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NOTICE OF CHANGES TO FEDERAL SPECIAL EDUCATION LAWS

On June 4, 1997, the Individuals with Disabilities Education Act (IDEA) was amended by Congress and signed into law by the President. Most of the new Act (except as noted below) became effective on that date.

Because special education is funded in part with federal money, these changes take precedence over any prior inconsistent federal law or current state law, except where state law provides more protections or at least the same level of protections. References to section numbers following each amendment are not to the federal legislation but are to the sections where these amendments will appear in federal law at Title 20 of the United States Code. References to chapter numbers after each item are to the SERR chapters in which we anticipate the item should be discussed.

1. Legislative Purpose. The Congressional Findings and stated purpose of the IDEA now focus more on accountability for results for special education students. 1401(c)(4),(5)(E),(6),(d)(1)-(4). [Chapter 1.]

2. Role of Parents. The Congressional Findings also strengthen the role of parents. 1401(c)(5)(B), (d)(1)(B), (d)(3). [Chapters 1 and 4.]

3. New Related Service. Congress has added a new Related Service: "Orientation and Mobility Services." 1402(22). [Chapter 5.]

4. Definition of Supplemental Aids and Services. The term "Supplementary Aids and Services" means aids, services, and other supports that are provided in regular education classes or other education-related settings to enable children with disabilities to be educated with nondisabled children to the maximum extent appropriate." 1402(29) [Chapter 7.]

5. Suspension/Expulsion. Congress now requires that school districts must continue providing a free appropriate public education to special education pupils who are either suspended or expelled. The services may not take place in the same environment as before the suspension or expulsion but must be continued in some fashion during the period of expulsion or suspension. 1412(a)(1)(A). [Chapter 8.]

6. Incarcerated Students with Disabilities. Congress now requires services for 18- to 21-year-olds incarcerated in adult penal facilities but only if they had IEPs immediately prior to incarceration. 1412(a)(1)(B)(ii). The FAPE these students are entitled to does not have to include: participation in general assessments or in transition planning for students whose eligibility will end before release from prison. Also the IEP team can modify the IEP in terms of content and in terms of LRE if the State has a bona fide security or other compelling penological interest. 1414(d)(6). [Chapter 1.]

7. Least Restrictive Environment. Under the category of Least Restrictive Environment (placement of special education students in regular classes and schools, unless with supplementary aids and services, they cannot be satisfactorily educated there), Congress now requires that states' funding systems do not encourage segregated placements. 1412(a)(5) [Chapter 7.]

8. Infant and Toddler Services. The section of the federal laws previously known as Part H (the program for infants and toddlers ages 0 to 3) is now called Part C. States must assure a "smooth and effective transition" from Part C to Part B (the program for pupils ages 3 to 21). An IEP (for those eligible for Part B) must be developed and being implemented by the child's third birthday. The LEA must participate in the transition plan. 1412(a)(9). Another change to Part H (C) is the strengthening of the natural environments mandate. The IFSP must contain a statement of the natural environments in which early intervention services shall appropriately be provided, including a justification of the extent, if any, to which the services will not be provided in a natural environment. 1436(d)(5). [Chapter 13.]

9. Children placed in Private Schools unilaterally by parents. Congress has given limited rights to children placed in private schools unilaterally by their parents. The school district must provide for the participation of these pupils in the district's special education programs. However, the amount of money spent on these pupils may be limited to only a proportionate share (based on the number of these pupils there are in the district) of the federal dollars received by the district. Currently, only about 8% of the dollars required to provide special education are federal dollars. In a district with 1,000 children, 10 of whom are children with disabilities enrolled in private schools unilaterally by their parents, a district would only have to spend 1% of the 8% of its special education revenue on making provision for the participation of these 10 students in its special education programs. Services may be provided on the premises of private schools, even parochial schools "to the extent consistent with law." 1412(a)(10)(A)(i). [Chapter 1.]

10. Child Find. Districts must find all the children with disabilities in their districts, including finding those in parochial schools. 1412(a)(10)(A)(ii). [Chapter 1.]

