Education Law Publications

The firm publishes a monthly "Issue of the Month" on current issues or matters of interest in the education law area.

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SCHOOL LAW
"ISSUE OF THE MONTH"
November 2006

New Federal Regulations Under The Special Education Law

Federal regulations implementing the Individuals with Disabilities Education Improvement Act of 2004 (IDEA 04 or the Act) became effective on October 13, 2006.  The regulations address several areas of the Act that need clarification and further explanation, including the areas of evaluation and eligibility for learning disabilities; new flexibility regarding the IEP development process; revised provisions on discipline of students with disabilities; and new due process procedure for resolution meetings.  It is important to bear in mind, however, that, until South Carolina State regulations dealing with special education are revised, which will not occur before the start of next school year, federal regulations which are less protective of disabled students’ rights than are State requirements, are not in effect in South Carolina. 

The new regulations comprise 305 pages of the Federal Register and cannot be adequately summarized in this I.O.M.  Accordingly, highlights of some of the significant clarifications in the regulations will be summarized below in the following general areas: (1) evaluation and services; (2) IEPs; (3) discipline procedures; (4) procedural safeguards and due process procedures; (5) school district obligations concerning children enrolled by their parents in private schools.  The entire set of new federal regulations may be found at 34 CFR Part 300. 

Evaluation and Services

Parental consent.  The regulations require school districts to obtain consent from a child’s parent before initial evaluation or reevaluation.  Where consent is not provided, or there is no response from the parent, districts have the option to proceed to due process to override a parent’s failure to consent to an initial evaluation; however, they are not obligated to do so.  Concerning consent for initial placement, the regulations prohibit a district’s use of due process to override a parent’s refusal to so consent.  Also, where the student has been placed by his parents in a private or home school, the district does not have the option of overriding a parent’s refusal to consent to evaluation. 

Evaluation and eligibility for learning disabilities.  The new regulations include several sections setting forth a general framework for states to issue their own rules on LD evaluation and eligibility.  34 CFR § 300.307-300.311.  As anticipated, the regulations take the position that IDEA 04 allows states to prohibit the use of an IQ/achievement discrepancy model for assessing and qualifying students for special education under the category of LD.  By the same token, however, the regulations also allow states to retain the discrepancy model, at least by means of the “strengths-and-weaknesses” assessment option contained in § 300.309(a)(2)(ii).  As provided in the Act, the regulations emphasis that districts may opt to use a response-to-intervention (RTI) LD eligibility model, which is based on a process which determines a child’s response to scientific, research-based interventions as part of the evaluation procedures.  Even with the new regulations, there is considerable debate and concern over the direction in which LD evaluation/eligibility is moving, including fears that schools will be faced with increased numbers and more complex failure-to-identify claims associated with disputes over implementation of RTI process.

IEPs

IEP team.  IDEA 04 permits a parent and the school district to dispense with an IEP team meeting for changes that amend or modify the child’s IEP after the annual IEP team meeting.  The regulations do not require that the agreement between the parent and the district be in writing; however, it is recommended that districts document the terms of such agreements.  Without such written documentation, districts could have problems establishing the content of those agreements if disputes arise later.  Of course, certain meetings will have to occur, and IDEA 04 and the regulations provide some additional help in limiting attendance at those meetings that must take place.  While the statute and the new regulations do not change the required IEP team members, they provide a few mechanisms, under certain circumstances, to either excuse a required member’s attendance or to allow the member to participate in only a potion of the meeting and then leave. 

IEP contents.  The IEP continues to be the document that sets forth the student’s strengths, weaknesses, and the district’s commitment of special education and related services to the student.  IDEA 04 and the regulations make a few changes, primarily geared to emphasis the role of the regular curriculum and to ensure that grade-level performance on the regular education curriculum is the default expectation for every student.  A major provision in the regulations is the requirement that, in the statement of special education and related services (and in the underlying decision on services), the IEP team bases its choices on “peer-reviewed research to the extent practicable.”  § 300.320(a)(4).  Because the requirement appears to be tied to the availability of peer-reviewed research, the implication is that a method’s lack of peer-reviewed research does not mean that it is inappropriate.  Clearly, special education teachers and related service providers must prepare for potential parental inquiries on the research bases for the methods and services they proposed delivering. 

Discipline Procedures

Change of placement decisions.  IDEA 04 requires that, within 10 school days of a decision to change the placement of a child with a disability because of a violation of a code of student conduct, the school district, the parent, and the relevant IEP team members are to review the student’s file and determine whether the conduct was the result of the child’s disability or the district’s failure to implement the child’s IEP.  The regulations also now explicitly require that, if the investigation reveals that the child’s conduct was the result of the school district’s failure to implement the IEP, the district must take immediate steps to remedy the deficiencies.  34 CFR § 300.530(e)(3).

