idea 2004 – the final implementing regulations · 2 child with a disability – terms §300.8...
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IDEA 2004 – The Final Implementing Regulations
Definitional Changes
§300.4 – 300.45
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Child with a Disability – Terms §300.8
“Developmental Delay”State may adopt definition (for children 3-9 or sub-set) State may not require LEA to use term If LEA uses the term, must use State's definition (including age range)If State does not adopt definition, LEA may not independently use that term as basis for establishing child’s eligibilityMichigan uses term “early childhood developmental delay” R 340.1711
Child With A Disability - Terms
Emotional DisturbanceUnchanged, despite requests to either define or eliminate the term “socially maladjusted”
Other Health ImpairmentAdded “Tourette Syndrome” as example of chronic or acute health problem
Consent§300.9
Unchanged, but clarified consent must be both informed and in writing
Clarified distinction between “consent” and “agree”/“agreement”
Consent: always informed and in writingAgree or Agreement: an understanding between the parent and LEA about a particular question or issue, which may or may not be in writing, depending on the context.
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Excess Costs§300.16
Revised to clarify that computation of excess costs may not include capital outlay and debt service
New “Appendix A to Part 300 – Excess Cost Calculation” added to provide a description and an example of how to calculate excess costs
Highly Qualified Requirements§300.18
GenerallyApplies to all public elementary and secondary special education teachers
Including preschool if state includes preschool as part of its elementary schools
Michigan: “school” is K-12No separate provisions for teachers in separate or specialized schools
Highly Qualified Special Ed Teacher§300.18
Declined to specifically define “special education teacher” or “highly qualified special education teachers and providers”
Uses the ESEA definitional requirements
State to establish certification requirements
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Secondary Special Ed Teachers
Secondary special education teachers who teach core academic subjects must:
Meet the highly qualified teacher standards in the ESEA
Includes competency in each core academic subject the teacher teaches
And the highly qualified special education teacher requirements in §300.18(b)
New Teachers
Regular Ed teacher who becomes certified as a special education teacher is “new” to the profession.
Comments indicate that less than one year of experience is “new.”
Exclusively to Students Taking Alternate Assessment
Secondary Sp.Ed. teacher who teaches core academic subjects exclusively to children assessed against alternate achievement
satisfy requirements by meeting the requirements for a highly qualified elementary teacher under the ESEA,
or in the case of instruction above the elementary level, have subject matter knowledge appropriate to the level of instruction being provided, as determined by the State.
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Teacher consultantsSp.Ed. teacher consultants (who do not directly instruct children in any core academic subject) do not need to demonstrate subject-matter competency in those subjects
May provide consultation services to other teachersadapting curricula,using behavioral supports and interventions, orselecting appropriate accommodations for children with disabilities
May assist children with study skills or organizational skillsMay reinforce instruction already provided by HQT
Highly Qualified - HOUSSE
State may develop a separate HOUSSE for special education teachers
Must not lower standard for content knowledge requirements
Must meets all requirements for a HOUSSE for regular education teachers
May include single HOUSSE evaluations that cover multiple subjects
Alternate routes
An individual participating in an alternative route to certification program must
hold at least a bachelor’s degree and have demonstrated subject-matter competency in the core academic subject(s) the individual will be teaching;assume the functions of a teacher for not more than three years; and demonstrate satisfactory progress toward full certification, as prescribed by the State.
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Charter Schools
For Sp.Ed. teachers teaching in a charter school, highly qualified means that the teacher meets certification or licensing requirements, if any, set forth in the State’s public charter school law
Private Schools
Highly qualified Sp.Ed. teacher requirements also do not apply to private school teachers hired or contracted by LEAs to provide equitable services to parentally-placed private school children with disabilities under §300.138.
Highly Qualified Paraprofessionals
Declined to include standards for highly qualified Sp.Ed. paraprofessionals
If instructional assistant in Title I funded programs, same as ESEA.
If not instructional, ESEA requirements do not apply
i.e., health care aides, behavioral aides, etc.
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HQ - Complaints and Due Process
A parent or student may not file due process complaint or judicial action for failure of teacher to be highly qualified
If only reason parent believes child was denied FAPE is that the child did not have highly qualified teacher, parent has no right of action under the Act on that basis
A parent (or organization) may file a state complaint (Part 8) about staff qualifications with the SEA
Parent§300.30
Substitute “biological parent” for “natural parent” each time it appears
Biological or adoptive parent has all the rights of a parent under the ActLEA must
provide notice to the parent,accommodate schedule when arranging meetings, andinvolve parent in the education of the child with a disability
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Temporary Parents
Nothing prevents a “temporary surrogate”(appointed for a homeless student) from having all the rights of a parent
Appropriate staff members of emergency shelters, transitional shelters, independent living programs, and street outreach programs could be appointed
would not be considered to be employees of agencies involved in the education or care of unaccompanied youth provided that role is temporary until a surrogate parent can be appointed
Guardians
“Guardian” must be a person generally authorized to act as child’s parent, or authorized to make educational decisions
Guardians with limited appointments do not qualify
unless specifically authorize to make educational decisions.Typically, guardian ad litem does not have authority
Foster ParentsFoster parent may be “parent” if permitted by state lawFoster parent specified in judicial order to act as parent would be considered parent.
Michigan Admin Code R. 340.1701bFoster parent may act if:
rights of the biological parent have been terminated,foster parent has an ongoing, long-term parental relationship with the childis willing to make educational decisions, andhas no conflict of interest.
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Priority of Parents
The biological or adoptive parent is presumed to be the parent when attempting to act as the parent
If more than one person is attempting to act as a parent, the biological or adoptive parent is presumed to be the parent if that person is attempting to act as the parent
“Attempting to act”
Refers to situations in which an individual attempts to assume the responsibilities of a parent
For example, providing consent for an evaluation or reevaluation, or attends an IEP Team meeting as the child’s parent.
Related Services§300.34
Many requests to add additional related services
Declined to do so, but reiterated that the list is not exhaustive
“Early identification and assessment of disabilities in children” added back (inadvertently omitted from the NPRM)
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School Health Services
Combined “school health services” and “school nurse services,” and
Revised the definitions and re-named
School Nurse services provided by qualified school nurseSchool Health services provided by nurse or other qualified (trained) person
Assistive Tech - Mapping exception
Related services do not include optimizing medical device that is surgically implanted
Mapping a cochlear implant is an example of device optimization and is not a related service under the Act
Must still do routine checking to determine proper function of the external component
Interpreting services
Definition added examples term includes:
transcription services, such as communication access real-time translation (CART), C-Print, and TypeWell for children who are deaf or hard of hearing, and
special interpreting services for children who are deaf-blind.
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O&M and travel training
Definition of orientation and mobility services has been changed to remove the term “travel training instruction.”
Travel training included under the definition of special education, and is defined in §300.39(b)(4).
Scientifically Based Research–§300.35
Added new definition that incorporates by cross-reference the definition from ESEA
Current definition in section 9101(37) of the ESEA is provided in full in the comments for reference
Special Education§300.39
Basically the same definition“specially designed instruction . . .”
Revised to remove the definition of vocational and technical education that was included in proposed regulation §300.38(b)(6)
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Supplementary Aids and Services §300.42
Specifies that aids, services, and other supports are also provided to enable children with disabilities to participate in extracurricular and nonacademic settings
General Concepts:FAPE §§ 300.101-102and LRE §§ 300.114-118
FAPE§ 300.101
General concept of FAPE remains unchanged.
Must be available to all students with disabilities age 3-21, including students who have been suspended or expelled.
FAPE is available to a child with a disability even if the child has not failed or been retained in a grade or course, and is advancing from grade to grade.
FAPE is available until a student graduates with a regular high school diploma or “ages-out.”
