IDEA '97 - A Major Milestone. The IDEA Amendments of 1997 (IDEA '97) represent a major milestone in the education of children with disabilities -- the first major revision to the Act in more than 23 years (since the enactment of P.L. 94-142, the Education of all Handicapped Children Act of 1975).
- BASIC RIGHTS RETAINED.
IDEA '97 retains (and strengthens) the basic rights and protections under IDEA -- including:
- the right to a free appropriate public education (FAPE) for all children with disabilities, including children suspended or expelled from school; and
- the procedural safeguards rights for these children and their parents.
- EMPHASIS ON IMPROVING RESULTS.
IDEA '97 provides a new and heightened emphasis on improving educational results for children with disabilities, including provisions which ensure that these children
- have meaningful access to the general curriculum through improvements to the IEP, and
- are included in general education reform efforts related to accountability and high expectations, and that focus on improved teaching and learning.
Publication of Regulations to implement IDEA '97 - A Positive Event.
The publication of final regulations under Part B of the IDEA is a very positive event for the more than 6 million children with disabilities throughout the nation, their parents, and all teachers, administrators, and related services providers who have a stake in the education of these children.
- WHY THE REGULATIONS ARE NEEDED.
The final regulations are needed to –
- implement changes made to Part B by the IDEA Amendments of 1997 (P. L. 105-17), and
- include provisions that facilitate the implementation of Part B, including relevant, longstanding policy interpretations. The regulations provide the guidance and clarification needed to effectively implement the new statutory provisions, and enhance the education of children with disabilities in all communities throughout the Nation.
- POTENTIAL IMPACT FOR CHILDREN AND PARENTS.
The statute and regulations are designed to improve services to children with disabilities and strengthen the involvement of their parents. Full implementation of the Act and these final regulations by public agencies within each state should result in these children achieving at significantly higher levels than in the past, and, thus, being better prepared as adults for higher education, quality employment, and effective community living.
NPRM to Final Regs -- An Intensive, Lengthy Effort.
The final regulations are the result of many months of intensive work by Department of Education staff since publication of proposed rules for the Part B program. On October 22, 1997, the Department published a Notice of Proposed rulemaking (NPRM) in the Federal Register to invite public comment on the changes being proposed to the Part B regulations.
- NPRM INCLUDED FULL "TEXT" OF REGS -- TO ASSIST READERS.
In publishing the NPRM, the Department elected to include the full text of the regulations, as they would be amended, rather than simply publishing a document that showed only the changes proposed to the current regulations. Although that approach increased the length of the NPRM, it provided a more meaningful way for parents, agency officials, and the general public to review the proposed changes within the context of the existing regulations, and to comment on both the existing regulations as well as proposed changes.
- "SEVEN" PUBLIC HEARINGS -- 90-DAY PUBLIC COMMENT PERIOD.
Following publication of the NPRM, the Department conducted 7 public hearings (in Boston, Atlanta, Dallas, Washington, Chicago, San Francisco and Denver) and solicited public comments for a period of 90 days -- through Jan 20, 1998.
PUBLIC COMMENTS ON NPRM; IMPACT ON "NOTES"
Nearly 6,000 written comments were received on the NPRM -- including comments on all 7 subparts and on many sections of the regulations, including some longstanding sections that had not been changed by the NPRM.
- MOST COMMENTS WERE VERY THOUGHTFUL,
and demonstrated a commitment to making sure that the IDEA and its regulations make a real difference in the day-to-day education of children with disabilities. Some comments were very detailed, addressing virtually all proposed changes in the NPRM.
- ALL COMMENTS WERE CAREFULLY REVIEWED AND ANALYZED.
A significant number of changes have been made as a result of the comments received -- with technical or substantive changes being made to nearly 60% of the sections included in the NPRM.
Impact of Comments on "Notes" in NPRM:
- CONCERNS ABOUT NOTES.
Many commenters expressed concerns about having notes in the regs, and requested that they either be added to the text of the regulations (if considered to be requirements) or otherwise be moved to a technical assistance document or deleted.
- ALL NOTES REMOVED.
