|To:|| Special Education Administrators, Directors of Collaboratives, Directors of Charter Schools, Directors of Approved Special Education Schools, and Other Interested Parties|
|From:||Marcia Mittnacht, State Director of Special Education|
|Date:||October 30, 2006 |
Administrative Advisory SPED 2007-1: IDEA-2004 Implementing Regulations
The purpose of this advisory is to highlight key aspects of the new federal regulations for the reauthorized Individuals with Disabilities Education Act (IDEA-2004). These final regulations, which took effect on October 13, 2006, are codified at 34 CFR, Part 300, and can be found in their entirety1 at: http://idea.ed.gov/explore/home.
Congress reauthorized the IDEA in December 2004. Since then, the Massachusetts Department of Elementary and Secondary Education (the Department) has conducted trainings, developed technical assistance documents2, and published administrative advisories3 to explain the changes to the federal special education law. Now that the federal regulations are in effect, the Department will be issuing additional guidance and revising citations to federal law that appear in our state regulations. 4
The following chart highlights some of the key changes in the law found in the new regulations and describes the impact of these changes on current school district practices. Please note that the chart does not include all of the changes in the federal regulations, and does not duplicate information provided in previous guidance documents issued by the Department. Please refer to previous guidance from the Department and the U.S. Department of Education when reviewing how practices have changed or are changing in response to IDEA-2004 and its implementing regulations. Additionally, the Department recommends that you familiarize yourself with the statute and the final regulations as you and your staff implement the new federal special education requirements.
The order in which this information is presented in the chart generally follows the order in which it appears in the federal regulations and the statute. The items are numbered for your convenience.
| ||Topic ||Selected Federal RegulationS & Massachusetts Implementation Comments for 2006-2007|
||Definitions aligning with other Federal Laws
300.7 Charter schools --- The statute added this definition and aligned it with the definition of charter school included in the No Child Left Behind (NCLB) Act. This is one of many areas in which IDEA-2004 is now aligned with NCLB and other laws.
IDEA-2004 and the regulations now include other definitions aligned with NCLB, including Core academic subjects (300.10), Elementary school (300.13), and Scientifically based research (300.35). The definition of Homeless children (300.19) is added, and is consistent with the definition in the McKinney-Vento Homeless Assistance Act. Alignment of these definitions will enhance the district's coordination of policies and procedures.
|2 ||Other Health Impairment|| 300.8 Child with a disability --- 300.8(c)(9) adds to the definition of "other health impairment" the chronic or acute health problem of "Tourette syndrome." This was added in response to public concern that Tourette syndrome is commonly misunderstood to be a behavioral or emotional condition, rather than a neurological condition. Consistent with the general requirement for eligibility, Tourette syndrome must "adversely affec"t the student's educational performance in order to result in a determination that the child is eligible for special education.|
||Highly Qualified Special Education Teachers
300.18 Highly qualified special education teachers --- The definition in regulation is consistent with the statutory language of IDEA-2004 and the guidance provided by the Department in the past5, with two new areas worth noting:
300.18(b) states that a special education teacher teaching in a charter school is considered highly qualified if that person meets the certification or licensure requirements, if any, in the state's charter school law6.
Final regulations at 300.18(h) clarify that the "highly qualified" requirements do not apply to teachers hired by private schools. The "highly qualified" requirements do not apply to teachers contracted by the public schools to provide services to eligible parentally-placed private school students.
General requirements for personnel qualifications are included in 300.156 Personnel qualifications --- States and districts must ensure there are appropriately qualified teachers, related services providers, and paraprofessionals to serve children with disabilities.
||300.30 Parent --- The definition
substitutes the term "biological parent" for natural parent in this definition and throughout the regulations.
clarifies that to be considered a parent under this definition a "guardian" must be authorized to act as the child's parent generally or must be authorized to make educational decisions for the child. Therefore, not all guardians will be considered parents for special education purposes. For example, a guardian appointed solely to manage a child's finances will not be considered a parent for the purpose of making special education decisions.
