Four Implications of IDEA's Reauthorization.

An overview of the major changes for school districts in the revamped federal law governing special education

When the Congress reauthorized the federal law governing the rights of students with disabilities in their schools earlier this year, the most significant changes in the law for those running school districts fell into four areas: student discipline, individual education plans, attorneys' fees and finances.

More than 300 pages in length, the reauthorized federal law--known officially as the "Individuals with Disabilities Education Act Amendments of 1997"--resulted from several years of sometimes-contentious work by the Congress in consultation with national education organizations, special education advocates and parent interest groups.

While school placements and services for students with disabilities have improved dramatically since the enactment of the Education for All Handicapped Children Act of 1975, many questions have developed in recent years about the school's responsibilities in this area. For example, educators have grown concerned that the rules for disciplining those with disabilities have resulted in barriers to effective discipline. In addition, parents and educators alike have complained that the statute had grown unnecessarily prescriptive in some areas, too vague in others, focused too much on paperwork and process and encouraged litigation. In its reauthorization, Congress attempted to do some fine tuning.

How the most significant changes in IDEA's reauthorization will affect practices in elementary and secondary schools will be played out immediately in school districts across the country, even though some provisions won't take effect until next July and October. Here is an overview of what to look for in your work with students with disabilities.

Student Discipline

Under the previous law, school officials were allowed to change the placement (including suspension) of students with disabilities for up to 10 school days for violations of school rules consistent with discipline for nondisabled students. Similarly, now any disciplinary action exceeding 10 days that changes the student's placement (just like any other placement changes) requires the student be returned to the original placement, pending the outcome of an IEP meeting and the resolution of any dispute regarding the placement decision.

However, a student who brings a gun to school or uses or possesses drugs on school grounds may be placed by school authorities in an interim alternative placement for up to 45 days. This flexibility will enable school districts to react more quickly to deal with inappropriate behavior. When taking any disciplinary action involving a temporary change in placement, the IEP team must create or revise a behavioral intervention plan.

If students with disabilities violate school rules other than weapons and drugs, they may be disciplined in the same way as any other children, provided that when a change of placement of more than 10 days occurs, an appealable determination is made that the students' misconduct was not a manifestation of the disability.

Courts have held that a student with disabilities may be expelled just as any nondisabled student can if the misconduct is not caused by the disability. The reauthorization reverses those decisions by clearly prohibiting school districts from cutting off services to any child with a disability for disciplinary reasons. A child's placement may be changed, but appropriate services still must be provided. In other words, children still must be provided a free appropriate education even after having been expelled.

Case law allows students who are not identified as disabled to avoid disciplinary action by proving they should have been identified as disabled at the time the misconduct occurred.

The reauthorization prohibits these claims to be made unless parents can show that school officials should have known the child had a disability. Evidence that the school should have known would include a parental request for an evaluation that the district failed to conduct.

The reauthorization authorizes school officials to report crimes committed on school property by children with disabilities to appropriate law enforcement authorities. Previously, some courts have ruled that such referrals to law enforcement officials are a prohibited change in placement.

Individual Education Plans

Under the new law, each child must be assessed in terms of the general curriculum, including taking standardized tests and receiving general progress reports. The IEP process will include evaluating the progress of the student in the general curriculum and setting measurable benchmarks.

At least one of the child's regular classroom teachers must participate in the child's IEP meetings. This change reflects the general assumption that children will be in regular education classrooms.

Every IEP team must deliberately consider the child's need for technology devices and services.

Attorneys' Fees

Under current case law, school districts can be required to pay a parent's attorney fees during the IEP process when the parent prevails on appeal a hearing officer or to a court. The reauthorization prohibits the payment of these fees unless the IEP team is convened as a result of a hearing or court action.

Attorney fees may be denied if the parent's attorney does not provide within the given time frame ad equate information in the due process complaint including the nature of the problem and the relief sought.

The reauthorization encourages voluntary mediation as an alternative to due process appeals. If mediation occurs prior to filing for due process, school districts will not be required to pay parents' attorney fees for the mediation process. The state pays for the administration of the mediation process.

Financial Issues

Under the previous law, funds were allocated to states and local districts on the basis of their special education student count. Now, when the federal appropriations reach $4.9 billion, the distribution formula will change. A funding floor will go into effect for states and local school systems at the previous year's dollar level. The new formula is based 85 percent on total student enrollment and 15 percent on enrollment of students under poverty levels. This provides a formula that does not encourage (or require) the identification of children as disabled to increase funding.

Case law allows parents to receive tuition reimbursement from districts after unilaterally placing their child in private school if a court or hearing officer finds the district had not offered the child an appropriate education. The reauthorization allows courts to deny or reduce the reimbursement when parents fail to:

* inform the IEP team they are rejecting the public school placement;

* provide a 10-day written notice before removing the child; or

* make the child available for an evaluation.

Previously, local districts were responsible for providing comparable services to students enrolled in private and parochial schools. The location of the delivery of these services has been problematic. The reauthorization now requires districts to spend an amount proportionate to the private school enrollment for special education services for children in private schools. In addition, these services may be provided to children on the premises of private or parochial schools.

States now are required to identify a process by which the financial obligation of other social services agencies must be defined to finance services for children with disabilities. This includes state Medicaid agencies. The process does nor require other agencies to make payment, it only creates a tighter control and pressure for that result. It will be the responsibility of school districts to pursue this reimbursement as a way to cut costs without cutting services to children.

States will have to contribute at least the same funding level for special education as they did in the previous year (with some waivers available). This does not require states to maintain their proportionate share, only maintain the previous dollar amount level. This is a benefit to local districts since states will not be able to reduce their funding if federal allocations increase.

Under the previous law, local districts were required to maintain funding levels from year to year. The reauthorization permits districts to reduce their local share up to 20 percent of the increase in their federal funding, in any year in which the federal appropriations exceed $4.1 billion. It sets forth other situations in which a decline in local effort is possible, for example the loss of high-cost personnel, a decline in special education enrollment or departure of a high-cost student.

Immediate Impact

With few exceptions, the new provisions became effective June 4. School districts already should be addressing the law's changes, especially those that impact student discipline, funding of services at private schools and individual education plan meetings.

However, since legislation itself can never answer every question involved in practice and is subject to wide interpretation by lawyers and advocates, school district leaders would be wise to watch for official guidelines for more specificity. Such guidance is expected this fall from the U.S. Department of Education's Office of Special Education Programs. Contact OSERS at 202-205-5507 for details.

Julie Underwood is dean of the School of Education and Allied Professions at Miami University.

AASA Issues a Manual on IDEA

AASA recently published a 206-page guidebook for public school leaders on complying with the newly reauthorized Individuals with Disabilities Education Act. Opportunities and Challenges: An Administrative Guide to the New IDEA covers a wealth of issues relating to the major components of the new law, much of which already has gone into effect.

The guidebook deals with local planning; identification, evaluation and placement; procedural safeguards; student discipline; fiscal and administrative provisions; and early childhood programs.

The section on financial regulations discusses limitations on the use of state and local funds. The new law adds flexibility for local officials and allows local school districts to reduce expenditures if it meets one of four specified conditions.

The guide, which includes the full text of the IDEA Amendments, was prepared for AASA by the Washington, D.C., law firm of Brustein and Manasevit.