDEIA defines a "ward of the state" as: a child who, as determined by the State where the child resides, is a foster child, is a ward of the State, or is in the custody of a public child welfare agency. When a child is a ward of the state and not residing with the child's parent, the LEA is required to make "reasonable efforts" to obtain the informed consent from the parent of the child for an initial evaluation to determine whether the child has a disability.

There are three exceptions to the requirement to obtain written prior consent:

A screening of a child by a teacher or specialist to determine appropriate instructional strategies for curriculum implementation is not considered an evaluation for purposes of determining eligibility and therefore does not require prior written consent under the IDEIA.

PR §300.300(a)(2)(i): Mirrors the statute.

d. Re-evaluations.

There are a number of minor changes to the re-evaluation process. The LEA is now required to ensure 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. At least once every three (3) years, a re-evaluation must occur, unless the parent and LEA agree it is unnecessary. Re-evaluations may be done without parental consent when the District demonstrates that it has taken reasonablemeasures to obtain such consent and the child's parent has failed to respond.

PR §300.303 Reevaluations: Requires a public agency to ensure that a reevaluation is conducted in accord with the new sections (300.304-300.311) pertaining to evaluation procedures.

Provides per the statute, that the reevaluation occur not more than once a year unless the parent and the public agency agree otherwise. Continues the general requirement for three-year reevaluations, except that in accordance with the Act, a parent and a public agency could agree that a three-year reevaluation is unnecessary.

e. Evaluation procedures.

Written prior notice of proposed evaluation procedures remains a requirement. The 1997 Reauthorization required that the LEA "use a variety of assessment tools and strategies." With the IDEIA 2004, 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 shall be provided and administered "in the language and form most likely to yield accurate information on what the child knows and can do academically, developmentally, and functionally, unless it is not feasible to so provide or administer." The test instruments shall be used for the purposes for which the assessments or measures are "valid and reliable."

There is a new requirement that assessments of children with disabilities who transfer from one school district to another 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.

PR §300.304 Evaluation Procedures & .305 Additional Requirements for Evaluations and Reevaluations: Incorporate the procedures governing conduct of evaluations in section 614(b)(2) of the Act. Requires that the public agency use a variety of assessment tools and strategies, including information provided by the parent, to gather relevant functional, developmental, and academic information about the child.

Reiterates language from the current regulations, based on section 612(a)(6)(B) of the Act, prohibiting the use of a single measure or assessment as the sole criterion for determining whether a child is a child with a disability or for determining an appropriate educational program for the child.

Now requires, in accordance with section 614(b)(2)(c) of the Act, that the public agency, in conducting the evaluation, use technically sound instruments that may assess the relative contribution of cognitive and behavioral factors, in addition to developmental factors.

Unlike the current regulations, which refer to standardized tests, the proposed regulations would refer to assessments and other evaluation materials, which is the terminology used in section 614(b)(3) of the Act.

The new rules incorporate the provision in section 612(a)(6)(B) of the Act and continue the longstanding requirement that procedures used for evaluation and placement of children with disabilities not be discriminated against race or culture.

In order to provide information and guidance regarding evaluation and assessment in on regulation, proposed §300.304(c)(1)(ii) would incorporate section 614(b)(3)(A)(ii) of the Act, and also would include language from the requirement in section 612(a)(6)(B) of the Act regarding the form of assessments and other evaluation materials used to assess limited English proficient children under the Act. The proposed regulation would also require public agencies to provide and administer assessments in the child's native language, including ensuring that the form in which the test is provided or administered is most likely to yield accurate information on what the child knows and can do academically, developmentally, and functionally, unless it is clearly not feasible to provide or administer the assessment in this matter.

Proposed paragraph (c)(1)(iii) would reflect new language in section 614(b)(3)(A)(iii) of the Act, which requires assessments or measures to be used for purposes that are valid and reliable. The current regulation, which requires that the evaluation report include a description of the extent to which the evaluation varied from standard conditions, has been removed from these proposed regulations.

PR §300.304(c)(5): Would incorporate the new requirement from section 614(b)(3)(D) of the Act that provides for expeditious coordination among school districts to better ensure prompt completion of full evaluations for children with disabilities who transfer from one public agency to another public agency in the same academic year.

PR §300.304(c)(6): Would continue to require that the evaluation be sufficiently comprehensive to identify all of the child's special education and related services needs, whether or not commonly linked to the disability category in which the child is classified. With regard to this requirement, note 152 of the Conf. Rpt. states:

"Conferees intend the evaluation process for determining eligibility of a child under this Act to be a comprehensive process that determines whether the child has a disability, and as a result of that disability, whether the child has a need for special education and related services. As part of the evaluation process, conferees expect the multi-disciplinary evaluation team to address the educational needs of the child in order to fully inform the decisions made by the IEP Team when developing the educational components of the child's IEP. Conferees expect the IEP Team to independently review any determinations made by the evaluation team, and that the IEP Team will utilize the information gathered during the evaluation to appropriately inform the development of the IEP for the child."

