CLIENT ALERT TO: Pupil Personnel Directors/Special Education Directors FROM: Shipman & Goodwin LLP DATE: August 22, 2006 RE: Release of Final Regulations Implementing IDEA 2004, Part B On August 14, 2006, the U.S. Department of Education published final regulations implementing Part B of the Individuals with Disabilities Education Improvement Act of 2004 (“IDEA 2004”). The regulations will take effect on October 13, 2006. The full text of the regulations is available at the U.S. Department of Education’s website, http://www.ed.gov. Although many of the new regulations do little more than reiterate the changes made by IDEA 2004, there are a few noteworthy exceptions. Below we have provided a list of the significant highlights for you to share with district staff. Should you have any additional questions regarding the regulations, or IDEA 2004, please feel free to contact Julie Fay, at (860) 251-5523, jcfay@goodwin.com. 1. Identification of Students with Specific Learning Disability Under IDEA 1997, a student could be identified as a student with a specific learning disability if the child was not achieving commensurate with his or her age and ability and if the team found that the child had a severe discrepancy between achievement and intellectual ability in certain areas. IDEA 2004 moves away from this “severe discrepancy” model in stating that a school district will not be required to take into consideration whether a child has a severe discrepancy between achievement and intellectual ability. Section 1414(b)(6)(A). While the new regulations stop short of actually prohibiting the use of the severe discrepancy model, 34 C.F.R. § 300.307 reinforces this shift by providing that the State must not require the use of a severe discrepancy standard. Moreover, the regulation goes on to say that the State “ must permit the use of a process based on the child’s responsiveness to scientific, research based interventions .” Thus, the implementing regulations reinforce a clear movement - 1 -
away from the more formulaic comparison of achievement and ability levels towards a model based on the child’s response to interventions. In addition, 34 C.F.R. § 300.309 clarifies that a child may be identified as having a specific learning disability if the child is not achieving adequately for the child’s age or to meet State-approved grade-level standards . This replaces prior language which looked at the child’s achievement relative to his or her age and ability , rather than State standards. 2. Resolution Session The final regulations also reiterate IDEA 2004’s emphasis on full participation by parents and districts in resolution meetings. Specifically, 34 C.F.R. § 300.510 states that if a parent who has filed a due process complaint fails to participate in a resolution meeting, the timelines for the resolution process and due process hearing will be delayed until the meeting is held. More importantly, the regulations permit a school district to request that the hearing officer dismiss the parent’s due process complaint at the conclusion of the thirty (30) day resolution period if the parent refuses to participate in the resolution meeting despite reasonable, documented efforts by the agency to secure the parent’s participation. On the other hand, if a district fails to hold the resolution session within fifteen (15) days after receiving notice of a parent’s due process complaint, or fails to participate, the parent may request that the hearing officer begin the due process hearing timeline. 34 C.F.R. § 300.510 3. Children Enrolled in Private Schools Consistent with IDEA 2004, the final regulations require each public agency to locate, identify, and evaluate all children with disabilities enrolled in private schools located in the school district served by the agency . This language is a change from prior law, which required districts to conduct child find and provide special education services to students who resided within the district , regardless of where the private school was located. In addition, 34 C.F.R § 300.131(f) of the final regulations specifies that these child find and service obligations apply to all children who have been parentally placed in a private school, even those children who do not reside in the state in which the school is located . This undoubtedly was targeted at rebel states (such as Massachusetts) which were refusing to identify, evaluate or provide service plans to students enrolled at private schools if the students resided out-of-state. 4. Highly Qualified Teachers The Part B regulations adopt the NCLB requirements regarding highly qualified teachers with respect to special education teachers. However, 34 C.F.R. § 300.18(h) clarifies that the highly qualified requirements do not apply to private school teachers , even those hired or contracted by school districts to provide equitable services to - 2 -
parentally-placed private school students. In addition, the regulations permit states to develop a HOUSSE (‘high objective uniform State standard for evaluation”) for special education teachers, provided that the evaluation process does not establish a lower standard for content knowledge requirements for special education teachers and that it meets all the requirements of a HOUSSE for regular education teachers. 34 C.F.R. § 300.18(d)(3). Finally, 34 C.F.R. § 300.18(g)(2) adds that a fully certified regular education teacher who subsequently becomes fully certified or licensed as a special education teacher is considered a “new” special education teacher when first hired as a special education teacher, thereby permitting the teacher to meet the new teacher requirements for special education teachers. Although some have expressed concern that this increased flexibility for special education teachers imposes a lesser standard, these exceptions recognize the difficulty special educators may have in meeting the highly qualified requirements in each of the multiple subjects they are typically expected to teach. 5. FAPE The final regulations clarify that school districts must make FAPE available to any child with a disability who is eligible for special education, even though the child has not failed or been retained in a course or grade, and is advancing from grade to grade . 34 C.F.R. § 300.101. As with current regulations, FAPE continues to include the provision of physical education services, specially designed if necessary, for every child with a disability. However, under the new regulations, physical education need not be provided if the district does not provide physical education to children without disabilities in the same grades . 34 C.F.R. § 300.108. With respect to nonacademic services, 34 C.F.R. § 300.107 requires a district to take steps, including the provision of supplementary aids and services determined appropriate and necessary by the child’s IEP team , to afford the child with a disability an equal opportunity to participate in those services and activities. Finally, in discussing the limitations of FAPE for certain ages, 34 C.F.R. § 300.102 clarifies that the term “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”) . Once again, the IDEA continues to align itself with NCLB by adopting language referencing achievement based on statewide academic standards. 6. Neighborhood Schools/LRE Proposed regulations would have revised the provision requiring placement in a child’s home school, by stating that a child’s placement must be as close as possible to the child’s home and that the child be educated in the school he or she would attend if nondisabled, unless the parent agrees otherwise . However, the final regulations remove this qualifying language, thus leaving the LRE placement requirements largely - 3 -
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