Administrative Advisory SPED 2006-1: Reauthorization of the Individuals with Disabilities Education Act --Initial Implications for School District Practices
|To:||Special Education Administrators, Directors of Collaboratives, Directors of Approved|
Special Education Schools, and Other Interested Parties
State Director of Special Education
|Date:||August 1, 2005|
The purpose of this advisory is to highlight several key changes in federal special education law, the Individuals with Disabilities Education Improvement Act (IDEA-2004) that became effective on July 1, 2005. The full text of the new law is available at the U.S. Department of Education's (USDE) website.
Proposed regulations to implement IDEA-2004 were published by the USDE in the Federal Register on June 21, 2005. Interested parties may submit written comments or suggestions to the USDE's Office of Special Education and Rehabilitative Services (OSERS) by September 6, 2005. To view a copy of the proposed federal regulations, and to find out more about how to submit public comment, please review information available at the U.S. Department of Education's (USDE) website.
Changes under IDEA-2004 are intended to "help children learn better by promoting accountability for results, enhancing parent involvement, using proven practices and materials, providing more flexibility, and reducing paperwork burdens for teachers, states, and local school districts." The law is designed to ensure that all students with disabilities have access to a free appropriate public education, including special education and related services that are "designed to meet their unique needs and prepare them for further education, employment, and independent living." 20 U.S.C. 1401(d)(1)(A).
In the spring of 2005, the Massachusetts Department of Elementary and Secondary Education (the Department) conducted regional trainings for school personnel highlighting key changes under IDEA-2004. The materials presented at the trainings, including a PowerPoint overview of changes under the law, are posted on the Department's website. In addition, the Department has prepared the following chart highlighting some of the key changes under IDEA-2004 and describing the impact of these changes on current school district practices. Please note: In item number four of the chart below, school districts are required to continue to use objectives or benchmarks for all students. This requirement is changed from the information that was provided during the Department's spring training.
In the following chart, citations to IDEA-2004 (Public Law 108-446) and to the proposed federal regulations are included for your reference. Please note that citations to the IDEA-2004 statute refer to its Public Law number and applicable section. References to the proposed regulations released by the USDE for public comment are included only for your information. USDE has indicated its intent to issue final regulations by the end of calendar year 2005.
This chart does not include all of the changes under IDEA-2004. The Department recommends that you consult the statute and proposed regulations, and your school's or district's legal counsel, for additional information. In addition, the Department strongly encourages you to use these materials to conduct trainings with your staff to enable them to implement successfully these new federal special education requirements. The order in which this information is presented generally follows the order in which it appears in the statute. The items are numbered for your convenience.
| ||Topic||Federal IDEA-2004 Requirements||Massachusetts Implementation Comments for 2005-2006|
|1.||Highly qualified Special Education Teachers
||Highly qualified (HQ) standards for special education teachers under IDEA-2004 are consistent with the HQ standards for teachers under No Child Left Behind (NCLB), with some additional flexibility in ways to become HQ. There are additional requirements for consultative teachers, teachers exclusively teaching students assessed under alternative achievement standards, and paraprofessionals. For additional guidance, see Administrative Advisory SPED 2005-1. (Authority: P.L. 108-446, Section 602(10). See proposed regulation 300.18(g).)
LEAs must take measurable steps to recruit, hire, train and retain highly qualified personnel to provide special education and related services (Authority: P.L. 108-446, Section 612(a)(14)(D). See proposed regulation 300.156(d).)
|Regulations proposed by USDE state that the HQ requirements do not apply to private elementary and secondary schools, including teachers in approved private special education schools serving publicly funded students.|
The federally funded special education grant program (grant #274) administered by the Department is available to all districts this year and is aimed at induction and mentoring activities. This grant may be used to demonstrate the required "measurable steps."
||Schools may not require that a student obtain or use a prescription medication as a condition of attending school, receiving a special education evaluation, or receiving special education services. (Authority: P.L. 108-446, Section 612(a)(25). See proposed regulation 300.174.)
||This new language in IDEA-2004 affirms current requirements regarding non-discriminatory practice by districts.|
|3.||Evaluations and Reevaluations
||An initial evaluation (including determining eligibility and making appropriate special education and related services available) must be conducted within 60 calendar days of receiving parental consent for the evaluation, or within another timeframe if established by the state. (Authority: P.L. 108-446, Section 614(a). See proposed regulation 300.301(c).)
