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 administrators2:
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 -
- 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;
- 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
- services must continue for children with disabilities who are suspended or expelled from school.
In addition, the 1997 Amendments:
- 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
- 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.
Free Appropriate Public Education (FAPE) and Eligibility
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).)
- FAPE for Children Beginning at Age 3.
A new §300.121(c) has been added to provide that FAPE (with an IEP or IFSP) begins on a child's third birthday; but if the child turns age 3 during the summer, the IEP team determines the date when services will begin.
- 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).
- 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).)
- 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).)
Methods of Ensuring Services -- Public and Private Insurance
- Noneducational Public Agencies -- May Not Disqualify Eligible Service.
Proposed §300.142(b) has been revised to specify that noneducational public agencies may not disqualify an eligible service for Medicaid reimbursement because the service is provided in an educational context.
- Conditions for Accessing Medicaid.
A new §300.142(e)(3) has been added to provide that a public agency may access Medicaid or other public insurance if the parents would incur no financial costs, but may not require parents to sign up for public insurance in order for the child to receive FAPE.
- Private Insurance.
Proposed §300.142(e) has been redesignated as §300.142(f), and revised to provide that a public agency -
(A) may access a parent's private insurance proceeds only if the parent provides informed parent consent consistent with the definition of "consent" in §300.500(b)(1); and
(B) must obtain consent each time it proposes to access those proceeds.
- Use of Part B Funds for Certain Costs.
A new §300.142(g) has been added to permit the use of Part B funds for -
(A) the cost of required services under these regulations if the parents refuse consent to use public or private insurance; and
(B) the costs of accessing parents' insurance, such as paying deductible or co-pay amounts.
- Proceeds from Public or Private Insurance.
Proposed §300.142(f) has been redesignated as paragraph (h), and revised to clarify that -
(A) insurance proceeds received by a public agency do not have to be returned to the Department or dedicated to the Part B program; and
(B) funds expended by a public agency from reimbursements of federal funds will not be considered state or local funds for purposes of state or local maintenance of effort.
Children with Disabilities in Public Charter Schools3
- Children and Parents Retain All Rights.
A new §300.312 has been added to specify 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.
- Responsibilities of Charter Schools, LEAs, and SEAs.
New §300.312(b)-(d) addresses the responsibilities of each entity (subject to state law), as follows:
(A) Public charter schools that are LEAs and receive Part B funds must ensure that the requirements of this part are met.
(B) If a public charter school is a school of an LEA that receives Part B funds and includes other public schools, the LEA must: (1) ensure that the requirements of this part are met; and (2) meet the requirements of §300.241 (i.e., serve children with disabilities attending charter schools, and provide Part B funds to those schools in the same manner that it does for other schools).
(C) If a charter school is neither an LEA receiving funding, nor part of an LEA that receives funds, the SEA is responsible for ensuring that the requirements are met.
Children Experiencing Developmental Delays
- Provisions Related to "Developmental Delay."
A new §300.313 has been added to --
- specify the conditions that states and LEAs must follow in using the term;
- clarify that for children with a diagnosed sensory impairment (e.g. deafness) or other permanent disability, states and LEAs may serve those children consistent with their diagnosed disability, while using "developmental delay" for other children aged 3 through 9; and
- 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)
- Staff Must Have Access to, and Be Informed About, Child's 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.
- 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.
- Other Individuals with Knowledge or Special Expertise.
A new §300.344(c) has been added to clarify that "The determination of the knowledge or special expertise of any individual [on the IEP team under §300.344(a)(6)] shall be made by the party (parents or public agency) who invited the individual to be a member of the IEP team." Each public agency must inform parents about this provision in the notice informing them of the IEP meeting. (see §300.345(b).)
- 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
- 60-day Timeline Removed.
The substance of the note following proposed §300.343 (which stated that "For most children, it would be reasonable to expect that a public agency offer services in accordance with an IEP within 60 days of receipt of parent consent to initial evaluation) has been deleted.
- "Justification" of Transition Services -- Deleted.
