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After three years of intense debate and compromise, America’s
federal statute governing special education has been revised,
enacted and, for the most part, will take effect next July.
Congress finished work on the revisions to the Individuals
with Disabilities Education Act (IDEA) in late November,
and President Bush signed the legislation, known as the
Individuals with Disabilities Education Improvement Act,
on December 3rd.
A piece of civil rights legislation, the IDEA guarantees
students with disabilities a free appropriate public education
in the least restrictive environment and authorizes appropriations
of billions of dollars in funding to states and school
districts to assist them in providing special education
and related services.
The revisions of IDEA contained in the new law, Public
Law 108-446, build on and more closely align IDEA with
the No Child Left Behind Act. They also modify important
requirements around individualized student planning, transition,
litigation, and due process protections, monitoring and
enforcement, and federal funding. Below is a summary of
some of the major provisions in the new law.
NO CHILD LEFT BEHIND
The new law contains provisions aimed at strengthening
how special education students’ academic progress
is measured.
The law promotes the use of universal design principles
in both the delivery of instruction and the use of technology.
The new law also requires quarterly reports to parents
on their child’s progress toward meeting IEP goals,
and how that progress is being measured.
Under the new law, alternate assessment scores are required
to be counted when determining performance of a school
district and state. In addition, the law requires individualized
education programs to emphasize academic performance. Parents
will be able to choose supplemental educational services,
such as tutoring, for their children with disabilities
when the student’s schools are in need of improvement
under NCLB.
Special educators must prove competency in most core
academic subjects they teach, unless they teach students
with significant cognitive disabilities. The new law requires
that special education teachers be certified as “highly
qualified” by the end of the 2005-06 school year,
with the same definition of the term and deadline required
for general education teachers under the NCLB (PL 107-110).
The “highly qualified” teacher provisions take
effect immediately as schools prepare to meet the NCLB
requirement.
Additionally, paraprofessionals are now required to meet
certain state-established personnel standards.
INDIVIDUALIZED EDUCATION PROGRAMS
The new law contains several important changes to the
Individualized Education Program (IEP) requirements of
IDEA.
Short-term goals no longer have to be part of the IEP
except for students with significant disabilities. No short-term
objectives are required for students who take regular assessments
or an alternate assessment on grade level. For students
taking tests based on alternate achievement standards,
IEP short-term objectives are still required.
If changes to a students’ IEP are necessary after
the annual IEP meeting for a school year, the parent and
the school district may agree not to convene an IEP meeting
to make the changes, but instead, may develop a written
document to amend or modify the current IEP. Upon request,
a parent is to be provided a revised copy of the IEP with
the amendments incorporated.
A member of the IEP team is not required to attend all
or part of the IEP meeting if, in writing, the parent,
and the school agree that the team member’s attendance
is not necessary.
In the case of a student with an IEP who transfers school
districts within the same academic year within the same
state, the new law requires the school district to provide
the child with free appropriate public education (FAPE),
including services comparable to those described in the
previous IEP, in consultation with the parents until the
school district adopts the previous IEP or develops, adopts,
and implements a new IEP. For students transferring from
one state to the other, the same rule holds but only until
the school district conducts an evaluation, and develops
a new IEP.
The new law creates an opportunity for up to 15 states
to test the option of establishing a three-year IEP program
for students of all ages. Parents in those states would
still get the option to have a one-year IEP. This compromise
will allow the selected states to receive waivers for certain
federal and state paperwork requirements as long as they
do not violate civil rights and procedural safeguards.
States wishing to participate in the program will compete
for the 15 slots for the paperwork reduction pilot programs.
The Secretary of Education will announce the competitive
opportunity, evaluate the proposals, and select the 15
states.
TRANSITION
The new law contains the changes in the transition provisions.
IDEA has been amended to clarify that one of the primary
purposes of the law is to ensure a free appropriate public
education designed to meet each student’s unique
needs and to “prepare them for further education,
employment and independent living.”
The revisions to IDEA eliminate the references to transition
activities beginning at age 14; now, all transition requirements
are to be followed not later than the first IEP to be in
effect when the student turns 16 years old.
