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The IDEA by wulinqing

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									The Individuals With Disabilities
Education Improvement Act of

      Presenter: Art Cernosia
       IDEA Reauthorization
 House Bill passed in April 2003
 Senate Bill passed in May 2004
 Conference Committee appointed in
  October 2004
 Conference Bill passed in November 2004
 President signs the bill into law on
  December 3, 2004
 Provisions took effect on July 1, 2005
  except personnel requirements
            IDEA Regulations
 U.S. Department of Education solicited comments
  prior to developing proposed regulations

 Proposed Regulations unofficially released on
  June 10, 2005-released officially on June 21, 2005

 Public Hearing and written comment period closed
  on September 6, 2005

 Final Federal Regulations not expected until
  Summer of 2006
  State and Federal Regulations
 Federal Regulations shall be promulgated
  only to the extent necessary to ensure

 SEAs must identify in writing to the LEAs in
  the state and the U.S. Secretary of
  Education any state policy/rule/regulation
  not required by Federal law
                Child Find
 Locate, evaluate and identify

 Residents birth to 21

 Highly mobile children

 Outreach activities
         IDEA 2004 Changes
 Adds children who are homeless (as defined
  in the McKinney-Vento Act) or who are
  wards of the state (defined by the state but
  excludes a child who has a foster parent)

 The Local Education Agency (LEA) where
  the private school is located is responsible
  for child find for parentally placed students
  regardless of the student’s residency
          California AB 1662
 The LEA of residence shall locate, identify
  and assess all private school children
  suspected of having a disability residing in
  the LEA
           Judicial Decision

State policy that expects that general
  education interventions be considering
  before referring a student for a special
  education assessment is consistent with the
Johnson v. Upland Unified School District
(9th Circuit Court of Appeals (2002))
 Parent Input
 Teacher/Service Provider Observations
 Classroom Based Assessments
 Functional and Developmental Information
 Information Concerning Access/Progress in the
  General Education Curriculum
 Technically Sound Instruments to Measure
    – Cognitive, Behavioral, Physical and Developmental
           Judicial Decision
 Parents have the right to examine their
  child’s education records and receive copies
  within five days of their request. This
  includes copies of test protocols which is
  deemed a ―fair use‖ under federal copyright
Newport-Mesa Unified School District v. State
  of California (Federal District Court, Central
  District of California (2005)).
        IDEA 2004 Changes
 Evaluation completed with an eligibility
  decision made within 60 days of parent
  consent unless the state otherwise
 Screening by teacher or specialists to
  determine instructional strategies for
  curriculum implementation is not considered
  an evaluation
                AB 1662

 The IEP Team must meet within 60 days of
  receiving parental consent for the initial
  assessment of the pupil
 Allows the parent to agree to an extension in
 Does not include days between regular
  school sessions or days of vacation in
  excess of five school days
        IDEA 2004 Changes
 Evaluation involving two school districts in
  the same academic year shall be
  coordinated and expeditiously completed
 Evaluations shall be administered in a
  language and form most likely to yield
  accurate information on what the child
  knows and can do academically,
  developmentally, and functionally unless not
      Consent for Evaluation
 Informed written consent required
  before conducting the initial evaluation
  – Excludes a review of existing information
    or a test/evaluation given to all children

 If consent refused, mediation and due
  process can be pursued
         IDEA 2004 Changes
 If the child is a ward of the state and not
  residing with the parents, reasonable efforts
  shall be made to obtain consent

 No consent required if parent cannot be
  found, parental rights have been terminated
  or a Court has appointed an individual with
  educational authority
 Conducted at least once every three years
  unless conditions warrant or the parent or
  teacher requests

 The scope of the reevaluation is determined
  by the IEP Team

 Parents given option to ask for additional
  assessments even if Team determines they
  are not necessary
        IDEA 2004 Changes
 Reevaluation not conducted more than once
  per year unless the parents and LEA agree

 Conducted at least every three years unless
  the parents and LEA agree that a
  reevaluation is not necessary
         IDEA 2004 Changes