Proposed §300.347(b)(2) (which required that if the 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.
- Giving Parents a Copy of IEP.
The final regulations provide that parents must be given a copy of their child's IEP without cost and without having to request it.." (See §300.345(f).)
- Services Plans" in lieu of IEPs for Parentally-Placed Children in Private Schools.
Proposed §300.350 (Children with disabilities in religiously-affiliated or other private schools) has been deleted. A new §300.455(c) has been added to require the development of "services plans" (in lieu of IEPs) for private school children.
- 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.)
Children Enrolled by Their Parents When FAPE Is At Issue
- Proposed §300.403 has been revised to clarify that -
- the provisions of §300.450-300.462 apply to children with disabilities placed voluntarily in private schools, even though the public agency made FAPE available to those children;
- private school placement by parents must be appropriate (as determined by a court or hearing officer);
- a parental placement does not need to meet state standards that apply to education provided by the SEA or LEA in order to be appropriate; and
- the reimbursement provisions of §300.403 apply if the parents of a child with a disability who previously received special education and related services under the authority of a public agency enroll the child in a private preschool program.
Parentally-Enrolled Children in Private Schools (§300.450-300.462)
- Child find must be comparable.
Proposed §300.451 has been revised to specify that
(1) child find activities for private school children with disabilities must be comparable to child find for children with disabilities in public schools; and
(2) each LEA must consult with private school representatives on how to carry out the child find requirements.
- Development and implementation of a "services plan."
Proposed §300.452 has been amended to incorporate language from proposed §300.350 related to the SEA's responsibility for ensuring that a "services plan" (in lieu of an IEP) is developed and implemented for each private school child with a disability who has been designated to receive services under these regulations.
- Child Count.
A new §300.453(b) has been added to provide that each LEA must consult with representatives of private school children with disabilities on how to conduct the annual count for those children; and (2) ensure that the count is conducted on established count dates, and that the data are used to determine the amount of Part B funds for serving those children in the next fiscal year.
- Child Find Costs Can't Be Considered.
A new §300.453(c) has been added to specify that the costs of child find for private school children with disabilities may not be considered in determining whether the LEA met the expenditures requirement of §300.453.
- Additional Services Permissible.
A new §300.453(d) has been added to clarify that SEAs and LEAs are not prohibited from providing services beyond those required by this part, consistent with state law or local policy.
- Consult on where services to be provided; meetings on services plan.
Proposed §300.454 has been amended to specify that each LEA must
(1) consult with private school representatives on "where" services will be provided;
(2) conduct meetings to develop, review, and revise a "services" plan" (in lieu of an IEP), in accordance with '300.455 for each private school child designated to receive services; and
(3) ensure that a private school representative participates in the meetings.
- Services Plans.
Proposed §300.455 has been revised to specify that:
(1) each private school child with a disability who has been designated to receive part B services must a services plan, and
(2) the plan must, to the extent appropriate, meet the IEP content requirements of '300.347, and be developed, reviewed and revised consistent with §300.342-300.346.
- Transportation Not Required Between Home and School.
Proposed §300.456 has been revised to make clear that, although transportation must be provided between a child's home or private school and a service site if necessary for the child to benefit from or participate in the services offered, LEAs are not required to provide transportation between the child's home and private school.
- Due Process Applies to Child Find, Including Evaluations.
Proposed §300.457 (Complaints) has been amended to specify that the due process procedures under this part "apply to complaints that an LEA has failed to meet the [child find] requirements of §300.451, including the [evaluation] requirements of ''§§300.530-300.543."
- Independent Educational Evaluation (IEE).
The final regulations provide that
(1) upon request for an IEE, parents must be given information about where an IEE may be obtained, and "the agency criteria applicable for [IEEs]; and
(2) 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." (See §300.502.)
- 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 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. (See §300.506(b)2)(ii).)
- 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. (See §300.514(c).)
- Five Day Disclosure Means 5 "Business Days."