11. Reimbursement for private school placements. Parents cannot get reimbursement if the district timely offered a FAPE. AND PARENTS MAY BE DENIED REIMBURSEMENT OR HAVE THE AMOUNT REDUCED IF:

at the most recent IEP meeting the parents did not inform the district that they were rejecting the district's placement and give the reasons and also inform the district of their intent to enroll their child in a private school and seek public reimbursement, or

10 business days prior to removing the child, the parents did not provide all the information above.

But the exceptions to this notice requirement (and potential consequent reduction or denial of reimbursement) are: if the parent was illiterate and could not write in English, giving the necessary notice would likely have resulted in physical or serious emotional harm to the child, the school prevented the parent from giving the notice, or the school failed to give the parents notice of this notice requirement.

Reimbursement may also be denied if:

prior to the parents removing the child, the district made a reasonable request to assess the child, including a statement of the purpose, and the parents did not make the child available for assessment, or

a judge finds the parents otherwise acted unreasonably. 1412(a)(10)(C). [Chapter 1.]

12. Medi-Cal payor of first resort. If under federal or state law or state policy another public agency, other than an education agency, is assigned responsibility for services that are considered special education or related services or assistive technology or supplementary aids and services or transition services, such public agency must fulfill that responsibility. The law now says that the financial responsibility of Medi-Cal, where it is one of those agencies described in the previous sentence, precedes the financial responsibility of the LEA. 1412(a)(12). [Chapter 1.]

13. Performance Assessments. Special education pupils must be included in regular assessments with accommodations where necessary. Also, the state must develop guidelines for determining when students have to use alternative assessments altogether. 1412(a)(17). [Chapter 2.]

14. Permissive Use Of Special Education Dollars. Special education dollars spent on supplementary aids and services in regular classes may benefit nondisabled children. 1413(a)(4). [Chapter 7.]

15. Charter Schools. Children in Public Charter Schools have all the special education rights and entitlements as children in other public schools. 1413(a)(5). [Chapter 1.]

16. Evaluations. Evaluations must now determine not only eligibility but also proposed content of the IEP and information related to enabling the child to be involved and progress in the general curriculum, or, for preschoolers, appropriate activities. 1414(b)(2). [Chapter 2.]

17. Eligibility. The special education eligibility determination must be made by a team of qualified persons and the parent. A copy of the report must be given to the parent. 1414(b)(4). The determination of continuing eligibility can be made based on existing data without reevaluating, unless the parent requests reevaluation. However, no determination of ineligibility can be made without assessment. 1414(c)(4). [Chapter 3.]

18. Reevaluations. Parent consent is now needed for any re-evaluation of the child, not just the initial one. 1414(c)(3).[Chapter 2.]

19. Ultimate School District Responsibility. Congress has clarified that local school districts are ultimately responsible for services needed by pupils even when another public agency, other than an educational agency, is otherwise obligated to provide or pay for services that are considered special education, related services, assistive technology, transition services, or supplementary aids and services in regular classes. If that other agency fails to provide or pay for these services, the local school district must fulfill that obligation either directly or through contract or through some other arrangement. 1412(a)(12)(B)(i)&(ii). [Chapters 1 and 9.]

20. Procedural Safeguards. [See Chapter 6 for items A through H below.]

A. Notice. The notice requirements for districts (when they change or refuse to change an IEP) were not changed (1415(b)&(c)), except that Congress took out the requirement that if the family's means of communication is other than written language, the district had to translate the notice orally to them. Congress added a provision requiring the LEA to give parents a list of sources to contact to obtain assistance in understanding their procedural rights. 1415(c). [Chapter 6.]

B. Notice of procedural rights. This notice has to be given at initial referral to special education, whenever an IEP meeting is noticed [therefore, it cannot be handed out at the outset of the meeting anymore], whenever the child is reevaluated, and whenever parents file for due process. This notice must also be in native language unless unfeasible, must be understandable, and must describe rights to: independent assessment, notice, consent, access to records, complaints, stay-put, interim alternative placement rights (see below), unilateral private school placement and reimbursement rights, mediation, due process, appeals, and attorneys' fees. 1415(d). [Chapter 6.]