 A reevaluation is not required if a student is
  exiting special education due to graduation
  with a regular diploma or exceeding the
  state’s age eligibility
       Independent Educational
 Anytime at parent expense

 At public expense if parent disagrees with
  district’s evaluation

 District must pay or initiate a Due Process

 Team must consider the IEE
           Judicial Decisions
 The Team must consider the results of the
  IEE. As part of the consideration, the Team
  must address any differences between the
  school’s evaluation and the IEE
B.S. v. Seattle School District (9th Circuit Court
  of Appeal (1992)).
 Meets One or More of the Disability

 Adversely Affects Educational Performance

 In Need of Special Education
  – Specially Designed Instruction
           Judicial Decision
 A student was not deemed eligible for
  special education. Although it was a close
  question whether the student had an ED or
  OHI, there was no adverse affect on
  educational performance
R.B. v. Napa Valley Unified School District
(Federal District Court, Northern California
         IDEA 2004 Changes
 Not eligible if determinant factor is lack of
  appropriate reading instruction including the
  essential components of reading per NCLBA
  (phonemic awareness, phonics, vocabulary
  development, reading fluency and reading
 State policies and procedure to prevent over
  identification or disproportionate
  representation by race or ethnicity
 LEAs allowed to opt out of the severe
  discrepancy SLD criteria and use a process
  involving ―response to scientifically based
  interventions‖ as part of the evaluation
   Proposed IDEA Regulations
 SEA must adopt SLD criteria which may
  prohibit use of ―severe discrepancy‖ element
 SEA must permit use of a process based on
  response to scientific, research based
 SEA may permit use of other alternative
  research based procedures for SLD
  determinations (300.307)
   Proposed IDEA Regulations
 SLD may be determined if the child:
  – Does not achieve commensurate with child’s
    age in specified areas when provided
    appropriate learning experiences
  – Fails to achieve a rate of learning to make
    sufficient progress to meet State approved
    results when assessed with RTI process; or
  – Exhibits a pattern of strengths and weaknesses
    in performance, achievement or both
   Proposed IDEA Regulations
 As part of the evaluation process, must
  consider whether prior to or as part of the
  referral process the child received
  appropriate high quality research based
  instruction in regular education settings
  delivered by qualified personnel; and
 Data based documentation of repeated
  assessments reflecting formal progress
 Progress reported to parents
   Proposed IDEA Regulations
 If the child has not made adequate progress
  after an appropriate period of time, a referral
  must be made
 60 day timeline applies unless extended by
  mutual written agreement
 Free Appropriate Public Education
 Special Education and Related Services
  – Provided at public expense, under public
  – Without charge
  – Meet the standards of the State
  – Include pre-school, elementary or secondary
    school education
  – Provided in conformity with the Individualized
    Education Program (IEP)
             FAPE Standard
 The Supreme Court in the Rowley case
  established two criteria in determining

  – Have the procedures been adequately complied
    with? ; and

  – Is the IEP reasonably calculated to enable the
    child to receive educational benefits?
                 IEP Teams

 Parents
 Student, where appropriate
 Regular Classroom Teacher
 Special Education Teacher/Service Provider
 District Representative
 Others with Knowledge or Expertise
 Individual who can Interpret Instructional
  Implications of the Evaluation
 Other Agency Representatives (Transition
 Representative from private school
           Judicial Decisions
 The Court deemed that FAPE was denied
  as a result of an IEP Team that was not duly
M.L. v. Federal Way School District (9th Circuit
  Court of Appeals (2005)).
Shapiro v. Paradise Valley Unified School
  District (9th Circuit Court of Appeals (2003))
           Judicial Decision
 Failure to provide parents with copies of the
  requested evaluation reports prior to the IEP
  meeting resulted in a denial of the parents
  rights under the IDEA. The IEP therefore
  was deemed inappropriate
Amanda J. Clark County School District (9th
  Circuit Court of Appeals (2001)).
        IDEA 2004 Changes
 Parents and the LEA may jointly excuse an
  IEP Team member from attending meeting

