The Individuals With Disabilities Education Improvement Act of 2004 Presenter: Art Cernosia.

The Individuals With Disabilities The Individuals With Disabilities Education Improvement Act of Education Improvement Act of

20042004

Presenter: Art CernosiaPresenter: Art Cernosia

IDEA ReauthorizationIDEA Reauthorization

House Bill passed in April 2003House Bill passed in April 2003 Senate Bill passed in May 2004Senate Bill passed in May 2004 Conference Committee appointed in October Conference Committee appointed in October

20042004 Conference Bill passed in November 2004Conference Bill passed in November 2004 President signs the bill into law on December 3, President signs the bill into law on December 3,

20042004 Provisions took effect on July 1, 2005 except Provisions took effect on July 1, 2005 except

personnel requirements personnel requirements

IDEA RegulationsIDEA Regulations

U.S. Department of Education solicited comments U.S. Department of Education solicited comments prior to developing proposed regulationsprior to developing proposed regulations

Proposed Regulations unofficially released on Proposed Regulations unofficially released on June 10, 2005-released officially on June 21, 2005June 10, 2005-released officially on June 21, 2005

Public Hearing and written comment period closed Public Hearing and written comment period closed on September 6, 2005on September 6, 2005

Final Federal Regulations not expected until Final Federal Regulations not expected until Summer of 2006Summer of 2006

State and Federal RegulationsState and Federal Regulations

Federal Regulations shall be promulgated Federal Regulations shall be promulgated only to the extent necessary to ensure only to the extent necessary to ensure compliancecompliance

SEAs must identify in writing to the LEAs in SEAs must identify in writing to the LEAs in the state and the U.S. Secretary of the state and the U.S. Secretary of Education any state policy/rule/regulation Education any state policy/rule/regulation not required by Federal lawnot required by Federal law

Child FindChild Find

Locate, evaluate and identifyLocate, evaluate and identify

Residents birth to 21Residents birth to 21

Highly mobile childrenHighly mobile children

Outreach activitiesOutreach activities

IDEA 2004 ChangesIDEA 2004 Changes

Adds children who are homeless (as defined Adds children who are homeless (as defined in the McKinney-Vento Act) or who are in the McKinney-Vento Act) or who are wards of the state (defined by the state but wards of the state (defined by the state but excludes a child who has a foster parent)excludes a child who has a foster parent)

The Local Education Agency (LEA) where The Local Education Agency (LEA) where the private school is located is responsible the private school is located is responsible for child find for parentally placed students for child find for parentally placed students regardless of the student’s residencyregardless of the student’s residency

California AB 1662California AB 1662

The LEA of residence shall locate, identify The LEA of residence shall locate, identify and assess all private school children and assess all private school children suspected of having a disability residing in suspected of having a disability residing in the LEAthe LEA

Judicial DecisionJudicial Decision

State policy that expects that general State policy that expects that general education interventions be considering education interventions be considering before referring a student for a special before referring a student for a special education assessment is consistent with the education assessment is consistent with the IDEAIDEA

Johnson v. Upland Unified School DistrictJohnson v. Upland Unified School District

(9(9thth Circuit Court of Appeals (2002)) Circuit Court of Appeals (2002))

Evaluation Evaluation

Parent InputParent Input Teacher/Service Provider ObservationsTeacher/Service Provider Observations Classroom Based AssessmentsClassroom Based Assessments Functional and Developmental InformationFunctional and Developmental Information Information Concerning Access/Progress in the Information Concerning Access/Progress in the

General Education CurriculumGeneral Education Curriculum Technically Sound Instruments to MeasureTechnically Sound Instruments to Measure

– Cognitive, Behavioral, Physical and Developmental Cognitive, Behavioral, Physical and Developmental FactorsFactors


Parents have the right to examine their Parents have the right to examine their child’s education records and receive copies child’s education records and receive copies within five days of their request. This within five days of their request. This includes copies of test protocols which is includes copies of test protocols which is deemed a “fair use” under federal copyright deemed a “fair use” under federal copyright law.law.

Newport-Mesa Unified School District v. State Newport-Mesa Unified School District v. State of Californiaof California (Federal District Court, Central (Federal District Court, Central District of California (2005)).District of California (2005)).


Evaluation completed with an eligibility Evaluation completed with an eligibility decision made within 60 days of parent decision made within 60 days of parent consent unless the state otherwise consent unless the state otherwise determinesdetermines

Screening by teacher or specialists to Screening by teacher or specialists to determine instructional strategies for determine instructional strategies for curriculum implementation is not considered curriculum implementation is not considered an evaluationan evaluation

AB 1662AB 1662

The IEP Team must meet within 60 days of The IEP Team must meet within 60 days of receiving parental consent for the initial receiving parental consent for the initial assessment of the pupilassessment of the pupil

Allows the parent to agree to an extension in Allows the parent to agree to an extension in writingwriting

Does not include days between regular Does not include days between regular school sessions or days of vacation in school sessions or days of vacation in excess of five school daysexcess of five school days


Evaluation involving two school districts in Evaluation involving two school districts in the same academic year shall be the same academic year shall be coordinated and expeditiously completedcoordinated and expeditiously completed