A newly proposed Section 300.305 addresses the additional requirements for evaluations and reevaluations, combining sections 300.533 and 300.534(c) of the current regulations. The primary change to this combined regulation is a new paragraph which incorporates the requirement of section 614(c)(5)(B)(ii) of the Reauthorization, requiring that the LEA provide a summary of academic and functional performance including recommendations to assist the student in meeting post-secondary goals, for students whose eligibility terminates because of graduation with a regular high school diploma or because of exceeding the age eligibility for FAPE under State law.

f. Determination of eligibility and educational need.

The IDEIA requires that the evaluation team determine "the educational needs of the child" and not simply whether or not the child is a child with a disability.

PR §300.306 Determination of Eligibility: Reflects the Act. This proposed regulation continues to provide that, upon completion of the administration of assessments and other evaluation measures, a group of qualified professionals, including the child's parent, determine whether the child is a child with a disability and the educational needs of the child. As is true under the current regulation, the public agency would be required to provide a copy of the evaluation report to the parent, including the documentation of determination of eligibility.

Incorporate the longstanding regulatory requirements that public agencies use a multifactored approach in determining eligibility and placement and develop an IEP for a child found eligible for services under the Act.

g. Amendment to the special rule for eligibility determination.

The 1997 Reauthorization precluded identifying the child as disabled if the determinate factor was lack of instruction in reading. The IDEIA provides that a child shall not be determined to be a child with a disability if the determinate factor of such determination is "lack of appropriate instruction in reading, including in the essential components of reading instruction" as defined in NCLB. The NCLB defines the "essential components of reading instruction" as explicit and systematic instruction in -

(i) phonemic awareness;

(ii) phonics;

(iii) vocabulary development;

(iv) reading fluency, including oral reading skills; and

(v) reading comprehension strategy.

A child still may not be identified due to a lack of instruction in mathematics or limited English proficiency.

PR §300.306(b) Special Rule for Eligibility Determination: Reiterates that a child must not be determined to be a child with a disability under this part if the determinant factor is lack of appropriate instruction in reading, including the essential components of reading instruction, lack of instruction in math, or limited English proficiency, and if the child does not otherwise meet the eligibility criteria under 300.8(a).

h. Minimization/elimination of the discrepancy model for specific learning disabilities.

A new provision 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" as a part of the evaluation procedures.

What constitutes "scientific, research-based intervention" is unclear. The No Child Left Behind Act defines "scientifically based research," but does not explicitly define the term "scientific, research-based intervention." "Scientific based research," according to NCLB:

1. Employs systematic empirical methods that draw on observation or experiment;

2. Involves rigorous data analyses that are adequate to test the stated hypotheses and justify the general conclusions drawn;

3. Relies on measurements or observational methods that provide reliable and valid data from evaluators and observers, cross-multiple measurements and observations, and across studies by the same or different investigators;

4. Is evaluated using 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 established by peer-review journal or approved by a panel of independent experts through a comparably rigorous, objective and scientific review.

See NCLB, 20 USC 7707(b)(37).

PR §300.307 Specific Learning Disabilities: Revamps the criteria for a special learning disability explicitly scrapping the use of the severe discrepancy model. The new rule requires that a State must adopt consistent with the criterion for determining the existence of a specific learning disability, criteria for determining whether a child has a specific learning disability. The criteria adopted by the State:

(i) May prohibit the use of a severe discrepancy between intellectual ability and achievement;

(ii) May not require the use of the discrepancy model for determining whether a child has a specific learning disability;

(iii) Must permit the use of a process that determines "if the child responds to scientific, research-based intervention" as part of the evaluation procedures described in PR §300.304; and

(iv) May permit the use of other alternative research-based procedures for determining whether a child has a specific learning disability.

The LEA is then required to use the State criteria to determine whether a child has a specific learning disability.

PR §300.308 Group Members: Defines the constituent members of the group charged with determining whether a child suspected of having a specific learning disability is a child with a disability. The group must include the child's parents and "a group of qualified professionals" that:

a. Is collectively qualified to-

(i) conduct, as appropriate individual diagnostic assessments in the areas of speech and language, academic achievement, intellectual development, and social-emotional development;

(ii) interpret assessment and intervention data, and apply critical analysis to those data;

(iii) develop appropriate educational and transitional recommendations based on the assessment data; and

(iv) deliver, and monitor specifically designed instruction and services to meet the needs of a child with a specific learning disability.

This group should include:

1. A special education teacher;

2. The child's general education teacher; or if the child does not have a general education teacher, a general education teacher qualified to teach a child of the child's age; and

3. "Other professionals," if appropriate, such as a school psychologist, reading teacher or educational therapist.

