NAPAS
National Association of Protection & Advocacy Systems
Via Electronic Mail
February 28, 2005
John H. Hager, Assistant Secretary
Office of Special Education and Rehabilitative Services
U.S. Department of Education
400 Maryland Avenue, SW
Potomac Center Plaza, room 5126
Washington, DC 20202-2641
Dear Mr. Hager:
The Protection and Advocacy (P&As) Systems and Client Assistance Programs (CAPs) comprise a nationwide network of congressionally mandated, legally based disability rights agencies. The National Association of Protection and Advocacy Systems, Inc. (NAPAS) is the voluntary national membership association of the P&As and CAPs and it assumes leadership in promoting and strengthening the role and performance of its members in providing quality legally based advocacy services. As a network, the P&As provide free assistance to over 20,000 families per year in cases involving the IDEA and Section 504 of the Rehabilitation Act of 1973 and have a unique and significant interest in regulations that will affect the rights of children with disabilities to obtain a free appropriate public education.
Based on this experience, we urge you to ensure that the purposes of this statute, known as the Individuals with Disabilities Education Improvement Act (IDEIA), and its predecessor versions are fully realized in its regulations.
The IDEIA states at Section 601(d):
PURPOSES- The purposes of this title are--...
(1)(A) to ensure that all children with disabilities have available to them a free appropriate public education that emphasizes special education and related services designed to meet their unique needs and prepare them for further education, employment, and independent living;
(B) to ensure that the rights of children with disabilities and parents of such children are protected.
Preserve Current Regulatory Protections That Are Consistent with the IDEIA
The current federal regulations are well known to parents and educators and have worked well for many years. NAPAS urges the Department of Education to retain those regulatory provisions that interpret statutory provisions that have not been changed. Clearly, this is the direction that Congress intended. In Section 607(b), Congress specifically directed the Secretary to preserve protections contained in earlier regulations that are consistent with the current statutory language.
PROTECTIONS PROVIDED TO CHILDREN- The Secretary may not implement, or publish in final form, any regulation prescribed pursuant to this title that--
(2) procedurally or substantively lessens the protections provided to children with disabilities under this title, as embodied in regulations in effect on July 20, 1983 (particularly as such protections related to parental consent to initial evaluation or initial placement in special education, least restrictive environment, related services, timelines, attendance of evaluation personnel at individualized education program meetings, or qualifications of personnel), except to the extent that such regulation reflects the clear and unequivocal intent of Congress in legislation (Emphasis added). Section 607(b)
Examples of important regulations that this provision protects are the regulations guaranteeing independent educational evaluations (34 C.F.R. §300.502), requiring states to establish complaint management systems (34 C.F.R. §§300.660-.662), and establishing timelines for Hearing and Review Officers to issue decisions (34 C.F.R. §300.511).
Relevant Legislative History: "[The bill] creates two types of State activities: required and optional. The committee retains the establishment of a mediation system as a required activity, as well as monitoring and complaint investigation, but adds enforcement to this list." S. Rep. No. 108-185, at 10 (2004), available at http://thomas.loc.gov (emphasis added).
Specific Recommendations
Resolve Confusing or Ambiguous Statutory Provisions to Forward the Congressional Purpose of Ensuring FAPE for all Children with Disabilities
§ 614(a)(1)(C)(ii): "[When a child moves between school districts during an initial evaluation the 60-day deadline for conducting the initial evaluation the timeline] "shall not apply to a local educational agency if—(I) . . . the subsequent local educational agency is making sufficient progress to ensure a prompt completion of the evaluation, and the parent and subsequent local educational agency agree to a specific time when the evaluation will be completed" (emphasis added).
§ 614(a)(1)(D)(i): "CONSENT FOR INITIAL EVALUATION - The agency proposing to conduct an initial evaluation to determine if the child qualifies as a child with a
disability . . . shall obtain informed consent from the parent of such child before conducting the evaluation . . . " (emphasis added).
§ 614(a)(2)(B)(iii): "A reevaluation . . . shall occur - at least once every 3 years, unless the parent and the local educational agency agree that a reevaluation is unnecessary" (emphasis added).
§ 614(d)(1)(C)(iii): "A parent's agreement under clause (i) [to waive the attendance of a member of the IEP team] and consent under clause (ii) shall be in writing" (emphasis added).
§ 614(d)(3)(D): "AGREEMENT - In making changes to a child's IEP after the annual IEP meeting for a school year, the parent of a child with a disability and the local educational agency 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" (emphasis added).
§ 615(n): "ELECTRONIC MAIL - A parent of a child with a disability may elect to receive notices required under this section by an electronic mail (e-mail) communication, if the agency makes such option available" (emphasis added).
The Problem: These sections of the IDEIA provide mechanisms for parents of children with disabilities to "agree" or "elect" to follow certain alternative procedures in the evaluation and IEP processes. The regulations must clarify how those rights can be waived and what prior notice parents must receive. As parents are not always aware of all of their IDEA rights, they may not be fully aware of what they are giving up. Not all IDEA rights are included in the procedural safeguards notices, e.g. the required members of the IEP team.
Proposed Solution: The regulations should state that parents must receive prior written notice of their rights a reasonable time prior to an effective waiver, and that the parents' agreement or consent must be in writing, signed by the parents. This position is supported by the language of the IDEIA and by caselaw which requires that waiver of civil rights, including rights under the IDEIA, must be "knowing and voluntary." W.B. v. Matula, 67 F.3d 484, 497-498 (3d Cir.1995). In Matula the court applied a "heightened standard" to its scrutiny of a written agreement purporting to waive IDEA rights. Id. at 498. In order to be certain that waiver is knowing, prior written notice must include both a statement of the legal rights the parents are being asked to waive and an explicit statement that refusal to waive the rights will not result in denial of any other rights under the IDEIA or state special education laws and regulations, including the right to an IEP meeting and an appropriate educational placement within legally prescribed timelines.
Relevant Legislative History: "Under section 614(d)(1)(C), a member of the IEP team can be excused from the meeting if no modifications are being made to that member's area of curriculum or service; or, when a relevant modification is made, if the member provides input prior to the meeting. . . . The IEP team member, the parent, and the local educational agency must agree to any such excusal and the committee expects the local educational agency to ensure that the parent is making an informed decision." S. Rep. No. 108-185, at 27 (2004), available at http://thomas.loc.gov (emphasis added).
"[S]ection 614(d)(3)(D) of the bill allows the parent of a child with a disability and the local educational agency, through the responsible teacher or service provider, to amend or modify the child's current IEP without having to convene an IEP meeting. Such an amendment is not appropriate, however, as a substitute for an annual IEP meeting and the parent should make an informed decision when agreeing to such an amendment." S. Rep. No. 108-185, at 27 (2004), available at http://thomas.loc.gov (emphasis added).