Evaluations shall be administered in a Evaluations shall be administered in a language and form most likely to yield language and form most likely to yield accurate information on what the child accurate information on what the child knows and can do academically, knows and can do academically, developmentally, and functionally unless not developmentally, and functionally unless not feasiblefeasible

Consent for EvaluationConsent for Evaluation

Informed written consent required Informed written consent required before conducting the initial evaluationbefore conducting the initial evaluation– Excludes a review of existing information Excludes a review of existing information

or a test/evaluation given to all childrenor a test/evaluation given to all children

If consent refused, mediation and due If consent refused, mediation and due process can be pursuedprocess can be pursued


If the child is a ward of the state and not If the child is a ward of the state and not residing with the parents, reasonable efforts residing with the parents, reasonable efforts shall be made to obtain consentshall be made to obtain consent

No consent required if parent cannot be No consent required if parent cannot be found, parental rights have been terminated found, parental rights have been terminated or a Court has appointed an individual with or a Court has appointed an individual with educational authorityeducational authority

ReevaluationsReevaluations

Conducted at least once every three years Conducted at least once every three years unless conditions warrant or the parent or unless conditions warrant or the parent or teacher requeststeacher requests

The scope of the reevaluation is determined by The scope of the reevaluation is determined by the IEP Teamthe IEP Team

Parents given option to ask for additional Parents given option to ask for additional assessments even if Team determines they are assessments even if Team determines they are not necessarynot necessary


Reevaluation not conducted more than once Reevaluation not conducted more than once per year unless the parents and LEA agreeper year unless the parents and LEA agree

Conducted at least every three years unless Conducted at least every three years unless the parents and LEA agree that a the parents and LEA agree that a reevaluation is not necessaryreevaluation is not necessary


A reevaluation is not required if a student is A reevaluation is not required if a student is exiting special education due to graduation exiting special education due to graduation with a regular diploma or exceeding the with a regular diploma or exceeding the state’s age eligibilitystate’s age eligibility

Independent Educational Independent Educational EvaluationsEvaluations

Anytime at parent expenseAnytime at parent expense

At public expense if parent disagrees with At public expense if parent disagrees with district’s evaluationdistrict’s evaluation

District must pay or initiate a Due Process District must pay or initiate a Due Process hearinghearing

Team must consider the IEETeam must consider the IEE

Judicial DecisionsJudicial Decisions

The Team must consider the results of the The Team must consider the results of the IEE. As part of the consideration, the Team IEE. As part of the consideration, the Team must address any differences between the must address any differences between the school’s evaluation and the IEE school’s evaluation and the IEE

B.S. v. Seattle School DistrictB.S. v. Seattle School District (9 (9thth Circuit Court Circuit Court of Appeal (1992)).of Appeal (1992)).

EligibilityEligibility

Meets One or More of the Disability Meets One or More of the Disability CategoriesCategories

Adversely Affects Educational PerformanceAdversely Affects Educational Performance

In Need of Special EducationIn Need of Special Education– Specially Designed Instruction Specially Designed Instruction


A student was not deemed eligible for A student was not deemed eligible for special education. Although it was a close special education. Although it was a close question whether the student had an ED or question whether the student had an ED or OHI, there was no adverse affect on OHI, there was no adverse affect on educational performanceeducational performance

R.B. v. Napa Valley Unified School DistrictR.B. v. Napa Valley Unified School District

(Federal District Court, Northern California (Federal District Court, Northern California (2005)).(2005)).


Not eligible if determinant factor is lack of Not eligible if determinant factor is lack of appropriate reading instruction including the appropriate reading instruction including the essential components of reading per NCLBA essential components of reading per NCLBA (phonemic awareness, phonics, vocabulary (phonemic awareness, phonics, vocabulary development, reading fluency and reading development, reading fluency and reading comprehension)comprehension)

State policies and procedure to prevent over State policies and procedure to prevent over identification or disproportionate identification or disproportionate representation by race or ethnicityrepresentation by race or ethnicity

RTIRTI

LEAs allowed to opt out of the severe LEAs allowed to opt out of the severe discrepancy SLD criteria and use a process discrepancy SLD criteria and use a process involving “response to scientifically based involving “response to scientifically based interventions” as part of the evaluationinterventions” as part of the evaluation

Proposed IDEA RegulationsProposed IDEA Regulations

SEA must adopt SLD criteria which may SEA must adopt SLD criteria which may prohibit use of “severe discrepancy” elementprohibit use of “severe discrepancy” element

SEA must permit use of a process based on SEA must permit use of a process based on response to scientific, research based response to scientific, research based interventions interventions

SEA may permit use of other alternative SEA may permit use of other alternative research based procedures for SLD research based procedures for SLD determinations (300.307) determinations (300.307)


SLD may be determined if the child:SLD may be determined if the child:– Does not achieve commensurate with child’s Does not achieve commensurate with child’s

age in specified areas when provided age in specified areas when provided appropriate learning experiencesappropriate learning experiences

– Fails to achieve a rate of learning to make Fails to achieve a rate of learning to make sufficient progress to meet State approved sufficient progress to meet State approved results when assessed with RTI process; orresults when assessed with RTI process; or

– Exhibits a pattern of strengths and weaknesses Exhibits a pattern of strengths and weaknesses in performance, achievement or bothin performance, achievement or both

(300.3090(300.3090


As part of the evaluation process, must As part of the evaluation process, must consider whether prior to or as part of the consider whether prior to or as part of the referral process the child received referral process the child received appropriate high quality research based appropriate high quality research based instruction in regular education settings instruction in regular education settings delivered by qualified personnel; anddelivered by qualified personnel; and

Data based documentation of repeated Data based documentation of repeated assessments reflecting formal progress assessments reflecting formal progress

Progress reported to parents Progress reported to parents


If the child has not made adequate progress If the child has not made adequate progress after an appropriate period of time, a referral after an appropriate period of time, a referral must be mademust be made

60 day timeline applies unless extended by 60 day timeline applies unless extended by mutual written agreementmutual written agreement

(300.309)(300.309)

Free Appropriate Public Education Free Appropriate Public Education (FAPE)(FAPE)

Special Education and Related ServicesSpecial Education and Related Services– Provided at public expense, under public Provided at public expense, under public

supervisionsupervision– Without chargeWithout charge– Meet the standards of the StateMeet the standards of the State– Include pre-school, elementary or secondary Include pre-school, elementary or secondary

school educationschool education– Provided in conformity with the Individualized Provided in conformity with the Individualized

Education Program (IEP)Education Program (IEP)

FAPE StandardFAPE Standard

The Supreme Court in the The Supreme Court in the RowleyRowley case case established two criteria in determining established two criteria in determining FAPE:FAPE:

– Have the procedures been adequately complied Have the procedures been adequately complied with? ; andwith? ; and

– Is the IEP reasonably calculated to enable the Is the IEP reasonably calculated to enable the child to receive educational benefits?child to receive educational benefits?

IEP TeamsIEP Teams

ParentsParents Student, where appropriateStudent, where appropriate Regular Classroom TeacherRegular Classroom Teacher Special Education Teacher/Service ProviderSpecial Education Teacher/Service Provider District RepresentativeDistrict Representative Others with Knowledge or ExpertiseOthers with Knowledge or Expertise Individual who can Interpret Instructional Implications Individual who can Interpret Instructional Implications

of the Evaluationof the Evaluation Other Agency Representatives (Transition Services)Other Agency Representatives (Transition Services) Representative from private schoolRepresentative from private school

Judicial DecisionsJudicial Decisions

The Court deemed that FAPE was denied The Court deemed that FAPE was denied as a result of an IEP Team that was not duly as a result of an IEP Team that was not duly composedcomposed

M.L. v. Federal Way School DistrictM.L. v. Federal Way School District (9 (9thth Circuit Circuit Court of Appeals (2005)).Court of Appeals (2005)).

Shapiro v. Paradise Valley Unified School Shapiro v. Paradise Valley Unified School DistrictDistrict (9 (9thth Circuit Court of Appeals (2003)) Circuit Court of Appeals (2003))


Failure to provide parents with copies of the Failure to provide parents with copies of the requested evaluation reports prior to the IEP requested evaluation reports prior to the IEP meeting resulted in a denial of the parents meeting resulted in a denial of the parents rights under the IDEA. The IEP therefore rights under the IDEA. The IEP therefore was deemed inappropriatewas deemed inappropriate

Amanda J. Clark County School DistrictAmanda J. Clark County School District (9 (9thth Circuit Court of Appeals (2001)).Circuit Court of Appeals (2001)).


Parents and the LEA may jointly excuse an Parents and the LEA may jointly excuse an IEP Team member from attending meetingIEP Team member from attending meeting

If curricular area will be discussed, the If curricular area will be discussed, the excused member must provide written input excused member must provide written input to the Teamto the Team

Agreement must be in writing and parental Agreement must be in writing and parental consent must be obtainedconsent must be obtained

AB 1662AB 1662

The parents and the LEA must confer with The parents and the LEA must confer with the IEP Team member before determining the IEP Team member before determining whether to excuse the memberwhether to excuse the member


If previously served under Part C, the parent If previously served under Part C, the parent must be afforded the right to request that the must be afforded the right to request that the Part C Coordinator or representative be Part C Coordinator or representative be invited to the initial IEP meetinginvited to the initial IEP meeting

Video conference or conference call Video conference or conference call meetings permitted if agreed tomeetings permitted if agreed to


The IEP may be amended between the The IEP may be amended between the annual review meetings without a new annual review meetings without a new meeting if the parents and LEA agreemeeting if the parents and LEA agree

IEP amendment shall be in writingIEP amendment shall be in writing

Upon request, the parent shall be given a Upon request, the parent shall be given a revised IEP with the amendments revised IEP with the amendments incorporatedincorporated

AB 1662AB 1662

The IEP amendment must be signed by the The IEP amendment must be signed by the parties if the IEP will be amended without an parties if the IEP will be amended without an IEP Team meetingIEP Team meeting