In (b)(1), the definition makes clear that if more than one person is attempting to act as the parent, the biological or adoptive parent who is attempting to act as a parent is presumed to be the parent unless that biological or adoptive parent has had his or her legal authority to make educational decisions removed, or unless another person has been identified through a judicial decree or order to have such authority. Therefore, school districts must give precedence to biological parents seeking to make special education decisions unless there is evidence of legal authority for such decision-making being given to another.
Consistent with the federal definition, a foster parent in Massachusetts seeking to "act as a parent" for special education purposes has immediate authority to do so as long as no other person is legally authorized to act as the parent. This is a change of practice in Massachusetts, where formerly a foster parent could not act as a child's parent for special educational purposes if the foster parental relationship was for less than six months, unless the foster parent was appointed as an educational surrogate parent. The Department is working with the Massachusetts Department of Social Services (DSS) to provide additional written guidance on the impact of these changes in relation to students in the care or custody of the DSS.
Each of these changes in the definition of parent may affect district practice in identifying "parents" for the purpose of communicating with the person responsible for special education decision-making for the student. The state definition of "parent" found in 603 CMR 28.02(15), is consistent with the federal definition, but does not contain the detail now present in the federal regulation.
||300.34 Related services
Consistent with the statute, the definition of related services now includes "interpreting services" (300.34(a)). This term is defined in 300.34(c)(4) as services for students who are deaf or hard of hearing or deaf-blind.
"School nurse services" is added to the definition at 300.34(a). This term is defined in 300.34(c)(13) as those services provided to enable a child with a disability to receive a free, appropriate public education described in the IEP, and that are provided by a qualified school nurse.
300.34(b) makes clear that related services are not services that "apply to children with surgically implanted devices, including cochlear implants." This means that the district is not responsible for maintaining any medical device that is implanted, including optimizing the device's functioning or mapping it (e.g., cochlear implants), or replacing the device. However, the district must routinely check an external component of a surgically implanted device to make sure it's functioning properly.
Also, the school district is responsible for monitoring and maintaining all medical devices that are needed to maintain the child's health and safety in school and during transportation to and from school. This includes devices that are needed to maintain breathing, nutrition, or other bodily functions (e.g., nursing services, suctioning a tracheotomy, urinary catheterization) if the services can be provided by trained personnel and are not the type of services that can only be provided by a licensed physician.
300.34(c)(7) adds use of a "service animal" to the list of orientation and mobility services that may be related services.
Related services are those that assist a student in benefiting from other special education services or assist the student in accessing the general curriculum.
300.37 Services plan --- Although this term is not included in the statute, the regulations define "services plan" as the plan for services provided to a parentally-placed private school student who is receiving publicly-funded special education services.
In Massachusetts a services plan is only created for private school students who are residents of other states who are receiving proportionate share services from a Massachusetts district. Under state law, all students residing in Massachusetts continue to have the right to an individual education program (IEP) from the district where they live.7
300.43 Transition services --- The definition emphasizes that transition services are a coordinated set of activities "designed to be within a results-oriented process, that is focused on improving the academic and functional achievement of the child with a disability to facilitate the child's movement from school to post-school activities" (New language in bold.) The activities included in planning for transition continue to be incorporated in the definition.
The Department is currently revising the transition planning chart8 it developed in 2005. In consideration of the state performance plan indicator in this area9 and the new language in the regulations for transition planning and services, the transition planning chart will be a mandated form for use when discussing the student's transition needs. School districts must use this form for all students who are over 15 years of age during transition planning that occurs either prior to or at the time of the annual development of the IEP. The Department will monitor use of this form during its Coordinated Program Review beginning in the 2007-2008 school year.
|State and Local Eligibility Requirements|
300.102 Limitation-exception to FAPE for certain ages --- One exception to the obligation to provide FAPE to a student with disabilities is if the student has graduated with a regular high school diploma. The regulation clarifies at 300.102(a)(3)(iv) that the term "regular high school diploma" does not include an alternative degree that is not fully aligned with the State's academic standards, including a certificate or a general educational development credential (GED).
This means that Massachusetts residents who have sought and received a GED may now continue to access special education as long as they meet eligibility criteria up to age 22 or until they earn a regular high school diploma, whichever comes first. The federal definition of "regular high school diploma" represents a change in practice for Massachusetts, since previously Massachusetts accepted a GED as "equivalent" to a regular high school diploma for purposes of accessing special education services. We note that individuals, who had previously been denied special education services because they had received a GED, may now seek such services and, if eligible, receive services up to age 22.
300.117 Nonacademic settings --- The federal law encourages IEP Teams to think beyond academic skills in defining how a student will receive FAPE. New regulatory language has been added to 300.117 to emphasize that an eligible student whose Team has identified participation in nonacademic and extracurricular services and activities as a part of FAPE is entitled to have any "supplementary aids and services determined by the child's IEP Team to be appropriate and necessary for participation in nonacademic settings."
This strengthened language will promote Team consideration of opportunities for students to participate in "life of the school" activities and clarifies the student's right to receive supplementary aids and services in such circumstances.
||Private School Students
In addition to guidance already provided in Administrative Advisories (see footnote #7 in this advisory), the final regulations add one new requirement to services for private school students:
300.135 Written affirmation --- The regulation adds detail to the statutory requirement on consultation with private school representatives. It requires that public school districts obtain written affirmation from private school representatives of timely and meaningful consultation when planning services for parentally-placed private school students.
For obligations related to Massachusetts' resident private school students, the written affirmation requirement is met through the private school representative's participation as a Team member (documented by signatures of members participating in a Team meeting). To meet the requirement for private school students who are out-of-state residents and who attend school in Massachusetts, the school district must obtain written affirmation of its discussion with private school representatives in a manner consistent with the regulations. The district may determine what how it will obtain such documentation.
||State Complaint Procedures
||300.152 Minimum State complaint procedures
As described in 300.152(a)(3)(ii), states must include in their complaint procedures the opportunity for the parent and district to resolve through mediation a dispute that is the subject of a complaint.
Filing a complaint --- Consistent with the statute, 300.153(b) requires that the complaint filed with the state (i.e., in Massachusetts, the Department's Program Quality Assurance Services unit) include the complainant's signature and contact information. If the complaint alleges violations of the law with respect to a specific child, the complaint must include the name and address of the residence of the child; the name of the school the child is attending; a description of the nature of the problem; and a proposed resolution of the problem. In the case of a homeless child, the complaint must include available contact information.
300.153(c) requires that a complaint must allege a violation that occurred not more than one year prior to the date that the complaint is received.
Additionally, 300.153(d) requires that the party filing the complaint forward a copy of the complaint to the school district or public agency that is serving the child at the same time the complainant files the complaint with the Department of Elementary and Secondary Education.
The Massachusetts Department of Elementary and Secondary Education's Problem Resolution System (PRS - our state complaint procedures) has included some, but not all, of these elements. We are revising the PRS procedures to offer mediation and to revise our format to require additional information when a complaint is filed.
|12|| Access to Insurance
Methods of ensuring services --- 300.154(d)(2)(iv) requires that the district obtain parental consent each time access to Medicaid benefits, or public or private insurance is sought; and notify the parent that refusal to allow access to such benefits or insurance does not relieve the school district from its responsibility to provide IEP services to the student at no cost to the parent.
The regulations and accompanying comments do not define "each time." However, the U.S. Office of Special Education Programs has provided subsequent guidance suggesting that the requirements are met if the district obtains consent from the parent for access to the parent's public or private benefits or insurance whenever the IEP is developed or revised. The consent should refer to the time period for which the IEP is in effect (and therefore the period for which consent is given) and the specific IEP services for which public or private insurance or benefits will be used.
|13 ||State Performance Plan ||300.157 Performance goals and indicators --- This regulation requires the State to establish goals for the performance of children with disabilities in a number of key areas. This regulation, along with Subpart F of the regulations addressing Monitoring and Enforcement (starting with regulation 300.600), forms the basis for the Department's development of the State Performance Plan (SPP) for Special Education10 and associated monitoring practices.|
|14 ||Instructional Materials ||300.172 Access to instructional materials --- This regulation requires the State to adopt the National Instructional Materials Accessibility Standard (NIMAS) for blind students or students with print disabilities, and outlines requirements related to this standard11. