Update: Anticipating Final Regulations for IDEA 1997
On June 23, 1998, the Labor, Health and Human Services, and Education Subcommittee of the House Appropriations Committee developed a draft of (marked up) the fiscal year 1999 bill and included several provisions that, if passed, would bring changes to IDEA 97.
The Appropriations Committee was scheduled to vote on the fiscal year 1999 spending bill on July 14, 1998, and send it on to the House on July 22. However, the bill has been pulled and is being held over until after Congress returns from its August recess.
|| 1997 IDEA AMENDMENTS
|Part A . Sec.602(1)(B).Definitions:”Child with a Disability” – allows use of
“developmental delay” for ages 3-5.
|Sec. 602(3)(B). Definitions: “Child with a Disability” – allows use of “developmental delay” for ages 3 through 9
|Sec. 612(2)(C). “Child Find”: States are required to identify, locate, and evaluate children with disabilities in need of special education & related services.
||Sec. 612(a)(3). “Child Find”: Same, with
following additions:a. “Child find” includes children with disabilities in private schools.
b. Nothing in the Act requires classification by disability, as long as child meets federal eligibility definition.
| Sec. 612(5)(B). “LRE”: States must have procedures to ensure that, to the maximum extent appropriate, children with disabilities, including those in public/private institutions,
are educated with non-disabled children, and that removal from the regular education environment only occurs when education in that setting, with supplementary aids and services, cannot be achieved satisfactorily.
|Sec. 612(a)(5). “LRE”: Same, with following additions:a. If intrastate funding mechanism is based on type of setting, results cannot be placements that violate LRE.
b. If State does not have policies/
procedures that comply with a. (see above), State must provide assurance that it will revise funding mechanism as soon as feasible to conform to a.
|Sec. 613(a)(4), (d). Children Enrolled in Private Schools:a. Special education & related service will be provided to children in private schools, if those children are placed there by SEA/LEA.
b. Federal payment may not exceed “per child” amount for those children in public schools.
|Sec. 612(a)(10). Children in Private Schools:a. Children enrolled by parents in private schools are eligible for special education & related services under following requirements:
(1) Amounts spent for those services shall be equal to a proportionate amount of federal funds available under Part B;
(2) Services may be provided on premises of private, including parochial, schools, as consistent with law;
(3) “Child find” shall apply to children in private, including parochial, schools.
b. LEA is not required to reimburse costs of special education if parent unilaterally placed child in private school.
(1) Reimbursement may be available if court/hearing officer determines that LEA had not made FAPE available in timely manner prior to enrollment in private school.
(2) Reimbursement may be reduced or denied if:
(a) at IEP meeting prior to removal, parents did not inform team that placement was rejected and that they intended to place child in private school at public expense; or, 10 business days prior to removal, parents did not give written notice to LEA of rejection of placement and intent to remove;
||(b) prior to removal, LEA informed parents of intent to evaluate child, but parents did not make child available; or(c) judicial finding of unreasonableness on parents’ part.
(3) Reimbursement may not be reduced or denied for failure to provide notice [see (2)(a) above] if:
(a) parents are illiterate and cannot write English;
(b) compliance would result in physical/emotional harm to child;
(c) school prevented parent from providing notice; or
(d) parents had not receive notice of requirement.
||d. If public agencies (see c.) fail to provide or pay for services, LEA or SEA shall provide or pay for such services, and may then claim reimbursement for these
and the responsible agencies shall pay in accord with agreements.e. Requirements of a.
may be met through.
(1) State statute or regulation;
(2) signed agreements between agency officials;
(3) other appropriate methods as determined by Governor or designee.
| Sec. 613(a)(14). Personnel Standards: State shall establish and maintain standards to ensure that personnel are appropriately and adequately prepared and trained, including:a. standards consistent with any State-approved or recognized certification/ licenser or other
comparable requirements; and,
b. to the extent those standards are not based on highest requirements in the State applicable to a specific profession or discipline, steps State is taking to retrain or hire personnel that meet those highest requirements.
| Sec. 612(a)(15). Personnel Standards: Same, with the following additions:a. State standards shall allow paraprofessionals and assistants who are appropriately trained and supervised to assist in provision of special education and related services.
b. State may require LEAs to make ongoing good faith effort to recruit and hire appropriately and adequately trained personnel, including, in a geographic area of the State where there are shortages, the most qualified individuals available who are making satisfactory progress toward completing applicable course work necessary to meet the highest standard within three years.
|| Sec. 612(a)(17). Participation in State Assessments: Children with disabilities will be included in general State and District wide assessments, with appropriate accommodations.a. SEA or LEA shall develop guidelines for participation; and, develop, and, no later than July 1, 2000, conduct alternate assessments.
b. SEA must report, with the same frequency it does for non disabled students;
(1) the number of children participating in regular assessments, and the number of children participating in alternate assessments;
(2) performance on regular assessments, beginning not later than July 1, 1998, and on alternate assessments, not later than July 1, 2000.
c. Performance data will be desegregated for assessments conducted after July 1, 1998; and, for assessments conducted prior to that date, if the State is required to desegregate data.
| School-Based Improvement
| Sec. 613(g). School-Based Improvement Plan:a. SEA may grant authority to LEA to use Part B funds for a period not to exceed 3 years to permit a public school within its jurisdiction to design/implement school-based improvement plan to improve educational/ transitional results for children with disabilities and non disabled children, as consistent with sec. 613(a)(4).
b. LEA shall have sole responsibility for oversight of activities relating to design and implementation of plan.
c. Plan shall:
(1) be consistent with State Improvement Plan [sec. 651(b)];
(2) be designed, implemented, & evaluated by a school-based standing panel (see below);
(3) include goals and measurable indicators to assess the progress of the school in meeting these goals;
(4) ensure that all provisions of IEPs are met.
| Sec. 614(d)(1). Direct Provision of Special Education & Related Services by the SEA: SEA will provide direct services to children with disabilities whenever SEA determines that LEAa. is unable or unwilling to establish/maintain FAPE;
b. is unable or unwilling to be consolidated with other LEAs;
c. has one or more children who can best be served by a regional or State center.
| Sec. 613(h). Direct Services by the SEA: Current law with the following changes-SEA will provide direct services if LEA:
a. has not provided information needed to establish eligibility;
b. is unable [Delete “unwilling”] to establish/maintain FAPE.
| Disciplinary Information: N/A
|| Sec. 613(j). Disciplinary Information:a. State may require LEAs to include, in the records of a child with a disability, statement of current or previous disciplinary action.
b. Statement will be included in and transmitted with other student records to same extent that such information would be included in/transmitted with records for non disabled students.
c. Statement may include description of any behavior that required disciplinary action, description of action taken, and other information relevant to child’s safety or safety of those involved with that child.
| Sec. 612(20(C); 612(5)(C); 614(a)(1)(A). Evaluation:a. Both SEA and LEA must identify, locate, and evaluate children with disabilities to determine their eligibility for special education and related services.
b. SEA must establish procedures to assure that testing and evaluation materials and placement procedures will be selected and administered so as not to be culturally or racially discriminatory.
| Sec. 614(a)-(c). Evaluations and Reevaluations:a. SEA or LEA shall conduct initial evaluation to determine whether child is a child with a disability and to determine educational needs.
(1) Agency must obtain informed consent from parents before conducting evaluation, and consent shall not be construed as consent for placement.
|| (2) If parents refuse consent for evaluation, agency may pursue evaluation through mediation and due process procedures.b. Reevaluation:
(1) LEA shall ensure reevaluation if conditions warrant or if parents or child’s teacher requests reevaluation, at least once every 3 years.
(2) Parents’ informed consent should be secured prior to reevaluation; however, not necessary if LEA can demonstrate that reasonable measures taken to obtain consent and parent didn’t respond.
c. Evaluation Procedure:
(1) LEA shall provide notice to parents describing any evaluation procedures to be conducted.
(2) LEA shall use variety of assessment tools, including information provided by parents; shall not use any single procedure to make determination of eligibility; and, use technically sound instruments to assess cognitive, behavioral, physical and developmental factors.
(3) Other requirements:
(a) Evaluation materials must be selected and administered so as not to be culturally or racially discriminatory;
(b) Tests must be administered in native language or other mode of communication, unless not feasible to do so;
(c) Child must be assessed in all areas of suspected disability;
(d) Assessments must provide information to determine the
child’s educational needs.