In light of the comments received, all NPRM notes (a total of 126) have been removed from the final regulations and addressed in a manner generally consistent with the comments received -- e.g.,
- the substance of any note that should be a requirement has been added to the text of the regulations, and
- any note that provides useful guidance has been incorporated into the discussion of applicable comments in the "Analysis of Comments and Changes" in Attachment 1 to the final regulations.
FINAL REGS PACKAGE -- COMPOSED OF "8" DISCRETE PARTS, as follows:
- Regulations for Part B (Part 300).
- Appendix A--Notice of Interpretation on IEPs.
- Appendix B--Index to Part B Regulations.
- Attachment 1--Analysis of Comments and Changes (To address the nearly 6,000 public comments received on the NPRM).
- Attachment 2--Assessment of Costs and Benefits.
- Attachment 3--Table showing "Disposition of NPRM Notes in Final Regulations for Parts 300 and 303."
- Conforming Regulations for the Early Intervention Program under Part C (Part 303)
FINAL REGS PACKAGE INCLUDES "3" BROAD CATEGORIES, as follows:
A. "Text" of Regulations -- Makes up Only 25% of the Entire package and is shorter than the text of the NPRM -- mainly because all 126 NPRM notes have been removed (except for incorporating the substance of certain key notes into the final Regulations).
B. "Analysis of Comments" and Other Required Items = Nearly 2/3's of the Entire package, as follows:
1. ANALYSIS OF COMMENTS = OVER 50% of the package. Because of the large number of public comments received on the NPRM (a total of nearly 6,000), an analysis of those comments (in Attachment 1 to the final regulations) -- including a description of the changes made since publication of the NPRM -- makes up more than 1/2 of the entire package.
2. OTHER REQUIRED DOCUMENTS = NEARLY 10% of the package, including the "Preamble" to the final regulations, and the "Analysis of Costs and Benefits" in Attachment 2.
C. Technical Assistance Documents -- Make up Nearly 10% of the Package, and include the following:
1. NOTICE OF INTERPRETATION (NOI) ON IEPS AND OTHER SELECTED IMPLIMENTATION ISSUES ("Appendix A"). The longstanding interpretation on IEPs in Appendix A (formerly Appendix C) was revised in the NPRM to align it more closely with the new focus of IDEA '97 (for example, on improving results for children with disabilities through participation in the general curriculum). The NOI should provide useful guidance and clarifying information for parents, teachers, and administrators on effective implementation of the new IEP requirements.
2. INDEX TO PART B REGULATIONS ("Appendix B"). To assist readers in finding information in the final Part B regulations, an index to the regulations has been added as a new Appendix B.
3. TABLE ON DISPOSITION OF NPRM NOTES ("Attachment 3"). Because of the important role that explanatory notes in the Part B regulations have played in the past, and the fact that all 126 notes in the NPRM have been removed from the final regulations, a table has been provided (in Attachment 3) to assist readers in determining the disposition of each note in the final regulations (i.e., whether the substance of the note has been -- (1) added to the text of the regulation as a requirement; (2) added to the "Notice of Interpretation" on IEPs; (3) included in the "Analysis of Comments and Changes" in Attachment 1; or (4) simply deleted.
NEW ("FINAL") REGS -- CHANGES FROM "PRIOR" REGS
A. New Provisions Directly Related to IDEA '97 -- Make up 75% of the Changes from Prior Regs, including:
1. TOTALLY NEW REQUIREMENTS ADDED BY IDEA '97 (e.g., new statutory provisions on mediation, discipline, parent notice, procedural safeguards notice state maintenance of effort, public charter schools, performance goals and indicators, participation in assessments, schoolwide programs, coordinated services system, suspension and expulsion rates, school based improvement plans, etc.)
2. CHANGES MADE TO PRIOR REGULATIONS BY IDEA '97, including (for example) changes related to - state and local eligibility (to replace provisions on state plans and local applications); personnel standards; CSPD; the definition of "child with a disability" (including changes to "developmental delay"); evaluation, IEPs, private school children with disabilities, state advisory panels, the definition of "related services" (to add "O & M services"), LRE (to add a provision on state funding formulas), etc.
