Individuals With Disabilities Improvement Act of 2004

Bridges to Better Advocacy
April 14, 2005

By Diane Smith
Disability Rights Center
Augusta, ME
For NAPAS

• This presentation is intended to provide an overview of the changes in the law for advocates and attorneys who represent students with disabilities. As such, it does not cover every change nor every subpart of the statute, but attempts to focus on those changes most likely to impact our work.

• For permission to reproduce, please contact Diane Smith at dsmith@drcme.org

• After a number of studies, position papers and other documents, such as:

• National Council on Disability (2000)
• President’ Commission on Excellence in Special Education (2002)

• House Introduces HR 1350 on 3/19/03

• House passes HR 1350 on 4/30/03 (251-171)

• Senate passes S 1248 out of committee on 5/13/04
• Senate passes S 1248 on 5/13/04 (95-3)
• 11/17/04 Conference Report is filed
• 11/19/04 Conference Report agreed to in House and Senate
• 12/3/04 Signed by President

P.L. 108-446 becomes law.

• Effective on December 3, 2004

• Highly qualified teacher requirements
• Subparts 2,3, and 4 of Part D

• Effective on July 1, 2005- For our purposes, the remainder of the statute. Parts A, B, C and Subpart 1 of Part D.

Parts 2,3, and 4 of Part D are:

• Subpart 2: Personnel Prep., Technical Assistance, Model Demonstration Projects, and Dissemination of Information.

• Subpart 3: Supports to Improve Results for Children with Disabilities ( includes (PTIs, CPRCs)

• Subpart 4: Comprehensive Plan for Subparts 2 &3

• (5)"...Almost 30 years of research and experience has demonstrated that the education of children with disabilities can be made more effective by--

• (A) having high expectations for such children and ensuring their access to the general education curriculum in the regular classroom, to the maximum extent possible, in order to--...

- (i) meet developmental goals and, to the maximum extent possible, the challenging expectations that have been established for all children; and

- (ii) be prepared to lead productive and independent adult lives, to the maximum extent possible;

Bold is new language, italicized lang. has been moved from (E) --Personnel prep.

§601(c)(5)(B)

• " .. strengthening the role and responsibility of parents and ensuring that families..."
• "C) coordinating this title with other local, educational service agency, State, and Federal school improvement efforts, including improvement efforts under the Elementary and Secondary Education Act of 1965..."

§601(c)(5)(E)"...supporting high-quality, intensive preservice preparation and professional development for all personnel ... in order to ensure that [they] have the skills and knowledge necessary to improve the academic achievement and functional performance of children with disabilities, including the use of scientifically based instructional practices, to the maximum extent possible"

• §601(c)(5)(F)"... providing incentives for whole-school approaches, scientifically based early reading programs, positive behavioral interventions and supports, and early intervening services to reduce the need to label children as disabled in order to address the learning and behavioral needs of such children..."

• §601(c)(5)(H) "...supporting the development and use of technology, including assistive technology devices and assistive technology services, to maximize accessibility for children with disabilities."

Note the "maximize" language in new (H).

• §601(c)(6) "... While States, local educational agencies, and educational service agencies are primarily responsible for providing an education for all children with disabilities, it is in the national interest that the Federal Government have a supporting role in assisting State and local efforts to educate children with disabilities in order to improve results for such children and to ensure equal protection of the law."

• §601(c)(5)(F)"...(7) A more equitable allocation of resources is essential for the Federal Government to meet its responsibility to provide an equal educational opportunity for all individuals.

• §601(c)(10)(D)..."With such changing demographics, recruitment efforts for special education personnel should (was "must") focus on increasing the participation of minorities in the teaching profession in order to provide appropriate role models with sufficient knowledge to address the special education needs of these students."

(The demographic data in this section has been generally updated. )

• §601(c)(11)(D)..." Studies have documented apparent discrepancies in the levels of referral and placement of limited English proficient children in special education....Such discrepancies pose a special challenge for special education in the referral of, assessment of, and provision of services for, our Nation's students from non-English language backgrounds"
• Was §601(c)(10)".. Minorities and underserved persons are socially disadvantaged because of the lack of opportunities in training and educational programs, undergirded by the practices in the private sector that impede their full participation in the mainstream of society."