IEP ConsiderationsIEP Considerations

Strengths/ConcernsStrengths/Concerns BehaviorBehavior Language issues for ELL studentsLanguage issues for ELL students Braille instruction for VI studentsBraille instruction for VI students Communication needsCommunication needs Assistive TechnologyAssistive Technology Prohibition on requiring medication as a Prohibition on requiring medication as a

condition for servicescondition for services

IEP ContentIEP Content

Present Levels of PerformancePresent Levels of Performance Measurable Annual GoalsMeasurable Annual Goals Objectives/BenchmarksObjectives/Benchmarks Special Education and Related ServicesSpecial Education and Related Services

FrequencyFrequencyDurationDurationLocationLocationDates for InitiationDates for Initiation

IEP ContentsIEP Contents

An explanation of the extent, if any, to which An explanation of the extent, if any, to which the child will not participate in class and the child will not participate in class and extracurricular and not-academic activities extracurricular and not-academic activities with nondisabled childrenwith nondisabled children

Supplementary Aids and ServicesSupplementary Aids and Services

Classroom ModificationsClassroom Modifications

IEP ContentsIEP Contents

Supports for School PersonnelSupports for School Personnel Participation in District and State Participation in District and State

AssessmentsAssessments Transition Goals and ServicesTransition Goals and Services Extended School Year,when appropriateExtended School Year,when appropriate How Progress will be measuredHow Progress will be measured Method for Reporting Progress to ParentsMethod for Reporting Progress to Parents


Short term objectives and benchmarks are Short term objectives and benchmarks are eliminated except for students who take alternate eliminated except for students who take alternate achievement assessments based on alternate achievement assessments based on alternate standardsstandards

Annual measurable IEP goals must include Annual measurable IEP goals must include academic and functional goalsacademic and functional goals

Special education and related services must be Special education and related services must be based on peer reviewed research to the extent based on peer reviewed research to the extent practicablepracticable


Transition to be addressed no later than the Transition to be addressed no later than the IEP in place when the student turns 16IEP in place when the student turns 16

Appropriate measurable post-secondary goals Appropriate measurable post-secondary goals related to training, education, employment, and related to training, education, employment, and independent living skillsindependent living skills

Exiting students (due to graduation, age) must Exiting students (due to graduation, age) must be provided a summary of academic and be provided a summary of academic and functional performance with recommendations functional performance with recommendations to assist them in meeting transition goalsto assist them in meeting transition goals


Description how progress toward IEP goals Description how progress toward IEP goals will be measured and when periodic will be measured and when periodic progress reports will be provided the parentsprogress reports will be provided the parents

Related Services StandardRelated Services Standard (Tatro Criteria) (Tatro Criteria)

Child must have a disability and be in need Child must have a disability and be in need of special educationof special education

Service must be necessary to aid the child Service must be necessary to aid the child to benefit from special educationto benefit from special education

Service must be able to be performed by a Service must be able to be performed by a non-physiciannon-physician


Definitions of Related Services and Definitions of Related Services and Assistive Technology excludes surgically Assistive Technology excludes surgically implanted medical devices or replacement implanted medical devices or replacement of such deviceof such device

Related services includes nursing services Related services includes nursing services designed to enable the student to receive designed to enable the student to receive FAPEFAPE


Related services do not include a medical Related services do not include a medical device that is surgically implanted, the device that is surgically implanted, the optimization of device functioning, optimization of device functioning, maintenance of the device or the maintenance of the device or the replacement of that device. (300.34(b))replacement of that device. (300.34(b))

IEPs and AssessmentIEPs and Assessment

Participate in Regular AssessmentParticipate in Regular Assessment Participate in Regular Assessment with Participate in Regular Assessment with

AccommodationsAccommodations Participate in Alternate AssessmentParticipate in Alternate Assessment

– Regular Academic StandardsRegular Academic Standards

– Alternate Academic Standards for Alternate Academic Standards for Students with Significant Cognitive Students with Significant Cognitive DisabilitiesDisabilities


IEPs must include appropriate IEPs must include appropriate accommodations necessary to measure accommodations necessary to measure academic achievement and functional academic achievement and functional performance on state/local assessmentsperformance on state/local assessments

IEPs shall include a statement why an IEPs shall include a statement why an alternate assessment is required and why alternate assessment is required and why the particular alternate assessment has the particular alternate assessment has been selectedbeen selected

Modified Achievement StandardsModified Achievement Standards

Proposed Federal Regulations issued on Proposed Federal Regulations issued on December 15, 2005December 15, 2005

Based on State GuidelinesBased on State Guidelines IEP Team decision regarding what students IEP Team decision regarding what students

qualify—can be any disabilityqualify—can be any disability Cap of 2% at LEA/SEA level for determining Cap of 2% at LEA/SEA level for determining

proficiency for AYP proficiency for AYP Students exiting special ed can be counted Students exiting special ed can be counted

for 2 additional years under subgroupfor 2 additional years under subgroup

IEP ImplementationIEP Implementation

Parents shall be provided a copy of the IEPParents shall be provided a copy of the IEP

IEP must be accessible to each service IEP must be accessible to each service provider who is responsible for its provider who is responsible for its implementationimplementation

Each service provider must be informed of Each service provider must be informed of their specific responsibilities in implementing their specific responsibilities in implementing the IEPthe IEP


If a student transfers to a new LEA within If a student transfers to a new LEA within the same state, the new LEA shall provide the same state, the new LEA shall provide comparable services in consultation with the comparable services in consultation with the parents until the IEP is adopted or revisedparents until the IEP is adopted or revised