3. REGS NEEDED TO SPECIFICALLY IMPLEMENT IDEA '97 requirements, e.g., adding, specifying, or providing needed guidance regarding --
- The discipline procedures described under §§300.121(d) and 300.519-300.529;
- State eligibility requirements (to more explicitly state what is required to ensure compliance with the requirements under §§300.110-300.113 and 300.121-300.156);
- Situations in which the exception to FAPE for students with disabilities in adult prisons does not apply (§300.122(a)(2));
- Schoolwide program schools -- to make it clear that an LEA that uses Part B funds in those schools must ensure that children with disabilities in the schools receive services in accordance with a properly developed IEP, and be afforded all of the rights guaranteed under the Act (§300.234);
- "IEP team" (to clarify how to implement the provision regarding the membership of "other individuals who have knowledge or special expertise about the child" (§300.344(a)(6) and (c)); and
- Other changes, including those resulting from public comments received on the NPRM (see "Changes in Regulations Since NPRM," on page 6, below).
B. Provisions that Facilitate Implementation of Part B plus Longstanding Policy Interpretations -- Make up 25% of the changes from prior regulations, as follows:
1. PROVISIONS THAT FACILITATE IMPLEMENTATION OF PART B. About 15% of the changes from the prior regulations include provisions needed to clarify and facilitate implementation of Part B, including (for example) --
- Amending the definition of "educational service agency" (to clarify that the term includes entities that meet the definition of "intermediate educational unit" in effect under prior law and regs);
- Adding all statutory provisions on "attorneys' fees;" and including other relevant terms under the Education Department General Administrative Regulations (EDGAR) definition in §300.30 -- to help make the final Part B regulations as complete and self-contained as possible;
- Adding "travel training" as a special education service that provides instruction, as appropriate, to children with significant cognitive disabilities, and any other children who need it -- to enable them to develop an awareness of their environment, and learn the skills necessary to move effectively and safely within that environment; and
- Retaining a number of proposed provisions (or notes) directly from the NPRM, or in modified form, such as:
- The concept of "specially designed instruction" (§300.26(b)(3));
- The provision on "child find" for children from birth through age 2 when the SEA and lead agency for Part C are different (§300.125(c)); and
- The provision under state complaint procedures, related to "Remedies for denial of appropriate services" (§300.660), etc. (see "Changes in Regulations Since NPRM," below).
2. LONGSTANDING POLICY INTERPRETATIONS. Nearly 10% of the changes from prior regulations - interpretations based on the statutory provisions of IDEA that were in effect prior to IDEA '97 and that were not changed because of the new statutory amendments. Examples of these provisions include recognizing that -
- "ADD/ADHD" may be eligible conditions under "other health impairment (OHI)" under certain circumstances, and that OHI includes "a heightened alertness to environmental stimuli that results in limited alertness with respect to the educational environment" (§300.7(c)(9));
- A "Foster parent" may qualify as a "parent" -- under certain circumstances and if permitted under state law (§300.20);
- If a child's third birthday is in the summer, the IEP team that develops the child's IEP or IFSP determines the date when services begin (§300.121(c));
- Graduation with a regular high school diploma ends a student's eligibility under Part B (§300.122(c)); and
- Extended school year services must be provided if necessary for the provision of FAPE to an eligible child under Part B (§300.309).
CHANGES IN REGULATIONS SINCE NPRM
A. Changes Regarding "Notes" in NPRM:
- ALL 126 NPRM "NOTES" HAVE BEEN REMOVED from the final regulations, (as discussed on page 3 and in item A-2, immediately below).
- FIFTY-THREE OF THE 126 NOTES HAVE BEEN ADDED TO THE REGS --i.e., the substance of the notes has been added to the "text" of the Regs, resulting in changes from the NPRM. (See Attachment 3, Re "Disposition of NPRM Notes in Final Regulations...")
B. Very few "NEW" provisions have been added to the final regulations that were not otherwise covered in the NPRM, or requested by commenters (see item C, below).
C. Changes Based on Public Comments. A significantly large number of changes have been made in the Regs, in direct response to public comments received, including (for example) adding new items or making changes in existing areas, as follows:
1. DEFINITIONS OF "BUSINESS DAY" AND "SCHOOL DAY" have been added (§300.9(b) and (c)).
2. PUBLIC CHARTER SCHOOLS. A new §300.312 has been added to --
Specify that children with disabilities and their parents retain all rights under these regulations regardless of whether a charter school receives Part B funds; and
Address the responsibilities of public charter schools that are LEAs; LEAs if the charter school is under the LEA; and the SEA if the charter school is not an LEA or a school of an LEA. ("Public charter schools" has also been added to the definitions of "LEA" (§300.11) and "public agency" (§300.20), and to §300.2 (Applicability of this part); and §300.241 (Treatment of charter schools and their students) has been retained without change.)