• Assistive Technology Device
• Core Academic Subjects
• Elementary School
• Highly Qualified for Special Education Teachers
• Homeless children
• Limited English Proficient
• Parent
• Related Services
• Transition Services
• Universal Design
• Ward of the State

• Assistive Technology Device–

Adds " ...EXCEPTION- The term does not include a medical device that is surgically implanted, or the replacement of such device."

 

 

• Core Academic Subjects- Has the meaning given the term in NCLB §9109.

• In NCLB, "core academic subjects"' are English, reading or language arts, mathematics, science, foreign languages, civics and government, economics, arts, history and geography."

• Adds "...(6) ELEMENTARY SCHOOL- The term elementary school' means a nonprofit institutional day or residential school, including a public elementary charter school, that provides elementary education, as determined under State law."

There are several way to be considered a "highly qualified" special education teacher. [This is only required for teachers of core academic subjects. ]

For all, it has the same meaning as in NCLB, except it also requires:

• Full state certification as a special ed teacher (with exception for charter school teachers) and
• that certification has not been waived on an emergency, temporary or provisional basis, and
• The teacher holds at least a Bachelor’s degree

Unless...

• The teacher teaches core academic subjects to students who learn under the alternative achievement standards.
• The teacher teaches two or more subjects exclusively to students with disabilities.

There are alternate ways to become highly qualified in these circumstances.

The highly qualified teacher provision includes this liability waiver and connection to NCLB.

" ... RULE OF CONSTRUCTION- Notwithstanding any other individual right of action that a parent or student may maintain under this part, nothing in this section or part shall be construed to create a right of action on behalf of an individual student or class of students for the failure of a particular State educational agency or local educational agency employee to be highly qualified.

Homeless children

"...The term `homeless children' has the meaning given the term `homeless children and youths' in section 725 of the McKinney-Vento Homeless Assistance Act (42 U.S.C. 11434a). "

This is a new definition.

Limited English Proficient

"...Limited English proficient.--The term `limited English proficient' has the meaning given the term in section 9101 of the Elementary and Secondary Education Act of 1965. "

This is a new definition.

Parent --Adds:

The former definition simply included legal guardians and surrogate parents.

Related Services

• Adds "interpreting services"
• "school nurse services designed to enable a child with a disability to receive a free appropriate public education as described in the individualized education program of the child," and
• this exception: "The term does not include a medical device that is surgically implanted, or the replacement of such device. "

Transition

"...The term `transition services' means a coordinated set of activities for a child with a disability that... is designed to be within a results-oriented process, that is focused on improving the academic and functional achievement of the child with a disability to facilitate the child's movement from school to post- school activities, including post-secondary education, vocational education, integrated employment (including supported employment), continuing and adult education, adult services, independent living, or community participation; (B) is based on the individual child's needs, taking into account the child's strengths, preferences, and interests.. "

Universal Design

Takes definition from AT Act (29 U.S.C. 3002 )

"...The term "universal design" means a concept or philosophy for designing and delivering products and services that are usable by people with the widest possible range of functional capabilities, which include products and services that are directly accessible (without requiring assistive technologies) and products and services that are interoperable with assistive technologies."

This is a new definition

Note regarding Universal Design:

§ 612(a) (16)(E) "Universal design.--The State educational agency (or, in the case of a districtwide assessment, the local educational agency) shall, to the extent feasible, use universal design principles in developing and administering any assessments under this paragraph. "

§ 612(a)(23)

• SEA must adopt the National Instructional Materials Accessibility Standard for the purposes of providing instructional materials to blind persons or other persons with print disabilities... If a SEA chooses not to coordinate with the National Instructional Materials Access Center... [it] shall provide an assurance ... that [it] will provide instructional materials to blind persons or other persons with print disabilities in a timely manner. (cont.)