PR §300.309 Determining the Existence of a Specific Learning Disability: This new rule articulates three reasons why the "group" may determine that a child has a specific learning disability. They may do such if:

1. The child does not achieve commensurate results with their age in one or more of the following areas, when provided with learning experiences appropriate for the child's age:

2. The child fails to make sufficient progress in meeting state-approved results when using a "response to scientific, research-based intervention process, or the child exhibits a pattern of strengths and weaknesses that the Team determines as relevant to the identification of a specific learning disability. The pattern of strengths and weaknesses may be "in performance, achievement, or both relative to intellectual development;" and

3. The group must determine that its findings under either 1 or 2 above are not primarily the result of-

(i) a visual, hearing or motor disability;

(ii) mental retardation;

(iii) emotional disturbance;

(iv) cultural factors; or

(v) environmental or economic disadvantage.

§300.309(b) sets up a precondition to determination that a child suspected of having a specific learning disability does indeed have the disability. The group must consider as part of their evaluation data that demonstrates that:

(1) Either before or as a part of the referral process the child was provided appropriate, high-quality research-based instruction in regular education settings, including instruction that was delivered by qualified personnel; and

(2) Data based documentation of repeated assessments of achievement at reasonable intervals, reflecting formal assessment of student progress during instruction was provided to the child's parents.

When the preliminary process recited above results in the conclusion that the child has not made adequate progress after "an appropriate period of time," a referral for an evaluation to determine if the child needs special education and related services must be made. At that point, the time lines for completion of the evaluation must be adhered to unless extended by mutual agreement of the parents and the "group of qualified professionals."

PR §300.310 Observation: Refines the observation criteria requiring that the observation be conducted by "one member of the group." This group member must be other than the child's current teacher and must be "trained in observation." When a child is either of 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."

PR §300.311 Written Report: Sets forth criteria for a written report. When a child is suspected of having a specific learning disability, the evaluation report and the "documentation of the determination of eligibility" must include a statement of:

1. Whether the child has a specific learning disability;

2. The basis for making the determination including a written assurance that the determination has been made in accord with eligibility criterion for a specific learning disability;

3. The relevant behavior, if any noted during the observation of the child in a relationship of that behavior to the child's academic functioning; and

4. The educationally relevant medical findings, if any;

5. Whether the child achieves commensurate results with their age;

6. Whether there are strengths and weaknesses in performance or achievement or both or there are strengths and weaknesses in performance or achievement or both relative to intellectual development in the eight potential learning skills or areas that require special education and related services; and

7. The instructional strategies used and the "student-centered data" collected if a response to scientific, research-based intervention process was implemented.

There is a new certification requirement that each group member shall certify in writing whether the report reflects his/her conclusion. When it does not reflect their conclusion, the group member must subject "a separate statement presenting his/her conclusions."

i. Additional requirements for evaluation and re-evaluations.

An amendment to the additional requirements section reiterates that the IEP team must identify what additional data if any are needed to determine not only disability, but "the educational needs of the child." Evaluations must always take place as a pre-condition to a change in eligibility, except where the child graduates or reaches the age limit for services. When a child graduates or 'ages out,' the local educational 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. Districts and parents may, by mutual agreement, continue to opt out of a re-assessment to determine whether a child has a disability.

PR §300.305: Proposed §300.305(e)(3) reiterates this requirement.

j. Individualized Education Programs (IEPs).

The majority of the IEP components remain the same under the IDEIA. However, the requirement of a description of benchmarks or short-term objectives is now limited to those "children with disabilities who take alternate assessments aligned to alternate achievement standards." The IEP must contain an indication of when periodic progress reports will be made to the parents on the progress the child is making toward meeting the annual goals. A parenthetical statement suggests the use of quarterly or other periodic reports, concurrent with the issuance of report cards.

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." 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.

The IDEIA omits the formerly required transition service needs statement for 14-year-old children.

Both the Senate and House bills originally provided that in the case of a child whose behavior impedes the child's learning or that of others, the Team is required to provide for positive behavioral interventions and supports, [PBIS] and other strategies to address that behavior. That language does not appear in the IDEIA.

PR §300.320 Definition of Individualized Education Program [IEP]: The original definition of an IEP is cursory, at best. See §300.340(a). 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 (CF ("measurable annual 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 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 servicesbased 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 the extent, if any, to which the child will not participate with non-disabled children in the regular education environment (CF) "regular class" and in the activities described in paragraph 4 above;

6. (i) 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.

The remainder of PR §300.320 reiterates the change in transition service planning and that the IEP Team is not required to duplicate one component of a child's IEP that is already contained under another provision of the IEP.

k. The IEP team.

The regular education teacher is still required to participate on the IEP team if the child is, or may be participating in the regular education environment. The duty of the regular educator remains the same: to participate in the development of the IEP, to determine appropriate positive behavioral interventions and supports and other strategies, and the determination of supplementary aids and services, program modifications and support for school personnel.

However, 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