If the transfer is to a new state, the new LEA If the transfer is to a new state, the new LEA shall provide comparable services in shall provide comparable services in consultation with parents until a new consultation with parents until a new evaluation is conducted, if necessary, and a evaluation is conducted, if necessary, and a new IEP developednew IEP developed

AB 1662AB 1662

An IEP shall be developed or revised within An IEP shall be developed or revised within 30 days 30 days

Least Restrictive EnvironmentLeast Restrictive Environment

To the maximum extent appropriate, To the maximum extent appropriate, students with disabilities shall be educated students with disabilities shall be educated in classroom and other activities with peers in classroom and other activities with peers who are not disabledwho are not disabled

Continuum of Alternative PlacementsContinuum of Alternative Placements IEP shall EXPLAIN the extent, if any, to IEP shall EXPLAIN the extent, if any, to

which the student will not be educated with which the student will not be educated with peers who are not disabledpeers who are not disabled

Supplementary Aids and ServicesSupplementary Aids and Services

Continuum of PlacementsContinuum of Placements

Regular Class with Supplementary Aids and Regular Class with Supplementary Aids and ServicesServices

Resource RoomResource Room Special ClassSpecial Class Special Day SchoolSpecial Day School HomeboundHomebound Residential SchoolResidential School

PlacementPlacement

Based on the IEPBased on the IEP Determined at least annuallyDetermined at least annually Is as close as possible to the child’s homeIs as close as possible to the child’s home Unless the IEP requires some other Unless the IEP requires some other

arrangement, the child is educated in the arrangement, the child is educated in the school that he/she would attend if school that he/she would attend if nondisablednondisabled

LRE FactorsLRE Factors

Educational benefits of placement in a Educational benefits of placement in a regular classregular class

Non-academic benefits such as modeling Non-academic benefits such as modeling appropriate behavior and languageappropriate behavior and language

Effect on the teacher and the other studentsEffect on the teacher and the other students Costs involvedCosts involvedHolland v. Sacramento School DistrictHolland v. Sacramento School District (9 (9thth

Circuit Court of Appeals (1994)Circuit Court of Appeals (1994)

Behavioral Intervention PlansBehavioral Intervention Plans

IEP Team determination based on the IEP Team determination based on the evaluation resultsevaluation results

If behavior impedes his/her learning of that If behavior impedes his/her learning of that of others, IEP must include:of others, IEP must include:

Positive behavior interventionsPositive behavior interventions StrategiesStrategies SupportsSupports


The IDEA does not contain specific The IDEA does not contain specific substantive requirements for IEP behavior substantive requirements for IEP behavior plans. Although the behavioral goal was not plans. Although the behavioral goal was not achieved, the Court upheld the IEP provided achieved, the Court upheld the IEP provided a FAPEa FAPE

Alex R. v. Forrestville Valley Community Alex R. v. Forrestville Valley Community School DistrictSchool District (7 (7thth Circuit Court of Appeals Circuit Court of Appeals (2004))(2004))

DisciplineDiscipline

Short Term MeasuresShort Term Measures

Long Term MeasuresLong Term Measures

Interim MeasuresInterim Measures

Short Term SuspensionsShort Term Suspensions

10 School Days or Less in a School Year10 School Days or Less in a School Year Follow Regular Disciplinary ProceduresFollow Regular Disciplinary Procedures No need to:No need to:

– Determine ManifestationDetermine Manifestation– Conduct a Functional Behavioral AssessmentConduct a Functional Behavioral Assessment– Provide Services (unless services are provided Provide Services (unless services are provided

to non-disabled students who are so to non-disabled students who are so suspended)suspended)

Short Term Disciplinary HearingsShort Term Disciplinary Hearings

Applies to all studentsApplies to all students Informal Hearing with AdministratorInformal Hearing with Administrator

– Notice of the chargesNotice of the charges– Explanation of the evidenceExplanation of the evidence– Opportunity for student to share their storyOpportunity for student to share their story

Check state and local policies for specificCheck state and local policies for specific

requirementsrequirements

In School SuspensionsIn School Suspensions

Does not count as a day of suspension if: Does not count as a day of suspension if:

Student is afforded the opportunity to progress in the general Student is afforded the opportunity to progress in the general education curriculum education curriculum

Student is provided their special education/relates servicesStudent is provided their special education/relates services

Student participates with non-disabled peers to the extent they Student participates with non-disabled peers to the extent they would in their regular placementwould in their regular placement

(Comments to the 1999 IDEA Regs)(Comments to the 1999 IDEA Regs)

Other Disciplinary Considerations Other Disciplinary Considerations

Portions of a day in which the student must Portions of a day in which the student must be removed must be accounted forbe removed must be accounted for

Bus suspensions are deemed a removal if:Bus suspensions are deemed a removal if:– Transportation is listed in the IEPTransportation is listed in the IEP– No alternate transportation has been offeredNo alternate transportation has been offered

Disciplinary Change of PlacementDisciplinary Change of Placement

More than 10 consecutive school days of More than 10 consecutive school days of disciplinary removaldisciplinary removal