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FAPE
Comments make clear that a student who has been successful with special education support is not necessarily ineligible for continued services because they are advancing from grade to grade and have not been retained.
Graduation
The regulations also clarify that a regular high school diploma does not include:
an “alternative degree that is not fully aligned with the State’s academic standards, such as a certificate or a general educational development credential (GED).”
Other FAPE Requirements§§ 300.104-108
FAPE may require:
Residential PlacementAt no cost to the parent
Assistive TechnologyAt the student’s home (if determined by IEPT)
ESYMay use regression-recoupment as sole criteria
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Nonacademic Services§300.107
Nonacademic services
“must take steps” to provide “equal opportunity” in nonacademic and extra-curricular activities, including providing supplemental aids or services.
Physical Education§ 300.108
Physical educationUnless the school district does not provide PE to its non-disabled students at that grade.
Regular PE unless:The student is in a separate facility
Then the facility must assure that appropriate instruction in PE is provided
IEP provides for specially designed PE
Program Options
Must have a variety of program options including:
ArtMusicIndustrial ArtsConsumer and homemaker educationVocational Education
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Least Restrictive Environment§§ 300.114-117
Still requires that students be educated “to the maximum extent appropriate” with non-disabled students.
Includes preschool students
Placement options
Must have a continuum of placement options
Encourages placement in the regular class the school the student would typically attend.
Where Districts have more than one appropriate program.
Location vs. Placement
Location and Placement are different
“Placement” is a point along the continuum of placement option.
“Location” is the physical surroundings, such as the classroom, where a student receives services.
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Placement decisions§ 300.116
Placement is made by a group of persons, including the parents.
Removed “unless the parents agrees”
If student is “so disruptive . . .” regular education placement not appropriate.
Citing to the 6th Cir. Ronkers case.
Placement decision
Must provide prior written notice of the placement decision.
Must include the placement options actually considered and the reasons why those options were rejected.
Need not give a detailed explanation of the reasons why the student’s needs could not be met in the placement requested by the parents.
Nonacademic settingsReiterates the requirement to:
“Takes steps” to ensure that students with disabilities have an “equal opportunity” to participate in nonacademic settings.
These “steps” include providing any supplemental aids or services determined by the IEP Team to be necessary to enable the student to participate in nonacademic and extra-curricular activities to the maximum extent appropriate.
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Identification, Evaluations, and Re-evaluations§ 300.300-300.306
Parental Consent § 300.300
Previously part of procedural safeguards
Specifically includes that a public agency:Must provide prior written notice,Must make reasonable attempts to obtain informed consent
Exception to consent requirement for “ward of the state”
Parental Consent § 300.300
Permissive override if parent fails to respond or provide consent for initial evaluation
No violation of child find obligation for not seeking override
“Consent” distinguished from “Agreement”
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Consent for Initial Evaluation §300.300(a)
Public agency must provide notice consistent with §300.503 (prior written notice) and §300.504 (procedural safeguards)
Public agency must obtain “informed consent”
New Paragraph (a)(1)(iii) added to require a public agency to make “reasonable efforts” to obtain informed consent
Initial Evaluation- Ward of the State §300.300(a)(2)
Ward of the State (§ 300.45)Public agency not required to obtain informed consent from parent if:
Despite reasonable efforts, public agency cannot discover whereabouts of parent, orRights of parent have been terminated, orRights of parent to make educational decisions have been subrogated to another individual
Consent for Initial Provision of Service §300.300(b)
Initial Provision of ServicesThe first time a parent is offered special education and related services
Public agency must make “reasonable efforts” to obtain informed consent
Consent for initial evaluation must not be construed as consent for initial provision of services § 300.300(a)(1)(ii)-(iii)
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Consent for Reevaluations§ 300.300(c)
Public agency must obtain informed parental for reevaluation
Consent not needed if the district can demonstrate:
Reasonable efforts to obtain consent, andthe child’s parent has failed to respond
District may, but not required to, pursue due process procedures (override)
Not a violation of child find if agency declines to pursue the evaluation
Failure to provide consent§§ 300.300(a)(3)(i) - (b)(4)
Initial EvaluationsDistrict may pursue override for evaluation.May not override for provision of services.District does not violate its obligation for child find if it does not seek override.
ReevaluationsMay pursue override for evaluation.Does not violate FAPE requirement if it does not seek override.
Other Consent Requirements§ 300.300(d)
Consent not required before reviewing existing data as part of an evaluation or reevaluationConsent override is not permitted for children who are home schooled or voluntarily placed in private schools by their parents.
Not required to consider the student eligible for services.
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Initial Evaluations§ 300.301
Who can make a request?
Parent or Public Agency§300.301 states that either a parent of a child or a public agency may initiate a request for an initial evaluation to determine if the child is a child with a disability.
Initial Evaluations:Timeline for evaluation § 300.301(c)
■ Establishes an initial evaluation timeline of 60 calendar days from receipt of parent consent
Unless the State establishes different timeline
State is given broad discretion to adopt timelines and the Act imposes “no restrictions”on State exercise of that authority
Initial Evaluations:Timeline for evaluation § 300.301(c)
E.g., Michigan R 340.1721Referral to consent: 10 calendar daysConsent to evaluation completed: 30 school daysEvaluation to IEPT: 30 school days (same 30 schools days as consent to evaluation)
E.g., 34 C.F.R. 300.301(c)Referral to consent: No specific timeline-”reasonable timeline”Consent to evaluation completed: 60 calendar daysEvaluation to IEPT eligibility: No specific timeline-“reasonable timeline”Eligibility to IEP: No specific timeline- “reasonable timeline)
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Statutory Exceptions to 60-Day Timeframe
Limited to two circumstances:
If the parent repeatedly fails or refuses to make the child available for the evaluation §300.301(d)(1)
If child enrolls in another district after initiation of evaluation § 300.301(d)(2)
Statutory Exceptions to 60-Day Timeframe
Timeline extended if student enrolls in district after the evaluation has begun and prior to the evaluation being completed by the previous LEA.
Extension “by mutual written agreement of the child’s parents and a group of qualified professionals” permissible under §300.309
Michigan Rule allows extension by agreement
“Screenings”§ 300.302
Screening for instructional purposes is not evaluation.
An “evaluation,” as used in the Act, refers to an individual assessment to determine eligibility for special education and related services…”“Screenings” refers to a process that a teacher or specialist uses to determine appropriate instructional strategies.