Assessments and evaluation materials must be "provided and administered in the language and form most likely to yield accurate information on what the student knows and can do academically, developmentally, and functionally, unless it is not feasible to so provide or administer." (Authority: P.L. 108-446, Section 614(b)(3). See proposed regulation 300.304(c)(1)(iii).)
Reevaluation can occur no more than once per year, and must occur at least every three years, unless the school district and the parent agree otherwise. (Authority: P.L. 108-446, Section 614(a)(2). See proposed regulation 300.303.)
|Massachusetts law requires evaluations to be completed within 30 working days of a parent's consent, and determination of a student's special education needs to be made within 45 days of consent. Because Massachusetts has established its own timelines, no change in practice is required. See M.G.L. c. 71B, 3; 603 CMR 28.05(1).|
This federal language about native language assessments represents an acknowledgement of increasing diversity in schools, and an understanding that providing assessments in a student's native language may not always be reliable or feasible. School districts are expected to make careful determinations about the types of assessments for all students and to ensure that such determinations are individualized for each student. See also : Guidance for Implementing IDEA 2004 - Evaluations webpage.
||IEPs for all students must include a statement of measurable annual goals, including academic and functional goals. Benchmarks or short-term objectives must be included in an IEP for a student with significant cognitive disabilities. All IEPs must contain a written description of how the student's progress toward meeting annual goals will be measured, and when periodic written reports will be issued. (Authority: P.L. 108-446, Section 614(d). See proposed regulation 300.320(a)(2) & (3).)
Parents and school districts may agree to amend or modify an IEP without convening the Team after the annual IEP meeting for the school year, without needing to redraft the entire IEP. (Authority: P.L. 108-446, Section 614(d)(3)(D). See proposed regulation 300.324(a)(4).)
For additional changes regarding the development, review and revision of IEPs, see P.L. 108-446, Sections 612 & 614, and proposed regulations 300.320-300.328.
|The Department requires school districts to continue to use benchmarks or short-term objectives for all students to address the federal requirement for describing how progress will be measured.|
Amendments or modifications to the IEP must be documented in writing, and the parent has the right to request a copy of the revised IEP with the accepted amendments.
Additional information is available at: Guidance for Implementing IDEA 2004 - The IEP webpage.
||Transition planning must take place and, if needed, the Team must include appropriate goals related to postsecondary training, education, employment, and independent living skills in the student's IEP that is in effect when the student turns 16 years of age, or younger if determined by the Team. (Authority: P.L. 108-446, Section 614(d). See proposed regulation 300.320(b).)
||With the passage of Chapter 285 of the Acts of 2008 , in Massachusetts transition planning must now begin when the student is 14 years of age. Therefore, Massachusetts now requires that beginning when the eligible student is 14, the school district must plan for the student's need for transition services and the school district must document this discussion annually. The student must be invited to that Team meeting and to all subsequent meetings at which transition plans are discussed. The Department has created a form for documenting the Team's transition discussion. For additional information, please see the Transition From School To Adult Life.|
||Parents and school districts can agree to use "alternative means of meeting participation," including videoconferences, conference calls, or virtual meetings. (Authority: P.L. 108-446, Section 614(f). See proposed regulation 300.328.)