C. Mediation. Mediation should meet all the requirements of the now federally mandated mediation option. However, Congress believes so strongly in people using mediation that it said this: "A LEA or State agency may establish procedures to require parents who choose not to use the mediation process to meet...with a disinterested party who is under contract with a parent training and information center, or Alternative Dispute Resolution entity, etc., to encourage the use and explain the benefits of mediation." 1415(e). [Chapter 6.]

D. Fair Hearing. Five days before the hearing each party must disclose records to the other party(ies) under the new federal law. The federal law is somewhat narrower and requires disclosure of "all evaluations completed by that date and recommendations based [thereon] that the party intends to use at the hearing." [Chapter 6.]

E. Attorneys' Fees. Attorneys' fees are no longer available for work done by attorneys at IEP meetings, unless the IEP meeting was convened as a result of administrative or judicial action. No attorneys fees are available for any mediation that took place before the parents filed for due process. [In California this should not be a problem because attorneys are barred from the pre-due process mediations.] [Chapter 6.]

F. NEW ATTORNEYS' FEES REQUIREMENT:

ATTORNEYS' FEES MAY BE REDUCED IF THE PARENT OR ATTORNEY REPRESENTING THE PARENT DID NOT PROVIDE THE DISTRICT WITH CERTAIN WRITTEN INFORMATION IN THE LETTER FILING FOR DUE PROCESS. THE INFORMATION IS: CHILD'S NAME, ADDRESS, NAME OF SCHOOL CHILD IS ATTENDING, A DESCRIPTION OF THE NATURE OF THE PROBLEM RELATING TO SUCH PROPOSED INITIATION OR CHANGE, INCLUDING FACTS RELATING TO SUCH PROBLEM, AND A PROPOSED RESOLUTION OF THE PROBLEM TO THE EXTENT KNOWN AND AVAILABLE TO THE PARENTS AT THE TIME. ["Proposed initiation or change" means: a proposal or refusal to initiate or change the identification, evaluation or placement or the provision of FAPE.] Attached to this supplement, please find a new sample letter requesting a due process. This new sample letter should be used in place of the same letter which appears at the end of Chapter 6 of SERR.

The state must develop a model form to assist parents in filing for due process.

[Note: If this model form does not include a section which assists parents in giving the proper notice (regarding the new information required at the time of filing so as to avoid an attorney fee reduction later on), arguably, there should be no attorney fee reduction later on. If the form was not developed and given to the parent, arguably a judge should not reduce fees for a parent who had not given the right information when he/she filed for due process and subsequently hired an attorney. Arguably, the Notice of Procedural Safeguards (see 1415(d)), which must be provided to parents when they file for due process, must contain a section on attorneys' fees and should describe this new requirement.] 1415(i)(3)(F) and 1415(b)(3)(7)(8). [Chapter 6.]

G. Stay-Put Rule. Under previous law, a pupil had the right to remain in his current educational placement, even during a due process hearing procedure, unless a federal or state judge ordered that the child not return to school. Now, either school officials alone or due process hearing officers (not judges) may remove students from their current educational placements under certain circumstances and for certain periods of time described below. This is the so-called "stay-put" rule.

1. School officials may now put special education pupils in appropriate alternative educational settings for up to:

(a) 10 days for any behavior for which non-special education students could be so disciplined, or

(b) 45 days if the child:

carries a weapon to school or a school function (weapon now means more than firearm; it means: "weapon, device, instrument, material, or substance, animate or inanimate, that is used for, or is readily capable of, causing death or serious bodily injury, except that such term does not include a pocket knife with a blade of less than 2 inches in length); or

knowingly possesses or uses illegal drugs or sells or solicits for sale a controlled substance while at school or a school function. Illegal drugs are any controlled substance except those legally possessed or used under the supervision of a health care professional or that is otherwise legally possessed. Controlled substance means anything on five very long lists of drugs found in federal law at Title 21 U.S.C. 812(c). 1415(k)(1)(A).

The alternative educational setting is determined by the IEP team. 1415(k)(3).