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Reevaluations- Generally§ 300.303
“Conditions warrant,” or Parent or teacher requests
Must be conducted at least once every three years
Unless parent and district agree that evaluation is unnecessary
May not occur more than once a year, Unless parent and district agree otherwise
Reevaluation § 300.303
If parent or child’s teacher requests a reevaluation:No requirement that a reason for the evaluation be givenReevaluation can not be conditioned on parent providing a reason for the requestPublic agency permitted to ask for a reason, so long as they inform the parent that answering is optional
Requests for more than one reevaluation per year:If requested by parent, public agency should review whether changed circumstances exist which would warrant a reevaluationPublic agency must provide prior written notice of refusal to conduct a reevaluationLEA may seek override for parent refusal
Evaluation Procedures§ 300.304
Language in proposed regulations changed to be consistent with the Act
LEA must provide notice of proposed evaluation which describes the evaluation procedures
Notice must comply with § 300.503(c) - prior written notice
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Other Evaluation Procedures§ 300.304(c)
Assessments and evaluation materials be administered in the child’s native language or other mode of communication, and
In the language and form most likely to yield accurate information
Other Evaluation Procedures§ 300.304(c)
Sufficiently comprehensive to identify all the child’s special education and related service needs
Lack of appropriate instruction in reading or math, or limited English proficiency can not be determining factor for eligibility
Transfers: Evaluation Procedures§ 300.304(c)
Assessments of children with disabilities who transfer from one public agency to another public agency in the same school year must be coordinated with those children’s prior and subsequent schools
“as necessary”“as expeditiously as possible”
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Additional Requirements for Evaluations and Reevaluations § 300.305
Review of Existing Evaluation Data by IEP Team:
Focus on eligibility and educational needsIncludes current classroom-based, local, or State assessment dataMay occur without a meeting
Requirements if Additional Data are not Needed:
Language reflects the purpose of the evaluation (eligibility and educational needs)
Changes in Eligibility§ 300.305
Evaluations before a change in eligibility:
Public agency must evaluate a child in accordance with §§ 300.304-300.311 before determining that the child is no longer a child with a disability
Not required for termination of services due to graduation or aging out
LEA not required to evaluate students for entrance or eligibility requirements of another agency or institution
Eligibility determinations§ 300.306
New “limitation” on eligibility
provides that a student may not be determined eligible if the determinate factor is:
Lack of appropriate instruction “in essential components of reading instruction” as defined in NCLB.Lack of appropriate instruction in math, orLimited English proficiency
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Additional Procedures for Evaluating Children with Specific Learning Disabilities
§ 300.307 – 300.311
Overview
300.307 Specific learning disabilities300.308 Additional group members300.309 Determining the existence of a
specific learning disability300.310 Observation300.311 Specific Documentation for the
eligibility determination
NOTE: *Final regulations, pp. 46786-46787 (1 page)*Comments and Analysis, pp. 46646-46661 (15 pages)
Identification of SLD-Generally
Adds procedures for identifying children with specific learning disabilitiesRequires additional group membersAdds criteria for determining the existence of a specific learning disabilityDescribes the required observationSpecifies documentation required for the eligibility determination
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Additional Procedures for Evaluating Children with SLD
New § 300.307(a)(1) removes language in proposed regulations that allowed the state to prohibit use of “severe discrepancy model” for determining SLD eligibility.
States are still “responsible for developing criteria to determine whether a child is a child with a disability…including whether a particular child meets the criteria for having an SLD.”
Public agency must use the State criteria adopted pursuant to 300.307(a) in determining whether a child has a specific learning disability.
Additional Procedures for Evaluating Children with SLD
New § 300.307(a)(1)-(3)State criteria:
Must not require use of severe discrepancy model;Must permit use of process based on child’s response to scientific, research-based intervention; andMay permit use of other alternative researched-based procedures for determining whether child has SLD.
Evaluating Children with SLD:Response to Intervention Model (RTI)
Criteria adopted by the State must permit the use of a process based on the child’s response to scientific, research-based intervention.
“[a]n RTI process does not replace the need for a comprehensive evaluation, and a child’s eligibility for special education services cannot be changed solely on the basis of data from an RTI process.”
“The results of an RTI process may be one component of the information reviewed as part of the evaluation procedures required under § § 300.304 and 300.305.
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Additional Procedures for Evaluating Children with SLD
Evaluation must include a variety of assessment tools and strategies
Cannot rely on any single procedure as the sole criterion for determining eligibility
RTI is only one component of the process to identify children in need of special education and related services
Response to Intervention Model (RTI)
Scientifically based research-
Research that involves the application of rigorous, systematic, and objective procedures to obtain reliable and valid knowledge relevant to education activities and programs
§ 300.35 incorporates by reference the definition of scientifically based research found in section 9101(37) of the ESEA
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Additional Group Members §300.308
Eligibility group for children suspected of having SLD must include:
The child’s parentsA team of qualified professionals, including child’s regular education teacherAt least one person qualified to conduct individual diagnostic examinationsRegulations provide flexibility and ensures that the group includes individuals with the knowledge and skills necessary to interpret the evaluation data and make an informed determination regarding eligibility and child’s educational needs
Eligibility Determination § 300.309
§ 300.309(a) - Clarifies that determination of SLD may be found if:
the child is not “achieving adequately for the child’s age or meeting state-approved grade-level standards” in one or more of 8 basic areas, when provided with learning experiences and instruction appropriate for child’s age or state-approved grade-level standards.”
Comments reiterate the alignment between the IDEA and NCLB
Referral for Evaluation§ 300.309(c)
If a child has not made adequate progress after an appropriate period of time, a referral for an evaluation must be made.The district must promptly request consent to evaluate a child suspected of having an SLD,
If, prior to a referral, a child has not made adequate progress after an appropriate period of time when provided appropriate instruction; andWhenever a child is referred for an evaluation.
Must consider data on progress as part of the evaluation
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Eligibility Determination § 300.309
Eligibility group may consider a pattern of strengths or weaknesses, or bothRelative to the intellectual development of the child,
If the group considers that information relevant to the identification of SLD. §300.309(a)(2)(ii)
Eligibility group must consider “limited English proficiency” in addition to the other 5 conditions that could account for learning problems. §300.309(a)(3)(vi)
Evaluating Children with SLD§ 300.309
To ensure that underachievement in a child suspected of having SLD is not due to lack of appropriate instruction in reading or math, the group must consider, as part of the evaluation:
Data that demonstrate that prior to, or as part of, the referral process, the child was provided appropriate instruction in regular education settings, delivered by qualified personnel;
Additional Procedures for Eligibility Determination § 300.309
Group must consider as part of evaluation:
Data-based documentation of repeated assessments of achievement at reasonable intervals, reflecting formal assessment of student progress during instruction, which was provided to the child’s parents.
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Observation§ 300.10(b)
Observation in the child’s academic performance and behavior in the areas of difficulty
Can use routine observation completed prior to referral, or have a member of the eligibility group complete an observation Child of less than school age- observation in an environment appropriate for a child of that age.Parental consent is not required for observations conducted as routine classroom instruction and monitoring of the child’s performance, before the child is referred for an evaluation.
Specific Documentation for Eligibility Determination
Documentation of eligibility determination must contain:
Whether child has SLD,Basis for making the determination,Relevant behavior noted during the observation and relationship to the child’s academic functioning,Educationally relevant medical findings, if any,Whether,
Child does not achieve adequately for the child’s age or to meet State-approved grade-level standards, Child exhibits a pattern of strengths and weaknesses in performance, achievement, or both, relative to age , State-approved grade-level standards, or intellectual development;
Documentation § 300.311con’t.
Statement regarding the determination of the group concerning the effects of a visual, hearing, or motor disability; mental retardation; emotional disturbance; cultural factors; environmental or economic disadvantage; or limited English proficiency on the child’ achievement level; and
If the child has participated in a process that assesses the child’s response to scientific, research-based intervention-
The instructional strategies used and the student-centered data collected; andThe documentation that the child’s parents were notified about the amount and nature of data collected, and the general education services provided
Each group member must certify in writing whether the report reflects the member’s conclusion.
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Independent Educational Evaluations§300.502
A parent (including the parent of a student attending a private school) may request an IEE at public expense if they disagree with an evaluation obtained by the school district.
This includes evaluations which utilize RTI as a component.
The IEE must meet the same criteria utilized by the school district.
Including qualifications of the evaluator.
IEEsThe school district must inform the parent of the criteria applicable to IEEs and where an IEE can be obtained.
The comments to the regulations make clear that a district may not impose conditions or timelines relating to obtaining an IEE at public expense.
May establish “reasonable cost containment criteria”
Would require the independent evaluator to review existing evaluation information, utilize a variety of assessment tools, etc.
Limitations on IEEs
A parent is entitled to only one IEE each time the school district conducts an evaluation.
Presumably if the school district’s evaluation had multiple components, the parent would only be able to obtain one IEE of each component (e.g., a psychological evaluation and a social work evaluation for an EI evaluation)If a parent requested more than one IEE, the district would need to give Prior Written Notice of the refusal to grant the IEE (as with re-evaluations) and the parent could challenge the decision through due process
Rather than requiring the district to initiate due process and seek dismissal of the IEE request.
