12/14/04 — The Individuals with Disabilities Education Improvement Act of 2004, signed into law by President Bush on Dec. 3, includes many significant improvements to the special education program.
“Final passage of this important legislation culminates nearly three years of efforts by NSBA’s advocacy staff — along with local school board members, state school boards associations, and school attorneys — to secure a more balanced approach to meeting the educational needs of the 6.7 million students with disabilities,” says Reggie Felton, director of federal relations at NSBA.
“The new law will result in significant improvements for school boards, school staff, parents, and students with disabilities,” Felton says. “NSBA is pleased with the strong congressional support for our recommendations, and welcomes this new law that substantially shifts the focus from one of compliance to one of education outcomes for all students.”
Following is a quick reference guide to some of the key provisions in the new law.
Due process
These provisions are changes from the current law:
• Complainants must give notice of all issues before the hearing or the complainant risks not having the issue addressed during the hearing.
• There must be a meeting within 15 days with the complainant to resolve complaints before a due process hearing.
• There must be options for mediation conducted by a qualified and impartial mediator (to be paid for by the state).
• There must be an option to meet with a disinterested party to encourage the use of mediation and explain the benefits of the mediation process (to be paid for by the state).
• There are revised qualifications for hearing officers to ensure they possess content knowledge, are able to conduct a hearing, and do not have conflicts of interest.
• Decisions by hearing officials based only on procedural errors are eliminated, unless the procedural errors adversely affected the implementation of the individualized education program (IEP).
• Decisions on whether to have a hearing must be made on the basis of whether the school district provides a free appropriate public education.
• There is a statute of limitations of two years regarding complaints.
• Only one copy of the procedural rights needs to be provided annually, except (1) upon initial referral or parental request for evaluation, (2) upon the first occurrence of the filing of a complaint, and (3) upon request of the parent.
• Any discussions occurring during the mediation process must be considered confidential and cannot be used as evidence in any subsequent due process hearing or civil proceeding.
• The hearing officer is restricted from serving if the individual is an employee of the state education agency or local school district or has any personal or professional interest that conflicts with his or her objectivity.
Attorney fees
The new law:
• restricts attorneys of the local school district from being present during the mediation or optional sessions before the hearing unless an attorney accompanies the parent;
• authorizes districts to collect attorney fees for frivolous or malicious complaints;
• permits a reduction in the attorneys’ fees if a parent or parent attorney unnecessarily delays a lawsuit;
• prohibits reimbursement of fees in any action or proceeding for services performed after there is written offer of settlement;
• requires fees to be based on rates prevailing in the community, and no bonus or multiplier may be used in calculating the fees.
IEPs and paperwork
The law calls for a 15-state pilot demonstration program to identify ways to reduce paperwork burdens and other administrative duties, including the option to develop multiyear IEPs for up to three years.
If approved by the education secretary, the state could waive statutory and regulatory requirements up to four years — but cannot waive civil rights requirements.
Parents and school officials may agree to use alternative means of participating in IEP meetings, such as video conferencing and conference calls.
Any member may be excused from attending the IEP team meeting if agreed by both parent and local school district official. Team members also may submit written information without being present if the parent and district official agree.
In making changes to the IEP after the annual IEP meeting for the school year, the parent and school district official may agree not to convene an IEP meeting and instead may develop a written document to amend or modify the IEP.
Any changes to the IEP may be made either by the entire team or by amending the IEP rather than redrafting the entire plan.
Funding
Unfortunately, the new law does not include mandatory funding for IDEA. The law does, however, increase the authorization level by approximately $2.3 billion each year.
Were the appropriation to match the authorizations levels, full funding to the federal government’s commitment would be reached by 2011. But Congress appropriated only $10.7 billion for IDEA in 2005, rather than the $12.4 billion that was authorized.
Local school districts may use up to 15 percent of their Part B IDEA funding to develop and implement coordinated, early intervention services.
This effort can include interagency financing structures for students in K-12, with a particular emphasis on students in K-3 who have not been identified as needing special education or related services but who need additional academic and behavioral support to succeed in a general education environment.
Such support may include professional development, educational and behavioral evaluation, and such services as scientifically based literacy instruction. This provision is especially intended to reduce the overrepresentation or disproportionality of minority students identified for special education programs.
Local school districts that choose to develop and maintain such programs must annually report to the state educational agency: (1) the number of students served; and (2) the number of students who received special education and related services during the preceding two-year period.
Risk pools
The law allows states to establish risk pools to assist local school districts in serving high-need children with disabilities. Each fiscal year, states can reserve for this purpose up to 10 percent of their funds for state-level activities.
These funds must be used by the local school districts — not the state — although a portion of funding for each fiscal year may be used to support innovative and effective ways of cost sharing among local school districts. The funds may be used to implement a placement-neutral cost sharing and reimbursement program of high-need, low incidence, catastrophic, or extraordinary aid.
The risk-sharing pools may not be used to pay costs that otherwise would be reimbursed as medical assistance for a child with a disability under the state Medicaid program. Additionally, the funds may not be used to support legal fees or court costs.
Related services
Related services include transportation, and developmental, corrective, and other supportive services, such as speech-language pathology and audiology, interpreting, psychological services, physical and occupational therapy, recreation, counseling, social work, and diagnostic medical services.
While the law establishes the local school district as the payer of last resort, it authorizes districts to claim reimbursements for the services from the public agency that failed to provide or pay for such services. Public agencies must reimburse the local school district pursuant to the terms of the interagency agreement.
Discipline
The following provisions are new or revised:
• Although the requirement for manifestation determinations remains in the new law, local school districts have the authority on a case-by-case basis to determine if the student should be removed from the classroom and placed in an alternative setting, pending such determinations.
• School personnel may remove a child with a disability who violates a code of student conduct from his or her current placement for up to 10 days without a hearing.
• School personnel may remove a child with a disability for not more than 45 school days to an interim alternative educational setting without regard to a manifestation of the disability if the child has inflicted serious bodily injury to another person, as well as if the child has a weapon or uses or sells illegal drugs.
• When an appeal has been requested by the parent or school district, the child shall remain in the interim alternative educational setting pending the decision of the hearing officer unless the parent and the state or local school district agree that the child should be moved. This is a significant change from previous law where the “stay-put” provision prohibited removing the student until a manifestation determination was made.
• During the appeal process, the student may remain in the alternative placement pending an expedited hearing. The burden of proof no longer rests solely with the school district.
• Education services must continue to be provided to students with disabilities even if they are removed from the classroom or the school.
Teacher quality
• The qualification of special education teachers who exclusively teach children with disabilities shall be based on assessments tied to the alternate achievement standards of the students, rather than the requirements of the No Child Left Behind Act.
In these circumstances, the teacher may meet the requirements through the elementary, middle, or secondary teacher certification requirements or demonstrate subject matter knowledge appropriate to the level of instruction being provided as determined by the state.
• The qualifications of veteran special education teachers who teach two or more core academic subjects exclusively to children with disabilities must be based on demonstrated competence in all core academic subjects in the same manner as required for other teachers.
This determination may be based on a single, high objective uniform state standard of evaluation (HOUSSE) covering multiple subjects. Requirements must be met by the end of the 2005-06 academic year.
• New special education teachers who teach multiple subjects must meet the highly qualified requirements under NCLB in mathematics, language arts, or science — which may also include HOUSSE — within two years after employment.
• Consultative services relative to special education teachers do not include instruction in core academic subjects, but may include adjustments to the learning environment, modifications of instructional methods, adaptation of curricula, the use of behavioral supports and interventions, or the use of appropriate accommodations to meet the needs of individual children.