Neighborhood Legal Services, Inc.

Synopsis of the New IDEA Regulations
34 CFR Part 300

    On March 12, 1999, OSEP finally issued the new Part 300 regulations. We plan a fuller analysis in our next newsletter. However, a few brief observations can be made at this point.

    OSEP continues to view IDEA >97 as significantly shifting the focus of an appropriate education. In a cover memo to the regulations, OSEP made the following comment: AThe focus of IDEA changed from one that merely provided disabled children access to an education to one that improves results for all children in our education system.@ IDEAs that Work: IDEA >97 Final Regulations, an Overview, p. 1.

    The effective date of the regulations is May 11, 1999, but compliance is not required until the receipt of fiscal 1999 money, expected to be about July 1, 1999, or by October 1, 1999, whichever is earlier. Federal Register, 3/12/99, p. 12406. The regulations incorporate changes made by IDEA >97 as well as longstanding interpretations of IDEA by OSEP. Id.

    All notes have been eliminated. Their content has either been incorporated in the text of the regulation, added within Appendix A (which replaces Appendix C), or included in the AAnalysis of Changes and Comments,@ Attachment 1. Attachment 3 indicates what happened to each note. Attachments will not be included in the C.F.R. Id., p. 12407.

    What follows are highlights of a few of the changes from the proposed regulations to the final regulations.

• Attention Deficit Disorder and Attention Deficit Hyperactivity Disorder have been added as examples within the definition of other health impaired. 34 C.F.R. ' 300.7(c)(9).
  
  
• The definition of parent counseling and training now includes helping parents to acquire the necessary skills Ato support the implementation of their child=s IEP or IFSP.@ Id. at ' 300.24(b)(7)(iii).
  
  
• AEach State must have a mechanism for serving children with disabilities if instructional needs exceed available (qualified) personnel, including addressing those shortages in its comprehensive system of personnel development if the shortages continue.@ Federal Register, 3/12/99, p. 12408, regarding 34 C.F.R. ' 300.136(g)(3). Thanks Tim Sindelar.
  
  
• Provisions for the use of public insurance (medicaid) have been added, as well as for private insurance. Id. at ' 300.142(e) and (f).
  
  
• AT may be provided in the home or other settings, if it is necessary to provide a FAPE. Id. at ' 300.308(b).
  
  
• Extended school year services (ESY) are required if the IEP Team determines they are necessary to receive a FAPE. (This seems more expansive than solely to prevent substantial regression.) A District cannot Alimit ESY services to particular categories of disability or unilaterally limit the type, amount, or duration of these services. Federal Register, 3/12/99, p. 12409, regarding 34 C.F.R. ' 300. 309.
  
  
• Each teacher or service provider must have access to the child=s IEP and be informed of their specific responsibilities under the IEP. Id. at ' 300.342(b).
  
  
• The Ageneral curriculum@ is defined as the same curriculum as for nondisabled children. See Id. at ' 300.347(a)(2)(i). But, student=s with disabilities cannot be removed from an age-appropriate regular education classroom Asolely because of modifications in the general curriculum.@ Id. at ' 300.552(e). Thanks Julie Lippman.
  
  
• The standard for determining the appropriateness of a unilateral placement includes a finding that the parents= selected placement is appropriate. Id. at ' 300.403(c).
  
  
• Children enrolled by their parents in private or parochial schools no longer have an IEP. They have a Aservices plan.@ Id. at ' 300.452(b). However, ASEAs and LEAs are not prohibited from providing services to private school children with disabilities beyond those required by this part, consistent with State law or local policy.@ Federal Register, 3/12/99, p. 12410, regarding 34 C.F.R. ' 300.453(d).
  
  
• A District cannot use a parent=s refusal to consent to one service or benefit as a basis to deny another service or benefit. Id. at ' 300.505(e).
  
  
• The discipline regulations have been revised and include a provision that removals from school for separate acts of misconduct which cumulate more than 10 days are not automatically a change in placement triggering a manifestation review. Id. at ' 300.520(a)(1)(i). But, as of the 11^th day of removal from school in a given year, the District must continue to provide services to enable the child to meet the IEP goals. Id. at '' 300.121(d)(2) and 300.520(a)(1)(ii).
  
  
• A reevaluation is not required before a child graduates or ages out. Id. at ' 300.534(c)(2).

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