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IEP Meetings, Development & Review§§300.321-300.324, 300.328
IEP Meetings - Generally
LEA must continue to schedule meetings at mutually agreeable time and place
Parent and district may agree to use alternative means of meeting participation
Consolidation of meetings encouraged
IEP Participants§ 300.321
Required participants remain the same but districts have increased flexibility regarding attendance and excusal
ParentDistrict rep“MET” repSpecial education teacherAt least one regular education teacher
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Regular Education Teacher§300.321(a)(2)
“Not less than one” regular education teacher must be included on the student’s IEP team
IDEA 97 required “at least one”
To the extent appropriate, a regular education teacher must participate in the development, review, revision of the IEP
Regular Education Teacher§300.321, 324(a)(3), (b)(3)
Member of IEP team
Regular education teacher to participate in
Determining appropriate positive behavior supportsSupplemental aids and servicesSupports for school personnel
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Parent Participation§300.322
Afford opportunity to participate
Provide early and proper notice
Record attempts to arrange mutually agreeable time and place for meeting
Must take whatever steps necessary to ensure that the parent understands the proceedings of the IEPT meeting
Including providing interpreters
IEPs without Parents§300.322(c)
Must document efforts to convince parents to attend and to arrange a mutually agreeable time and place
Detailed phone records,Copies of correspondence,Detailed records of visits to the home or place of employment
Transition Services IEPs§300.321(b)
Invite student
Invite participating agencies
If appropriate and with parent’s consent
No longer required to take steps to obtain agency participation if rep doesn’t show
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Initial IEP for Part C Children§300.321(f)
Invite Part C representative at parent’s request
To ensure smooth transition to Part B
IEP Team Member Not Required§300.321(e)(1)
IEP member’s attendance is not required if
Member’s curriculum/related service area is not being discussed or modified and
Parties agree in writing that member’s attendance is not necessary
IEP Team Member Excusal§300.321(e)(2)
IEP team member may be excused when curriculum/related service area is being discussed or modified if
Parties consent to excusal in writing
Member submits input to parent and team prior to meeting
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Alternative ways to participate§300.328
The parent and the LEA may agree to alternate means of participation
Such as video conferences and conference telephone calls for:
IEPT meetings,Mediations,Resolution meetings,Administrative matters during a DPH.
When IEPs Must Be In Effect§300.323
Generally:
At the beginning of each school year
Includes students who move into the district during the summer
Public Agencies need to have a means for determining whether children who move into the State during the summer are children with disabilities and for ensuring that an IEP is in effect at the beginning of the school year. 71 Fed Reg 46682
Part C transitioning to Part B
IEP must be developed and in place by the child’s 3rd birthday
IFSP may serve as the IEP for 3 – 5 year olds if:Consistent with state policyParents given explanation of the differencesInformed consent obtainedIFSP contain proper contentIFSP includes an educational component for school readinessIFSP was developed in accordance with the IEP procedures
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Part B/C eligible students
A parent may elect to continue to receive services under Part C until the child is of kindergarten age:
If the State has a policyThe option will be detailed in the Part C regulations
IEP Development§300.324
IEP team to considerthe strengths of the child,concerns of the parent,recent evaluations,and the “academic, developmental and functional needs of the child.”
IDEA no longer requires consideration of State and district wide assessments
BUT . . .
Special Factors§300.324(a)(2)
Behavior
Braille
Mode of communication
Need for assistive technology
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Review and Revision of IEPs§300.324(b)
“Periodic” review, at least annuallyMust convene to review/revise IEP if student fails to meet transition objectives.
Consolidate IEP meetingsEvaluation Planning, if done at a meeting
IEP Amendment - Two Ways
IEP team meeting
Agree to amend IEP without meeting
Must notify IEP team of changes
LEA must provide revised copy of entire IEP on parent request
IEPs and Transfer Students§ 300.323(e)
Intra-state – provide FAPE, including comparable services, until LEA adopts old IEP or develops new IEP
Provide comparable servicesConsultation with parent requiredUntil LEA adopts IEP or develops new IEP
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IEPs and Transfer Students§ 300.323(f)
Inter-state – provide FAPE, including comparable services, until LEA evaluates (if needed) and develops new IEP
Provide comparable servicesConsultation with parent requiredComplete evaluation (if needed)Develop new IEP
Transmitting records§300.323(g)
In both situations:
District must use “reasonable steps” to obtain records from previous district
Prior District must use “reasonable steps”to promptly respond
IEP Content
§ 300.320
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IEP Content§300.320
Generally the required content has remained the same as with the prior regulations.
Language changes to align with the language in IDEA 2004
Uses “child” and “student” interchangeably
Present Levels
Statement of present level of academic achievement and functional performance (as opposed to PLEP)
“Academic Achievement”“Functional performance”“Appropriate activities” for preschool children
Including how disability affects progress and involvement in general education curriculum (as opposed to general curriculum)
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Annual Goals & STOs
Include academic and functional goals
Goals must be “designed to meet” the child’s needsGoals are not required to be discipline specific.
Short term objectives not required except for students who take alternate assessments
MDE IEP manual/form continues to require short-term objectives, as does R 340.1721e.
Progress Reporting
Indicate when periodic reports will be provided to the parent.
Examples in the statute include reporting concurrent with report cards, however the comments clarify that the IEP needs to state WHEN, rather than HOW.
“No longer required to report whether progress is sufficient to achieve goals by year end
Special Education, Related Services, Supplementary Aids and Services
Include statement of special education and related services and supplementary aids and services, based on peer-reviewed research to the extent practicable.
Peer Reviewed Research:Qualified, independent researchersMeets standards of the fieldBefore it is published.
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Peer Reviewed Research
“Extent Practicable”
To the “extent practicable”To the extent possible, given the availability of peer-reviewed research.Does not mean the student must be provided the service with the greatest body of research.Does not mean that failure to provide research based services is a per se denial of FAPE.If no research exists, IEPT may still decide to provide the service.Does not require the IEP to include instructional methodologies.
Nonacademic settings/services§§ 300.107; 300.117
Reiterates the requirement to:“Takes steps” to ensure that students with disabilities have an “equal opportunity” to participate in nonacademic settings.
These “steps” include providing any supplemental aids or services determined by the IEP Team to be necessary to enable the student to participate in nonacademic and extra-curricular activities to the maximum extent appropriate.
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Physical Education§ 300.108
Physical educationUnless the school district does not provide PE to its non-disabled students at that grade.
Regular PE unless:The student is in a separate facility
Then the facility must assure that appropriate instruction in PE is provided
IEP provides for specially designed PE
ESY Services§ 300.106
May be necessary to ensure FAPEThe word “only” is meant to be limiting:
“Extended School Year services are to be provided only if the child’s IEP Team determines . . . That services are necessary for the provision of FAPE to the child”
Regression-Recoupment is the standard in Michigan and the 6th Cir.
The comments make clear it is permissible to use this as the only criteriaStates may use others.
State and District-wide Assessments§300.320(a)(6)
Include a statement of individual, appropriate, and necessary accommodations
To measure the academic and functional performance of the child on State and district wide assessments
Not modifications which invalidate testAn additional final rule (§300.160) addressing participation in these assessments (NPRM December 15, 2005)
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State and District-wide Assessments§300.320(a)(6)
Provide explanation if student takes alternative assessment
Why student can’t take regular assessment
Why the selected alternative assessment is appropriate
Transition Services – Definition§ 300.42
Coordinated set of activities:
Results-oriented
Designed to improve academic and functional achievement
To facilitate movement from school to post-school
Transition Services in IEP
At first IEP in effect when student turns 16
“or younger if determined appropriate by the IEP Team”
States may require transition services prior to age 16
Would need to identify this as a state imposed requirement
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Transition Services in IEPAppropriate measurable post-secondary goals
“those goals that a child hopes to achieve after leaving secondary school (i.e., high school).”