More than 10 cumulative school days of More than 10 cumulative school days of disciplinary removal in a given school year disciplinary removal in a given school year when a determination is made that a pattern when a determination is made that a pattern existsexists

More than 10 cumulative school More than 10 cumulative school days of removal in a school yeardays of removal in a school year

Determine if there is a change of placement:Determine if there is a change of placement:– Length of each disciplinary removalLength of each disciplinary removal– Proximity of the removals to one anotherProximity of the removals to one another– Total amount of time student is excludedTotal amount of time student is excluded

If there is a change of placement, follow If there is a change of placement, follow long term suspension/expulsion procedureslong term suspension/expulsion procedures


School personnel may consider any unique School personnel may consider any unique circumstances on a case by case basis circumstances on a case by case basis when determining whether to order a when determining whether to order a change of placementchange of placement

Services for students removed for Services for students removed for more than 10 school days in a more than 10 school days in a

school yearschool year

Services to the extent necessary to enable Services to the extent necessary to enable the student to:the student to:– Appropriately progress in the general curriculumAppropriately progress in the general curriculum

AndAnd

--Appropriately advance toward achieving their --Appropriately advance toward achieving their IEP goalsIEP goals

Interim Alternative Educational Interim Alternative Educational Setting (IAES)Setting (IAES)

Student possesses or carries a dangerous Student possesses or carries a dangerous weapon to school or a school functionweapon to school or a school function

Student knowingly possesses or uses an Student knowingly possesses or uses an illegal drugillegal drug

Student sells or solicits a controlled Student sells or solicits a controlled substancesubstance


Adds “inflicting serious bodily injury” as Adds “inflicting serious bodily injury” as grounds for IAESgrounds for IAES– Showing of substantial risk of death, extreme Showing of substantial risk of death, extreme

physical pain, protracted/obvious disfigurement,physical pain, protracted/obvious disfigurement,

protracted loss/impairment of a bodily member protracted loss/impairment of a bodily member or organ/ mental facultyor organ/ mental faculty

IAESIAES

Up to 45 school daysUp to 45 school days IEP Team determines services and placementIEP Team determines services and placement

– Services that afford opportunity to Services that afford opportunity to participate in the general curriculumparticipate in the general curriculum

– Services called for in the IEPServices called for in the IEP

– Services to address the behavior Services to address the behavior

IAES for Safety ReasonsIAES for Safety Reasons

Determination by Hearing Officer or CourtDetermination by Hearing Officer or Court StandardStandard

– Burden of proof on the school to show by a Burden of proof on the school to show by a substantial evidence that:substantial evidence that: Student’s return is substantially likely to result in Student’s return is substantially likely to result in

injury to self or others; injury to self or others; Current placement is appropriate; andCurrent placement is appropriate; and School made reasonable efforts to minimize the risk School made reasonable efforts to minimize the risk

of harm to self/othersof harm to self/others

Functional Behavioral AssessmentFunctional Behavioral Assessment

IEP Team, after 10 school days of IEP Team, after 10 school days of disciplinary removal, meets to either:disciplinary removal, meets to either:– Develop a functional behavioral assessment Develop a functional behavioral assessment

plan if a FBA was not previously conductedplan if a FBA was not previously conducted

OrOr

--Review the behavioral intervention plan as part --Review the behavioral intervention plan as part of the IEP to determine what, if any, revisions of the IEP to determine what, if any, revisions are necessaryare necessary

Change of Placement ProceduresChange of Placement Procedures

Notify parents of their rightsNotify parents of their rights

Conduct a manifestation determinationConduct a manifestation determination

Plan for services starting no later than the Plan for services starting no later than the 1111thth cumulative school day of removal cumulative school day of removal

Manifestation DeterminationManifestation Determination

Relevant IEP Team members and parents Relevant IEP Team members and parents (as determined by the parents and LEA)(as determined by the parents and LEA)

Determination made no later than 10 school Determination made no later than 10 school days after determination of disciplinary days after determination of disciplinary sanctionsanction

Review information provided by parents and Review information provided by parents and other evaluation informationother evaluation information

Old Manifestation StandardOld Manifestation Standard

Manifestation unless IEP Team determines Manifestation unless IEP Team determines that in relation to behavior:that in relation to behavior:– IEP and placement is appropriateIEP and placement is appropriate– IEP behavior component was implementedIEP behavior component was implemented– Disability did not impair the student’s ability to Disability did not impair the student’s ability to

understand the impact and consequences of understand the impact and consequences of their behavior; andtheir behavior; and

– Disability did not impair the student’s ability to Disability did not impair the student’s ability to control their behaviorcontrol their behavior


Manifestation if behavior was caused by or Manifestation if behavior was caused by or had a direct or substantial relationship to the had a direct or substantial relationship to the disability or was the direct result of the disability or was the direct result of the failure to implement the IEP failure to implement the IEP

If manifestation, conduct FBA, If manifestation, conduct FBA, implement/revise BIP, return to last implement/revise BIP, return to last placement unless otherwise agreed to as placement unless otherwise agreed to as part of the behavior intervention planpart of the behavior intervention plan

If there is a ManifestationIf there is a Manifestation

Disciplinary removals not permittedDisciplinary removals not permitted

Services are providedServices are provided

If necessary, IEP Team determines what, if If necessary, IEP Team determines what, if any, revisions are necessary for IEP any, revisions are necessary for IEP services and placementservices and placement