 If curricular area will be discussed, the
  excused member must provide written input
  to the Team

 Agreement must be in writing and parental
  consent must be obtained
                AB 1662
 The parents and the LEA must confer with
  the IEP Team member before determining
  whether to excuse the member
         IDEA 2004 Changes

 If previously served under Part C, the parent
  must be afforded the right to request that the
  Part C Coordinator or representative be
  invited to the initial IEP meeting

 Video conference or conference call
  meetings permitted if agreed to
        IDEA 2004 Changes
 The IEP may be amended between the
  annual review meetings without a new
  meeting if the parents and LEA agree

 IEP amendment shall be in writing

 Upon request, the parent shall be given a
  revised IEP with the amendments
                 AB 1662
 The IEP amendment must be signed by the
  parties if the IEP will be amended without an
  IEP Team meeting
           IEP Considerations
   Strengths/Concerns
   Behavior
   Language issues for ELL students
   Braille instruction for VI students
   Communication needs
   Assistive Technology
   Prohibition on requiring medication as a
    condition for services
                IEP Content
   Present Levels of Performance
   Measurable Annual Goals
   Objectives/Benchmarks
   Special Education and Related Services
             Duration
            Dates for Initiation
              IEP Contents
 An explanation of the extent, if any, to which
  the child will not participate in class and
  extracurricular and not-academic activities
  with nondisabled children

 Supplementary Aids and Services

 Classroom Modifications
             IEP Contents
 Supports for School Personnel
 Participation in District and State
 Transition Goals and Services
 Extended School Year,when appropriate
 How Progress will be measured
 Method for Reporting Progress to Parents
        IDEA 2004 Changes
 Short term objectives and benchmarks are
  eliminated except for students who take
  alternate achievement assessments based
  on alternate standards

 Annual measurable IEP goals must include
  academic and functional goals

 Special education and related services must
  be based on peer reviewed research to the
  extent practicable
         IDEA 2004 Changes
 Transition to be addressed no later than the
  IEP in place when the student turns 16
 Appropriate measurable post-secondary
  goals related to training, education,
  employment, and independent living skills
 Exiting students (due to graduation, age)
  must be provided a summary of academic
  and functional performance with
  recommendations to assist them in meeting
  transition goals
         IDEA 2004 Changes
 Description how progress toward IEP goals
  will be measured and when periodic
  progress reports will be provided the parents
      Related Services Standard
            (Tatro Criteria)
 Child must have a disability and be in need
  of special education

 Service must be necessary to aid the child
  to benefit from special education

 Service must be able to be performed by a
        IDEA 2004 Changes

 Definitions of Related Services and
  Assistive Technology excludes surgically
  implanted medical devices or replacement
  of such device
 Related services includes nursing services
  designed to enable the student to receive
   Proposed IDEA Regulations
 Related services do not include a medical
  device that is surgically implanted, the
  optimization of device functioning,
  maintenance of the device or the
  replacement of that device. (300.34(b))
       IEPs and Assessment
 Participate in Regular Assessment
 Participate in Regular Assessment with
 Participate in Alternate Assessment
  – Regular Academic Standards
  – Alternate Academic Standards for
    Students with Significant Cognitive
        IDEA 2004 Changes
 IEPs must include appropriate
  accommodations necessary to measure
  academic achievement and functional
  performance on state/local assessments
 IEPs shall include a statement why an
  alternate assessment is required and why
  the particular alternate assessment has
  been selected
Modified Achievement Standards
 Proposed Federal Regulations issued on
  December 15, 2005
 Based on State Guidelines
 IEP Team decision regarding what students
  qualify—can be any disability
 Cap of 2% at LEA/SEA level for determining
  proficiency for AYP
 Students exiting special ed can be counted
  for 2 additional years under subgroup
          IEP Implementation
 Parents shall be provided a copy of the IEP