The definition of “transition services” has
been changed to emphasize that the services must be designed “within
a results-oriented process,” which is “focused
on improving the academic and functional achievement” of
the student. “Vocational education” has been
added to the list of potential services and the student’s “strengths” are
to be taken into account as well as his or her preferences
and interests when considering the student’s transition
needs.
Schools are required to set clear and specific transition
goals beyond secondary school. The student’s IEP
is to include “appropriate measurable postsecondary
goals based on age appropriate transition assessments” and
describe the transition services, “including courses
of study,” needed to reach his or her goals.
Schools are required to provide graduating high school
students with disabilities a summary of their accomplishments
and transition needs as they leave school.
At the end of the Congressional debate, one major transition-related
provision was dropped from the bill that would have amended
the Workforce Investment Act’s (WIA) Vocational Rehabilitation
Act to authorize a very detailed transition program for
the vocational rehabilitation system. Elimination of these
transition provisions at the last minute of negotiations
over IDEA sets the stage for a more systemic approach to
transition during the Congressional deliberations on the
yet-to-be-completed reauthorization of the Workforce Investment
Act.
OVERIDENTIFICATION
The new law includes several provisions intended to reduce
the over identification of children as disabled, including
minority children.
Administrators must use new approaches to prevent over-identification
or misidentification of students with disabilities. The
new law permits all school districts to use up to 15 percent
of their IDEA funds for so-called “pre-referral services” for
children who may have problems in specific skills, such
as reading, before they are identified as disabled and
needing special education. It would require school districts
with significant over identification of minority students
as disabled to operate pre-referral programs.
As it relates to determining whether a student has a
specific learning disability, the new law says that “…a
local educational agency shall not be required to take
into consideration whether a child has a severe discrepancy
between achievement and intellectual ability in oral expression,
listening comprehension, written expression, basic reading
skill, reading comprehension, mathematical calculation,
or mathematical reasoning.” It goes on to say that “in
determining whether a child has a specific learning disability,
a local educational agency may use a process that determines
if the child responds to scientific, research-based interventions” as
a part of the required evaluation procedures.
STUDENT DISCIPLINE
Probably the most controversial part of the IDEA reauthorization
process, there are a number of significant changes to the
discipline protections enacted in the IDEA amendments of
1997.
School personnel now have the authority to consider,
on a “case by case basis,” unique circumstances
when determining whether to order a change in placement
for a student with a disability who violated a code of
student conduct.
The length of time school personnel may remove a student
to an interim alternative setting, without a hearing officer,
has been changed from 45 days to 45 school days.
In addition, school personnel may now remove a student
who “has inflicted serious bodily injury upon another
person while at school, on school premises, or at a school
function” to such an interim placement without a
hearing officer ruling.
The criteria to be used in disciplinary action for
determining whether a behavior is a manifestation of a
student's disability is:1) whether the conduct in question
is caused by, or had a direct and substantial relationship
to, the student's disability; or 2) whether the conduct
in question was the direct result of the school district's
failure to implement the student's IEP."
DUE PROCESS & LITIGATION
There are several important changes to the due process
rights of families.
The new law allows complaints to be submitted no more
than two years from the date a parent or agency knew or
should have known about the issue that is the subject of
the complaint, or within the timeline the state requires.
It also requires both parties submit a due process complaint
notice before accessing a due process hearing. The law
now allows for mediation to be requested prior to the filing
of a complaint and strengthens the provisions for developing
a written binding confidential agreement. And, the new
law creates a new “resolution session” process
as a means of dispute resolution.
The law maintains the right of parents and families to
sue a district or state and collect attorney’s fees,
but also allows a school district to collect reasonable
attorney’s fees in egregious cases. A party bringing
a civil action has 90 days from the date of the hearing
officer’s decision to bring a civil action, or the
time period allowed by the state law.
MONITORING & COMPLIANCE
States and the U.S. Department of Education (ED) must
work together closely to enforce the law in a systematic
way. The new law requires states to develop performance
plans with measurable targets on such indicators as free
appropriate public education (FAPE) and least restrictive
environment (LRE). The new law specifically requires states
to identify enforcement targets such as minority representation
in special education and issues related to a FAPE. It also
provides a structured timeline for ED to help states comply
with the law, and increasingly severe sanctions if states
continue to fail to do so. The new law sets up specific
timelines for ED to react to states’ noncompliance.