"[S]ection 614(d)(5), allows parents and local educational agencies to develop a 3-year IEP for students aged 18 and older, with an emphasis on interagency coordination with adult programs. . . . The committee expects local educational agencies to ensure that parents are making an informed decision when exercising this option." S. Rep. No. 108-185, at 28 (2004), available at http://thomas.loc.gov (emphasis added).
2. The regulations should interpret the phrase "applicable civil rights requirements," as rights that cannot be waived under Section 609 of the IDEIA, in line with the Civil Rights Acts enumerated in Section 615(l). Moreover, either in the regulations or in guidelines, should the Department proceed through RFPs, the Department should require applicant States to demonstrate how waiver of paperwork and administrative requirements will result in better educational outcomes for children.
§ 609(a)(2)(A) authorizes the Secretary to "grant waivers of statutory requirements . . . for a period of time not to exceed 4 years with respect to not more than 15 States based on proposals submitted by States to reduce excessive paperwork and noninstructional time burdens that do not assist in improving educational and functional results for children with disabilities."
§ 609(a)(2)(B): "EXCEPTION - The Secretary shall not waive under this section any statutory requirements of, or regulatory requirements relating to, applicable civil rights requirements" (emphasis added).
The Problem: The statute does not define the statutory or regulatory "applicable civil rights requirements" that the Secretary must not waive through paperwork reduction programs in that section, other than by enumerating the unwaivable right to receive a free appropriate public education in § 609(a)(2)(C)(i), but it does provide this detail elsewhere in the statute. Because these pilot programs are a new statutory creation and little statutory guidance exists regarding what types of programs will be acceptable, we believe the applicable civil rights requirements must be explicitly mentioned by regulation.
In addition, Section 609 pilot programs will affect potentially millions of children with disabilities in 15 states. Its stated purpose is not just to reduce administrative and paperwork burdens in the abstract, but to "increase the time and resources available for instruction and other activities aimed at improving educational and functional results for children with disabilities." Section 609(a)(1). Yet the statute does not provide the specifics on how applicants will be selected or judged over time to ensure the students are benefiting. The statute also does not specify how the public will be informed of and participate in such applications.
Proposed Solution: Section 615(l) of the IDEIA provides Congressional guidance on the types of statutory and regulatory rights that Congress did not infringe upon through passage of the IDEIA. Therefore, we propose reiterating, by regulation, that the statutory rights enumerated in § 615(l) are precisely the types of "applicable civil rights requirements" that the Secretary may not allow a State to waive through the Pilot Program procedures. See § 615(l) ("RULE OF CONSTRUCTION- Nothing in this title shall be construed to restrict or limit the rights, procedures, and remedies available under the Constitution, the Americans with Disabilities Act of 1990, title V of the Rehabilitation Act of 1973, or other Federal laws protecting the rights of children with disabilities . . . ."). This proposal is consistent with language in § 601(d) of the Purposes section of the IDEIA, which states that Congress intends "to ensure that the rights of children with disabilities and parents of such children are protected."
The Department of Education must set standards (either through regulations or, should the Department proceed through an RFP process, through Guidelines) for States' participation in this program that will require each applicant to explain how it will use the extra time and resources to improve student outcomes, and to define specific measures by which its success - and its right to continue as a pilot program - will be judged. The Department should also require an applicant State to publish its intention to apply and the proposed plan and to receive public comment, which could also include the convening of public hearings.
3. The regulations should clarify: that parents must be informed in writing and given the opportunity to object when a LEA proposes including a child in an early intervening services program; that the LEA must apprise the parents of the child's progress in the early intervening services program at reasonable intervals and refer the child for a special education evaluation if that child has not made progress in the early intervening services program; and that a parent's right to request an initial evaluation is not suspended when a child participates in an early intervening services program.
Section 613(f) provides funding for LEAs "to develop and implement coordinated, early intervening services, which may include interagency financing structures. For students in kindergarten through grade 12 (with 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."
The problem: This provision was inserted by Congress with the laudable goal of encouraging school districts to provide services to students who have demonstrated a need for extra academic or behavioral support, but who may not need special education services. By funding these programs, Congress clearly hoped to prevent the over-identification of children as children with disabilities whose needs could be met by more intensive regular education services. While these early intervening services may help low-performing students catch-up to their fellow non-disabled peers early in their academic careers, the regulations implementing this provision should make clear that - as with any other program initiated by a school district and funded under part B - parents must be informed in writing and given the opportunity to refuse to have their children participate in these programs.
The members of the NAPAS network are concerned that children with disabilities, who are entitled to receive special education services, but have not yet been identified, may be diverted into early intervening services programs and not evaluated in a timely manner. The regulations should explain that an LEA's decision to provide early intervening services does not relieve it of its other obligations under part B, including the "child find" duty. See 612(a)(3) (requiring States to provide assurances that "All children with disabilities residing in the State . . . and who are in need of special education and related services, are identified, located, and evaluated"). As the Senate report explicitly states, Congress did "not intend for early intervening to prevent or delay a student from receiving an evaluation to determine the presence of a disability and the need to special education and related services." S. Rep. No. 108-185, at 20 (2004), available at http://thomas.loc.gov. While the regulations should clarify that parents should be apprised of their child's progress in the early intervening services program, it is imperative that they also state that school districts must refer for special education evaluations those children who do not make progress in these programs within a reasonable time period. ("The committee encourages local educational agencies to develop a systematic process by which they determine whether or not a student receiving early intervention services should be subsequently referred for an evaluation."). See Id. To prevent children with qualifying disabilities from languishing in these early intervening services programs, we suggest that LEAs be required to make this determination after 90 days.
Finally, the regulations should clarify that nothing in § 613(f) prevents a parent of a child who is participating in an early intervening services program from requesting an initial evaluation for special education services. If requested, the evaluation must be completed within the 60-day timeframe set forth in § 614(a)(1)(C)(i)(I). See S. Rep. No. 108-185, at 21 (2004), available at http://thomas.loc.gov ("The committee believes that it is important that children are evaluated in a timely manner. Therefore, [the IDEIA] contains a timeline in which a local educational agency must conduct an evaluation. . . . The committee . . . feels that this provision will discourage a local educational agency from unnecessarily delaying an evaluation in cases where a child is receiving early intervening services under section 613(f)").
Proposed Solution: The regulations should explain: (a) that parents must be given written notice of the fact of their child's participation in an early intervening services program and an opportunity to refuse such services; (b) that early intervening services do not replace child find obligations, thus school districts must apprise parents of their child's progress in the program after 90 days and refer the child for a special education evaluation if it appears that the child may be a child with a disability; and (c) that nothing in § 613(f) removes the parent's right to request - at any time - an initial evaluation for special education services.