• ...as part of any print instructional materials adoption process, procurement contract, or other practice or instrument used for purchase of print instructional materials, [the agency] shall enter into a written contract with the publisher of the print instructional materials to... require the publisher to prepare and, on or before delivery of the print instructional materials, provide to the National Instructional Materials Access Center electronic files containing the contents of the print instructional materials using the National Instructional Materials Accessibility Standard; or ... purchase instructional materials from the publisher that are produced in, or may be rendered in, specialized formats.... In carrying out this paragraph, the SEA, to the maximum extent possible, shall work collaboratively with the State agency responsible for assistive technology programs. "

Ward of the State

"... The term `ward of the State' means a child who, as determined by the State where the child resides, is a foster child, is a ward of the State, or is in the custody of a public child welfare agency...Exception.--The term does not include a foster child who has a foster parent who meets the definition of a parent in paragraph (23). "

This is a new definition

• " ...The Secretary may not implement, or publish in final form, any regulation prescribed pursuant to this title that... violates or contradicts any provision of this title..."
• The public comment period for regulations has been reduced from 90 to 75 days.
• The Secretary may not issue policy letters or other statements (including letters or statements regarding issues of national significance) that... violate or contradict any provision of this title
• It is unclear whether the ability of the Secretary to provide informal guidance on issues of national significance has been reduced.

Allows waivers of part B requirements for up to 4 years for up to 15 States based on proposals to reduce "excessive paperwork and non-instructional time burdens that do not assist in improving educational and functional results for children with disabilities."

• No waivers for " statutory or regulatory requirements relating to applicable civil rights requirements. "

• Shall not be construed to... "affect the right of a child with a disability to receive a free appropriate public education under part B; and ... permit a State or local educational agency to waive procedural safeguards under section 615. "

The Secretary shall terminate a State's waiver under this section if the Secretary determines that:

• the State... needs assistance ... and that the waiver has contributed to or caused such need for assistance...
• needs intervention ...
• or needs substantial intervention ...
• or failed to appropriately implement its waiver.

Thus, it connects this waiver to monitoring and enforcement efforts under § 616

Allows states to develop a "high cost fund" by reserving a portion of the funds reserved for state level activity. Money from this fund may be distributed to LEAs to pay for direct special education and related services identified in the IEP of a "high need child with a disability."

Required

• Monitoring, enforcement and complaint investigation
• Mediation

New Authorized Activities (some of):

• personnel preparation and professional development and training
• paperwork reduction activities, including expanding the use of technology in the IEP process
• assisting LEAs in providing positive behavioral interventions and supports
• improving the use of technology in the classroom by students with disabilities to enhance learning
• High cost fund referenced in Slide 35.

New Authorized Activities (some of):

• To improve the use of technology in the classroom by children with disabilities to enhance learning.
• To support the use of technology, including technology with universal design principles and AT devices, to maximize accessibility to the general education curriculum for children with disabilities.
• Development and implementation of transition programs, including coordination of services with agencies involved in supporting the transition of children with disabilities to postsecondary activities.

State Flexibility: A state that provides early intervention services in accordance to Part C to children eligible for services under section 619 (ages 3-5) is not required to provide the same child with FAPE.

• "...All children with disabilities residing in the State, including children with disabilities who are homeless children or are wards of the State and children with disabilities attending private schools, regardless of the severity of their disabilities, and who are in need of special education and related services, are identified, located, and evaluated and a practical method is developed and implemented to determine which children with disabilities are currently receiving needed special education and related services..."

Language re: parentally placed private school students is greatly expanded.

For example:

• LEAs must now report the number of children evaluated, found eligible and served.
• LEAs must consult with private school representatives re: planning for services -- including child find, amount of funds spent, how, where, and by whom services will be provided.
• Private school officials may complain to the SEA that the LEA did not engage in consultation that was meaningful and timely, or did not give due consideration to the views of a private school official.

The required members of the State Advisory Panel have been revised to add that:

• parents must be of children with disabilities from ages birth to 26;
• State and local education officials must include officials who implement the McKinney Act; and
• a representative from the State child welfare agency responsible for foster care.

• LEAs may use a portion of their Part B funds to provide services to students who are not IDEA eligible.