A member of the IEP Team may be excused from attending a meeting if the parents and the school district agree in writing, and if the Team member submits written input prior to the meeting. (Authority: P.L. 108-446, Section 614(d)(1)(c). See proposed regulation 300.321(e).)
|Although this flexibility has occasionally been exercised in the past, the IDEA has not
contained explicit authorizing language until IDEA-2004.|
School districts must ensure that the parents' agreement to excuse a Team member is recorded in writing and kept in the student file. For additional information, see: Guidance for Implementing IDEA 2004 - The IEP webpage.
|7.||Students Moving to Massachusetts
||If a student with a disability moves to Massachusetts from out of state, the Massachusetts school district, in consultation with the student's parents, must provide the student with services comparable to those on the IEP prepared by the former school district until it evaluates the student and develops a new IEP, if necessary. (Authority: P.L. 108-446, Section 614(d)(2)(c). See proposed regulation 300.323(e).)
||This requirement is reflected also in the changes to state regulations, at 603 CMR 28.03(1)(c).|
|8.||Specific Learning Disabilities
||In evaluating a student suspected of having a specific learning disability, states and school districts may use a process that determines if a student responds to scientific research-based interventions as part of the evaluation process, or may use other alternative research-based procedures. States may not require school districts to use a "severe discrepancy" model - assessing whether there is a severe discrepancy between the student's intellectual ability and achievement - to determine whether a student has a specific learning disability and is eligible for special education and related services. (Authority: 20 U.S.C. 1221e-3; P.L. 108-446, Sections 602(30), 614(b)(6). See proposed regulation 300.307.)
Additional information is available at: Guidance for Implementing IDEA 2004 - Specific Learning Disability webpage.
|School districts are encouraged to consider if they will incorporate a "response-to-intervention"(RTI) model as part of their evaluation process (conducted within applicable timelines). Use of an RTI program cannot delay evaluation if the parent requests that evaluation take place. |
Although use of a "severe discrepancy model" is no longer required, such a model may be used as one element of the evaluation of students suspected of having a Specific Learning Disability.
Until final regulations are issued, the Department recommends that school districts maintain written documentation of the discussion on eligibility for special education on the basis of a Specific Learning Disability.
|9.||Summary of Performance Reports
||Districts must provide a student who is no longer eligible for special education because of graduation or exceeding the age of eligibility, with a summary of his or her academic and functional performance, and recommendations on how to meet the student's postsecondary goals. (Authority: P.L. 108-446, Section 614(c)(5)(B)(ii). See proposed regulation 300.305(e)(3).)
||The Department has prepared a recommended format for this report that is available at Guidance for Implementing IDEA 2004 - Evaluations webpage.|
|10.||Educational Surrogate Parents (ESPs)
||School districts are required to actively and promptly seek appointment of ESPs for students in their district who require them, particularly unaccompanied homeless youth and students without foster parents who are in DSS custody, who need or may need special education services. (Authority: P.L. 108-446, Section 615(b)(2). See proposed regulation 300.519.)
||When school districts make a request for an ESP to the state ESP program, they are encouraged to identify possible individuals to serve in the role. See 603 CMR 28.07(7). Additional information about the Educational Surrogate Parent Program is available at: Special Education Surrogate Parent (SESP) Program letter|
||IDEA 2004 provides increased flexibility for districts in the "maintenance of effort" or "non-supplanting" requirement. In any fiscal year in which the district's IDEA funds are increased above the amount that it received in the previous year, the district may reduce its state and local spending for special education by up to 50% of the increase from the previous year's amount. (Authority: P.L. 108-446, Section 613(a)(2)(C)(i). See proposed regulation 300.205.)
Also, a district is permitted to use up to 15% of its total federal special education funds (less any amount reduced under the exception above) to develop and implement instructional support services for students who are not identified as eligible for special education, but who need additional academic and behavioral support. These instructional support services are referred to in IDEA-2004 as "early intervening services." (Authority: P.L. 108-446, Section 613(f). See proposed regulation 300.226.)
If the state makes a finding against a school district for "significant disproportionality based on race and ethnicity" in identification, program, or placement for students with disabilities, the state will require the district to use this "instructional support" funding (15% of the 240 grant) to address the finding. (Authority: P.L. 108-446, Section 618(d)(2)(b).) The Department will maintain records as part of its oversight of the non-supplanting requirement. Note that the Department has authority to limit this flexibility for districts experiencing significant non-compliance issues.
|If school districts choose to use funds for instructional support, then the amount of funds available for the offset to the non-supplanting requirement will be reduced. |
IDEA-2004 requires that a district maintain data on the instructional support services it provides, the number of students served, and the number of students subsequently requiring special education.