Based on transition assessmentsRequire goals in the areas of:
TrainingEducationEmployment
The only optional goal area is independent living, as determined by IEPT
Transition Services in IEP
Transition services needed
May include transitional programs on college campuses, if determined necessary by IEPT
“There is no suggestion that it [transition services] be the only component or the component that governs a child’s IEP.”
Summary of Performance§300.305(e)(3)
When student ages out or graduates with a regular H.S. diploma.
GED not included as regular high school diploma.
No evaluation required. Do not need to evaluate for eligibility in other institutions or programs
E.g., college entrance or vocational program
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Summary of Performance§300.305(e)(3)
Provide a summary of:
Student’s academic achievement and functional performance, and
Include recommendations to assist student in meeting post-secondary goals.
No other content is mandated.Districts are not required to provide post-secondary services recommended in the summary.
Procedural Safeguards, Dispute Resolution and Due Process Hearings§§ 300.500 – 300.520
Procedural Safeguards§300.504
In general, the areas in which a District must afford procedural safeguards have not changed.
The US Department of Education has provided a model Procedural Safeguards Notice, which meets the federal notice requirements.
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Procedural Safeguard Notice§300.504
A copy of the Procedural Safeguard Notice must be given to the parent once per year, and:
Upon initial referral/request for evaluationUpon receipt of the first state (Part 8) complaint, or the first due process complaint notice in a school yearIn accordance with disciplinary provisions
On the date a decision is made to impose a change in placement
Upon request by the parent
Procedural Safeguards Notice§ 300.504(b)
A copy of the procedural safeguards notice may be placed on the District’s website
Posting does not take the place of providing/offering the notice in written form.
Prior Written Notice§ 300.503
District’s have always been required to provide prior written noticeIn Michigan, we have historically used the IEP document.
The IEP does a poor job of providing the required elements of Prior Written Notice.
The US DOE has provided a model form for providing prior written notice.
Included on the reference CD.
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Content of Prior Written Notice§300.503(c)
A description of the action proposed or refused,An explanation of why the agency proposes or refuses to take the action,A description of each evaluation procedure, assessment, record, or report the agency used as a basis for the proposed or refused action;A statement that the parents of a child with a disability have protection under the procedural safeguards of this part and, how to obtain a copy
Content of Prior Written Notice§300.503(c)
Sources for parents to contact to obtain assistance in understanding the provisions of this part;A description of other options that the IEPT considered and the reasons why those options were rejected; andA description of other factors that are relevant to the agency’s proposal or refusal.
E-mail§ 300.505
A parent of a child with a disability may elect to receive notices by email, if the District makes such option available.
Including:Prior Written Notice,Notice of Procedural Safeguards, and Due Process Complaint Notice
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Surrogate Parents§ 300.519
A surrogate parent must be appointed whenever:
No parent can be identified under the (newly revised) definition of parentA parent cannot be located
After reasonable effortsThe student is a ward of the state
Judge may appoint a surrogateThe student is homeless
Surrogate Parent
Where a student is a ward of the stateJudge may assign a surrogate, so long as the person meets the requirements to be a surrogate (except conflict and knowledge requirement)-.
Where the child is homelessA temporary surrogate may be appointed
Without regard to whether the temporary surrogate is an employee of the SEA, LEA or other agency
Surrogate Parent
Selection of Surrogate:
The Surrogate selected may not be an employee of
The SEAThe LEAAny other agency involved in the education or care of the child (e.g., FIA)
Has no personal of professional conflicts of interestHas knowledge and skills to represent child
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Surrogate Parents
§ 300.519(h) requires that the SEA “make reasonable efforts” to ensure that a surrogate is appointed within 30 days after a public agency determines that the student needs a surrogate
State Complaints (Part 8)§§ 300.151 – 300.153
Complaints GenerallyThe regulations clarify that there are two types
of “complaints”:
The Due Process ComplaintComplaint under §§ 300.507-508
A complaint filed with the State Education Agency.
The former EDGAR (Michigan Part 8) complaints under §§ 300.151-153.
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“Jurisdiction”
An organization or individual may file a State complaint alleging
Public agency has violated a requirement of the Act,
Including the identification, evaluation, or educational placement of the child, or the provision of FAPE to the child.
Filing a State Complaint
Complaint must include:
The nature of the problem, andProposed resolution
Not more than one year prior to the date on which the complaint is received
MDE has provided a model form on its web site
State Complaint Procedures§ 300.152
The minimum complaint procedures include:
Completion of investigation within 60 days,An opportunity for the Complainant to submit additional information,An opportunity for the District to respond to the complaint, and (in its discretion) propose a resolution.An opportunity for the parties to engage in mediation,
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Complaint Procedures§ 300.152
Extension of the 60 day timeline“exceptional circumstances”or by agreement of the parties to permit mediation or other
dispute resolution
State Complaint must resolve a complaint alleging that an LEA has failed to implement a due process hearing decision.
State may permit enforcement of mediation and resolution session agreements.
Remedies available
Must issue written decision, with findings of fact and conclusions, and the reason for the final decision
May order corrective action, which may include compensatory education and/or monetary reimbursement for failure to provide appropriate services
Provide technical assistance and negotiations for effective implementation of decision
Review of SEA decision
No requirement that State provide for an appeal or reconsideration.
After a final decision has been issued by the SEA, may file a Due Process Complaint.
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Mediation§300.506
Mediation of disputes§300.506
The regulations provides for resolution of disputes prior to a due process complaint being filed.
State complaint procedures now required to offer mediation for state complaints
Appointment of Mediators
SEA is to appoint mediators in an impartial manner
Random, rotational or other impartial basis.
No agreement of the parties required, but is one method of appointing on an impartial basis.
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Mediation (cont.)
Mediation shall be
scheduled in “a timely manner”
at a location convenient to the parties.
Confidentiality
Regulations require discussions during mediation to remain confidential.
Could require the signing of a confidentiality pledge.
Mediation Agreement§300.506(b)(7)
If resolution is reached, the parties must execute a legally binding agreement, which must
Set forth the resolution;
Provides that all discussions were confidential;
Be signed by the parent and the LEA, and
Be enforceable in any State court of competent jurisdiction or in a U.S. district court.
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Enforcement of Mediation Agreements§300.537
State Complaint procedure may permit enforcement of resolution agreements and mediation agreement
Currently, neither Michigan’s definition of Complaint nor the Complaint Procedures provide for this.
Due Process Hearings §§ 300.507-518
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The Due Process Complaint (DPC)
The opportunity for any party to present a due process complaint (request for hearing) has not changed in IDEA 2004 or the regulations
The process, however, has changed significantly
References to “days” are calendar days, unless otherwise specified
The Due Process Complaint§300.507
May file a due process complaint (DPC) with respect to any matter relating to:
the identification,
evaluation,
educational placement of the child, or
the provision of FAPE
DPC Statute of Limitations§§300.511(e); 300.507(a)(2)
The Complaint must set forth an alleged violation that occurred
not more than 2 years before
unless the State establishes a different time period.
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Exception to Statute of Limitations§300.511(f)
The statute of limitations will not apply if the District:
Misrepresented to the Parent that the problem had been solved,
Withheld information from the Parent which it was required to provide
Due Process Complaint§300.508(a)
Initiate a hearing by filing due process complaint
The notice and complaint must remain confidential.
The requesting party must provide a copy of the DPC to the SEA.