"to develop and implement coordinated, early intervening services, which may include interagency financing structures, for students in kindergarten through grade 12 (with a particular emphasis on students in kindergarten through grade 3) who have not been identified as needing special education or related services but who need additional academic and behavioral support to succeed in a general education environment."

May use funds for:

• professional development for teachers and other school staff to enable such personnel to deliver scientifically based academic instruction and behavioral interventions... and, where appropriate, instruction on the use of adaptive and instructional software.

• providing educational and behavioral evaluations, services, and supports, including scientifically based literacy instruction.

No right to FAPE or due process for students served under this program.

• Initial evaluations must be completed within 60 days of the receipt of parental consent, or
• per a timeframe determined by the state.

Exceptions to the 60 calendar day timeline-

• If the student transfers from one LEA to another during the evaluation period, and the new LEA is progressing to ensure the completion of the evaluation, the parent and LEA can agree to a time when the evaluation will be completed.
• When a parent repeatedly fails or refuses to make the student available for the evaluation.

There is a new provision regarding how consent for the initial evaluation may be obtained for ward of the state who does not reside with his or her parents.

• The LEA is not required to obtain informed consent from the parent if:
• despite reasonable efforts, the agency cannot discover the whereabouts of the parent of the child, or
• parental rights have been terminated, or
• A judge has limited the parent’s right to make educational decisions and consent has been provided by an individual appointed by the judge to represent the child.

• LEA may choose not to use the severe discrepancy formula when determining LD eligibility, but may use a process that determines if the child responds to scientific, research-based intervention as a part of the evaluation procedures

• LEA must evaluate a student with a disability before declassification.
• Exception: not required if termination of eligibility is due to graduation with a regular diploma
• or because the student has reached the end of the school year in which the he/she turns age 21.
• Then a summary of the student’s academic achievement and functional performance must be provided to the student. The report must include recommendations on how to assist the student in meeting his/her postsecondary goals.

• "...a statement of the child's present levels of academic achievement and functional performance, including-- how the child's disability affects the child's involvement and progress in the general education curriculum..."

• "... for children with disabilities who take alternate assessments aligned to alternate achievement standards, a description of benchmarks or short-term objectives..."

• "(II)... a statement of measurable annual goals, including academic and functional goals, ...(III) a description of how the child's progress toward meeting the annual goals ... will be measured and when periodic reports on the progress the child is making toward meeting the annual goals (such as through the use of quarterly or other periodic reports, concurrent with the issuance of report cards) will be provided..."

"... a statement of--
(I) how the child's progress toward the annual goals described in clause (ii) will be measured; and
(II) how the child's parents will be regularly informed (by such means as periodic report cards), at least as often as parents are informed of their nondisabled children's progress, of--
(aa) their child's progress toward the annual goals described in clause (ii); and
(bb) the extent to which that progress is sufficient to enable the child to achieve the goals by the end of the year..."

• "...a statement of the special education and related services and supplementary aids and services, based on peer-reviewed research to the extent practicable, to be provided to the child, or on behalf of the child, and a statement of the program modifications or supports for school personnel that will be provided for the child.."

• "...a statement of any individual appropriate accommodations that are necessary to measure the academic achievement and functional performance of the child on State and districtwide assessments consistent with section 612(a)(16)(A)..."

• Was "individual modifications"

• "...beginning not later than the first IEP to be in effect when the child is 16, and updated annually thereafter... appropriate measurable postsecondary goals based upon age appropriate transition assessments related to training, education, employment, and, where appropriate, independent living skills..."
• Removes this language: "transition service needs of the child under the applicable components of the child's IEP that focuses on the child's courses of study (such as participation in advanced-placement courses or a vocational education program)..."
  

• A member of the IEP Team shall not be required to attend an IEP meeting, in whole or in part, if the parent of a child with a disability and the local educational agency agree that the attendance of such member is not necessary because the member's area of the curriculum or related services is not being modified or discussed in the meeting.

• "...A member of the IEP Team may be excused from attending an IEP meeting, in whole or in part, when the meeting involves a modification to or discussion of the member's area of the curriculum or related services, if... the parent and the LEA consent to the excusal; and ... the member submits, in writing to the parent and the IEP Team, input into the development of the IEP prior to the meeting..."
• A parent's agreement and consent shall be in writing.