If No ManifestationIf No Manifestation

Student is subject to the regular disciplinary Student is subject to the regular disciplinary process of the schoolprocess of the school

Services must be provided no later than the Services must be provided no later than the 1111thth cumulative school day of removal in the cumulative school day of removal in the school yearschool year

Students Not Yet EligibleStudents Not Yet Eligible

Basis of Knowledge:Basis of Knowledge:– Parent expressed concern in writing regarding Parent expressed concern in writing regarding

need for special educationneed for special education

– Parent requested an evaluation; orParent requested an evaluation; or

– School personnel expressed concern about School personnel expressed concern about behavior or performance in accord with the behavior or performance in accord with the special education referral systemspecial education referral system


Removed, as a basis of knowledge, the Removed, as a basis of knowledge, the criteria that the student’s performance or criteria that the student’s performance or behavior demonstrated a need for special behavior demonstrated a need for special educationeducation

Referral to Law EnforcementReferral to Law Enforcement

No limit to report a crime to appropriate No limit to report a crime to appropriate agenciesagencies

Transfer of special education and Transfer of special education and disciplinary records to the agencydisciplinary records to the agency– Must be done in accord with the requirements of Must be done in accord with the requirements of

FERPAFERPA

Procedural SafeguardsProcedural Safeguards

Participation in Meetings Participation in Meetings Written Notice of Proposed/Refused ActionsWritten Notice of Proposed/Refused Actions Informed ConsentInformed Consent Access to Education RecordsAccess to Education Records Independent Education EvaluationsIndependent Education Evaluations MediationMediation Due Process HearingsDue Process Hearings Administrative ComplaintsAdministrative Complaints

IDEA 2004IDEA 2004

Parent means a natural, adoptive or foster Parent means a natural, adoptive or foster parent of a child (unless prohibited by State parent of a child (unless prohibited by State law), a guardian (but not the State if the law), a guardian (but not the State if the child is a ward of the State), or individual child is a ward of the State), or individual acting in the place of a parent (including a acting in the place of a parent (including a grandparent, stepparent or other relative) grandparent, stepparent or other relative) with whom the child lives, or an individual with whom the child lives, or an individual who is legally responsible for the child’s who is legally responsible for the child’s welfare.welfare.

Prior Written NoticePrior Written Notice

proposal to change or refusal to changeproposal to change or refusal to change

IdentificationIdentification

EvaluationEvaluation

Educational PlacementEducational Placement

Provision of FAPEProvision of FAPE

ConsentConsent

Initial Evaluation—may use mediation or Initial Evaluation—may use mediation or due process if no consentdue process if no consent

Reevaluation, if additional information is Reevaluation, if additional information is deemed necessarydeemed necessary

Initial Provision of Special Education Initial Provision of Special Education ServicesServices

Use of InsuranceUse of Insurance Disclosure of education recordsDisclosure of education records

AB 1662AB 1662

Parent consent also required for subsequent Parent consent also required for subsequent changes to the special education program changes to the special education program componentcomponent

If the LEA determines that the component is If the LEA determines that the component is necessary to provide FAPE and no parental necessary to provide FAPE and no parental consent is received, the LEA shall initiate a consent is received, the LEA shall initiate a due process hearingdue process hearing


Consent—no override provision for lack of Consent—no override provision for lack of consent for the provision of special consent for the provision of special education and related serviceseducation and related services

If no consent for services, LEA not required If no consent for services, LEA not required to convene IEP meeting or develop IEPto convene IEP meeting or develop IEP

Refusal to consent for services exempts Refusal to consent for services exempts LEA from violations of responsibility to LEA from violations of responsibility to provide FAPEprovide FAPE


Procedural Safeguard Notice provided:Procedural Safeguard Notice provided:– Once per yearOnce per year

– Initial ReferralInitial Referral

– Request from ParentRequest from Parent

– Due Process Complaint/Administrative Due Process Complaint/Administrative ComplaintComplaint

MediationMediation

SEA responsibilitySEA responsibility Available at a minimum when a Due Available at a minimum when a Due

Process Hearing is requestedProcess Hearing is requested VoluntaryVoluntary Confidentiality PledgeConfidentiality Pledge Written Mediation AgreementWritten Mediation Agreement


Mediation must be made available at any Mediation must be made available at any point if agreed uponpoint if agreed upon

Mediation agreementsMediation agreements– Executed as a legally binding agreementExecuted as a legally binding agreement– Provide for the confidentiality of all discussionsProvide for the confidentiality of all discussions– Signed by parents and District representativeSigned by parents and District representative– Enforceable in state or Federal CourtEnforceable in state or Federal Court

Due Process HearingDue Process Hearing

Issues of evaluation, identification, Issues of evaluation, identification, educational placement and FAPEeducational placement and FAPE

45 day timeframe45 day timeframe

Impartial Hearing OfficerImpartial Hearing Officer

One or two tiered systemOne or two tiered system


The party challenging the IEP has the The party challenging the IEP has the burden of proof in a due process hearingburden of proof in a due process hearing