 IEP must be accessible to each service
  provider who is responsible for its

 Each service provider must be informed of
  their specific responsibilities in implementing
  the IEP
         IDEA 2004 Changes
 If a student transfers to a new LEA within
  the same state, the new LEA shall provide
  comparable services in consultation with the
  parents until the IEP is adopted or revised
 If the transfer is to a new state, the new LEA
  shall provide comparable services in
  consultation with parents until a new
  evaluation is conducted, if necessary, and a
  new IEP developed
                 AB 1662

 An IEP shall be developed or revised within
  30 days
    Least Restrictive Environment

 To the maximum extent appropriate,
  students with disabilities shall be educated
  in classroom and other activities with peers
  who are not disabled
 Continuum of Alternative Placements
 IEP shall EXPLAIN the extent, if any, to
  which the student will not be educated with
  peers who are not disabled
 Supplementary Aids and Services
    Continuum of Placements
 Regular Class with Supplementary Aids and
 Resource Room
 Special Class
 Special Day School
 Homebound
 Residential School
   Based on the IEP
   Determined at least annually
   Is as close as possible to the child’s home
   Unless the IEP requires some other
    arrangement, the child is educated in the
    school that he/she would attend if
              LRE Factors
 Educational benefits of placement in a
  regular class
 Non-academic benefits such as modeling
  appropriate behavior and language
 Effect on the teacher and the other students
 Costs involved
Holland v. Sacramento School District (9th
  Circuit Court of Appeals (1994)
   Behavioral Intervention Plans
 IEP Team determination based on the
  evaluation results

 If behavior impedes his/her learning of that
  of others, IEP must include:
      Positive behavior interventions
      Strategies
      Supports
           Judicial Decision
 The IDEA does not contain specific
  substantive requirements for IEP behavior
  plans. Although the behavioral goal was not
  achieved, the Court upheld the IEP provided
  a FAPE
Alex R. v. Forrestville Valley Community
  School District (7th Circuit Court of Appeals

 Short Term Measures

 Long Term Measures

 Interim Measures
     Short Term Suspensions
 10 School Days or Less in a School Year
 Follow Regular Disciplinary Procedures
 No need to:
  – Determine Manifestation
  – Conduct a Functional Behavioral Assessment
  – Provide Services (unless services are provided
    to non-disabled students who are so
Short Term Disciplinary Hearings
 Applies to all students
 Informal Hearing with Administrator
  – Notice of the charges
  – Explanation of the evidence
  – Opportunity for student to share their story

 Check state and local policies for specific
             In School Suspensions
 Does not count as a day of suspension if:
      Student is afforded the opportunity to progress in the general
       education curriculum

      Student is provided their special education/relates services

     Student participates with non-disabled peers to the extent they
       would in their regular placement

     (Comments to the 1999 IDEA Regs)
Other Disciplinary Considerations
 Portions of a day in which the student must
  be removed must be accounted for

 Bus suspensions are deemed a removal if:
  – Transportation is listed in the IEP
  – No alternate transportation has been offered
  Disciplinary Change of Placement

 More than 10 consecutive school days of
  disciplinary removal

 More than 10 cumulative school days of
  disciplinary removal in a given school year
  when a determination is made that a pattern
  More than 10 cumulative school
  days of removal in a school year
 Determine if there is a change of placement:
  – Length of each disciplinary removal
  – Proximity of the removals to one another
  – Total amount of time student is excluded

 If there is a change of placement, follow
  long term suspension/expulsion procedures
        IDEA 2004 Changes

 School personnel may consider any unique
  circumstances on a case by case basis
  when determining whether to order a
  change of placement
  Services for students removed for
   more than 10 school days in a
             school year

 Services to the extent necessary to enable
  the student to:
  – Appropriately progress in the general curriculum
  --Appropriately advance toward achieving their
    IEP goals
    Interim Alternative Educational
            Setting (IAES)
 Student possesses or carries a dangerous
  weapon to school or a school function

 Student knowingly possesses or uses an
  illegal drug

 Student sells or solicits a controlled
         IDEA 2004 Changes

 Adds ―inflicting serious bodily injury‖ as
  grounds for IAES
  – Showing of substantial risk of death, extreme
    physical pain, protracted/obvious disfigurement,
    protracted loss/impairment of a bodily member
    or organ/ mental faculty
 Up to 45 school days
 IEP Team determines services and
   – Services that afford opportunity to
     participate in the general curriculum

