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The new idea.

The 2004 IDEA Reauthorization went into effect on July 1, 2005. However, it was not until August 14, 2006, that the U.S. Department of Education issued the final regulations for this amended legislation. The regulations, which were officially effective on October 12, 2006, repeat the legislative provisions and also fill in various other more specific requirements.

The following is a "top ten" of the new requirements for special educators. The bracketed citations are to specific sections in the IDEA regulations, which are available at various websites, including http://idea.ed.gov. The final step will be for each state to incorporate the new federal regulations in its own special education law with any additional requirements in the direction of protecting students with disabilities. Indeed, the new regulations repeat the 2004 requirement that states identify in writing to both the U.S. Department of Education and local districts any such state-imposed additions. Local policies and practices, of course, must be in accord with these federal and, if any, added state requirements.

Each of the following items starts with the pertinent provisions, if any, in IDEA 2004, and then proceeds to those in the 2006 IDEA regulations.

1. Eligibility for Specific Learning Disability

The 2004 IDEA amendments provided that states may no longer require severe discrepancy and must permit "scientific, research-based intervention"--known more generally as responsiveness to intervention (RTI)--as part of the multi-source evaluation approach for determining eligibility under the classification of specific learning disability (SLD).

The 2006 IDEA regulations added a host of refinements to these statutory changes for SLD eligibility. For example, the new regulations (a) require each state to adopt criteria for determining SLD eligibility that permit or require RTI, permit (or, possibly, prohibit) severe discrepancy, or permit or require a research-based alternative [[section] 300.307]; (b) add an eighth specified area for eligibility--"reading fluency skills" [[section] 300.309(a)]; (c) change the primary frame of reference to the NCLB (No Child Left Behind) benchmarks of "state-approved grade-level standards" [[section] 300.309(a)]; and (d) specify various required considerations, such as "data-based documentation of repeated assessments of achievement at reasonable intervals, reflecting formal assessment of student progress during instruction, which was provided to the child's parents" [[section] 300.309(b)]. For a more complete but concise catalog of the changes, see www.nrcld.org.

2. Consent for Initial Services

The 2004 amendments removed the authority of a hearing officer to override the parent's lack of consent for initial services, while forfeiting the child's right to FAPE (free and appropriate education) unless, and until, the parent provided such consent.

The 2006 regulations extended this limitation to initial evaluations and reevaluations for home-schooled and parentally placed private school children [[section] 300.300].

3. "Highly Qualified" Teacher Requirement

The 2004 IDEA amendments made clear that the NCLB's requirements for "new" and "not new" highly qualified teachers apply to special education teachers; they must be highly qualified in special education and in any core academic subjects that they teach. At the same time, IDEA 2004 provided limited relaxation of--not an exception from--these requirements for two situations: (a) special education teachers who teach core academic subjects "exclusively to children ... assessed against alternate achievement standards;" and (b) special education teachers who teach "2 or more core academic subjects exclusively to children with disabilities" [20 V.S.C. [section] 1402(10)].

The 2006 regulations add various refinements, including (a) allowing an alternative certification route that meets specified standards [[section] 300.18]; (b) excluding private school teachers [[subsection] 300.18, 300.138(a) and 300.146(b)]; (c) providing for a relaxed requirement for charter school teachers [[section] 300.18]; and (d) clarifying that general educators who become special education teachers must meet the requirements for "new" teachers [[section] 300.18]. The commentary accompanying the regulations provide the Department's interpretation that the "highly qualified" requirements also apply to special education teachers in early childhood or preschool programs if the state includes said program as part of its elementary school and secondary school system.

4. Requirements for IEPs

The IEP requirements continue to include transition plans, but the 2004 amendments revised the minimum age, unless state law provides a lower one, to 16. Similarly, the amendments drop the requirement of short-term objectives or benchmarks, except for children assessed against alternative assessments. A new requirement is that the specially designed instruction section of the IEP must be based on peer-reviewed research (PRR) unless not practicable.

The 2006 regulations clarify that PRR is not synonymous with but, instead, is only one part of scientifically based research [[section] 300.35].

5. Revisions in Discipline

The 2004 amendments reduced the disciplinary protections for students with disabilities, as exemplified by the change in the criteria for manifestation determinations. The focus is now on causality, making the answer more often "no" to the question of whether the misconduct is a manifestation of the student's disability. For example, in the commentary accompanying the proposed regulations, which were the same with regard to manifestation determinations, the Department (2005) concluded that the new provisions "make it less difficult for review team members to conclude that the behavior in question is not a manifestation of the child's disability, enabling school personnel to apply disciplinary sanctions in more cases involving children with disabilities" (p. 35,823).