(4) Team of qualified professionals and child’s parent will determine if child meets eligibility requirements.
(5) Child will not be determined to be “child with a disability” based on lack of instruction in reading or math or limited English proficiency.
(6) If IEP team determines that no additional data are needed to determine continued eligibility, LEA:
(a) shall notify parents of determination and reasons and parents’ right to request assessment; and,
(b) shall not be required to conduct assessment unless parents so request.
| Sec. 602(a)(20); 614(a)(5). Individualized Education Program:a. Definition:
(1) IEP is a written statement developed by representative of LEA or IEU who is qualified to provide or supervise specialized instruction to meet the unique needs of children with disabilities, teacher, parents, and when appropriate the child;
(2) IEP shall include statements of:
(a) present levels of educational performance;
(b) annual goals, including short-term objectives;
(c) specific educational services to be provided and extent to which child will participate in regular educational programs;
(d) needed transition services for students, beginning no later than age 16, including as appropriate interagency responsibilities or linkages;
(e) projected “start” date and duration of services; and,
(f) objective criteria and evaluation procedures, and schedule for determining at least annually whether objectives are being met.
b. LEA or IEU must provide assurance that will establish or revise an IEP for each eligible child at the beginning of each school year, and will review and revise, if necessary, at least annually.
| Sec. 614(d). Individualized Education Programs:a. Contents of the IEP – current law with the following additional statements:
(1) Present level of educational performance, including
(a) how the child’s disability affects involvement and progress in general curriculum;
(b) for preschoolers, how disability affects participation in appropriate activities;
(2) Special education & related services and supplementary aids & services to be provided and program modifications or
supports provided for personnel:
(a) to advance appropriately toward attaining annual goals;
(b) to be involved and progress in general curriculum and to participate in extracurricular and other nonacademic activities;
(3) explanation of extent to which child will not participate in regular class;
(4) Any individual modifications needed for student to participate in State and district wide assessments; and if child will not participate in general assessments, why assessment is not appropriate and how child will be assessed;
(5) Frequency and location of services and modifications;
(6) Beginning at age 14, transition service needs focusing on child’s course of study;
(7) Beginning at least one year before child reaches age of majority, information regarding rights transferred on reaching age of majority;
(8) Child’s progress toward annual goals will be measured, and parents will be regularly informed of progress.
b. IEP Team – current law with following additions:
(1) at least one regular education teacher if child is or might be participating in regular education environment;
(2) at least one special education teacher;
|| (3) LEA representative knowledgeable about general curriculum and about availability of LEA resources;(4) individual who can interpret evaluation results;
(5) at parents’ or LEA’s discretion, other individuals with knowledge/expertise about the child, including related services personnel.
c. Development of IEP –
IEP Team shall:
(1) consider for child whose behavior impedes learning, interventions, strategies, and supports, including behavior management plans, to address behavior;
(2) consider for limited-English proficient child, language needs;
(3) for child who is blind or visually impaired, provide Braille instruction, unless Team determines that use of Braille is not appropriate;
(4) consider for all children, communication needs;
(5) consider for deaf or hard of hearing children, language and communication needs, opportunities for communication in child’s language and communication mode, including direct instruction in that mode;
(6) consider whether child needs assistive technology devices and services.
d. For children with disabilities convicted under State law as adults and incarcerated in adult prisons:
(1) following requirements do not apply:
(a) participation in State and district wide assessments;
(b) statements of transition planing and services.
(2) IEP team may modify IEP or placement if State has demonstrated security or “compelling penological interest” that can’t be otherwise accommodated.
e. LEA or SEA shall ensure
that parents of each child with disability are members of any group making placement decisions.
| Sec. 615(b)(1). Procedural Safeguards (Required Procedures):Procedures required by this section include:
a. opportunity for parents to examine all relevant records with respect to identification, evaluation, and placement, and provision of FAPE, and to obtain an independent educational evaluation;
b. protection of child’s rights when parents are not known, unavailable, or child is ward of the State;
c. written prior notice to parents when agency proposes to initiate or change or refuses to initiate or change identification, evaluation, or placement, or provision of FAPE;
d. assurance that written prior notice fully informs parents, in native language unless not feasible, of all safeguards; and,
e. opportunity to present complaints.
| Sec. 615(b). Procedural Safeguards (Types of Procedures): same, with the following additions:a. opportunity for parents to examine all [Delete “relevant”] records and to participate in meetings with respect to identification, evaluation, and placement, and provision of FAPE;
b. protection of child’s rights when agency, after reasonable efforts, cannot locate parents;
c. opportunity for mediation;
d. provision of notice to SEA/LEA by parents or their attorney which includes…
(1) child’s name, address, and school;
(2) description of problem, including facts relating to problem; and,
(3) proposed resolution of problem;
e. requirement that SEA develop model form to assist parents in filing complaints.
