IDEA 2004 REGULATIONS Summary of Major Changes Regulations

IDEA 2004 REGULATIONS Summary of Major Changes Regulations took effect October 14, 2006

SUBPART A—GENERAL Definitions: o o o The definition of a child with a disability in 300. 8 has been revised as follows: 1) to state that the use of the term “developmental delay” is subject to conditions described in 300. 111(b) (the State must define the term and determine ages 3 -9 or some subset of those ages) 2) 300. 8(c)(9)(i) other health impairment now includes Tourette Syndrome.

Definitions Continued o HOUSSE (high objective uniform state standards of evaluation)-may be developed separately for special education teachers but must meet the same standards as for general education teachers.

Definitions Continued o The definition of a parent in 300. 30 has been revised to substitute “biological” for “natural” each time it appears and to clarify that to be considered a parent, a “guardian” must be a person generally authorized to act as the child’s parent, or authorized to make educational decisions for the child.

Definitions Continued o Related Services in 300. 34 has been revised to clarify that related services do not include a medical device that is surgically implanted, the optimization of that device’s functioning (e. g. mapping), maintenance of that device or the replacement of that device.

Definitions Continued o o A new 300. 34(b)(2) has been added to make clear that nothing in (b)(1) limits the right of a child with a surgically implanted device to receive related services as listed in 300. 34(a) that are determined by the IEP team to be necessary for the child to receive FAPE. Does not limit the responsibility of the educational agency to monitor and maintain medical devices that are necessary for the health and safety of the child.

Definitions Continued o The definition of school nurse services in 300. 34(c )(13) has been expanded and renamed school health services and school nurse services. The expanded definition clarifies that school nurse services are provided by a qualified school nurse and school health services may be provided by a qualified school nurse or other qualified person.

Definitions Continued o A definition of scientifically based research has been added in new 300. 35 that incorporates the definition of that term from ESEA (Elementary and Secondary Education act of 1965), 20 USC 6301 et seq.

Definitions Continued o Scientifically based research “(A) means research that involves the application of rigorous, systematic, and objective procedures to obtain reliable and valid knowledge relevant to education activities and programs; and….

Definitions Continued o (B) includes research that (i) employs systematic, empirical methods that draw on observation or experiment; (ii) involves rigorous data analyses that are adequate to test the stated hypotheses and justify the general conclusions drawn;

Definitions Continued o (iii) relies on measurements or observational methods that provide reliable and valid data across evaluators and observers, across multiple measurements and observations, and across studies by the same or different investigators;

Definitions Continued o (iv) is evaluated using experimental or quasiexperimental designs in which individuals, entities, programs, or activities are assigned to different conditions and with appropriate controls to evaluate the effects of the condition or interest, with a preference for random assignment experiments, or other designs to the extent that those designs contain within-condition or across-condition controls;

Definitions Continued o (v) ensures that experimental studies are presented in sufficient detail and clarity to allow for replication or, at a minimum, offer the opportunity to build systematically on their findings; and…

Definitions Continued o (vi) has been accepted by a peerreviewed journal or approved by a panel of independent experts through a comparably rigorous, objective, and scientific review. ” 20 USC 7801(37)

Definitions Continued o 300. 42 The definition of supplementary aids and services has been modified to specify that aids, services, and other supports are also provided to enable children with disabilities to participate in extracurricular and nonacademic settings.

Subpart B-State Eligibility FAPE Requirements o Section 300. 101(c) has been revised to clarify that FAPE must be available to any individual child with a disability who needs special education and related services, even though the child has not failed or been retained in a course, and is advancing from grade to grade.

FAPE Requirements o Section 300. 102(a)(3), regarding exceptions to FAPE, has been changed to 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).

FAPE Requirements o Section 300. 107(a) has been revised to specify the steps each School District (SD) must take, including the provision of supplementary aids and services determined appropriate and necessary by the child’s IEP Team, to provide nonacademic and extracurricular services and activities in the manner necessary to afford children with disabilities an equal opportunity for participation in those services and activities.