New section:

• Transfers from other states
• Same except the new LEA may also conduct an evaluation if it deems necessary

• Transmittal of records
• The new school shall take reasonable steps to promptly obtain the child's records and the previous school in which the child was enrolled shall take reasonable steps to promptly respond to a request from the new school.

• "... Development of IEP.-- ... In developing each child's IEP, the IEP Team, ... shall consider-- ``(i) the strengths of the child... the concerns of the parents for enhancing the education of their child; ... the results of the initial evaluation or most recent evaluation of the child; and ... the academic, developmental, and functional needs of the child. "

• ``...Agreement.--In making changes to a child's IEP after the annual IEP meeting for a school year, the parent ... and the LEA may agree not to convene an IEP meeting for the purposes of making such changes, and instead may develop a written document to amend or modify the child's current IEP..."

• "(F) Amendments.--Changes to the IEP may be made either by the entire IEP Team or, as provided in subparagraph (D), by amending the IEP rather than by redrafting the entire IEP. Upon request, a parent shall be provided with a revised copy of the IEP with the amendments incorporatedch

• A pilot program– up to 15 states
• "The option of developing a comprehensive multi-year IEP, not to exceed 3 years, that is designed to coincide with the natural transition points for the child. "
• Parent must provide informed consent and it must be optional.
• Has required elements including truncated annual review in non-transition years.
• If IEP team determines that sufficient progress toward goals is not met, a more thorough review within 30 calendar days is required.

• "...’Natural transition points' means those periods that are close in time to the transition of a child with a disability from preschool to elementary grades, from elementary grades to middle or junior high school grades, from middle or junior high school grades to secondary school grades, and from secondary school grades to post-secondary activities, but in no case a period longer than 3 years..."

• Surrogates must be assigned not more than 30 days after the agency determines that one is needed.
• The judge overseeing the case of a ward of the state may also appoint a surrogate
• The LEA must appoint a surrogate for unaccompanied homeless youth.

• A party may not have a due process hearing until the party, or the attorney representing the party, files a notice that meets the following requirements:

• the name, address and the name of the school the child is attending
• in the case of a homeless child or youth available contact information for the child and the name of the school the child is attending
• a description of the nature of the problem including facts relating to such problem
• a proposed resolution of the problem to the extent known and available to the party at the time.

• Once the notice has been filed, the non-complaining party must respond within 10 days in a manner that specifically addresses the issues in the complaint.

§ 615(c)(2)(B)(ii)

• If the respondent feels the notice is insufficient, it may notify the hearing officer within 15 days of receipt of the complaint. Otherwise, its deemed sufficient. § 615(c)(2)(A) and § 615©(2)(C)
• If the LEA has not provided a prior written notice previously and the parent is requesting the hearing, it must send one within 10 days.

• The hearing officer then has 5 days to rule on the issue of sufficiency. § 615©(2)(D) In some cases, the party will be allowed to amend the complaint.

§ 615©(2)(E)

• Parties may not raise issues at hearing that were not addressed in the due process complaint notice, unless the parties agree, § 615(f)(3)(B)

• Any party may present a complaint which sets forth an alleged violation that occurred not more than 2 years before the date the parent or public agency knew or should have known about the alleged action that forms the basis of the complaint, or, if the State has an explicit time limitation for presenting such a complaint under this part, in such time as the State law allows

• Exceptions:

"The timeline shall not apply to a parent if the parent was prevented from requesting the hearing due to-- ...(i) specific misrepresentations by the local educational agency that it had resolved the problem forming the basis of the complaint; or (ii) the local educational agency's withholding of information from the parent that was required under this part to be provided to the parent. "§ 615(f)(3)(D)

• Information about the new SOLs must be included in the procedural safeguards notice. § 615 (d)(2)(E)(i)

• The party filing a case in court shall have 90 days from the date of the decision of the hearing officer to file the complaint or, if the State has an explicit time limitation in such time as the State law allows. § 615(h)(4)(i)(2)(B)

• A hearing request is no longer necessary to trigger mediation. § 615(e)(1)

• Mediation agreements must be signed by the parties and are now enforceable in State or Federal court

If the parent requests hearing

• the LEA shall convene a meeting with the parents and the relevant members of the IEP Team who have specific knowledge of the facts identified in the complaint
• within 15 days of receiving notice of the parents' complaint

What?