Proposed §300.509(a)(3) (Hearing rights) has been revised to add "business days," to clarify that any party to a hearing has the right to -- "Prohibit the introduction of any evidence that has not been disclosed to that party at least 5 business days before the hearing;".
- Attorney's Fees.
The final regulations include all of the provisions of section 615(i)(3)(C)-(G) of the Act. (See §300.513).
Evaluation Procedures and Determination of Eligibility
- 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).)
- Assessing Children with Limited English Proficiency.
A new §300.532(a)(2) has been added, to provide that "Materials and procedures used to assess a child with limited English proficiency are selected and administered to ensure that they measure the extent to which the child has a disability and needs special education, rather than measuring the child's English language skills."
- Ineligibility -- Lack of Instruction, or Limited English Proficiency.
Proposed §300.534 has been revised to clarify that a child may not be determined eligible under this part, if
"(1) The determinant factor for that eligibility determination is --
- Lack of instruction in reading or math; or
- limited English proficiency; and
(2) the child does not otherwise meet the eligibility criteria under §300.7(a)."
- Assessments Under Non-standard Conditions.
A new §300.532(c)(2) has been added to provide that "If an assessment is not conducted under standard conditions, a description of the extent to which it varied from standard conditions (e.g., the qualifications of the person administering the test or the method of test administration) must be included in the evaluation report.
- Obtaining Parent Input.
Proposed §300.535(a)(1) has been revised to add "parent input" 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.
- Group May Review Existing Data Without a Meeting.
A new §300.533(b) (Conduct of review) has been added, to clarify that the group reviewing existing data may conduct that review without a meeting.
LRE -- Placements
- Reference to Preschool.
Proposed §300.552(a) has been revised to add "including a preschool child with a disability" after the phrase "In determining the educational placement of a child with a disability."
- Limitations on Removal from Age-appropriate Regular Classroom.
A new §300.552(e) has been added that prohibits the removal of child with a disability from an age-appropriate regular classroom solely because of needed modifications in the general curriculum.
State Complaint Procedures
- Complaints Received from Another State.
Proposed §300.660(a) has been revised to
(1) specify that the each SEA's procedures for resolving complaints must include complaints "filed by an organization or individual from another state...;" and
(2) make needed technical changes for adding a new paragraph (b), below.
- Remedies for Denial of Appropriate Services.
A new §300.660(b) has been added to clarify 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 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 revised to clarify that --
(1) 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;
(2) the decision on an issue in a due process hearing would be binding in a state complaint resolution; and
(3) a public agency's failure to implement a due process decision would have to be resolved by the SEA.
- 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).)
- Definitions of "Business Day" and "School Day" Added.
The proposed definition of "Day" in §300.8 has been redesignated as §300.9, and retitled "Day, business day; school day." The definition of "day" (i.e., "calendar day, unless otherwise indicated as business day or school day") remains unchanged. However, the following definitions have been added:
(1) "business day" (i.e., "Monday through Friday, except for federal and state holidays..."); and
(2) "school day" (i.e., "any day, including a partial day, that all children are in attendance at school for instructional purposes...").
- "Parent" -- Use of Foster Parents.
Proposed §300.19 (redesignated §300.20(b)) has been revised to permit states, in certain circumstances, to use foster parents as "parents" under the Act without amending relevant state statutes.
- "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 placewithin that environment (e.g., in school, in the home, at work, and in the community)." (See §300.26(b)(4).)
All Notes in 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.)
- 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 ..."
1On 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.
2The 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.)
3Public charter schools are also addressed under §'300.2 (Applicability of this part); 300.10 (definition of Educational service agency); 300.18 (definition of LEA); and 300.241 (Treatment of charter schools and their students).
4The discussion of §300.343 in Attachment 1 to the final regulations states that (A) although timely provision of services by a public agency is critical, setting a specific timeline could have a negative effect; and (B) while most states may be able to meet a 60 day timeline (and the Department considers that to be reasonable), it is recognized that, for some children, the process may take longer to complete, and for others, it could be done in a shorter period of time.