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IDEA'97 Provisions of Special Interest to Teachers -- Topic Brief
Archived Information


March 1999

Below is a description of changes that have been made to the IDEA Part B final regulations (including certain items that have been retained, modified, or added since publication of the NPRM) that may be of special interest to teachers**.

Individualized Education Programs
(IEPs -- §§300.340-300.350)

  1. Regular Education Teacher on IEP Team Is Required By IDEA '97.
    The final Part B regulations incorporate the requirements of IDEA '97 regarding regular education teachers in the IEP process, (i.e.:

    1. the IEP team must include at least one regular education teacher of the child (if the child is, or may be, participating in the regular education environment)
      (see §300.344(a)(2)); and
       
    2. the teacher must, to the extent appropriate, participate in the development, review, and revision of the child's IEP, including assisting in the determination of appropriate positive behavioral interventions and strategies for the child, and of the supplementary aids and services, program modifications, and supports for school personnel that will be provided for the child consistent with the IEP content requirements in §300.347(a)(3).
      (See §300.346(e).) 
  1. Extent To Which Reg. Ed. Teacher Must Be Physically Present At IEP Meeting.
    While at least one regular education teacher of a child with a disability must be a member of the IEP team (if the child is, or may be, participating in the regular education environment), the LEA need not require the teacher to -- (1) participate in all decisions made as part of the meeting, or (2) be present at all meetings or throughout an entire meeting, as described below:
  1. THE TEACHER WOULD PARTICIPATE IN DISCUSSIONS ABOUT the child's involvement and progress in the general curriculum and participation in the regular education environment (as well as discussions about the supplementary aids and supports for teachers and other school staff that are necessary to ensure the child's progress in that environment).
     
  2. THE TEACHER NEED NOT PARTICIPATE IN DISCUSSIONS about certain other matters in the IEP meeting (e.g., the physical therapy needs of the child -- if the teacher is not responsible for implementing that portion of the child's IEP).
     
  3. WHETHER THE TEACHER MUST BE PHYSICALLY PRESENT AT EACH MEETING, and the extent to which the teacher must participate in all phases of the IEP process are matters that must -- (1) be determined on a case-by-case basis by the public agency, the parents, and the other members of the IEP team, and (2) be based on a variety of factors. (See analysis of comments on §300.344(a)(2) in Attachment 1, and Q-24 of Appendix A.)
  1. Teachers And Other Staff Must Have Access To, And Be Informed About, The IEP.
    The final regulations provide that each regular and special education teacher and service 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 under the IEP, and of the specific accommodations, modifications, and supports that must be provided for the child in accordance with the IEP.
  1. Designating A Public Agency Representative On IEP Team.
    A new §300.344(d) has been added to permit a public agency to designate another public agency member of the IEP team to also serve as the agency representative, if the criteria in §300.344(a)(4) are satisfied.
     
  2. Giving Parents A Copy Of IEP.
    The final regulations provide that parents must be given a copy of the child's IEP without cost and without having to request it.
    (See §300.345(f).)
     
  3. 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).)
     
  4. 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:
     
    1. 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.
      (See §300.346(a)(2)(i).)
       
    2. 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.
      (See §300.346(a)(2)(ii).)
       
    3. 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.
      (See §300.346(a)(2)(iii).)
       
    4. 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..."
      (See §300.346(a)(2)(iv).)
       
    5. ASSISTIVE TECHNOLOGY. Consider whether the child requires assistive technology devices and services.
      (See §300.346(a)(2)(v).)
       
  5. IEP Accountability; Parent Right To Invoke Due Process.
    The final regulations make clear that -- (1) 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 (2) "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 efforts required in paragraph (a) of this section are not being made."
    (See §300.350.)

Discipline Procedures

Introduction.
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 10 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.

 Free Appropriate Public Education (FAPE) and Eligibility

  1. 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.
    (See §300.532(h).)
     
  2. 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)."
     
  3. 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.
    (See §300.300(a)(3).)
      
  4. 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.
    (See §300.308.)
     
  5. 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.
    (See §300.309(a)(3).)
     
  6. 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).
    (See §300.534(c).)

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.

Definitions

  1. 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.
    (See §300.7(c)(9).)
     
  2. "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)."
    (See §300.26(b)(4).)

General Changes

  1. All notes in the NPRM have been removed from the final regulations, and have been disposed of, 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.
    (See Attachment 3, described below, regarding the disposition of each note in the NPRM.)
     
  2. 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.
     
  3. 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..."
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* 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 teachers may have an interest. (For a more complete description, see "Major Changes..." in the preamble to the final regulations.)


 
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Last Modified: 07/19/2007