The 2006 regulations, as comprehensively covered elsewhere (Zirkel, in press), provide various other refinements, such as eliminating the requirement for a functional behavioral assessment and a behavior intervention plan at the 11th cumulative day of removal in a school year [[subsection] 300.530(d)-(e)].

6. Reduction of District Cost Obligation

The 2004 amendments exclude surgically implanted devices, such as cochlear implants, from the definition of related services and of assistive technology.

The 2006 regulations extend this exclusion to "mapping," maintenance, and replacement of cochlear implants [[subsection] 300.34(b) and 300.113(b)]. Yet, the regulations require districts to ensure that the external parts of such devices are otherwise functioning properly [[section] 300.113(b)].

7. Revisions in Dispute Resolution

The 2004 amendments added measures for more prompt dispute resolution, including the specification of a two-year statute of limitations for filing for a hearing and the requirement for a resolution session prior to conducting the hearing.

The 2006 regulations provided details for the resolution session process. For example, if the parents fail to participate, the regulations provide for delayed timelines and possible dismissal of their complaint [[section] 300.510(b)]. Conversely, if the district is dilatory, the parents may seek the intervention of the hearing officer [[section] 300.510(c)].

8. Parentally Placed Children in Private Schools

The 2004 amendments strengthened the child find, consultation, and equitable services provisions specific to children whom parents voluntarily place in private schools without seeking tuition reimbursement. For example, the child-find costs may not be part of the proportionate share allocated for services, and the consultation must include the child-find process, the proportionate-share determination, and how, when, and where the services will be provided. But, even more significantly, IDEA 2004 switched these obligations from the school district of the child's residence to the school district where the private school is located.

The 2006 regulations reinforced and refined these revisions [[subsection] 300.130-300.147].

9. Early Intervening Services

The 2004 amendments, in an effort to encourage more preventive coordination with general education, allows districts to utilize up to 15% of their federal special education funding for "early intervening services" in general education.

The 2006 regulations explain, with illustrative calculations, the interconnection between this new provision and the unchanged one for local maintenance of effort reduction of effort (Appendix D).

10. Transition from Part C to Part B

The 2004 amendments added requirements to smooth the transition from Part C, which concerns eligible children ages 0-3, to Part B, which deals with eligible children ages 3-21. This includes requiring an invitation, upon parental request, of the Part C representative to participate in the transitional IEP meeting.

The 2006 regulations added the clarification that Part C is not the "stay-put" placement if a parent files for due process during the transition to Part B [300.518(c)]. This position is in accord with an Eleventh Circuit decision (Johnson, 2002) but contrary to a Third Circuit decision (Pardini, 2005), which were both issued prior to the new regulations.

CONCLUSION

Both the 2004 amendments to and the 2006 regulations for IDEA provide various notable revisions that warrant careful attention. Depending on one's context (e.g., special or general education), and one's role (e.g., teacher, administrator, related services provider, or parent), the specific areas of interest will vary, but this general "top 10 new requirements list" provides a springboard for investigation. Among the useful sources are the websites for the Council of Administrators of Special Education (CASE) (www.casecec.org), the Council for Exceptional Children (CEC) (www.cec.sped.org), the National Association of State Directors of Special Education (NASDSE) (www.nasdse.org), and the Department of Education (http://IDEA.ed.gov).

REFERENCES

Department of Education. (2005, June 21). 34 CFR Parts 300, 301 and 304: Proposed rule. Federal Register, 35781 et seq.

Johnson v. Special Educ. Hearing Office, 287 F.3d 1176 (9th Cir. 2002)

Pardini v. Allegheny Intermediate Unit, 420 F.3d 181 (3d Cir. 2005), cert. denied, 126 S. Ct. 1646 (2006).

Zirkel, P. (in press). Suspensions and expulsions of students with disabilities: The latest requirements. West's Education Law Reporter.

Please direct correspondence to: Perry A. Zirkel, Lehigh University, 27 Memorial Dr. West, Bethlehem, PA 18015; perry.zirkel@lehigh.edu

Perry A. Zirkel

Professor of Education and Law, Lehigh University
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Title Annotation:Department of Education
Author:Zirkel, Perry A.
Publication:Learning Disability Quarterly
Geographic Code:1USA
Date:Jan 1, 2007
Words:1596
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