Sec. 615(c). Content of Prior Written Notice: The notice contents are contained in 34 C.F.R.§300.505 of the IDEA regulations. Notice contents are also included in
Sec. 615(d). Procedural Safeguards Notice: States that parents must be fully informed of all available procedures. Reauthorized law provides following details:
a. Parents shall be given copy of procedural safeguards at a minimum upon initial referral for evaluation, upon each notification of IEP meeting and reevaluation, and upon registration of complaint.
b. Notice shall be written in easily understandable manner and provide full explanation of safeguards relating to:
(1) independent educational evaluation;
(2) prior written notice;
(3) parental consent;
(4) access to educational records;
||(5) opportunity to present complaints;(6) placement during pendency of due process proceedings;
(7) procedures for interim alternative education settings;
(8) requirements for unilateral placement by parents of children in private schools at public expense;
(10) due process hearings;
(11) State-level appeals, if applicable;
(12) civil actions; and
(13) attorneys’ fees.
| Sec. 615(b)(2). Impartial Due Process Hearings:Whenever complaint has been received, parents shall have opportunity for an impartial due process hearing. Employees of SEA/LEA involved in child’s education shall not conduct such hearings.
|| Sec. 615(f)(2). Impartial Due Process Hearings: Same, with the following addition:a. At least 5 business days prior to hearing, each party shall disclose all evaluations and recommendations that the party intends to use at the hearing;
b. Failure to disclose may result in bar to introduction of this information at the hearing without other party’s consent.
|| Chapter 2. Improving Early Intervention, Educational, and Transitional Services and Results for Children with Disabilities through Coordinated Technical Assistance, Support, and Dissemination of Information:
Sec. 682. Parent Training and Information Centers:
a. Secretary makes grants with parent organizations to support parent information and training centers.
b. Each center shall:
(1) provide training/information that meets needs of parents in area served, particularly under served parents and parents of children inappropriately identified;
(2) assist parents in understanding and using procedural safeguards;
(3) serve parents of children with full range of disabilities;
(4) explain mediation process to parents.
c. Secretary shall make at least 1 award in each State.
Sec. 683. Community Parent Resource Centers: Grants shall be made to local parent organizations to support parent training and information centers targeted at under served parents, including low-income, limited-English proficient, and parents with disabilities.
Sec. 684. Technical Assistance for Parent Training and Information Centers: Secretary may directly or through grant awards provide technical assistance for developing and coordinating parent training and information programs.
Sec. 685. Coordinated Technical Assistance and Dissemination:
a. Secretary shall provide, through grants/contracts, technical assistance and information through mechanisms such as institutes, Regional Resource Centers, clearinghouses, and programs that support State/local capacity building.
b. Authorized activities include…
(1) assisting SEAs/LEAs and other “partners” in development of SIP with planning systemic changes;
||(2) promoting change through multistate/ regional framework; and,(3) promoting communication and information exchange among SEAs, LEAs, and other “partners,” based on needs identified by partnerships.
c. Other areas of authorized activities include “Specialized Technical Assistance” and “National Information Dissemination.”
Sec. 687. Technology Development, Demonstration, and Utilization, and Media Services: Authorized activities under this section include…
a. conducting research and development on emerging technologies;
b. promoting demonstration and use of those technologies;
c. providing technical assistance on development of accessible and usable products;
d. supporting implementation of research programs on captioning or video description;
e. demonstrating use of publicly-funded distance learning systems;
f. providing video description and open/closed captioning;
g. providing free educational materials, including textbooks, in accessible media for visually impaired and print-disabled students;
h. providing cultural experiences for deaf and hard-of-hearing individuals.