Notice of change of placement decisions.  IDEA 04 requires districts to give notice to a child’s parents on the date the district makes a decision to “take disciplinary action.”  To clarify the definition of the term “disciplinary action” in the Act, the regulations specify that parental notification must be given to the parents of a child with a disability on the date the district makes a removal decision that constitutes a change of placement and is made as a result of a violation of a code of student conduct.  34 CFR § 300.530(h).

Change of placement because of disciplinary action.  The regulations add a section clarifying language in the IDEA 04 that establishes the authority of the district to determine “on a case-by-case basis whether a pattern of removals constitutes a change of placement.”  34 CFR § 300.536(b).  The regulations contain an additional factor for finding that a series of removals constitutes a pattern and thus a change of placement.  In addition to requirements that the removals total more than 10 school days in the school year and the removals be similar in length and close in proximity, the regulations also now require that, in order for a series of removals to constitute a pattern, the child’s behavior must be substantially similar to the behavior involved in the prior incidents.  34 CFR § 300.536(a).

Expedited due process hearing for disciplinary actions.  IDEA 04 allows parents to request a hearing appealing a district’s disciplinary decisions related to their child’s placement or about whether their child’s conduct was a manifestation of the child’s disability.  Districts also may request a hearing to appeal a decision maintaining the current placement of the child if they believe that the placement is likely to result in injury to the child.  The regulations clarity that a written complaint must be filed by the parent or the district to obtain such a hearing.  34 CFR
§ 300.532.

Procedural Safeguard Requirements and Due Process

Procedural safeguards notice.  IDEA 04 requires districts to provide parents with notice of their procedural safeguards upon the initial referral of a child for evaluation or upon parental request for an evaluation; when a complaint is filed related to the identification, evaluation, placement, or provision of services to a child; and whenever requested by the parent.  In addition, the regulations require that a district provide notice of procedural safeguards when a complaint is filed related to the disciplinary procedures used by the district and when the parent files a state complaint.  The Act also requires notice to be supplied to the parent of a child with a disability one time per year, even if none of the aforementioned triggering events occurs. 34 CFR § 300.504.

Mediation.  IDEA 04 provides for a mediation procedure to resolve disputes between a parent and the district.  The Act specifies that all discussions taking place during the mediation process are confidential and cannot be used in a subsequent due process hearing or civil proceedings.  The regulations clarify that the civil proceedings referred to in the Act are the civil proceedings of any federal court or state court.  34 CFR § 300.506.

Resolution meetings.  IDEA 04 contains a new provision requiring a resolution meeting between the parent and the district after the filing of a due process complaint but before the due process hearing.  The regulations provide for the dismissal of a parent’s complaint if the district seeks to have a resolution hearing and the parent refuses to participate for a period of 30 days.  Conversely, if the district refuses to participate in the resolution meeting or otherwise fails to hold the resolution meeting within 15 days of its receipt of a parent’s complaint, the regulations permit the parent to seek to have the due process hearing timeline begun.  34 CFR § 300.510(b)(4)-(5).  If a settlement agreement is reached during the resolution meeting, the Act provides that the agreement is enforceable in state or federal court.  The regulations contain a new section that allows, but does not require, a state to create an enforcement mechanism that allows the parties to seek enforcement of the agreement by the state education agency, so long as the state’s methods are not mandatory and do not interfere with a party’s right to seek enforcement in a state or federal court.  34 CFR § 300.537.

Timeline for due process hearing decisions.  The regulations set a time limit requiring a district to ensure that a decision is reached in a due process hearing within 45 days of the expiration of the 30-day period the resolution process allows for the district to resolve the dispute amicably.  34 CFR § 300.515(a).  That 30-day resolution period runs from the district’s receipt of the due process complaint.

Children Enrolled by their Parents in Private Schools

Child find responsibilities.  IDEA 04 requires school districts to engage in child find, which requires a district to locate, identify, and evaluate all children with disabilities enrolled by their parents in private schools located in the district.  The regulations contain a new section clarifying that each district must include in its child-find count parentally-placed private school children who reside in a state other than the state in which the school that they attend is located.  34 CFR § 300.131.  Prior to the Act, the responsibility of identifying children with disabilities rested upon the district in which the parents resided.

Determining and providing services to parentally-placed private school children with disabilities.  The regulations contain guidance for districts in determining what services should be provided to parentally-placed private school children.  The regulations clarify that a privately-placed child does not have an individual right to services; rather the district makes the decision on what services it will provide to parentally-placed private school children generally.  If the district decides to supply services to a particular child who is privately-placed, then the regulations require the district to create a service plan, not an IEP, outlining the services that the district will provide.  34 CFR § 300.138.

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