Below is a description of selected provisions in the final IDEA-Part B regulations (including certain items that have been retained, modified, or added since publication of the NPRM) that may be of special interest to parents:**
- All notes in the NPRM have been removed from the final regulations, and have been addressed, as follows: The substance of the notes has been (1) added to the text of the regulations if it was considered to be a requirement; (2) added to Appendix A (formerly Appendix C) if it was directly relevant to the Notice of Interpretation on IEPs; or (3) incorporated into the discussion of applicable comments in the Analysis of Comments and Changes. All other notes have been deleted.
- Two "Appendices" have been included in the final regulations: Appendix A -- Notice of Interpretation on IEPs; and Appendix B -- Index to IDEA-Part B regulations.
- Three "Attachments" have been added, as follows: Attachment 1 -- Analysis of Comments and Changes; Attachment 2 -- Final Regulatory Flexibility Analysis; and Attachment 3 -- Table showing "Disposition of NPRM Notes in Final Regulations ..."
- Adding "ADD/ADHD" to "Child with a Disability."
"Attention deficit disorder" and "attention deficit hyperactivity disorder" have been added as conditions that could render a child eligible under the "other health impairment" category.
- "Parent Counseling and Training."
The statement, "helping parents to acquire the necessary skills that will allow them to support the implementation of their child's IEP or IFSP" has been added to the definition of "parent counseling and training."
- "Travel Training."
"Travel training" has been added to the definition of "special education," and defined to mean: "Providing instruction, as appropriate, to children with significant cognitive disabilities and any other children who require this instruction, to enable them to (i) develop an awareness of the environment in which they live; and (ii) learn the skills necessary to move effectively and safely from place to place within that environment (e.g., in school, in the home, at work, and in the community)."
Free Appropriate Public Education (FAPE)
- Comprehensive Evaluation.
The evaluation procedures in §300.532 have been amended to provide that each child's evaluation must be sufficiently comprehensive to identify all of the child's special education and related services needs, including any needs the child has that are commonly linked to a disability other than the disability in which the child has been classified.
- Ineligibility -- Lack of Instruction or Limited English Proficiency.
The final regulations clarify that a child may not be determined eligible under IDEA-Part B if -- "(1) The determinant factor for that eligibility determination is-- (i) Lack of instruction in reading or math; or (ii) limited English proficiency; and (2) the child does not otherwise meet the eligibility criteria under §300.7(a)."
- Services Based on Identified Need.
The FAPE requirements in §300.300 have been amended to make clear that services provided to an eligible child must -- (A) address all of the child's special education and related services needs, and (B) be based on the identified needs of the child, and not the child's disability category.
- Use of Assistive Technology in a Child's Home If Needed for FAPE.
On a case-by-case basis, the use of school-purchased assistive technology devices in a child's home or in other settings is required if the child's IEP team determines that the child needs access to those devices in order to receive FAPE.
- Extended School Year (ESY) Services.
Section §300.309 (ESY services) has been amended to clarify that a public agency may not limit ESY services to particular categories of disability, or unilaterally limit the type, amount, or duration of those services.
- Graduation policy retained; prior notice and evaluation addressed.
The final regulations retain the policy position that a student's right to FAPE is terminated upon graduation with a regular high school diploma, but is not terminated by any other kind of graduation certificate or diploma. The regulations also specify that --
- WRITTEN PRIOR NOTICE IS REQUIRED in accordance with §300.503, because graduation from high school with a regular diploma constitutes a change in placement (see §300.122(a)(3)). School districts will be expected to provide the notice "a reasonable time" before proposing to graduate a student, in order to ensure that there is sufficient time for the parents and student to plan for, or challenge, the pending graduation. (See Analysis of comments related to §300.122.)
- EVALUATION IS NOT REQUIRED BEFORE GRADUATION (i.e., the provision requiring that a student be evaluated before determining that he or she is no longer eligible under Part B does not apply if the termination of eligibility is due to graduation with a regular diploma or aging-out under state law).
Children with Disabilities in Public Charter Schools
- Children and Parents Retain All Rights.
A new §300.312 has been added, which makes it clear that children with disabilities in public charter schools and their parents retain all rights under this part, and that compliance with Part B is required regardless of whether a public charter school receives Part B funds.
Children Experiencing Developmental Delays (§300.313).
- Provisions Related to "Developmental Delay."
A new §300.313 has been added to -- (1) specify the conditions that states and LEAs must follow in using the term; and (2) clarify that a state or LEA that elects to use "developmental delay" also may use one or more of the disability categories for any child who has been determined (through the IDEA evaluation procedures) to have a disability and need special education. Thus, if a child has an identified disability (e.g., deafness), it would be appropriate to use the term with that child even if the state or LEA is using "developmental delay" for other children aged 3 through 9. The regulations also make clear that a state may adopt a common definition of "developmental delay" under Parts B and C of the Act.