3. GRADUATION WITH A REGULAR HIGH SCHOOL DIPLOMA.
A new §300.534(c) has been added to clarify that evaluation "is not required before the termination of a student's eligibility under Part B due to graduation with a regular high school diploma..." However, §300.122(a)(3) has been amended to add the substance of the note following §300.122 of the NPRM -- that graduation from high school with a regular diploma constitutes a change in placement requiring written prior notice in accordance with §300.503.
4. DEVELOPMENTAL DELAY.
A new §300.313 has been added to --
- Clarify the conditions that states and LEAs must meet in using "developmental delay;"
- Permit the use of disability categories for any child with a diagnosed disability under §300.7, in conjunction with using the term "developmental delay;" and
- Permit (but not require) a state to adopt a common state definition of "developmental delay" for use under both the Part B and Part C programs.
5. PUBLIC & PRIVATE INSURANCE (Methods of ensuring services).
Proposed §300.142 has been amended (for example) to --
- Add a new §300.142(e) on conditions under which "public insurance" may be used;
- Clarify that a public agency must obtain informed parent consent (consistent with the definition of "consent" in §300.500(b)(1)) each time the agency proposes to access a parent's private insurance proceeds;
- Permit the use of Part B funds for (1) the cost of required services under Part B (if the parents refuse consent to use insurance), and (2) the costs of using the parents' insurance (e.g., to pay deductible or co-pay amounts); and
- Clarify that insurance proceeds received by a public agency (1) do not have to be returned to the program, and (2) do not have to be counted for purposes of maintenance of effort.
- Add a construction clause that states "Nothing in this part should be construed to alter the requirements imposed on a state Medicaid agency, or any other agency administering a public insurance program by Federal statute, regulations or policy under Title XIX, or Title XXI of the Social Security Act, or any other public insurance.
6. IEP REQUIREMENTS. The IEP provisions have been revised (for example) to:
- Require the public agency to give parents a copy of their child's IEP, at no cost to the parents, and without parents having to request a copy. (§300.345(f))
- Specify that each regular and special education teacher and related services provider responsible for implementing a child's IEP must (1) have access to the child's IEP, and (2) be informed of his or her specific responsibilities in accordance with the IEP, etc...(§300.342(b))
- Provide that a child's performance on any general state or district-wide assessment programs must be considered by the IEP team under §300.346(a).
- Replace "IEPs" with "services plans" for parentally-placed children in private schools, and move the provision related to those children from the
- IEP requirements in §300.350 of the NPRM to the private school requirements in §300.452.
7. OTHER CHANGES from the NPRM (e.g., changes in -- (A) the definitions of "deaf-blindness" and "multiple disabilities" (to replace "problems" with "needs") and the definition of parent counseling and training (to add that the term also means helping parents to acquire the necessary skills to allow them to support the implementation of their child's IEP/IFSP); and (B) many other changes (e.g., in discipline, personnel standards, FAPE--methods and payments, children in private schools, hearing rights, etc.).
D. Some NPRM provisions (and certain notes) have been deleted, consistent with the comments received. For example --
1. THE "JUSTIFICATION" PROVISION ON TRANSITION SERVICES IN THE IEP (which required that if a student's IEP team determines that transition services are not needed in one or more defined areas, the IEP must include a statement to that effect and the basis upon which the determination was made) has been deleted; and
2. THE 60-DAY TIMELINE ON IEPS (in the note following §300.343) has been deleted as a specified regulatory timeline, and replaced with a description of the Department's expectations related to timely delivery of services (included in the discussion following §300.343 in Appendix 1).
* On October 22, 1997, a Notice of Proposed Rulemaking (NPRM) was published in the Federal Register to amend the regulations under Part B of the Individuals with Disabilities Education Act (IDEA). The purposes of the NPRM were to implement changes made by the IDEA Amendments of 1997, and make other changes that facilitate the implementation of Part B. The changes made since the NPRM are based mainly on public comments received.