FAPE Requirements A new 300. 113 has been added that, (a) requires each SD to ensure that hearing aids are functioning properly; (b)(1) requires each SD to ensure that the external components of a surgically implanted medical device are functioning properly; and (b)(2) clarifies that the SD is not responsible for the post-surgical maintenance, programming or replacement of the device. o

Least Restrictive Environment o 300. 116(b)(3) and (c) removes the “unless the parent agrees otherwise” from the requirement that the child’s placement be as close as possible to the child’s home and the child is educated in the school he or she would attend if not disabled.

Least Restrictive Environment o 300. 117 has been changed to clarify that each SD must ensure that each child with a disability has the supplementary aids and services determined by the child’s IEP team to be appropriate and necessary for the child to participate with nondisabled children in the extracurricular services and activities to the maximum extent appropriate to the needs of that child.

Children in Private Schools o This presentation does not address the changes in the regulations regarding children with disabilities who are enrolled by their parents in private schools when FAPE is not an issue.

Children in Private Schools o Where FAPE is at issue a new section 300. 148(b) clarifies that disagreements regarding the availability of a program appropriate for a child and the question of financial reimbursement are subject to due process procedures starting at 300. 504.

Children with Medi-Cal or Private Insurance o 300. 154(d) has been revised to clarify that the SD must obtain parental consent each time that access to the parent’s public benefits or insurance is sought and notify parents that refusal to allow access to their public benefits or insurances does not relieve the SD of its responsibility to ensure that all required services are provided at no cost to the parent.

RE: Personnel Qualifications o Section 300. 156(e) has been revised to add “or a class of students” to clarify that a judicial action on behalf of a class of students may not be filed for failure or a particular SEA or SD employee to be highly qualified.

Subpart D- Evaluations, Eligibility, IEPs & Placements o Parental Consent: section 300 has been changed to provide that the SD must give notice and obtain informed consent for an initial evaluation and must make reasonable efforts to obtain the informed consent from the parent for the initial evaluation.

Subpart D- Evaluations, Eligibility, IEPs & Placements o A new paragraph 300(a)(3)(ii) has been added to clarify that the SD does not violate its obligations under these regulations if it declines to pursue an evaluation after the parent fails to provide consent for the initial evaluation.

Subpart D- Evaluations, Eligibility, IEPs & Placements o Section 300(c)(1) has been modified to clarify that if a parent refuses to consent to a reevaluation, the SD may, but is not required to, pursue the reevaluation by using the consent override procedures in 300(a)(3) (Due Process) and does not violate its obligations if it declines to pursue the reevaluation.

Subpart D- Evaluations, Eligibility, IEPs & Placements o A new 300(d)(4) has been added that if a parent of a child who is home schooled or placed in a private school by the parent at the parent’s expense, does not provide consent for an evaluation or the parent fails to respond to a request to provide consent, the SD may not use Due Process to override the parent and is not required to consider the child eligible for services.

Subpart D- Evaluations, Eligibility, IEPs & Placements o A new section 300(d)(5) has been added that in order for a SD to meet the reasonable efforts requirement to obtain informed parental consent for an evaluation, it must document its attempts to obtain parental consent by keeping detailed records of telephone calls made or attempted, copies of correspondence sent and responses received and records of any visits made to the parents home or place of employment 300. 322(d)

Re: Learning Disabilities o Section 300. 307(a)(2) has been changed to clarify that the criteria adopted by the State to determine the existence of a learning disability must permit the use of a process based on the child’s response to scientific, research-based intervention.

Re: Learning Disabilities o Section 300. 308 requires that the IEP teams determining the eligibility for children suspected of having a learning disability are to include: the child’s parents; a team of qualified professionals including the child’s regular education teacher; at least one person qualified to conduct individual diagnostic examination of children, e. g. a school psychologist or reading specialist

Re: Learning Disabilities o o 300. 309(a)-a team can find that a child has a learning disability if the child doesn’t achieve adequately for the child’s age or doesn’t meet grade-level standards. Adds limited English Proficiency to the conditions that could account for a child’s learning problems.

Re: Learning Disabilities o o 300. 309(b)-consider whether child was provided appropriate instruction in the regular education setting by qualified personnel in determining reasons for learning problems. 300. 309(c)-SD must seek consent to evaluate if after “appropriate period of time” and “appropriate instruction” the child does not make adequate progress? ? ?