Due Process Complaint§300.508(b)
The DPC must contain the following information:
the name of the child, the address of the residence of the child, and the name of the school the child is attending;
a description of the nature of the problem
a proposed resolution of the problem
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DPC
MDE has a model form on its web site which can be downloaded in PDF format at
www.michigan.gov/mde/
Not required to utilize the form
Michigan’s Due Process Procedures and Rules
State Office of Administrative Hearings and Rules (SOAHR)
Eliminated the 2 tier hearing process and established a single tier process
Michigan’s New DPH Procedure
Hearing Process initiated by DPC filed with MDE.
Must also provide a copy to the DistrictMDE forwards copy to the SOAHR and notifies District of receipt.SOAHR assigns ALJ and provides notices to parties/parentsDPC “properly” filed when the MDE and District have both received a copy of the DPC.
Timelines for Response, etc., begin when DPC properly filed“Stay put” begins when DPC properly filed.
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“Stay Put”§300.518
Regulations still provide that the “pendency placement” or “stay put” is the “current educational program” of the student.
Not location specific.
Response to Complaint§300.508(e)
If the District has not sent prior written notice to the parent regarding the issues contained in the parent’s DPH notice
within 10 days of receiving the complaint, the District must respond, including providing all of the information required in prior written notice
Response to Complaint§300.508(e)
The Response must be filed in 10 days. The comments state that there is no provision in the statute for an extension of that time line.
A District may still object to the sufficiency of the DPC.
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Sufficiency of Complaint§300.508(d)
Must object to sufficiency in writing within 15 days
Otherwise the due process complaint notice will be deemed sufficient
Objection to Due Process Complaint Notice (continued)
Within 5 days, the hearing officer shall
make a determination of whether the DPC is sufficient, and
immediately notify the parties, in writing, of such determination.
If the DPC is determined insufficient, and not amended, the DPC could be dismissed.
Other Response to Complaint§300.508(f)
Within 10 days of receiving the complaint, party must respond specifically addressing the issues.
For a District, this Response should be included with the District’s Prior Written Notice response, and its sufficiency objection.
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Other Response to Complaint§ 300.508(f)
This provision would also require a parent to respond when the District initiates the hearing, e.g. to over-ride lack of consent, IAES, etc.
There is no consequence if the parent fails to submit the response. 71 Fed Reg 46699
Amendment of DPC§ 300.508(d)(3)
A party may amend their due process complaint only
By agreement of the other party, orBy permission of the hearing officer (but not within 5 days of the hearing)
All timelines will start over Amended issues are subject to resolution meeting.
Subject matter of hearing§300.511(d)
The issues for the hearing will be limited to those in DPC.
Unless amended, and then those issues would relate back to the complaint.
Other party issues?HO issues?Additional DPCs?
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Resolution Meeting§300.510
Hold resolution meeting within 15 days
If the meeting is not convened in the 15 day the parents may ask the hearing officer to begin the due process hearing timelines.
There is no obligation to convene a resolution meeting for District initiated hearings.
Resolution Meeting§300.510
Members of IEPT with knowledge of complaint,Must include a district representative,May not include the district’s attorney, unless the parent is accompanied by an attorney.Others may be invited who would not be required IEPT members, at the discretion of either party.
Resolution Meeting§300.510
Parents discuss their complaint
The District is provided the opportunity to resolve the complaint/issues
Discussions are not confidential by statute or regulation.
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Resolution Meeting§300.510
If parent fails to participate in the meeting
The District must continue to use diligent efforts
At end of the 30 day resolution period, the district may request the hearing officer to dismiss the complaint
Settlement Agreement§300.510(d)
If a resolution is reached, the parties execute a settlement agreement, signed by
the parent and
an authorized agent of the District
The agreement is be enforceable in court as a contract.
Review Period
Any party may void the agreement within 3 business days of the agreement’s execution.
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DPH timelines§300.515
If the District has not resolved the complaint to the satisfaction of the parents within 30 days of the receipt of the complaint:
the due process hearing may occur, and
timelines for a due process hearing begin.
Adjustments to DPH timelines§300.510(c); 300.515
The 45 day timeline starts the day after:The expiration of the 30 day resolution period, orBoth parties agree in writing to waive resolution meeting, orAfter resolution meeting or mediation, but before the 30 day resolution period has ended, by written agreement that no agreement is possible, orIf the parties agreed to mediation at the end of the 30 day resolution period, and one party withdraws.
Hearing Decision§300.513
Hearing officer decision to be made on whether child received substantive FAPE, rather than procedural issues.
A procedural violation must:impeded the child’s right to FAPE,“significantly impeded” the parents’ opportunity to participate in the decision-making process, orcaused deprivation of educational benefits.
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Appeal§300.514
The regulations still provide for a state level review of a local hearing decision.
Process is the same as before.Michigan has done away with state reviews since July 1, 2006
Only cases initiated prior to that date have the option of a state review.The rules provide for SOAHR to appoint an ALJ and the review proceeds as it historically has.
Civil Action§300.516
An aggrieved party may file a civil action in State or federal court within 90 daysfrom the date of the decision unless the State sets a different time limitation.
In Michigan, the action must be filed within 60 days of the mailing of the final decision.
Attorney Fees§300.517
Parents are still able to recover attorney fees if they prevail in a due process hearing
Cannot recover fees for an attorney’s attendance at
IEPT meetingResolution Meeting
May not use Part B funds to pay attorney fees.
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Attorney Fees§300.517
District who is a prevailing party can recover its attorney fees from parent attorney if
Complaint or subsequent cause of action is or becomes “frivolous, unreasonable, or without foundation”, or
Attorney Fees§300.517
Against parent or the parent’s attorney if
Filed for improper purpose (harass, cause unnecessary delay, or needlessly increase the cost of litigation).
Discipline Provisions§§ 300.530-536
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General Discipline Authority§ 300.530
Case by Case determination §300.530(a)Up to 10 consecutive school days for violations of the code of conduct, §300.530(b)For more than 10 consecutive school days, to the same extent as non-disabled students, for behavior which is determined not a manifestation of the disability, § 300.530(c)
Case-by case determination
“Unique circumstances on a case-by-case basis”
Comments indicate the intent is to provide flexibility
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“Days”
In the discipline context, all “days”will be “school days”
Still have all three types of “days”throughout the regulations
Definition of “Day”§300.11
“Day”
“Business Day”
“School Day”
Days not counted
The comments to the regulations (71 Fed Reg 46715) still provide that the following are not considered days of removal:
ISS
Bus suspensions
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“School Days”
The comments to the regulations indicate that days during the summer when a student is in an ESY are not considered “school days” because other non-disabled students are not in school
FAPE
Suspended or expelled students with disabilities must still be provided FAPE, §300.101(a)
§ 300.530(d) provide that the services must:Enable the student to continue to participate in the general curriculum,Progress toward meeting the goals and objectives in the IEP, and Receive as appropriate, an FBA and BIP designed to address the behavior violation so that it does not recur.
FAPE during removal
“Modified” concept of FAPE
Need not replicate every aspect of the services the student would receive in the normal classroom
The extent of services may be different
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FAPE services during removal
Services must be provided by highly qualified teachers. 71 Fed Reg 46579
Must still participate in state and district wide assessments. 71 Fed Reg 46718
Short term removals
10 school days or less in a school year:
May be imposed to the same extent applied to non-disabled students
No services are required, unless non disabled students receive services
No MD or other procedures required
More than 10 school days cumulativeMore than 10 school days cumulative but not a change in placement
Must receive “modified concept” FAPE services
Services are determined by the school personnel in consultation with at least one of the student’s teachers (§ 300.530(d)(4))
NO MD required
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More than 10 school days cumulative
Just because you get to 10 school days does not mean you hold an MD
Manifestation determinations are limited to removals that constitute a change in placement under § 300.536.
