The new law has brought many changes that will take years to sort out. There are points that will not be satisfactory to parents in areas such as manifestation determinations for disciplinary matters, and school districts have already expressed displeasure with the requirements for personnel to become “highly qualified.” The changes in the law are significant and important. However, of equal importance is that good solid advocacy—asking questions, getting evaluations, being prepared, and documenting in writing issues and concerns, to state a few–remains constant and paramount. Click the link below to read the main topics in IDEA 2004 that I believe parents need to know immediately:
Summary of Some Main Points in IDEA 2004
By Charles P. Fox, Attorney at Law
Disclaimer: IDEA 2004 is
new and has not been construed in the courts, so the points below should be
viewed as generalizations only and not specific legal advice. In addition, the
changes to the law discussed below are meant to be only an overview. There are
numerous websites that reproduce the entire law with detailed summaries.
implementing regulations further defining the law may take up to 2 years based
upon past timelines.- Initial evaluations must be completed within 60 days – not school days or per a timeline determined by the state. It is not clear whether the timeline for
reevaluation is also going to be 60 days or not. - The learning disability definition has
changed significantly. States are no longer required to use a severe
discrepancy analysis, albeit they may continue with this type of analysis.
Instead, schools may use a process that determines whether a child responds to
scientific/research-based interventions as part of the evaluation process.
The new acronym will be “RTI” for “responds to therapeutic intervention.” This
is an area for much debate, likely open for litigation. - Benchmarks and short terms objectives
are no longer required, but there needs to be some indication of progress.
Evaluation procedures and criteria in the IEP will become more critical, and
outside testing more frequent. (e.g. achievement testing). For students who
take alternative assessments, short term objectives and benchmarks remain. - Transition planning begins at 16, not
14. If there is a more obvious need to work on transition issues, it
may still pay to advocate for earlier planning than 16. - Upon parental written
consent IEP team members may be excused. In lieu of atendance, or
reports in writing may be allowed. - Amendments to the IEP may be made
without the need for follow up meetings. This provision is not
entirely clear and may cause litigation. For instance, it is no clear whether
very material changes be made without a meeting, or only minor clerical changes
(which is often the case now) - Conference calling for IEP
meetings, mediations and other meetings is now officially permitted upon
agreement of the parties. - A 2 year statute of limitations is now
specified and must be stated in the procedural safeguards notice, except a
state may provide for a shorter period.
consistently had a 2 year statute. Exceptions to the running of the statute are
expressly provided for in situations where the parents are deceived. - Due process complaints must follow
statutory guidelines and may be challenged for insufficiency. Amendments to the
due process complaint are subject to agreement or hearing officer discretion.
Liberal amendments should be permitted as long as they are timely. However,
this provision is a tool that schools could use to lock parents into poorly
worded due process complaints. - The school district (or the
parents if they are the recipient of the due process) must respond in a
manner that specifically addresses the issues in the complaint. At last, a
provision that mandates schools lay out their position. Too often at due
process schools shift their position as the hearing unfolds. On the other hand,
parents will be required to state their allegations in a way that schools can
specifically respond. - Mediation agreements are legally
binding in state or federal court.
now legally mandated. The school is not permitted to bring a lawyer unless the
parents bring a lawyer. The school must have a person present who has authority
to bind the school district. Relevant IEP team members may be present for this
session. There will be a 3 day “cooling off” period following the session
during which the agreement can be rescinded. Though, such sessions can be
good vehicles for resolution, they can also be abused. One the one hand,
schools may use them to gather information and intimidate parents. Parents may
find it hard to sit with school people right after filing due process (remember
that conference calling is permitted). On the other hand, schools will need to
show some of their cards as well. No attorney fees may be awarded for these
sessions.- Procedural FAPE violations are limited to claims
where the procedural violation denies parental participation, impeded the right
to FAPE or caused a deprivation of educational benefits. This is a recap of the
law as it exists currently, and it is helpful in many ways. This provision
emphasizes that minor or technical procedural violations do not deny FAPE. - Appeals must be
filed within 90 days, not 120 days as is the current law in - Procedural safeguard notice will
generally only be given once a year. - Attorneys fees may be shifted to
parents and their attorneys where due process is unreasonable, frivolous
or without foundation. This is a major change in the law!
While the number of cases that will fall into this category is very small,
schools will use this threat to intimidate parents–especially unrepresented
parents. Fees should not be shifted in garden variety cases where a parent
files due process with a sound basis, puts on a good case, and loses. This
provision applies to the exceptional case where the parent brought a case or
pursued a case without legal or factual foundation. Expect letters from school
district lawyers wielding this provision as a stick even where it is not
warranted. - There have been major changes to the
manifestation determination rules for determining if a behavioral
infraction is a manifestation of the child’s disability. First, an editorial
comment, while this provision has been weakened, there was a lot political
pressure to scrap it altogether. Thus, it is an imperfect compromise, but
better than the alternative. Keep in mind the following information about
the rules::- The rule allows for case by case determinations — a possible bulwark against “zero tolerance”.
- The burden of proof is on parents to show manifestation.
- The rules no longer require determinations as to whether the IEP or placement is inappropriate.
- Lack of IEP implementation is still relevant.
- The exceptions to “stay put“ now include serious bodily injury.
- The rule allows for case by case determinations — a possible bulwark against “zero tolerance”.
- States must complete a “performance
plan” to address compliance issues. It remains to be seen if this will actually
increase the effectiveness of enforcement. - Children can not be barred
from school for failing to take medications such as Ritalin or Concerta. - Teachers and
paraprofessionals will need to become “highly qualified.” This is an
area that is still being sorted out under No Child Left Behind. Questions about
qualifications and training have always been relevant areas of inquiry, but
even more so now under the new law. Schools should reveal these
trainings/qualifications, but they may still object on grounds of personnel
confidentiality. - Assistive technology still has a
prominent role in the Act. The term “Universal Design“ is newly
inserted, which emphasizes the need for accessible technology. - The term “appropriate
accommodations” relating to testing is inserted but not defined. Given the
amount of testing called for in the Act, this will be an area for litigation. - Perhaps the most cryptic
term in the new Act is that for States that provide Early Intervention
services for children 3-5 (Illinois), FAPE is not required.
The standard is not stated. Much litigation on this point can be expected.