While the sanctions for noncompliance focus on technical
assistance, the secretary does have the authority to withhold
funding whether partially or entirely.
The Secretary of Education will review the state performance
plan annually and determine whether a state is in compliance,
or needs “assistance,” “Intervention” or “substantial
Intervention” in implementing the law. After two
years of noncompliance, ED will continue to offer assistance
through other federal agencies, professional development,
and other resources from experts.
After three consecutive years of noncompliance, the
Secretary of Education could require the state to develop
a corrective action plan, enter into a compliance agreement,
withhold partial or future funding or refer the matter
to the Justice Department for appropriate enforcement action.
FUNDING
Although the new law stops short of guaranteeing that
the federal government will pay 40 percent of the costs
of special education, it authorizes significant additional
spending that, if appropriated, will bring the federal
contribution to special education to the 40 percent mark
by 2011. Congress opted to address the funding issue through
this “glide path” rather than making special
education funding an entitlement or mandatory.
The new law also makes some changes to the funding formula.
It provides formulas for determining the maximum amount
a state can receive based on numerous factors, including
the number of children receiving special education and
related services aged 3-5 and 6-21; and average per pupil
expenditure in the United States. It also provides a formula
for allocating any increase in appropriations over the
previous fiscal year, based on a state’s relative
population of children aged 3-21 with disabilities and
based on the relative population of children with disabilities
who are living in poverty. No state’s allocation
can be less than the previous year’s allocation.
The new law establishes risk pools for local education
agencies to help pay for the education of high-need students
and the unexpected enrollment of students with disabilities.
Under this provision, states have the option to receive
10 percent of the amount of funds the state reserves for
state-level activities. Any funds that a state does not
use for the risk pool will be allocated to the local educational
agencies in the next fiscal year. The law caps the amount
of funds that may be used for administration at the fiscal
year 2004 level and allows states to retain an increased
potion for other required state level activities. This
portion would be capped after two years.
The new law also authorizes local school districts to
reduce local expenditures on certain programs below prior
year’s levels, up to an amount equivalent to 50 percent
of new federal special education funding each year, on
a cumulative basis, as long as an equivalent amount of
local funds is used for activities authorized under the
Elementary and Secondary Education Act.
Except for some provisions related to “highly qualified” teachers
mentioned earlier, the new law will be effective on July
1, 2005 and the U.S. Department of Education now begins
the arduous process of developing implementing regulations.
Resources
The new law, Individuals with Disabilities Education Improvement Act of 2004 (HR 1350), passed by Congress.
American Association of People with Disabilities (AAPD)’s
website, contains analysis of the new law from several
different sources at http://www.aapd.com/News/IDEA/indexIDEA.php.
Consortium for Citizens with Disabilities (CCD)’s
website contains a analysis of the conference committee
language at http://www.c-c-d.org/IDEA%20Conference%20Language.doc.
Council for Exceptional Children (CEC) prepared a summary
of the new law available at http://www.cec.sped.org/.
National Center on Secondary Education and Transition
(NCCSET) has compared the key provisions on transition
in the new law compared to the existing law at http://www.ncset.org/publications/related/ideatransition.asp.
National Association of State Directors of Special Education
(NASDSE) has prepared The Individuals with Disabilities
Education Act: A Comparison of P.L. 105-17 (IDEA ’97)
to H.R. 1350 as passed by Congress on November 19, 2004, a
side-by-side that compares current law to the new law.
Order information is available at http://www.nasdse.org.
NASDSE and the National Education Association (NEA) also
have co-authored IDEA and NCLB: The Intersection of
Access and Outcomes (2 nd Edition), which provides
information on the intersection of IDEA and the No Child
Left Behind Act (NCLB). The document is available at http://www.nea.org/specialed/ideanclbintersection.html |
This
document was developed by the National Collaborative
on Workforce and Disability for Youth, funded by a grant
from the U.S. Department of Labor, Office of Disability
Employment Policy (Grant Number E-9-4-1-0070). The opinions
expressed herein do not necessarily reflect the position
or policy of the U.S. Department of Labor. Nor does
mention of tradenames, commercial products, or organizations
imply the endorsement by the U.S. Department of Labor.