Who?

• must include a representative of the agency who has decision making authority
• may not include an attorney of the local educational agency unless the parent is accompanied by an attorney

• Exception to Resolution Session:

- the parents and the LEA agree in writing to waive the meeting
    or
- agree to use the mediation process

• If the LEA has not resolved the complaint to the satisfaction of the parents within 30 days of the receipt of the complaint, the case may proceed to due process hearing
• If agreement is reached, the parties must execute a legally binding agreement that is signed by both parties and is enforceable in State or federal court
• 3 Day Cooling Off Period - A party may void the agreement within 3 business days of its execution.

Contains new qualifications such as:

• Possess knowledge of, and the ability to understand, the provisions of the IDEA, Federal and State IDEA regulations and Federal and State case law
• possess the knowledge and ability to conduct hearings in accordance with appropriate, standard legal practice
• possess the knowledge and ability to render and write decisions in accordance with appropriate, standard legal practice.

• Hearing officer decisions shall be made on substantive grounds --based on a determination of whether the child received FAPE
• A hearing officer may find no FAPE only if the procedural inadequacies

• impeded the child's right to a FAPE
• significantly impeded the parents' opportunity to participate in the decision making process regarding the provision of FAPE, or
• or caused a deprivation of educational benefits.

However...

• Nothing precludes a hearing officer from ordering a LEA to comply with procedural requirements under this section.
• Nothing affects the right of a parent to file a complaint with the State educational agency.

• "The court, in its discretion, may award reasonable attorneys' fees as part of the costs--
• (I) to a prevailing party who is the parent of a child with a disability;
• (II) to a prevailing party who is a SEA or LEA against the attorney of a parent who files a complaint or subsequent cause of action that is frivolous, unreasonable, or without foundation, or against the attorney of a parent who continued to litigate after the litigation clearly became frivolous, unreasonable, or without foundation; or...

• (III) to a prevailing SEA or LEA against the attorney of a parent, or against the parent, if the parent's complaint or subsequent cause of action was presented for any improper purpose, such as to harass, to cause unnecessary delay, or to needlessly increase the cost of litigation."
• Also, fee awards do not include time spent on resolution sessions. § 615(i)(3)(D)(iii)

What Does This Mean for Attorneys?

• (II ) is the standard developed by Christiansburg Garment Co. v. EEOC and its progeny. It is applied in most civil rights actions, including those under the Americans with Disabilities Act and Title VII.
• Except Christiansburg ordinarily permits a fee award against the plaintiff but not plaintiff’s attorneys
• IDEA provision (II) covers not only the time of case initiation, but also the entire period of litigation (continuing a case)

The case law standard for II ( and III) is very high.

• Fees are very rarely shifted, and only in exceptional cases. Fees may shift if the parent’s case is frivolous "with no chance of success," but not if it is a " weak" case with "little chance of success."
• "is so lacking in arguable merit as to be groundless or without foundation rather than whether the claim is ultimately successful." Sullivan v. School Bd. of Pinellas Co., 773 F.2d 1182, 1188 (11th Cir. 1985)
• No Post Hoc review
• Specific standard varies by circuit

What Does This Mean for for Parents?

Parents are added in to the mix in (III)

• Per Christiansburg, fees may shift if the case was brought in "bad faith"
• Per Legislative history – (III) is intended incorporate the "bad faith" standard.
• Specific standard for "bad faith" varies by circuit
• Looks similar to the language from FRCP 11(b)(1), except Rule 11 contains an objectively reasonable standard. This language was not incorporated in IDEA fee-shifting provisions

• " CASE-BY-CASE DETERMINATION- School personnel may consider any unique circumstances on a case-by-case basis when determining whether to order a change in placement for a child with a disability who violates a code of student conduct." §615(k)(1)(A)

• New Language at start of discipline section. What does it mean?