  – Services called for in the IEP

  – Services to address the behavior
      IAES for Safety Reasons
 Determination by Hearing Officer or Court
 Standard
  – Burden of proof on the school to show by a
    substantial evidence that:
      Student’s return is substantially likely to result in
       injury to self or others;
      Current placement is appropriate; and
      School made reasonable efforts to minimize the risk
       of harm to self/others
 Functional Behavioral Assessment

 IEP Team, after 10 school days of
  disciplinary removal, meets to either:
  – Develop a functional behavioral assessment
    plan if a FBA was not previously conducted
  --Review the behavioral intervention plan as part
    of the IEP to determine what, if any, revisions
    are necessary
  Change of Placement Procedures

 Notify parents of their rights

 Conduct a manifestation determination

 Plan for services starting no later than the
  11th cumulative school day of removal
   Manifestation Determination
 Relevant IEP Team members and parents
  (as determined by the parents and LEA)

 Determination made no later than 10 school
  days after determination of disciplinary

 Review information provided by parents and
  other evaluation information
    Old Manifestation Standard
 Manifestation unless IEP Team determines
  that in relation to behavior:
  – IEP and placement is appropriate
  – IEP behavior component was implemented
  – Disability did not impair the student’s ability to
    understand the impact and consequences of
    their behavior; and
  – Disability did not impair the student’s ability to
    control their behavior
         IDEA 2004 Changes
 Manifestation if behavior was caused by or
  had a direct or substantial relationship to the
  disability or was the direct result of the
  failure to implement the IEP
 If manifestation, conduct FBA,
  implement/revise BIP, return to last
  placement unless otherwise agreed to as
  part of the behavior intervention plan
     If there is a Manifestation
 Disciplinary removals not permitted

 Services are provided

 If necessary, IEP Team determines what, if
  any, revisions are necessary for IEP
  services and placement
          If No Manifestation
 Student is subject to the regular disciplinary
  process of the school

 Services must be provided no later than the
  11th cumulative school day of removal in the
  school year
       Students Not Yet Eligible

 Basis of Knowledge:
  – Parent expressed concern in writing regarding
    need for special education

  – Parent requested an evaluation; or

  – School personnel expressed concern about
    behavior or performance in accord with the
    special education referral system
         IDEA 2004 Changes

 Removed, as a basis of knowledge, the
  criteria that the student’s performance or
  behavior demonstrated a need for special
   Referral to Law Enforcement
 No limit to report a crime to appropriate

 Transfer of special education and
  disciplinary records to the agency
  – Must be done in accord with the requirements of
        Procedural Safeguards
   Participation in Meetings
   Written Notice of Proposed/Refused Actions
   Informed Consent
   Access to Education Records
   Independent Education Evaluations
   Mediation
   Due Process Hearings
   Administrative Complaints
                IDEA 2004
 Parent means a natural, adoptive or foster
  parent of a child (unless prohibited by State
  law), a guardian (but not the State if the
  child is a ward of the State), or individual
  acting in the place of a parent (including a
  grandparent, stepparent or other relative)
  with whom the child lives, or an individual
  who is legally responsible for the child’s
          Prior Written Notice
 proposal to change or refusal to change

     Identification

     Evaluation

     Educational Placement

     Provision of FAPE
 Initial Evaluation—may use mediation or
  due process if no consent
 Reevaluation, if additional information is
  deemed necessary
 Initial Provision of Special Education
 Use of Insurance
 Disclosure of education records
                AB 1662
 Parent consent also required for subsequent
  changes to the special education program
 If the LEA determines that the component is
  necessary to provide FAPE and no parental
  consent is received, the LEA shall initiate a
  due process hearing
         IDEA 2004 Changes
 Consent—no override provision for lack of
  consent for the provision of special
  education and related services
 If no consent for services, LEA not required
  to convene IEP meeting or develop IEP
 Refusal to consent for services exempts
  LEA from violations of responsibility to
  provide FAPE
          IDEA 2004 Changes
 Procedural Safeguard Notice provided:
  – Once per year