Change in Placement
More than 10 consecutive school days, a “special circumstances” IAES or “pattern of exclusion”
Must receive “modified concept” FAPE,
IEPT determines the services and setting
An MD must be held
“Change In Placement”§ 300.536Regulations provide that a “change in placement” occurs if:
Removal is for more than 10 consecutive school days, § 300.536(a)
orSeries of removals that constitutes a “pattern of exclusion” 300.536(b)
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Change in Placement§ 300.536
The School District determines, on a case-by-case basis, whether a pattern of removals constitutes a “change in placement”
This determination is subject to review through due process and judicial proceedings.
Pattern of exclusion factors§ 300.536(a)(2)
The series of removals total more than 10 school days in a school year;The child’s behavior is substantially similar to the child’s behavior in previous incidents that resulted in the series of removals; and Because of such additional factors as the length of each removal, the total amount of time the child has been removed, and the proximity of the removals to one another.
Manifestation Determination
Within 10 school days of the decision to impose a change in placement
More than 10 consecutive days,Cumulatively more than 10 school days and a pattern, orAn special circumstances IAES
Must convene the MD
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Manifestation Determination §300.530(g)
Notify parents of the decision to impose a change in placement on the date the decision is made, and provide the parents the procedural safeguard notice.
The MDR is conducted by the parent, the LEA and “relevant members” of the IEP team (as determined by the parent and the LEA).
MDs (continued)
The team must review:All relevant information in the student’s file, including
the child’s IEP,any teacher observations,any relevant information provided by the parent.
MD Questions
Whether the conduct in question was caused by, or had a direct and substantial relationship to, the student’s disability.
Not an attenuated association, such as low self-esteem.
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MD Questions
Whether the conduct in question was the direct result of the LEA’s failure to implement the IEP
No longer requires that the appropriateness of the child’s IEP and placement be considered
MDs should be easier
The changes in the law will make it easier for review team members to conclude that the behavior in question is not a manifestation of a child’s disability, enabling school personnel to apply disciplinary sanctions in more cases involving children with disabilities.
MD determinations
If the conduct was not a manifestationof the student’s disability, the student is subjected to the same discipline as non-disabled students.
If either of the MDR questions is answered in the affirmative, the behavior must be determined to be a manifestation of the student’s disability.
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MD determinations
If the determination that the behavior was a manifestation because the behavior was the direct result of the LEA’s failure to implement the IEP
The LEA must take immediate steps to remedy the deficiency, §300.530(e)(3)
MD determinations
If the conduct is a manifestation of the disability, the District is required to either:
Complete a Functional Behavioral Assessment (if one has not been previously completed), and implement a Behavior Intervention Plan, or
If a BIP has previously been developed, review the plan and modify it, as necessary, to address the behavior
MD determination
Except for student placed in an IAES for special circumstances (weapons, drugs, serious bodily injury), the student is returned to the placement from which he was removed
Unless the parent and the LEA agree to change the placement as part of the modification of the BIP
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“Special Circumstances” IAES§ 300.530(g)
Carries or possesses a dangerous weaponPossesses or uses an illegal drug or sells or solicits the sale of a Controlled SubstanceSerious bodily injury
IAES (continued)
“Serious Bodily Injury” means:
A substantial risk of deathExtreme physical painProtracted and obvious disfigurement, orProtracted loss or impairment of the function of a bodily member, organ, or mental faculty; and
IAES (continued)
“Bodily injury” means
A cut abrasion, bruise, burn, or disfigurementPhysical painIllnessImpairment of a bodily member, organ, or mental faculty; orAny other injury to the body, no matter how temporary.
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Special circumstance IAES
The special circumstances IAES is for up to 45 school days, rather than calendar days.
An IAES may extend from one academic year to the next.
IAES setting
The students home may be an appropriate setting:
Depends on the particular circumstances of an individual case such as the length of the removal, the extent to which the child previously has been removed from his or her regular placement, and the child’s individual needs and educational goals.
Special Circumstance IAES
By definition, imposition of an IAES is a change in placement because the removal is for more than 10 school days
An MDR must be held within 10 school days of the decision to impose the IAES
The student must receive modified FAPE services in the IAES, as determined by the IEPT
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Appeal, § 300.532
The parent of a student may appeal any decision regarding disciplinary placement
A school district may seek a hearing officer imposed IAES for “dangerous”students
The hearing is requested by filing a due process complaint
Burden of proof
The burden of proof is on the party seeking relief (Schaeffer v Weast)
A parent bears the burden when appealing the MDR
The school district has the burden when seeking a hearing officer imposed IAES.
Expedited hearing procedures
Only provisions in § 300.508(a) and (b) [relating to the content of the due process complaint] apply to expedited hearings
No requirement to file sufficiency objection
No requirement to file response to due process complaint
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Expedited hearing
Resolution session must be held within 7 (calendar) days of receipt of the due process complaint.
If the complaint is not resolved to the satisfaction of both parties in 15 days, the hearing may proceed.
Refusal to participate is addressed “in the same way” as any other hearing.
Expedited hearing
Hearing must be held within 20 school days.
Exchange of exhibits/documents 5 business days before the hearing.
Decision must be issued within 10 school days after the hearing.States may impose other procedural rules so long as it ensures the requirements of §300.510 – 514 are met.
Michigan expedited hearing rules
R. 340.1724c (as modified by application of the Emergency Rules)
DPC filed with MDEH.O. appointed by SOAHR
Witness document exchange 5 business days prior to hearingDecision issued within 45 calendar days of receipt of DPC
No extensionsAppeal to Court
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Hearing officer authority§ 300.532(b)
Hearing officer may:
Order the return of the student to his/her prior placement if removal was violation of §300.530, or if the behavior is determined to be a manifestation of the disability, or
Order a 45 school day IAES
Hearing Officer IAES “dangerousness”§ 300.532(b)
Hearing officer may order student to an appropriate IAES, if:
HO finds that maintaining the current placement is substantially likely to result in injury to the child or others.
Hearing Officer IAES
School District may repeat the process to extend the 45 school day IAES if the LEA believes that returning the student is substantially likely to result in injury to the student or others
Also may seek Honig injunction
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Stay Put during expedited hearing§ 300.533
“Stay Put” during any expedited hearing procedure is the interim alternative setting determined by the LEA:
Until the hearing decision,Until the suspension/expulsion under §300.530(c) expires, orExpiration of the 45 school day IAES,Whichever occurs first.
Not yet eligible students§ 300.534
District is deemed to have knowledge if:Parent expressed concern in writing to supervisory or administrative personnel or teacherParent requested evaluationTeacher or staff express specific concern about a pattern of behavior directly to sp ed director or supervisor
Exceptions, § 300.534(c)
No basis for knowledge if:
Parent has not allowed evaluation,Parent has refused service,Prior evaluation determined student not eligible
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Private Schools
§§300.130-147
Generally
Applies to students with disabilities enrolled in private schools where FAPE is not at issue.
Includes registered home school children.To the extent consistent with the number and location of students with disabilities enrolled in private schools
Provision is made for the participation of those students in programs “assisted or carried out”under Part B.
Expenditures§300.133
State funds must supplement, rather than supplant, federal funds
Must spend a proportionate amount of federal funds.Must spend federal funds, not state or local funds in an amount equal to this proportionate share.
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Proportionate Share§300.133(b)
Proportionate amount of Part B funds For students aged 3 through 21
Number of private school students to total number of students servedShare of total subgrant under §611(f)
For students 3 – 5If enrolled in a private school which meets the definition of an elementary school, number of private school students to total number servedShare of total subgrant under §619(g)
Appendix B provides examples of calculation
Expenditures§300.133(c)
The count for number of children to be conducted between October 1 and December 1 each year.Use the count for the proportionate share calculation in the next fiscal yearMust report to the SEA
The number of children evaluatedThe number of children determined eligibleThe number of children served
Child Find Obligations§300.131
District is to undertake similar child find activities as it does for public school children
Designed to ensure equitable participation of private school children with disabilities,Ensure an accurate countCost of child find may not be included in proportionate share calculation
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Local District Obligation
District’s child find obligation to students attending public schools apply to children attending private schools located in the boundaries of the school district.