Is this different than what is provided under current law?

"(D) ... A child with a disability who is removed from the child's current placement under subparagraph (G) (irrespective of whether the behavior is determined to be a manifestation of the child's disability) or subparagraph (C) shall... receive, as appropriate, a functional behavioral assessment, behavioral intervention services and modifications, that are designed to address the behavior violation so that it does not recur." § 615(k)(1)(D)(2).

Old:

"... be selected so as to enable the child to continue to participate in the general curriculum, although in another setting, and to continue to receive those services and modifications, including those described in the child's current IEP, that will enable the child to meet the goals set out in that IEP..."

New

"...continue to receive educational services, as provided in section 612(a)(1), so as to enable the child to continue to participate in the general education curriculum, although in another setting, and to progress toward meeting the goals set out in the child's IEP..." § 615(k)(1)(D)(i).

 

• "(G) ... School personnel may remove a student to an interim alternative educational setting for not more than 45 school days ...(i) carries or possesses a weapon to or at school...(ii) knowingly possesses or uses illegal drugs, ... or(iii) has inflicted serious bodily injury upon another person... "
• §615(k)(1)(G)

"The term "serious bodily injury" means bodily injury which involves--
(A) a substantial risk of death;
(B) extreme physical pain;
(C) protracted and obvious disfigurement; or
(D) protracted loss or impairment of the function of a bodily member, organ, or mental faculty; and(4) the term "bodily injury" means--
(A) a cut, abrasion, bruise, burn, or disfigurement;
(B) physical pain;
(C) illness;
(D) impairment of the function of a bodily member, organ, or mental faculty; or
(E) any other injury to the body, no matter how temporary.
§ 18 USCA 1365

 

MDR Protections reduced:

• Removes a determination re: whether the IEP and placement were appropriate.
• Also, the entire IEP team is no longer required to be present only "relevant members."
• In order for a manifestation to be found, the conduct must have been a "direct result" of the LEA’s failure to implement the IEP or must be "caused by" or have a "direct or substantial relationship" to the disability. § 615(k)(1)(E).

If is it’s a manifestation: the IEP Team shall--

• conduct a FBA, and implement a BIP for such child, provided that the local educational agency had not conducted such assessment ...
• in the situation where a BIP has been developed, review the BIP if the child already has such a BIP, and modify it, as necessary, to address the behavior; and
• return the child to the placement from which the child was removed, unless the parent and the local educational agency agree to a change of placement as part of the modification of the BIP (or the violation is a stay put exception.) § 615(k)(1)(F).

Protections are diminished for Hearing Officer appeal, including: § 615(k)(3)(B).

Hearing officer...

• "... considers the appropriateness of the child's current placement;
• considers whether the public agency has made reasonable efforts to minimize the risk of harm in the child's current placement, including the use of supplementary aids and services; and
• determines that the interim alternative educational setting meets the requirements..." 20 USCA 1415(k)(2)

Stay Put: § 615(k)(4)

"When an appeal under paragraph (3) has been requested by either the parent or the local educational agency--

• (A) the child shall remain in the interim alternative educational setting pending the decision of the hearing officer or until the expiration of the time period provided for in paragraph (1)(C), whichever occurs first, unless the parent and the State or local educational agency agree otherwise; and
• (B) the State or local educational agency shall arrange for an expedited hearing, which shall occur within 20 school days of the date the hearing is requested and shall result in a determination within 10 school days after the hearing."

Paragraph 1(c)

• "... If school personnel seek to order a change in placement that would exceed 10 school days and the behavior that gave rise to the violation of the school code is determined not to be a manifestation of the child's disability pursuant to subparagraph (E), the relevant disciplinary procedures applicable to children without disabilities may be applied to the child in the same manner and for the same duration in which the procedures would be applied to children without disabilities, except as provided in section 612(a)(1) although it may be provided in an interim alternative educational setting."

Protections for Students Not Yet Eligible § 615(k)(5)

These are also reduced.