Districts must submit to the Department a Notice of Intent to Use Federal Special Education Entitlement Funds for Instructional Support (Early Intervening) Services. A copy of this form is available at: Guidance for Implementing IDEA 2004 - Early Intervening/Instructional Support Services webpage.
If the Department requires use of the flexibility provided under IDEA-2004 to address a finding of disproportionality, no other "instructional support" activities may be funded with federal special education entitlement grant funds during the period of corrective action.
||IDEA-2004 establishes a 2-year statute of limitations for initiating a due process hearing, and 90-days for filing a civil action in court to appeal a hearing decision. (Authority: P.L. 108-446, Section 615(b)(6) & 615(i)(2)(B). See proposed regulations 300.507(a)(2) & 300.516.)
The request for a hearing (called a "due process complaint notice in IDEA-2004) must contain specific elements, including a description of the problem that is the basis for the request, facts related to that problem, and a proposed resolution. In addition, a party filing the request for hearing must send a copy of it to the other party(ies). (Authority: P.L. 108-446, Section 615(c). See proposed regulation 300.508.)
When a parent requests a hearing, the school district must convene a meeting with the parents and relevant Team members within 15 days. The purpose of the meeting, known as a "resolution session," is to try to resolve the matter. The meeting can be waived only if the school district and parents agree to waive it, or if the parties agree to go to mediation. If the parties do not resolve the matter to the parents' satisfaction within 30 days, the due process hearing will move forward. Any written settlement agreement signed by the parties is enforceable in court. (Authority: P.L. 108-446, 615(f)(1)(B). See proposed regulation 300.510.)
For additional information on changes regarding the awarding of attorney's fees, hearings generally and decisions of the hearing officer, please consult P.L. 108-446, Section 615, and proposed regulations 300.513-300.517.
|These two new statutes of limitations will be incorporated into a revised Interim Notice of Procedural Safeguards, which the Department will make available soon. |
The Bureau of Special Education Appeals (BSEA) is developing a hearing request form that contains the required elements, to be used by parties filing a request for hearing. See information available at Bureau of Special Education Appeals (BSEA) webpage.
The BSEA has made available information on the federal requirements for requesting a hearing, participating in a resolution session, and participating in mediation, as well as information on the conduct of the hearing and other procedural safeguard requirements. See Bureau of Special Education Appeals (BSEA).
|13.||Paperwork Reduction - Notice Requirements
||The notice of procedural safeguards must be provided to parents once per year. It must also be provided when an initial evaluation is requested by the parent or another person, and upon the parent's request. (Authority: P.L. 108-446, Section 615(d). See proposed regulation 300.504.)
A parent may request that the district send all required notices via electronic mail, if the district makes that option available. (Authority: P.L. 108-446, Section 615(n). See proposed regulation 300.505.)
|The Department recommends that school districts identify a specific date each year when every eligible student enrolled in the district, including those in out-of-district placements, will be sent a copy of the notice of procedural safeguards (currently known as the Parent's Rights Brochure). |
As noted above, an interim revision to the Notice of Procedural Safeguards is being prepared by the Department and will be made available soon. A final revision will follow the issuance of final federal regulations under IDEA-2004.
|14.||Paperwork Reduction - Data Reports
||USDE has authorized states to choose the date on which districts report required data. This flexibility is reflected in the proposed regulations, allowing the state to choose any date between October 1 and December 1. The IDEA-2004 statute does not require a specific date for such reporting. (Authority: P.L. 108-446, Section 618(a) & (b). See proposed regulations 300.640 & 300.641.)
||For the 2005-6 school year, no reporting of December 1 SIMS data ("December count") will be required. The October 1 SIMS data will be used to report to USDE. The Department will provide training and reminders to districts to ensure that full and complete reporting is made in the October SIMS data.|
||The district must conduct a manifestation determination if the student will be removed for more than 10 consecutive school days, or if the removal is a change in placement. The manifestation determination must determine if the conduct in question was "caused by, or had a direct and substantial relationship to, the child's disability…or was a direct result of the LEA's failure to implement the IEP." (Authority: P.L. 108-446, Section 615(k)(1)(E) & (F). See proposed regulation 300.530(e).)