Even if the child resides in a different district or state.District in which the private school is located is responsible for initial evaluation, re-evaluation and the cost of any services.
Parent consent for evaluation
Must obtained informed consent to evaluate.
If consent is denied, or if the parent fails to respond, the public school may not use due process to over-ride lack of consentNeed not consider the student eligible for servicesMust keep records of the reasonable efforts used to obtain consent
Evaluations of Private School Children
If the school district performs an evaluation of a student suspected of having a disability in a private school, and the parent disagrees, the parent is entitled to an IEE.
Same result as Grosse Pointe School District v Dept. of Education71 Fed Reg 46597
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Parent consent to release information§300.622(b)(4)
The districts must obtain consent prior to releasing any information between the district in which the private school is located and the resident district.
This includes consent to obtain information from the district in which the private school is located so that the resident district may offer FAPE.
Requirement to offer FAPE
The District of residence is still obligated to offer FAPE to students in private schools.
Unless the parent has made clear that they intend to remain enrolled in the private school.
Private School Consultation§300.134
The school district must engage in meaningful and timely consultation.
Must consult withPrivate school representatives,Parents of children with disabilities attending private schools.
Including “home schooled” children where the “home school” meets the definition of a private school under state law.
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Consultation Requirements§300.134
Consultation must include:The child find process,Determination of the proportionate share,How the child find and provision of services will operate during the school year,How, where and by whom services will be provided
If disagreement regarding services by contract, the District to provide a written explanation of the reasons to the private school officials
Consultation requirements§ 300.135
Upon completion of consultation, the District must obtain written affirmation from the private school representatives.
If the private schools do not provide such affirmation in a reasonable time, the District must provide documentation of the meaningful and timely consultation process to the SEA
Compliance§300.136
A private school may file a complaint with SEA:
District did not engage in meaningful and timely consultation, orDistrict did not give due consideration to their views.
Private school must identify the basis of the non-compliance
If dissatisfied with SEA decision, private school may submit complaint to US DOE
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Service plans§§ 300.132 (b); 137(c); 138
District determines which students will be provided services.
IDEA does not create an individual entitlement for services.
In Michigan, Auxiliary Services Act requires service to all students “on an equal basis.”
Service Plans§300.138(b)
Service plan devised for selected students.
Must set forth the specific special education and related services to be provided.
Meet the requirements of an IEP (or IFSP/IEP for 3-5 year olds)
Developed, reviewed and revised in the same manner as an IEP
IEP as Service Plan
In Michigan, school districts have historically prepared “Auxiliary Service”IEPs
Done for reimbursement purposes on the district’s 4096 form.
The comments this is permissible, but not preferable or encouraged.
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Services§300.138
Services must be provided by:Employees of the school district, orContracted by school district.
Personnel must meet same requirements as public school service personnel.
May be provided on site at the private school.
Provision of Services§612(a)(10)(A)(vi)
Must be secular, neutral and non-ideological
LEA must maintain control of any materials, equipment or property purchased to provide such services.
LEA to maintain control of funds
State Complaint vs. Due Process§ 300.140
In general, private school students do not have a right to a due process hearing.
Except for violations of child find requirements
May file a state complaint for violations, including failure to provide services set forth in service plan.
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Cost of Private School Tuition
If a school district places a child in a private school, the district is obligated to pay the cost. §§300.145-147.
Generally, a school district is not required to pay the cost of education, including special education, if it has made FAPE available to the student and the parents elected to place the child in the private school.
Private Schools; FAPE an issue§ 300.148
Reimbursement available if: FAPE was denied by districtServices provided by parent were “appropriate”
Parent must give notice prior to placing student in private school.
At last IEP meeting, or10 days prior to making placement.
Reduction or denial of reimbursement§300.148
Reimbursement may be reduced or denied:
Parent failed to notify at most recent IEP, orParent failed to give notice 10 days prior to removal, orParent failed to permit evaluationJudge finds parents acted unreasonably
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Reimbursement limitations§ 300.148(d)
Reduction is discretionary if:Parents are illiterate or cannot write in English,Serious emotional harm to child.
Reimbursement may not be reduced if:District prevented Parents from giving notice,Parents did not receive notice,Physical harm to the child.
Miscellaneous Provisions and Funding
Limitations on State Dept of Ed§300.199
State Dept of Ed must:
Identify in writing any state rule or policy which is not federally required
Minimize the number of rules, regulations, policies to which school districts are subjected
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Private and Public Insurance Benefits§300.154(d)
Medicaid Billing or Private Insurance may be accessed
May not require parent to sign up for Medicaid or other benefit
Must assure that there is no out of pocket expense to the parent
Consent to Access Benefits§300.154(d)(2)(iv)
Must obtain parental consent “each time”accessing public benefit
Must notify that refusal to consent does not relieve school district of providing needed service
OSEP PositionOSEP has been less than consistent.
In August OSEP stated “Parental consent must be obtained every time public benefits or insurance is sought whether it be within the same year or month. The intent is to inform parents of the number of times their benefits are being accessed.”
OSEP informally indicated at the most recent Leadership Conference in Washington DC that “common sense” had to be used.
If a student is receiving OT 3 times per week for 36 weeks “that doesn’t mean we want 108 consent forms.” One form identifying all of the sessions and when the claims will be submitted should suffice.
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Prohibition on Mandatory Meds§ 300.174
A state must prohibit a School District from requiring that a child take a controlled substance as condition of attending school, receiving evaluation, or receiving FAPE.
School Districts may still consult with parents or share classroom-based observations
Excess Costs§§300.16; 300.202
IDEA funds may only be used for Excess CostsDefinition of Excess costs
The costs in excess of the average per pupil expenditure from the prior year, less funds received under IDEA Part B, ESEA Part A of Title I, ESEA Parts A & B of Title III, and state and local funds expended on these programs.
Appendix A provides an example of the Excess Cost calculations
Maintenance of efforts LEAs§300.203-204
LEAs still required to spend the same total or per capita amount as they have in the “most recent prior year.”
Exceptions remain the same
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Adjustments§300.205
Provides that an LEA may reduce the amounts expended if:
Amount of Fed funds received from SEA exceeds the amount received the preceding year
May reduce local expenditures by 50% of the increased amount received; §300.205(a)Must use an amount of local funds equal to the amount of the reduction to support activities under NCLB. §300.205(b)
The reduction does not effect the provision of FAPE to students. §300.205(c)
Adjustments – Early Intervening Services§300.205(d)
The amount of funds expended by an LEA for early intervening services counts toward the maximum amount of expenditures an LEA may reduce under 300.205(a) [the 50% of the excess amounts received from the SEA]
Early Intervening Services§ 300.226
Allows districts to spend up to 15% of IDEA funds on “early intervening pre-referral services”
Provided to K-12 students not identified under as eligible IDEA
That need additional academic and behavioral support in general ed environmentEmphasis on K-3 age range
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Early Intervening Services
Where a district has been determined to have “significant disproportionality” based on race and ethnicity regarding
Identification as special ed eligiblePlacement in particular educational environmentsDisciplinary action, including suspension and expulsion
The district must use 15% of the increase to provide Early Intervening Services
Early Intervening Services§ 300.226(b)
May use money to provide
Professional development
Carry out coordinated services aligned with NCLB
supplement not supplant NCLB funds
Early Intervening Services
Annual ReportingNumber of children servedNumber served who later became eligible for special education
Calculation of 15 % used for Early Intervening Services
Limited by amount of increase used to reduce maintenance of effort
Appendix D provides examples
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THANKYOU
Presentation Text © 2006 Scholten Fant