4. The regulations should clarify that States cannot adopt timeframes for: (1) conducting initial evaluations that are longer than 60 days; (2) filing complaints requesting impartial hearings that are shorter than 2 years from when the party knew or should have known of the violation; (3) or filing actions in court that are shorter than 90 days of the final decision of the hearing or review officer. Finally, the regulations should clarify that families must be promptly provided consent to evaluate forms so that the child's evaluation is not delayed.
§ 614(a)(1)(C)(i)(I): "Such initial evaluation shall consist of procedures—to determine whether a child is a child with a disability (as defined in section 602) within 60 days of receiving parental consent for the evaluation, or, if the State establishes a timeframe within which the evaluation must be conducted, within such timeframe . . . " (emphasis added).
§ 615(b)(6)(B): "[States must establish procedures providing] An opportunity for any party to 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 under this part, 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 . . ." (emphasis added).
§ 615(f)(3)(C): "Timeline for requesting hearing - A parent or agency shall request an impartial due process hearing within 2 years of the date the parent or 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 requesting such a hearing under this part, in such time as the State law allows" (emphasis added).
§ 615(i)(2)(B): "LIMITATION- The party bringing the action shall have 90 days from the date of the decision of the hearing officer to bring such an action, or, if the State has an explicit time limitation for bringing such action under this part, in such time as the State law allows" (emphasis added).
The Problem: The IDEIA provisions listed above establish timelines, but permit States to set alternate timelines. The provisions do not clarify that state deadlines can be more generous, but not less favorable, to children and families than those deadlines set by Congress. In addition, the regulation sets no specific timeframe within which parents will receive the consent form (for an initial evaluation or a reevaluation) from the LEA, which creates the potential for substantial delays. Finally, 615(i)(2)(B) requires appeals within 90 days of the decision of a "hearing officer" despite the fact that some states permit appeals to reviewing officers of panels. The regulation needs to clarify that the 90 days begins to run from the final administrative decision, which can include the decision of the reviewing officer or panel.
Proposed Solution: The regulations should clarify that alternate state deadlines for initial evaluations cannot be longer than 60 days; that the deadline for filing for an administrative hearing cannot be shorter than 2 years from when the party knew or should have known of the violation; and that the deadline for filing an appeal in court cannot be shorter than 90 days from the final determination of the hearing officer or the State appeals officer/appeals panel. Nothing else will both protect children and families from unreasonable state deadlines and effectuate the Congressional purpose of promptly identifying and serving children who qualify for special education services.
Also, in order to prevent confusion, the regulations must clarify that state law or regulation which allows for the presence of continuing violations to lengthen filing deadlines is not diminished by the IDEIA.
Section 615(i)(2)(B), which relates to the filing of court appeals, adds an additional layer of ambiguity that must be clarified. It states that a party has 90 days from the date of the decision of the "hearing officer." Section 615(i)(B)(2). The IDEIA permits states to have a one-tier system (hearing officer only), or a two-tier system (hearing officer's decision is subject to an impartial review). Section 615(g)(2). However, parties cannot appeal to a court until the entire administrative process has been exhausted. The regulations must clarify that the 90-day timeline or the State's alternate timeline begins to run from the date of the final administrative decision by either the hearing officer or the reviewing officer or panel in order to prevent the inappropriate dismissal of cases.
Finally, P&A staff in a number of states, where time limits for evaluations are triggered by parents' written consent, have complained that children's evaluations are sometimes delayed when school districts do not promptly provide families with the necessary written consent forms. The Congressional purpose of ensuring that children with disabilities are evaluated and served in a timely manner will be forwarded by a regulation that states that LEAs are required to present families with the consent forms promptly upon request (for example, within 3 school days, or 7 calendar days if school is not in session.)
Relevant Legislative History:
State Statutes of Limitation: "Section 615(f)(3)(D) creates a new two year timeline for requesting a hearing on claims for reimbursed or ongoing compensatory education services. If the State has developed an explicit timeline for requesting a due process hearing either through statute or regulation, that State provision will apply. . . . The committee does not intend that common law determination of statutes of limitation override this specific directive or the specific State or regulatory timeline." S. Rep. No. 108-185, at 33-34 (2004), available at http://thomas.loc.gov (emphasis added).
"[S]ection 615(i)(2)(B) . . . gives a party 90 days from the date of the decision of the hearing officer for appealing a due process hearing decision to State or federal district court, or if there is an explicit State time limitation set out by State statute or regulation, in such time as the State law allows. Again, the committee does not intend for common law to override the particularity of this provision." S. Rep. No. 108-185, at 35 (2004), available at http://thomas.loc.gov (emphasis added).
§ 614(b)(6)(B): "In determining whether a child has a specific learning disability, a local educational agency may use a process that determines if the child responds to scientific, research-based intervention as part of the evaluation procedures . . . ."
The Problem: This provision does not clearly state that the evaluation of a child that includes a scientific, research-based intervention is still subject to the 60-day time limit (or alternate State deadline) for evaluations. Unless this is clarified, such a process could be used indefinitely to delay the evaluation, which would again defeat the IDEIA's directive that children with disabilities are "identified, located, and evaluated."
Proposed solution: The regulation should state that all evaluations, including evaluations under Section 614(b)(6)(B), must be completed within 60 days of the parents' consent to the evaluation.
§ 614(c)(5)(A): "In general - Except as provided in subparagraph (B), a local educational agency shall evaluate a child with a disability in accordance with this section before determining that the child is no longer a child with a disability."
§ 614(c)(5)(B): "Exception . . . The evaluation described in subparagraph (A) shall not be required before the termination of a child's eligibility under this part due to graduation from secondary school with a regular diploma, or due to exceeding the age of eligibility for a free appropriate public education under State law" (emphasis added).
The Problem: The statute appears to assume, but does not explicitly require, that when a student with a disability graduates from high school with a "regular diploma," the student will have achieved a level of competency comparable to his or her non-disabled peers. However, in reality many school districts and states award "regular diplomas" to students with disabilities based on years of attendance, without regard to what the student was taught or his or her achievement level. No student with a disability under age 21 should be "force graduated" unless he has received a regular diploma that is based on achievement that is comparable to the achievement of students who do not have disabilities.
Proposed Solution: The regulations should clarify that, a student may NOT be considered ineligible for services simply because he or she qualifies for (and accepts) this type of "regular diploma." The regulations should define "regular diploma" and require that such a diploma reflect student achievement comparable to that required for a non-disabled student to graduate from high school. The regulations should incorporate the traditional OSEP interpretation that LEAs cannot graduate a special education student who has remaining IEP goals to meet.