  – Initial Referral

  – Request from Parent

  – Due Process Complaint/Administrative
 SEA responsibility
 Available at a minimum when a Due
  Process Hearing is requested
 Voluntary
 Confidentiality Pledge
 Written Mediation Agreement
         IDEA 2004 Changes
 Mediation must be made available at any
 point if agreed upon

 Mediation agreements
  – Executed as a legally binding agreement
  – Provide for the confidentiality of all discussions
  – Signed by parents and District representative
  – Enforceable in state or Federal Court
        Due Process Hearing
 Issues of evaluation, identification,
  educational placement and FAPE

 45 day timeframe

 Impartial Hearing Officer

 One or two tiered system
           Judicial Decision
 The party challenging the IEP has the
  burden of proof in a due process hearing

Weast v. Schaffer (United States Supreme
 Court (2005))
              Hearing Rights
 Representation by attorney or assistance from lay

 Present evidence and cross examine witnesses

 Compel attendance of witnesses

 Five Day Rule for presentation of Evidence
             Parent Rights
 Open or closed hearing

 Student presence at hearing

 Form of transcript

 Form of decision
         IDEA 2004 Changes
 Statute of Limitations is 2 years unless state
  establishes different timeframe—exceptions
  if parent was mislead or not informed
 Parent or LEA must file written request for
  due process hearing specifying issues, the
  facts and the resolution sought
 Party may file objection with Hearing Officer
  challenging sufficiency of request
 LEA files PWN if not previously done
 Receiving party files a response to the
  request within 10 days
        IDEA 2004 Changes
 If parent requests hearing, a resolution
  meeting with parent and relevant IEP Team
  members held within 15 days

 Resolution meeting occurs unless both
  parties waive meeting or request mediation

 No LEA attorney unless parent attorney
        IDEA 2004 Changes
 If resolution reached, resolution agreement
  shall be in writing and legally binding

 Resolution agreement enforceable in Court

 Agreement may be voided within 3 business
 If no resolution within 30 days, hearing
  process commences
        IDEA 2004 Changes
 No new issues can be raised unless agreed
  to or hearing officer allows (at least 5 days
  prior to hearing)
 Hearing Officers shall possess the
  knowledge and ability to:
   – Understand Federal/State law and Court
   – Conduct Hearings
   – Render and Write Opinions
         IDEA 2004 Changes
 No denial of FAPE based on procedural
  deficiencies unless resulting in loss of
  educational opportunity or infringing parental

 Hearing decisions can be appealed to Court
  within 90 days unless the state establishes a
  different time frame
                  Stay Put
 Unless otherwise agreed to, student
  remains in the last current placement

 Exceptions
  – Dangerousness
  – Final Hearing decision agrees with parents that
    a change of placement is necessary
            Attorneys Fees

 Court may award attorneys fees and costs
  to parents who prevail in the administrative
  hearing or judicial proceeding
         IDEA 2004 Changes
 SEA/LEA that prevails may seek attorneys
  fees from the parents’ attorney if the Court
  finds that the complaint is frivolous,
  unreasonable, without foundation or
  prolonged litigation
 SEA/LEA that prevails may seek attorneys
  fees from the parents’ attorney or parent if
  the Court finds the complaint was filed to
  harass, cause unnecessary delay or
  increase costs of litigation
 State Administrative Complaints
 Investigate written complaint that a public
  agency has violated the IDEA
 1 yr. period, 3 yrs. if compensatory ed
 Issue a decision within 60 days unless
  extended for extenuating circumstances
 Order corrective actions as warranted
  including reimbursement or compensatory
 All teachers and related services personnel
  must be qualified---meet applicable state
  licensing, certification or other applicable

 Paraprofessionals may assist in the
  provision of services if they are supervised
  and trained under standards set by the state

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