Re: Observations o 300. 310 -IEP team decides whether child will be observed in his/her learning environment prior to evaluation or as part of the evaluation process.

Re: Documenting Eligibility o o 300. 311 - requires documentation of the child’s progress in performance or achievement or both, relative to the child’s age or State Standards. The documentation must include a statement of the effects of visual, hearing, or motor disability, mental retardation, emotional disturbance, cultural factors, environmental or economic disadvantage, or limited English proficiency, on the child’s achievement.

Re: Documenting Eligibility o o 300. 311(a)(7) has been added that if the child has participated in a RTI process, the documentation must contain details re: what strategies were used and what data was collected. The team must also document that the child’s parents were notified of the process and given info re: their right to request an evaluation.

Re: IEP s o 300. 322 - requires the SD to take whatever action is necessary to ensure that the parent understands the proceedings, including arranging for an interpreter for deaf parents or parents who speak another language.

Re: IEP s o 300. 323(d)-Requires public agencies to ensure that every person responsible for implementing a child’s IEP (e. g. regular education teacher, special education teacher, DIS provider) be informed of their specific responsibilities and the specific accommodations, modifications and supports that must be provided.

Re: IEP s o o 300. 324 - Requires that SD to ensure that if changes are made to a child’s IEP without an IEP meeting, that the child’s team is informed of the changes. 300. 324 also requires the team reviewing and revising an IEP to consider same special factors it considered when developing the original IEP.

Re: Procedural Safeguards (Subpart E) o o 300. 502 - each time the SD conducts an evaluation that the parent disagrees with, the parent is entitled to only one independent educational evaluation at public expense. Also includes a statement that any independent evaluation must be considered by the IEP team.

Re: Procedural Safeguards o o 300. 504 -requires that a copy of the procedural safeguards notice must be given upon receipt of the first due process complaint or State complaint in a school year. 300. 509 -State can develop model forms for Due Process or State Complaint but can’t require that the form be used. Any form can be used as long as it meets requirements.

Re: Procedural Safeguards o o 300. 510(b)(3) if parent doesn’t participate in Resolution Session (RS), timelines for hearing will be delayed until the RS is held unless it is waived by both parties. 300. 510(b)(4) if not able to obtain parent participation after reasonable efforts have been made and documented, the SD may request a dismissal of the parent’s complaint.

Re: Procedural Safeguards o o 300. 510(b)(5)-has been added to provide that if the SD fails to hold the RS within 15 days or fails to participate in the RS, the parent may seek the intervention of a hearing officer to begin the hearing timelines. 300. 510(d)(2) re: enforceability of written settlement agreement, the SEA (State Educational Agency) has been added if they have a procedure for enforcement (in addition to courts).

Re: Procedural Safeguards o o 300. 513(a)-a hearing officer’s determination of whether a child received FAPE must be based on substantive grounds. 300. 518 -if complaint involves transition from early intervention (EI), and child is no longer eligible for services because he turned 3, the SD is not required to provide the EI services that the child had been receiving.

Re: Procedural Safeguards o But…if the child is found eligible under Part B and the parent consents to the initial provision of sped, then the SD must provide the special education and related services that are not in dispute.

Re: Procedural Safeguards o 300. 520(b)- regarding transfer of parental rights at age of majority-if child at 18 is unable to provide informed consent re: educational program and has not been determined incompetent, the State must establish procedures for appointing parent or other appropriate person to act on child’s behalf.

RE: Discipline Procedures o o 300. 530(e)(3)-if the SD, parents and IEP team determine that a child’s behavior was the direct result of the SD’s failure to implement the child’s IEP, the SD must take immediate steps to remedy the deficiencies. 300. 530(h)-SD must notify parents a give procedural safeguards notice on day of decision to change placement

RE: Discipline Procedures o o 300. 532(c)(3)-re: expedited Due Process hearing-unless both parties agree to waive, the RS must occur within 7 days and the hearing may proceed within 15 days. 300. 536(b)-SD makes the determination on a case-by-case basis, whether a pattern of removals constitutes a change in placement, subject to review through Due Process