For example, the teacher must have expressed "specific concerns about a pattern of behavior" in order to trigger the protections. "

Under current law, the teacher need only express "concern about the behavior or performance of the child"

The Secretary shall--

• Monitor implementation of this part through--
• oversight of the exercise of general supervision by the States, and
• the State performance plans
• Enforce this part, and
• Require States to--
• monitor implementation of this part by local educational agencies; and
• enforce this part

FOCUSED MONITORING- The primary focus of Federal and State monitoring activities described in paragraph (1) shall be on--

• improving educational results and functional outcomes for all children with disabilities; and
• ensuring that States meet the program requirements under this part, with a particular emphasis on those requirements that are most closely related to improving educational results for children with disabilities.

The Secretary shall monitor the States, and shall require each State to monitor the LEAs in each of the following priority areas:

• Provision of a FAPE in the LRE.
• State exercise of general supervisory authority, including child find, effective monitoring, the use of resolution sessions, mediation, voluntary binding arbitration, and a system of transition services
• Disproportionate representation of racial and ethnic groups in special education and related services, to the extent the representation is the result of inappropriate identification.
• The Secretary shall consider other relevant information and data

State Performance Plans:

• By July 1, 2006, each State shall have in place a performance plan that evaluates that State's efforts to implement the requirements and purposes of this part and describes how the State will improve such implementation.

• As a part of the State performance plan, each State shall establish measurable and rigorous targets for the indicators established under the priority areas

• Each State shall collect valid and reliable information as needed to report annually to the Secretary on the priority areas

• The State shall use the targets and priority areas to analyze the performance of each LEA in the State
• The State shall report annually to the public on the performance of each LEA located in the State on the targets in the State's performance plan.
• The State shall make its performance plan available through public means
• The State shall report annually to the Secretary on the performance of the State

• The Secretary shall review each performance plan.

Based on:

• State performance report
• information obtained through monitoring visits,
• and any other public information made available

The Secretary shall determine if the State--

• meets the requirements and purposes of this part;
• needs assistance in implementing the requirements of this part;
• needs intervention in implementing the requirements of this part; or
• needs substantial intervention in implementing the requirements of this part.

If the Secretary determines, for 2 consecutive years, that a State needs assistance the Secretary shall take 1 or more of the following actions:

• Advise the State of available sources of technical assistance
• Direct the use of State-level funds on the area or areas in which the State needs assistance.
• Identify the State as a high-risk grantee and impose special conditions on the State's grant under this part.

• If the Secretary determines, for 3 or more consecutive years, that a State needs intervention
• The Secretary may take any of the actions described in paragraph (1)
• And...

The Secretary shall take 1 or more of the following actions:

• Require the State to prepare a corrective action plan or improvement plan if the Secretary determines that the State should be able to correct the problem within 1 year.
• Require the State to enter into a compliance agreement if the Secretary has reason to believe that the State cannot correct the problem within 1 year.
• For each year of the determination, withhold not less than 20 percent and not more than 50 percent of the State's funds under section 611(e), until the Secretary determines the State has sufficiently addressed the areas in which the State needs intervention.
• Seek to recover funds under GEPA
• Withhold, in whole or in part, any further payments to the State
• Refer the matter for appropriate enforcement action, which may include referral to the Department of Justice.

At any time that the Secretary determines that a State needs substantial intervention or that there is a substantial failure to comply with any condition of a SEA or LEAs eligibility under this part, the Secretary shall take 1 or more of the following actions:

• Recover funds under section 452 of the General Education Provisions Act.
• Withhold, in whole or in part, any further payments to the State under this part.
• Refer the case to the Office of the Inspector General at the Department of Education.
• Refer the matter for appropriate enforcement action, which may include referral to the Department of Justice.

• If a SEA determines that a LEA is not meeting the requirements of this part, including the targets in the State's performance plan, the SEA shall prohibit the LEA from reducing the local educational agency's maintenance of effort for any fiscal year.

The Secretary shall--

• Review the data collection and analysis capacity of States to ensure that data and information determined necessary for implementation of this section is collected, analyzed, and accurately reported to the Secretary; and
• provide technical assistance where needed, to improve the capacity of States to meet the data collection requirements.

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