§ 614(a)(2)(B)(i): "A reevaluation conducted under [§ 614(a)(2)(A)] shall occur - not more frequently than once a year, unless the parent and the local educational agency agree otherwise . . . ."
The Problem: This provision does not clearly state that independent evaluations conducted at the behest of a parent must be considered by the local educational agency, even when these evaluations are procured within one year of the most recent school district evaluation/reevaluation. Without such clarification, parents who are informed by the doctors or therapists treating their child of a new disability diagnosis or about different educational approaches will be unable to ensure that school districts consider this new information in a timely fashion.
Proposed Solution: The regulations should clarify that, while a school district may not be required to conduct its own reevaluation of a child with a disability if less than a year has passed since its last evaluation, if a parent provides evaluation information to the school district within that year, this information must be considered at an IEP team meeting for the student. This proposed regulation is in accordance with the current regulatory framework governing IEP development. See 34 C.F.R. § 300.343 (requiring public agencies to "ensure that the IEP team - (2) Revises the IEP as appropriate to address . . . Information about the child provided to, or by, the parents, as described in § 300.533(a)(1)"); see also § 300.533(a)(1)(i) (referring to "Evaluations and information provided by the parents of the child").
§ 614(d)(1)(A)(i): "The term ‘individualized education program' or ‘IEP' means a written statement for each child with a disability that is developed, reviewed, and revised in accordance with this section and that includes. . . (III) a description of how the child's progress toward meeting the annual goals described in subclause (II) 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."
The Problem: The IDEIA deletes the requirement that IEPs include "benchmarks or short term objectives" for each child with a disability and instead requires that the IEP include a statement of both how the child's progress will be measured and when "periodic reports" of this progress will be provided to the parents. This requirement was intended to reduce paperwork, but not to reduce LEAs' obligation to define and measure a student's progress towards annual goals and to report that information to families in a comprehensive, regular, and understandable manner. To ensure full compliance with the this language, the periodic reports must explain, in reasonable detail and with specific progress measures, the extent to which the student is making progress in each of the annual goals on the IEP. In addition, the regulations should clarify that annual progress reports are insufficient and instead urge the use of quarterly reporting (or reporting at the time that report cards are normally issued).
Proposed Solution: The regulations should clarify that IEPs must provide for progress reports, which explain in reasonable detail and with specific progress measures, the extent to which the student is progressing on each of the IEP annual goals. Moreover, the regulations should provide that these periodic reports should normally be provided either quarterly or concurrent with report card issuance.
Relevant Legislative History:
Short-term progress reports: "In order to measure and report the student's progress toward their annual goals, the IEP must instead contain a description of how the child's progress toward meeting the annual goals will be measured, as well as when periodic reports on the child's progress, such as through the use of quarterly or other periodic reports, will be provided. The committee feels that such progress reports are especially important for students whose IEPs contain non-academic goals and whose progress may not be measured easily by standardized tests or grades. These progress updates must provide parents with specific, meaningful, and understandable information on the progress children are making. . . . The committee feels that the new language is sufficiently explicit and will yield more instructionally relevant information to be used by teachers as well as reported to parents regarding a student's progress, and provide a clear and more appropriate accountability mechanism for monitoring and reporting progress than do short-term objectives and benchmarks." S. Rep. No. 108-185, at 25 (2004), available at http://thomas.loc.gov (emphasis added).
§ 615(b)(2)(A): [States must establish and maintain] "Procedures to protect the rights of the child whenever the parents of the child are not known, the agency cannot, after reasonable efforts, locate the parents, or the child is a ward of the State, including the assignment of an individual to act as a surrogate for the parents . . . "
§ 615(b)(2)(B): "The State shall make reasonable efforts to ensure the assignment of a surrogate not more than 30 days after there is a determination by the agency that the child needs a surrogate." (emphasis added).
The Problem: The "reasonable efforts" language in this provision is ambiguous, leaving uncertainty surrounding the types of assurances that a State must make regarding the assignment of surrogate parents by local educational agencies.
Proposed Solution: Under Section 612, State eligibility for IDEIA funds is conditioned on the development of a plan that provides assurances to the Secretary that the State has enacted policies and procedures to comply with Part B. Section 612(a)(21)(B)(x) requires States to establish and maintain an advisory panel which includes "a representative from the State child welfare agency responsible for foster care," to develop policy guidance for IDEIA implementation. The regulations should clarify that the State's plan must be developed in collaboration with the representative of the child welfare system and must detail the "reasonable efforts" that the State plans to undertake to ensure that local educational agencies assign surrogate parents within 30 days of the LEAs' identification of the need.
10. The regulations should clarify that the "individual" appointed by a judge to consent to an initial evaluation for a "ward of the state" is a "surrogate parent." A judge's decision to "subrogate" the parent's rights to make educational decisions for the purposes of obtaining consent for an initial evaluation or appointing a surrogate does not require the Court to terminate all of the parent's rights. A judge's removal of a parent's educational rights need not be permanent.
§ 614(a)(1)(D)(iii)(II)(cc): indicates that an LEA "shall not be required to obtain informed consent from the parent of a child [who is a ward of the State and is not residing with the child's parent] for an initial evaluation to determine whether the child is a child with a disability" if "the rights of the parent to make educational decisions have been subrogated by a judge in accordance with State law and consent for an initial evaluation has been given by an individual appointed by the judge to represent the child."
§ 615(b)(2)(A): States are required to establish "Procedures to protect the rights of the child whenever the parents of the child are not known, the agency cannot, after reasonable efforts, locate the parents, or the child is a ward of the State, including the assignment of an individual to act as a surrogate for the parents . . . . In the case of - (i) a child who is a ward of the State, such surrogate may alternatively be appointed by the judge overseeing the child's care provided that the surrogate meets the requirements of this paragraph . . . ."
The Problem: This section of the IDEIA indicates that federal law does not bar a state court judge from subrogating only the educational decision-making rights of the parents of a ward of the State for the purpose of expediting a child's initial special education evaluation. Congress' purpose - ensuring that the initial evaluations of wards of the State are not unnecessarily delayed - is effectuated by allowing judges to suspend the education decision-making rights of a biological parent without waiting for the more formal and time-consuming procedures involved when the full panoply of a biological parent's rights are terminated. While the need for expediency justifies this provision, it is important to clarify that nothing in the IDEIA suggests that a judge may not later reinstate the biological parent's educational decision-making rights if the parent is again able to perform this function adequately.