Either before or within 10 days of doing either (a) or (b) above, if the LEA did not do a functional behavioral assessment and implement a behavior plan before the behavior at issue, the LEA must hold an IEP meeting to develop an assessment plan to address that behavior, or, if the child already has such a plan, the IEP team must review it and modify it to address that behavior. 1415(k)(1)(B).

2. A Hearing Officer may order a child into an appropriate interim alternative educational setting for not more than 45 days if the hearing officer:

finds by substantial evidence (beyond a preponderance) that the current placement is substantially likely to result in injury to the child or others;

considers the appropriateness of the current placement;

considers whether the LEA has made reasonable efforts to minimize that risk, including using supplementary aids and services; and

finds that the alternative placement: enables the child to continue to participate in the general curriculum, but in another setting, continues to provide the services and modifications listed in the IEP enabling the child to meet IEP goals, and includes services and modifications designed to address the behaviors so they do not reoccur. 1415(k)(2).

Whenever the LEA tries to make an alternative placement or a hearing officer orders an interim alternative placement (and whenever a district is trying to make a permanent placement change as a disciplinary measure), there has to be immediate notice to parents of their rights and, immediately or within 10 days, a review, by the IEP team, of the relationship between the disability and the behavior. 1415(k)(4).

The IEP team can only find the behavior is not related to the disability if:

they have reviewed all evaluations, diagnostic results and input from parents, and they have observed the child, his/her placement, and his/her IEP and found that the IEP and placement were appropriate, and that the services (including supplementary aids and services) were being provided; the disability did not impair the ability of the child to understand the impact and consequences of the behavior; and the disability did not impair the ability of the child to control the behavior. 1415(k)(4)(C).

If the behavior is found not related to the disability, the regular education disciplinary procedures may apply to the child subject to the section 1412(a)(1) requirement of no complete termination of services to any special education pupil. 1415(k)(5).

If the parent disagrees with the IEP team finding that the disability was not related to the behavior or disagrees with the alternative placement decision made by school officials under number 1 above, the parent can request a hearing and it shall be an expedited hearing if the parent chooses. The hearing officer uses the same process and factors described above regarding relationship between disability and behavior to review the determination of the IEP team. To review an alternative setting placement by school officials under number 1 above, the hearing officers uses the same procedures and factors he/she would have analyzed if he/she was making an interim alternative placement under number 2 above. 1415(k)(6).

If the parent appeals either a 45-day placement made by a district under number 1, or a hearing officer's interim alternative 45-day placement under number 2, or a relationship-to-disability determination made by an IEP team, the stay-put placement is that 45-day alternative placement "pending the decision of the hearing officer" or for 45 days, whichever comes first. 1415(k)(7)(A)(B).

[The second situation is confusing. It is an appeal of a hearing officer's decision to make a 45-day interim alternative placement. But in describing what the stay-put placement is during that appeal the statute says "pending the decision of the hearing officer." It appears the intent was that this appeal of that hearing officer's decision would go before another hearing officer and not to court.]

If a child is in one of the two 45-day alternative settings and the district plans to change the child's placement again, after the 45-days, then during any proceedings to challenge the proposed change, stay-put is the placement the child was in before the 45-day interim alternative setting, except that if the school says it would be dangerous, it can request an expedited hearing. 1415(k)(7)(C).

H. Procedural Safeguards For Pupils Not Yet Eligible for Special Education. These pupils may assert special education protections in the discipline process if: the LEA had knowledge, before the behavior occurred, that the child was eligible. The LEA is deemed to have knowledge if:

parent expressed concerns in writing, unless illiterate, to personnel of the appropriate LEA that the child needed special education;

behavior or performance of the child demonstrated the need for special education;

parent requested special education assessment; or

a teacher or other personnel of the LEA expressed concern about the behavior or performance of the pupil to the director of special education of the LEA or to other personnel.

If a parent (of a not-yet-identified-as-eligible pupil) requests special education assessment during the discipline process, that assessment shall be expedited. If the child is eligible, the LEA must begin serving him. Pending results of the assessments, the child remains in the educational placement chosen by school authorities. 1415(k)(8).

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