School officials may place a student in an alternative setting for up to 45 school days, regardless of whether the behavior is a manifestation of the student's disability, for weapons and drugs violations, as well as if the student has inflicted serious bodily injury on another person at school, on school grounds, or at a school function. (Authority: P.L. 108-446, Section 615(k)(1)(G). See also proposed regulation 300.530(g).) In addition, the district "may consider any unique circumstances on a case-by-case basis" when determining whether to remove a student for a student conduct violation. (Authority: P.L. 108-446, Section 615(k)(1)(A). See proposed 300.530(a).)
|The Department recommends that districts involved with disciplinary action for students with disabilities review carefully the statutory language in IDEA-2004, available at Guidance for Implementing IDEA 2004 - Discipline webpage and, when available, the final federal regulations related to these requirements. The Department's Student Discipline Advisory will be updated to reflect these changes.|
Please note that the period of removal under IDEA-97 was up to 45 calendar days and is now changed to school days.
"Serious bodily injury" is defined in federal law as bodily injury which involves (1) a substantial risk of death; (2) extreme physical pain; (3) protracted and obvious disfigurement; or (4) protracted loss or impairment of the function of a bodily member, organ, or mental faculty. See 18 U.S.C. 1365.
||States are required to develop a plan to measure districts' performance in the following priority areas: (1) provision of FAPE in the least restrictive environment; (2) child find; (3) effective monitoring; (4) due process procedures; (5) transition services; and (6) disproportionate representation of racial and ethnic groups related to misidentification, graduation, and dropout rates. States are required to set targets in these areas and, annually, to report publicly on performance of the state and the districts in these same areas. (Authority: P.L. 108-446, 616(a)(3). See proposed regulations 300.600-300.602.)
||The Department will develop its plan by December 2005, as required under IDEA-2004. The Department encourages school districts to participate in the development of targets, and to provide public comment on the proposed state plan. Additional information and the state's draft plan will be available in the fall.|
The Department plans to begin public reporting of individual district performance in priority areas during the 2005-6 school year.
|17.||Private School Students
||IDEA-2004 and the Massachusetts General Laws conflict in assignment of responsibility for providing special education services for students placed by their parents in private schools. In brief, state law provides for a higher level of services than federal law and assigns responsibility to the district where the student lives, rather than the district where the private school is located as required under federal law. (Federal authority: P.L. 108-446, Section 612(a)(10)(A). See proposed regulations 300.130-300.144.) (State authority: M.G.L. c. 71B, 3.)
||The Department has been communicating with USDE concerning our approach to serving eligible private school students in a manner that is responsive to federal and state special education requirements. We are providing USDE with detailed written documentation on Massachusetts' law and our recommendations on how to meet the needs of Massachusetts students attending private schools as we work to resolve the conflict in federal and state laws.|
Until further notice, the school district of residence will continue to provide special education and related services to eligible students placed by their parents in private schools. See M.G.L. c. 71B, 3; 603 CMR 28.03(e).
Additional guidance from the Department on this topic is available at Administrative Advisory SPED 2007-2.
We hope this guidance is helpful in highlighting key areas of change related to special education practice in Massachusetts as a result of IDEA-2004. As noted above, this advisory outlines many, but not all of the changes under the law. Areas of current practice that have not been changed by IDEA-2004 are not discussed here. When the final federal regulations implementing the law are completed, the Department will provide you with further information and resources.
The Department recognizes that changes to districts' special education practice prompted by the new federal law may not be complete immediately. Districts are, however, required to be in full compliance with IDEA-2004 as soon as possible, but no later than the end of the 2005-6 school year. The Department reserves the right to order immediate compliance in any area affected by IDEA-2004 when such action is necessary to ensure appropriate services for students with disabilities.
If you have any questions or require additional information, please contact Program Quality Assurance Services at the Department of Elementary and Secondary Education (781-338-3700).