Second, it is important to align this provision with § 615(b)(2)(A)(i), the provision authorizing judges to appoint surrogate parents. The two provisions are open to a potential misinterpretation, whereby judges might believe they should first appoint one "individual" to consent to an initial evaluation and then appoint a second person to act as a "surrogate" parent for the child. This situation would create confusion -- leaving school districts justifiably confused regarding who has the authority to make what educational decisions on behalf of the child. Therefore, the regulations should read the two provisions in concert: the individual appointed by the judge to consent to the initial evaluation should be considered the child's surrogate parent.
Proposed Solution: The regulations should clarify that to appoint an individual to consent to the initial evaluation, or to appoint a surrogate parent, the judge is not required first to terminate all parental rights. The regulations should also clarify that nothing in the IDEIA prevents a judge from reinstating a biological parent's educational decision-making rights if the birth parents are able again to perform this function. In addition, the regulations should note that the individual appointed to consent to the initial evaluation is automatically the "surrogate" parent.
11. The regulations should clarify that a juvenile court judge may appoint as a "surrogate" any individual who meets the requirements in § 615(b)(2)(A); the individual appointed by the judge should not be subject to any additional LEA requirements.
§ 614(b)(2)(A)(i): Under this new provision, if "a child is a ward of the State, [a] surrogate may alternatively be appointed by the judge overseeing the child's care provided that the surrogate meets the requirements of this paragraph" (emphasis added).
The Problem: Until now, only LEAs have had the authority to appoint surrogate parents. The IDEIA gives juvenile court judges power to appoint surrogate parents to advocate on behalf of wards of the State. The regulations should clarify that judge-appointed surrogates must only meet the IDEIA's requirements for surrogate parents, not additional requirements that the LEA uses for its surrogate parents appointments. Logistical reasons, among others, dictate this outcome. The jurisdiction of a juvenile court can include multiple school districts, each with its distinct requirements. Clarifying that judges must only comply with the federal surrogate parent standards protects children while still providing judges sufficient flexibility.
Proposed Solution: The regulation interpreting § 614(b)(2)(A)(i) should state that this provision means exactly what it says: surrogates appointed by judges must meet the requirements of § 614(b)(2)(A): That is, the surrogate may not be "an employee of the State educational agency; the local educational agency, or any other agency that is involved in the education or care of the child." While LEAs are free to impose additional qualification requirements designed to protect children before appointing surrogate parents under
§ 614(b)(2)(A), these requirements do not apply to judge-appointed surrogates.
12. The regulations should clarify that a LEA may terminate the rights of a surrogate parent it has appointed only when the surrogate parent has failed to perform his or her duties (i.e., by failing to meet with the child or participate in IEP team meetings).
§ 615(b)(2)(A) requires SEAs and LEAs to maintain procedures for the appointment of surrogate parents "to protect the rights of the child whenever the parents of the child are not known, the agency cannot, after reasonable efforts, locate the parents, or the child is a ward of the State, including the assignment of an individual to act as a surrogate for the parents . . ."
The Problem: Like prior versions of the IDEA, this section of the IDEIA details the general requirements for the appointment of a surrogate parent. There is no guidance, however, regarding the power of LEAs to appoint a replacement surrogate parent, thereby divesting the original surrogate of his or her authority to act on behalf of the child. We have received complaints from social workers and child advocates suggesting that, at least in some instances, school districts have chosen to "fire" pro-active surrogate parents because they have successfully advocated for the children whom they serve. This practice violates the spirit of the IDEIA and undermines the independence of surrogates necessary to ensure that the children for whom they are responsible have the opportunity to obtain FAPE.
Proposed Solution: A LEA cannot divest birth parents of their authority to make education decisions for their child because the parents disagree with the LEA's decisions; surrogate parents require the same protection if they are to be forceful and independent advocates for children. The regulations should state that a "surrogate" parent's rights may not be subrogated by an LEA - by the appointment of a new surrogate parent - unless the first surrogate has failed to fulfill his or her responsibilities (e.g., by failing to meet with the child or failing to attend IEP meetings that have been scheduled for a mutually agreed-upon time).
13. The regulations should clarify that, when the LEA is proposing a change that the parent rejects, it is the LEA that is seeking impartial review, and it is the LEA that must file a sufficient complaint and comply with the relevant requirements of Section 615(b) and (c).
Section 615(b): The procedures required by this section shall include the following: (6) an opportunity for any party to present a complaint (a) with respect to any matter relating to the identification, evaluation, or educational placement of the child, or the provision of a free appropriate public education to such child (emphasis added).
The Problem: The IDEIA now makes clear in Section 615(b)(6) and elsewhere in the statute that procedural safeguards are not limited to parents, but extend to LEAs as well
it would be inequitable if the requirements for due process complaint notices and other 615 requirements applied only to parents and not to school districts.Proposed Solution: The regulations should clarify that, when it is the LEA that is precipitating a change (by proposing, e.g., a change in placement or program) for which it has failed to obtain the required parental consent, the LEA must file the complaint and must meet the sufficiency and other requirements of Section 615.
14. The regulations should clarify that a party initiating due process may provide the information required in both the "complaint" and the "due process complaint notice" in a single document.
§615(b)(6): [Requiring States to establish procedures providing] "An opportunity for any party to present a complaint . . . ."
§615(b)(7): [Requiring States to establish] "Procedures that require either party, or the attorney representing a party, to provide due process complaint notice in accordance with subsection (c)(2) . . ."
The Problem: Section 615(b)(6) states that a party may initiate a request for a hearing by filing a complaint, and at 615(b)(7) it provides that a family must initiate a hearing request with a "due process complaint." Finally, at 615(b)(8) it states that the SEA must develop a model form to assists parents in filing a complaint and a due process complaint notice, which suggests that these are difference documents. Nothing is gained in clarity or completeness by requiring two separate documents rather than a single document that includes all mandated information.
Proposed Solution: The regulations should clarify that a party can file a single complaint notice that contains all of the information mandated by Section 615(b). This approach would benefit both LEAs and parents (either of whom could be filing the complaint) and would forward the articulated Congressional purpose of reducing unnecessary paperwork. See §601(c)(9) (teachers, schools, LEAs, and States should be relieved of irrelevant and unnecessary paperwork burdens that do not lead to improved educational outcomes).
15. The regulations should clarify that the due process complaint notice amendment procedures only apply to due process complaint notices that have been deemed to be sufficient. Changes to the parties' proposed resolution of the problem, which are based on information the party discovers after filing the due process complaint notice, do not require amendment . Notices that meet the requirements of 615(b)(7)(A) are sufficient and the hearing officer can require no more.