Weast v. SchafferWeast v. Schaffer (United States Supreme (United States Supreme Court (2005))Court (2005))

Hearing RightsHearing Rights

Representation by attorney or assistance from lay Representation by attorney or assistance from lay advocateadvocate

Present evidence and cross examine witnessesPresent evidence and cross examine witnesses

Compel attendance of witnessesCompel attendance of witnesses

Five Day Rule for presentation of EvidenceFive Day Rule for presentation of Evidence

Parent RightsParent Rights

Open or closed hearingOpen or closed hearing

Student presence at hearingStudent presence at hearing

Form of transcriptForm of transcript

Form of decisionForm of decision


Statute of Limitations is 2 years unless state Statute of Limitations is 2 years unless state establishes different timeframe—exceptions if establishes different timeframe—exceptions if parent was mislead or not informed parent was mislead or not informed

Parent or LEA must file written request for due Parent or LEA must file written request for due process hearing specifying issues, the facts process hearing specifying issues, the facts and the resolution soughtand the resolution sought

Party may file objection with Hearing Officer Party may file objection with Hearing Officer challenging sufficiency of requestchallenging sufficiency of request

LEA files PWN if not previously doneLEA files PWN if not previously done Receiving party files a response to the request Receiving party files a response to the request

within 10 days within 10 days


If parent requests hearing, a resolution If parent requests hearing, a resolution meeting with parent and relevant IEP Team meeting with parent and relevant IEP Team members held within 15 daysmembers held within 15 days

Resolution meeting occurs unless both Resolution meeting occurs unless both parties waive meeting or request mediationparties waive meeting or request mediation

No LEA attorney unless parent attorney No LEA attorney unless parent attorney presentpresent


If resolution reached, resolution agreement shall If resolution reached, resolution agreement shall be in writing and legally bindingbe in writing and legally binding

Resolution agreement enforceable in CourtResolution agreement enforceable in Court

Agreement may be voided within 3 business Agreement may be voided within 3 business daysdays

If no resolution within 30 days, hearing process If no resolution within 30 days, hearing process commencescommences


No new issues can be raised unless agreed to No new issues can be raised unless agreed to or hearing officer allows (at least 5 days prior to or hearing officer allows (at least 5 days prior to hearing)hearing)

Hearing Officers shall possess the knowledge Hearing Officers shall possess the knowledge and ability to:and ability to:– Understand Federal/State law and Court Understand Federal/State law and Court

decisionsdecisions– Conduct Hearings Conduct Hearings – Render and Write OpinionsRender and Write Opinions


No denial of FAPE based on procedural No denial of FAPE based on procedural deficiencies unless resulting in loss of deficiencies unless resulting in loss of educational opportunity or infringing parental educational opportunity or infringing parental rightsrights

Hearing decisions can be appealed to Court Hearing decisions can be appealed to Court within 90 days unless the state establishes a within 90 days unless the state establishes a different time framedifferent time frame

Stay PutStay Put

Unless otherwise agreed to, student Unless otherwise agreed to, student remains in the last current placementremains in the last current placement

ExceptionsExceptions– DangerousnessDangerousness– Final Hearing decision agrees with parents that Final Hearing decision agrees with parents that

a change of placement is necessarya change of placement is necessary

Attorneys FeesAttorneys Fees

Court may award attorneys fees and costs Court may award attorneys fees and costs to parents who prevail in the administrative to parents who prevail in the administrative hearing or judicial proceedinghearing or judicial proceeding


SEA/LEA that prevails may seek attorneys fees SEA/LEA that prevails may seek attorneys fees from the parents’ attorney if the Court finds that from the parents’ attorney if the Court finds that the complaint is frivolous, unreasonable, the complaint is frivolous, unreasonable, without foundation or prolonged litigationwithout foundation or prolonged litigation

SEA/LEA that prevails may seek attorneys fees SEA/LEA that prevails may seek attorneys fees from the parents’ attorney or parent if the Court from the parents’ attorney or parent if the Court finds the complaint was filed to harass, cause finds the complaint was filed to harass, cause unnecessary delay or increase costs of unnecessary delay or increase costs of litigationlitigation

State Administrative ComplaintsState Administrative Complaints

Investigate written complaint that a public Investigate written complaint that a public agency has violated the IDEAagency has violated the IDEA

1 yr. period, 3 yrs. if compensatory ed1 yr. period, 3 yrs. if compensatory ed Issue a decision within 60 days unless Issue a decision within 60 days unless

extended for extenuating circumstancesextended for extenuating circumstances Order corrective actions as warranted Order corrective actions as warranted

including reimbursement or compensatory including reimbursement or compensatory educationeducation

PersonnelPersonnel

All teachers and related services personnel All teachers and related services personnel must be qualified---meet applicable state must be qualified---meet applicable state licensing, certification or other applicable licensing, certification or other applicable requirementsrequirements

Paraprofessionals may assist in the Paraprofessionals may assist in the provision of services if they are supervised provision of services if they are supervised and trained under standards set by the stateand trained under standards set by the state

The Individuals With Disabilities Education Improvement Act of 2004 Presenter: Art Cernosia.

Documents

Transcript of The Individuals With Disabilities Education Improvement Act of 2004 Presenter: Art Cernosia.