Illinois has published its final regulations implementing IDEA 2004. The regulations are a mixed bag to say the least. Eliminating pages through cross referencing to the Federal regulations in the name of making regulations shorter but at the same time less understandable to the average lay person. The most controversial aspect of the new regulations is that they remove clear restrictions on the size of caseloads that service providers can maintain. Many disability organizations have raised serious concerns (see related posting seeking public action.) The local news coverage discusses the potentially negative effect of these proposed regulations.
I have reviewed the websites for a number of Departments of Education and most states have not taken up the issue of new state regulations to implement IDEA 2004, with Texas and Tennessee, being notable exceptions.
Virginia appears to be gearing up for promulgating new regulations under IDEA 2004. Now is the time to advocate in Virginia and other states for a set of regulations that do not diminish, confuse, or dilute protections for special education students. New York has also proposed new state regulations–http://www.vesid.nysed.gov/specialed/idea/home.html.
Below is the a useful summary from my friend and fellow attorney Sandy Alperstein, volunteer Co-Webmaster of www.ourchildrenleftbehind.com, outlining the proposed changes to the Illinois regulations:
1. RTI (response to intervention) … Like federal law (IDEA 2004), the Illinois version states that RTI is not to be used to delay a special education evaluation. Rather, RTI would be used as part of that evaluation. Schools are required to use RTI but may also use discrepancy analysis if they so choose. There is no specific definition of RTI or any time frame associated with its various tiers.
2. Class size/caseload limits … (this is the area that garnered by far the most public comments). Case load limits have been eliminated under the rationale that configurations are so varied that these decisions should be left to local school districts rather than being decided on a statewide basis. Class size limits have been changed to become non-categorical. In other words, class size limits will be based not on the student’s disability category or severity of need, but rather on the percentage of time the student is removed from the general education classroom. According to ISBE, this may result in some students having larger class sizes, while others will have smaller class sizes. Examples and discussion are contained in this section of the memo.
3. [A]fter public outcry, ISBE has backed off its proposal to change the definition of regular education classroom to include up to 40% of students with IEPs – instead they have gone back to the current limit of 30%.
4. The category of “developmental delay” has been extended from the current age of 5 up to the federal limit of 9 years old (ISBE had suggested 7, but the new proposal has it raised to 9).
5. Short term objectives/benchmarks (STO’s) have been retained for all students (as opposed to IDEA 2004, which eliminated them for all but the students who take alternate assessments).
6. Transition planning age has been retained at 14 ½ years old (as opposed to IDEA 2004 which raised the age to 16).
7. Various timelines that utilized regular “days” now utilize “school days” (e.g., 60 school days to complete a special education evaluation, in discipline context, hearing officer can remove student to interim alternate placement for 45 school days).
Arguably most of these points with the notable exception of number 2 are to the positive or neutral relative to the status quo. There are also some concerns as to the mechanics of implementing RTI. Given the the inherent conservative nature of schools, RTI will likely continue to be the exception not the rule in most cases. Nevertheless, the class size/caseload limits can and may have a major negative effect on students and is an area that requires amendment. My thoughts are that left to their own devices, some schools will create caseloads so large that simple math will indicate that the IEP is not being fully implemented. That means parents will have a good due process claim after the damage is done.