§615(b)(7)(A)(ii): [The due process complaint notice shall include]
***
(III) a description of the nature of the problem of the child relating to such proposed initiation or change, including facts relating to such problem; and
(IV) A proposed resolution of the problem to the extent known and available to the party at the time; (emphasis added).
§615(c)(2)(E): "Amended Complaint Notice -
(i) In General - A party may amend its due process complaint notice only if -
(I) the other party consents in writing to such amendment and is given the opportunity to resolve the complaint through a meeting held pursuant to subsection (f)(1)(B); or
(II) the hearing officer grants permission, except that the hearing officer may only grant such permission at any time not later than 5 days before a due process hearing occurs."
The Problem: The due process complaint notice sufficiency provisions and amendment provisions, when read together create ambiguity regarding whether the amendment procedures apply to a party wishing to correct the insufficiency of its original notice. Moreover, because many parents are not represented by legal counsel, the regulations should clarify these provisions in a way that will ensure that the due process complaint procedures protect the right of children with disabilities to receive FAPE, the overarching purpose of IDEA.
Proposed Solution: The most logical reading of Section 615(c)(2)(E) suggests that it only applies when a due process complaint has either been deemed sufficient, see § 615(c)(2)(A), or found to be sufficient by a hearing officer, see § 615(c)(2)(D). Thus, the regulations should clarify that complaint amendment procedures only apply when a complaining party attempts to interject an entirely new issue into the due process hearing after a sufficient complaint has been filed. Moreover, the regulations should clarify that amendments should be liberally granted when it fosters the provision of FAPE, especially when the parent was not represented by counsel.
The purpose of the sufficiency provisions is to ensure the parties obtain the information they need, not to create insurmountable barriers to unrepresented parents. Moreover, the IDEIA is specific about what constitutes a sufficient complaint, and lists all of the mandated information. The regulations should make clear that if the requirements of Section 615(b)(7)(A) are met, the hearing officer can require no more. (e.g., " (I) the name of the child, the address of the residence of the child (or available contact information in the case of a homeless child), and the name of the school the child is attending; (II) in the case of a homeless child or youth (within the meaning of section 725(2) of the McKinney-Vento Homeless Assistance Act, (42 U.S.C. 11434a(2)), available contact information for the child and the name of the school the child is attending; (III) a description of the nature of the problem of the child relating to such proposed initiation or change, including facts relating to such problem; and (IV) a proposed resolution of the problem to the extent known and available to the party at the time.").
The regulations should also make clear that the complaint amendment procedures do not apply when a party expands the information in the complaint in an attempt to correct insufficiency of the original notice per §615(c)(2)(A). However, the timelines for responding to the complaint and initiating a due process hearing will not begin to run until the complaining party has provided a sufficient due process complaint notice.
The Regulations should make clear that the party may also file a new due process complaint that meets the sufficiency requirements. The overarching objective of the IDEA is to ensure that all children receive a free appropriate education. Parties should not be forever blocked from seeking a hearing because their first complaint was insufficient. In addition, changes to the parties' proposed resolution of the problem, which are based on information the party discovers after filing the due process complaint notice, do not require amendment This is because the notice only requires the proposed resolution to the extent known at the time of filing. Solutions to problems can be proposed anytime prior to the decision of the hearing officer.
Relevant Legislative History:
Sufficiency of Complaints: "The committee does not intend for a notice of a due process complaint to reach the level of specificity and detail of a pleading or complaint filed in a court of law. The purpose of the sufficiency requirement is to ensure that the other party, which is generally the school district, will have an awareness and understanding of the issues forming the basis of the complaint." S. Rep. No. 108-185, at 29 (2004), available at http://thomas.loc.gov.
NOTE: since we have notice pleading in federal court, this sufficiency requirement is quite low.
16. The regulations should make clear that when a complaint is revised because of a sufficiency challenge, or is amended pursuant to 615(c)(2)(E), it dates back to the original date of filing for the purpose of Section 615(f)(3)(C).
615(f)(3)(c): TIMELINE FOR REQUESTING HEARING -- A parent or agency shall request an impartial due process hearing within 2 years of the date the parent or agency knew or should have known about the alleged action that forms the basis of the complaint…..
The Problem: Section 615 sets out new procedures for challenging and resolving challenges to a complaint requesting an impartial hearing, and also provides a process for amending complaints. Section 615(c)(2)(E). The statute does not make clear whether the revised or amended complaint relates back to the date the original complaint was filed for purpose of the 2 year statute of limitations.
Proposed Solution: Many unrepresented parents will be struggling to meet these new complaint requirements, and may have to revise or amend their complaints to meet these new standards. However, once the family has filed a complaint - even an insufficient one - the LEA is on notice of the problem and can begin to take corrective action. Nothing is gained, and parents with limited resources and information will be substantially disadvantaged, unless the regulations clarify that the revised or amended complaint dates back to the original filing.
§ 615(d)(1)(A): "A copy of the procedural safeguards available to the parents of a child with a disability shall be given to the parents only 1 time a year, except that a copy also shall be given to the parents -
(i) upon initial referral or parental request for evaluation
(ii) upon the first occurrence of the filing of a complaint under subsection (b)(c); and
(iii) upon request by a parent."
§ 615(d)(1)(B): "Internet Website - A local educational agency may place a current copy of the procedural safeguards notice on its Internet website if such website exists."
The Problem: The IDEIA's language regarding when the procedural safeguards notice must be provided to parents is somewhat confusing. For example, although the statute states that the notice must be provided upon the "first occurrence of the filing of a complaint," local educational agencies may interpret this section as requiring the provision of the procedural safeguards notice only upon the first occurrence of the filing of any complaint. However, a parent may file a due process complaint notice when his or her child was in kindergarten and not file a second due process complaint notice until his or her child is in middle or high school. In this situation, when the second due process complaint is filed, a new set of procedural safeguards should be given to the parents. In addition, although IDEIA permits local educational agencies to post copies of the procedural safeguards on the internet, not all families have access to the internet and it is important to clarify that written copies of the safeguards must be given to the parents under all of the circumstances enumerated in § 615(d)(1)(A).
Proposed Solution: The regulations should clarify that placing the notice on the agency's website does not negate the duty of the district to provide the notice individually to the parent per this provision. Also, if the parent elects to use the three-year IEP process through a State pilot program as explained under Section 614(d)(5), the regulations should clarify that the requirement that the parent receive the notice annually is not affected. Finally, the regulations should state that a copy of the procedural safeguards notice must be provided to the parents at the outset of each parental request for a due process hearing.
Relevant Legislative History:
When discussing procedural safeguards notices, and when they must be mailed to parents, the Senate reports states: "The committee also encourages States and local educational agencies to post their notice of procedural safeguards on their websites." S. Rep. No. 108-185, at 28 (2004), available at http://thomas.loc.gov (emphasis added).