Individualized Education Programs (IEPs--§300.340-300.350).
- Involving all Teachers And Service Providers Who Implement a Child's IEP.
To enhance implementation of each child's IEP, the final regulations provide that public agencies must ensure that -- (1) the IEP is accessible to each of the child's teachers and services providers; and (2) each teacher and provider responsible for implementing the IEP is informed of his or her responsibilities and of the specific accommodations, modifications and supports that must be provided for the child in accordance with the IEP.
- Regular Education Teachers as IEP Team Members.
The final regulations include the statutory requirements of IDEA '97 regarding regular education teachers on the IEP team (i.e., (A) the team must include at least one teacher, if the child is or may be participating in the regular education environment (see §300.344(a)(2)), and (B) the teacher must, to the extent appropriate, participate in the IEP process, including assisting in the determination of positive behavioral interventions, and of supplementary aids, program modifications, and supports for school personnel that will be provided for the child.(See §300.346(e).)
- Inviting "Other Individuals" to be on IEP Team.
To ensure that parents may invite any individual "with knowledge or special expertise" to be on the IEP team, the final regulations provide that the determination of the individual's knowledge or expertise is made by the party who invited the individual (i.e., the parents or the public agency).
- Informing Parents About "Other Individuals" on IEP Team.
The final regulations provide that public agencies must inform parents relating to the participation of other individuals on the IEP team who have knowledge or special expertise about the child (i.e., the ability of either party -- the parents or public agency -- to invite individuals with knowledge or special expertise to be on the IEP team.
- Considering Each Child's Performance on General Assessments.
The final regulations clarify that, in developing each child's IEP, the IEP team (in addition to considering the strengths of the child and the results of evaluations) also must consider "As appropriate, the results of the child's performance on any general state or district-wide assessments." (See §300.346(a)(1).)
- Consideration of Special Factors (Added without change from IDEA '97).
IDEA '97 required the IEP team to consider special factors related to each child. These statutory considerations, which were not changed in either the NPRM or the final regulations, include the following:
- BEHAVIOR THAT IMPEDES LEARNING.
In the case of a child whose behavior impedes his or her behavior consider, if appropriate, strategies, including positive behavioral interventions, strategies, and supports to address that behavior.
- LIMITED ENGLISH PROFICIENCY.
In the case of a child with limited English proficiency, consider the language needs of the child as they relate to the child's IEP.
- BRAILLE NEEDS.
In the case of a child who is blind or visually impaired, provide for instruction in braille ...unless the IEP team determines that it is not appropriate for the child.
- COMMUNICATION NEEDS.
"Consider the communication needs of the child, and in the case of a child who is deaf or hard of hearing, consider the child's language and communication needs..."
- ASSISTIVE TECHNOLOGY.
Consider whether the child requires assistive technology devices and services.
- Parents to Receive Copy of IEP.
The final regulations provide that parents must be given a copy of their child's IEP(s), without cost and without having to request it.
- IEP Accountability; Parent Right to Invoke Due Process.
The final regulations make clear that (A) each public agency, in addition to providing services, must make a good faith effort to assist the child to achieve the goals and objectives or benchmarks listed in the IEP; and (B) "Nothing in this section limits a parent's right to ask for revisions of the child's IEP or to invoke due process procedures if the parent feels that the efforts required in paragraph (a) of this section are not being made."
- Independent educational evaluation (IEE).
If a parent requests an IEE, a public agency may ask why the parent objects to the public evaluation, but may not require the explanation; and "the public agency may not unreasonably delay either providing the [IEE] at public expense or initiating a due process hearing to defend the public evaluation."
- Parental consent.
The final regulations on parental consent (1) replace "consent" with "informed parent consent;" (2) add "reevaluation" to the list of actions requiring consent; and (3) add that "A public agency may not use a parent's refusal to consent to one service or activity...to deny the parent or child any other service, benefit, or activity of the public agency, except as provided by this part." (See §300.505.) The regulations also provide that "With regard to services required to provide FAPE to an eligible child under this part, a public agency may access a parent's private insurance proceeds only if the parent provides informed consent consistent with §300.500(b)(1) [definition of "consent"]."
The final regulations provide that if a mediator is not selected on a random (e.g., a rotation) basis from the state's list, both parties are involved in selecting the mediator and agree with the selection of the individual who will mediate.
- Change of Placement Based on Hearing Officer Decision.
The final regulations provide that if a state hearing or review officer's decision agrees with the parent's position that a change in the child's placement is appropriate, the decision must be implemented at that point, even if the public agency appeals that decision. This provision, which is consistent with most of the court decisions that have addressed this question, ensures that children will not remain in inappropriate placements for prolonged periods of time while a public agency appeals a decision in the parent's favor.
Evaluation-Eligibility; Least Restrictive Environment (LRE).
- Procedures for Determining Eligibility--Obtaining Parent Input.
"Parent input" has been added to the variety of sources from which the public agency will draw in interpreting evaluation data for the purpose of determining a child's eligibility under this part.
A new §300.552(e) has been added that prohibits the removal of a child with a disability from an age-appropriate regular classroom solely because of needed modifications in the general curriculum.
State Complaint Procedures
- Remedies for Denial of Appropriate Services.
The final regulations provide that if an SEA, in resolving a complaint, finds a failure to provide appropriate services to a child with a disability, the SEA must address: "(1) How to remediate the denial of those services, including, as appropriate, the awarding of monetary reimbursement or corrective action, which could include compensatory services or other corrective action appropriate to the needs of the child..."
- Complaints vs due process hearings.
A new §300.661(c) has been added to clarify that - (A) if an issue in a complaint is the subject of a due process hearing, that issue (but not any issue outside of the hearing) would be set aside until the conclusion of the hearing; (B) the decision on an issue in a due process hearing is binding; and (C) a public agency's failure to implement a due process decision would have to be resolved by the SEA.
Prior to enactment of the IDEA Amendments of 1997, the statute only specifically addressed the issue of discipline in a provision that allowed school personnel to remove a child to an interim alternative educational placement for up to 45 days if the child brought a gun to school or to a school function. The 1997 Amendments incorporated prior court decisions and Department policy that had held that -- (1) schools could remove a child for up to 10 school days at a time for any violation of school rules as long as there was not a pattern of removals; (2) a child with a disability could not be long-term suspended or expelled from school for behavior that was a manifestation of his or her disability; and (3) services must continue for children with disabilities who are suspended or expelled from school.
In addition, the 1997 Amendments (1) expanded the authority of school personnel regarding the removal of a child who brings a gun to school, to also apply to all dangerous weapons and to the knowing possession of illegal drugs or the sale or solicitation of the sale of controlled substances; and (2) added a new ability of schools to request a hearing officer to remove a child for up to 45 days if keeping the child in his or her current placement is substantially likely to result in injury to the child or to others. The Amendments also added new provisions that require schools to assess a child's troubling behavior and develop positive behavioral interventions to address that behavior, and that describe how to determine whether the behavior was a manifestation of the child's disability.
The final regulations incorporate the statutory provisions described above, and provide additional specificity on a number of key issues:
Removals of Up to Ten School Days at a Time.
- The regulations clarify that school personnel may remove a child with a disability for up to 10 school days, and for additional removals of up to 10 school days for separate acts of misconduct, as long as the removals do not constitute a pattern.
Providing Services During Periods of Disciplinary Removal.
- Schools do not need to provide services during the first 10 school days in a school year that a child is removed.
- During any subsequent removal that is for 10 school days or less, schools provide services to the extent determined necessary to enable the child to appropriately progress in the general curriculum and appropriately advance toward achieving the goals of his or her IEP. In cases involving removals for 10 school days or less, school personnel, in consultation with the child's special education teacher, make the service determination.
- During any long-term removal for behavior that is not a manifestation of a child's disability, schools provide services to the extent determined necessary to enable the child to appropriately progress in the general curriculum and appropriately advance toward achieving the goals of his or her IEP. In cases involving removals for behavior that is not a manifestation of the child's disability, the child's IEP team makes the service determination.
Conducting Behavioral Assessments and Developing Behavioral Interventions.
- Meetings of a child's IEP team to develop a behavioral assessment plan, or (if the child has one) to review the child's behavioral intervention plan, are only required when the child has first been removed from his or her current placement for more than 10 school days in a school year, and when commencing a removal that constitutes a change in placement.
- If other subsequent removals occur, the IEP team members review the child's behavioral intervention plan and its implementation to determine if modifications are necessary, and only meet if one or more team members believe that modifications are necessary.
Change of Placement; Manifestation Determinations.
- The regulations provide that a change of placement occurs if a child is removed for more than 10 consecutive school days or is subjected to a series of removals that constitute a pattern because they cumulate to more than 10 school days in a school year, and because of factors such as the length of each removal, the total amount of time the child is removed, and the proximity of the removals to one another.
- Manifestation determinations are only required if a school is implementing a removal that constitutes a change of placement.
* 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.
** The description of changes made to specific sections of the regulations since the NPRM does not include all changes made to those sections, nor does it include all changes in which parents may have an interest. (See "Major Changes..." in the preamble to the final regulations for a more complete description.)