§ 615(e)(2)(F): "Written Agreement - In the case that a resolution is reached to resolve the complaint through the mediation process, the parties shall execute a legally binding agreement that sets forth such resolution and that . . . (iii) is enforceable in any State court of competent jurisdiction or in a district court of the United States."
§ 615(f)(1)(B)(iii): "Written Settlement Agreement - In the case that a resolution is reached to resolve the complaint at a [preliminary due process meeting described in § 615(f)(1)(B)(i)], the parties shall execute a legally binding agreement that is - (II) enforceable in any State court of competent jurisdiction or in a district court of the United States."
The Problem: The tenor of Section 615 of the IDEIA involves minimizing the adversarial nature of disputes between school districts and parents. However, unless the regulations clarify that written mediation agreements and written settlement agreements from preliminary meetings become part of the IEP and are therefore enforceable through State complaint management systems, see 34 C.F.R. §§ 300.660 - .662, parties may believe that the abovementioned provisions provide the only mechanism for enforcing these agreement - litigation in a court of law. Such an interpretation would unnecessarily and demonstrably increase the time and energy that parents and school districts must spend on litigation.
Proposed Solution: The regulations should clarify that written mediation agreements and written settlement agreements forged at preliminary meetings are not only legally binding and enforceable in courts of law, but are also automatically incorporated into the child's IEP and therefore enforceable through state complaint management systems.
19. The Department of Education need not issue regulations setting out the standards under which LEAs can obtain attorneys' fees from parents and parents' lawyers since those standards are already clear in current caselaw interpreting these standards. However, if the Department of Education does issue regulatory clarification, that clarification must accurately reflect the standards under current law.
Section 615(i)(3)(B)(i):
(II) [Attorneys' fees can be awarded] 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 parents who continued to litigate after the litigation clearly became frivolous, unreasonable, or without foundation; or
The Problem: There is extensive caselaw interpreting clause II under Christiansburg v. Equal Employment Opportunity Commission, 434 U.S. 412 (1978) and its progeny. The legislative history makes clear that clause III requires proof of bad faith, and there is case law interpreting this language. Therefore, there is no need for additional regulation. However, if the Department of Education decides to regulate, it must make clear that fees shift under these provisions in accordance with the Christiansburg decision and bad faith case law.
Proposed Solution: Any regulation under these provisions must make clear that LEAs and SEAs can collect fees in IDEIA cases only if the parent's case is frivolous, with absolutely no chance of success, as required by Christiansburg v. EEOC and its progeny, or if the school district proves the parent acted in bad faith. Moreover, the parent's ability to pay is a consideration in such a fee award under these legal standards.
20. The regulations should clarify that, when the LEA and parent agree that a child's misbehavior was a manifestation of his or her disability, the team must conduct a functional behavioral assessment and implement a behavior intervention plan unless a current assessment exists.
§ 615(k)(1)(F): "If the local educational agency, the parent, and relevant members of the IEP Team make the determination that the conduct was a manifestation of the child's disability, the IEP Team shall -
(i) conduct a functional behavioral assessment, and implement a behavioral intervention plan for such child, provided that the local educational agency had not conducted such assessment prior to such determination before the behavior that resulted in a change in placement described in subparagraph (C) or (G);
The Problem: A child with a disability may misbehave in a manner that is a manifestation of his or her disability precisely because the functional behavioral assessment (FBA) conducted by the local educational agency - and the attendant behavior intervention plan - is out of date and inappropriate. Therefore, when a child with a disability's misbehavior is a manifestation of his or her disability, it is imperative that the behavior intervention plan in place for the child be tied to a current FBA.
Proposed Solution: The regulations should clarify that an IEP team must conduct a new FBA and develop an up-to-date behavior intervention plan if a child with a disability misbehaves in a manner that is a manifestation of his or her disability and the FBA is not recent (e.g. more then one year old).
21. The regulations should clarify that, when the LEA and parent agree that a child's misbehavior was a manifestation of his or her disability, the child may not be moved to an interim alternative educational setting without the consent of the parents unless a hearing officer determines that keeping the child in the regular setting is substantially likely to result in injury to the child or others or the child's misbehavior involved weapons, drugs, the infliction of serious bodily injury on another person.
§ 615(k)(1)(F): "If the local educational agency, the parent, and relevant members of the IEP Team make the determination that the conduct was a manifestation of the child's disability, the IEP Team shall -
…(iii) except as provided in subparagraph (G), 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 behavioral intervention plan."
§ 615(k)(1)(G): "Special Circumstances - School personnel may remove a student to an interim alternative educational setting for not more than 45 school days without regard to whether the behavior is determined to be a manifestation of the child's disability, in cases where a child -
(i) carries or possesses a weapon to or at school, on school premises, or to or at a school function under the jurisdiction of a State or local educational agency;
(ii) knowingly possesses or uses illegal drugs, or sells or solicits the sale of a controlled substance, while at school, on school premises, or at a school function under the jurisdiction of a State or local educational agency; or
(iii) has inflicted serious bodily injury upon another person while at school, on school premises or at a school function under the jurisdiction of a State or local educational agency.
§ 615(k)(3)(A): " . . . a local education agency that believes that maintaining the current placement of the child is substantially likely to result in injury to the child or to others, may request a hearing."
§ 615(k)(3)(B)(ii): "In [deciding an appeal under § 615(k)(3)(A)], the hearing officer may . . . (II) order a change in placement of a child with a disability to an appropriate interim alternative educational setting for not more than 45 school days if the hearing officer determinates that maintaining the current placement of such child is substantially likely to result in injury to the child or to others."
Problem: The IDEIA statutory language regarding the disciplinary procedures applicable to children with disabilities is extremely complex and confusing. In the regulatory process, it is critical to recognize that Congress explicitly enumerated, in § 615(k)(3)(A), the only situations where a student with a disability whose behavior was a manifestation of his or her disability could nevertheless be removed to an interim alternative educational setting without the parents' consent (i.e., incidents involving weapons, drugs, and the infliction of serious bodily injury on another person).
Proposed Solution: While school districts may wish to have such students removed to interim alternative educational settings in other situations (i.e., where the district "believes that maintaining the current placement of the child is substantially likely to result in injury to the child or to others," §615(k)(3)(A)), the regulations must clarify that the district does not have the authority to change the child's placement unilaterally unless the family and the district agree that the child's conduct was not a manifestation of his disability. Instead, the district must request a hearing and provide sufficient evidence to lead a hearing officer to conclude that the conduct was not a manifestation of the disability or that injury to the child or to others is "substantially likely" to occur. §615(k)(3)(B)(ii)(II).
§615(k)(5)(A): IN GENERAL. -- A child who has not been determined to be eligible for special education and related services under this part and who has engaged in behavior that violates a code of student conduct may assert any of the protections provided for in this part if the LEA had knowledge (as determined in accordance with this paragraph) that the child was a child with a disability before the behavior that precipitated the disciplinary action occurred.
§615(k)(5)(A): EXCEPTION. -- A LEA shall not be deemed to have knowledge that the child is a child with a disability if .. the child has been evaluated and it was determined that the child was not a child with a disability.
Problem: This provision does not clarify that a finding of ineligibility based on a out-dated evaluated cannot be the basis for an exception under this provision.
Proposed Solution: The regulations should clarify that a finding of ineligibility based on an evaluation that is more than 3 years old cannot be the basis for an exception under the provision.
23. The regulations must clarify that the content of an IEP shall be consistent with the existing requirements for academic standards, achievement standards, and student assessments under the No Child Left Behind Act (NCLB) and its implementing regulations.
Section 614(d)(1)(A) defines the term "individualized education program" (IEP) to mean a written statement that includes the identification and explanation of numerous items. Some of the necessary IEP items include the child's "present levels of academic achievement,"
§614(d)(1)(A)(i)(I), the child's expected "involvement and progress in the general education curriculum," § 614(d)(1)(A)(i)(I)(aa) and (II)(aa), the services and accommodations needed to meet annual academic goals, see §614(d)(1)(A)(i)(IV), and the child's participation in State and district assessments, see §614(d)(1)(A)(i)(VI).
NCLB and its implementing regulations contain numerous provisions that are interrelated with these requirements. Most importantly, NCLB requires public schools to apply, for all students including students with disabilities, the same academic content and student academic achievement standards and to assess most students with disabilities using general student assessments. Appropriate accommodations or alternatives may be considered on an individual basis through the IEP process for each student with a disability. See 20 U.S.C. § 6311; 34 C.F.R. §§200.1 and 200.6.
The Problem: The interrelated requirements of IDEIA and NCLB are not in conflict, but the requirements are fairly complex and may be easily subject to misinterpretation. Without regulatory guidance, local educators may incorrectly read the IDEIA rules for IEPs without reference to basic NCLB mandates. The risk of an inappropriately narrow interpretation of the IDEIA rules for IEPs is enhanced by the rule of construction contained in Section 614(d)(1)(A)(ii), supporting the movement towards limiting the length of IEP documents. The rule of construction includes the possibly misleading phrase, "Nothing in this section shall be construed to require that additional information be included in a child's IEP beyond what is explicitly required in this section." Regulatory guidance is needed to ensure that relevant NCLB mandates are not overlooked in the IEP process.
Proposed Solution: The IDEIA regulations for IEPs must make explicit reference to related mandates of NCLB in order to preserve Congress's intent in both statutes, to provide accurate guidance for educators as they prepare IEPs, and to protect the existing rights of children with disabilities.
First, the regulations should clarify that "the child's present levels of academic achievement" shall be determined by a variety of measures, not merely standardized test scores. NCLB and its implementing regulations require schools to provide and evaluate academic achievement for all students based on "the same academic standards," including both standardized assessments and academic standards for each subject and grade level that specify the "knowledge, skills, and levels of achievement expected of all students." 34 C.F.R. §200.1(a); see S. Rep. No. 108-185, at 24 (2004), available at http://thomas.loc.gov ("The committee believes that it is important to emphasize academic achievement, consistent with NCLB . . . .").
Second, the regulations should clarify that the IDEIA phrase "progress in the general education curriculum" means, as explained in NCLB, progress under "the same academic standards that the State applies to all public schools and public school students in the State." 34 C.F.R. § 200.1(a)(1); see S. Rep. No. 108-185, at 25 (2004), available at http://thomas.loc.gov ("For most students with disabilities, many of their IEP goals will likely conform to State and district wide academic content standards and progress indicators consistent with standards based reform within education and the new requirements of NCLB."). Thus, the regulations must conform to the existing NCLB definition of "challenging academic content standards" in each grade, which "specify what all students are expected to know and be able to do; contain coherent and rigorous content; and encourage the teaching of advanced skills." 34 C.F.R. § 200.1(b)(1); see S. Rep. No. 108-185, at 15 (2004), available at http:///thomas.loc.gov ("[The bill] makes a series of significant modifications to reflect the important changes to accountability that were enacted under the No Child Left Behind Act. NCLB established a rigorous accountability system for States and local educational agencies to ensure that all children, including children with disabilities, are held to high academic achievement standards . . . .").
Third, the regulations should clarify that the "annual academic goals" in an IEP shall be determined with regard to the academic content standards, student achievement standards, and standardized assessments required for all students under NCLB and its implementing regulations, and should be lowered only to the extent that the IEP team agrees that the student's disability requires a lower standard in one or more areas. 34 C.F.R. §§ 200.1 and 200.6. Establishing annual academic goals without reference to these basic NCLB mandates would violate Congressional intent. See, supra, S. Rep. No. 108-185, at 25 (2004), available at http://thomas.loc.gov.
Fourth, the regulations should clarify that the IEP statement regarding "State and districtwide assessments" shall refer to the assessments established by the State or district "for the grade in which the student is enrolled." 34 C.F.R. § 200.6(a)(1)(i) (emphasis added); see S. Rep. No. 108-185, at 25 (2004), available at http://thomas.loc.gov ("The committee expects local educational agencies to test their students with disabilities using State or districtwide assessments administered to children without disabilities."). In addition, the regulations should clarify that, when making and explaining its determination about assessments, the IEP team shall consider whether the child can "participate in all or part of the State assessments . . . with appropriate accommodations." 34 C.F.R. § 200.6(a)(2)(i) (emphasis added). See generally S. Rep. No. 108-185, at 16 (2004), available at http://thomas.loc.gov (explaining the importance of following NCLB's guidelines in interpreting the IDEIA's provisions regarding participation in assessments). These assessment details have already been promulgated as crucial elements of NCLB and its implementing regulations, and must be incorporated in the IDEIA regulations to ensure consistency.
We greatly appreciate the opportunity to provide this early feedback on the regulations. Please feel free to contact Elizabeth A. Greczek at (202) 408-9514 or Elizabeth.Greczek@napas.org for any necessary clarification.
Sincerely,
Curtis Decker
Executive Director
NAPAS
National Association of Protection & Advocacy Systems, Inc.
900 Second Street, NE, Suite 211
Washington, DC 20002-3560
(202) 408-9514 FAX: (202) 408-9520 TTY: (202) 408-9521
Website: http://www.napas.org
E-Mail: info@napas.org
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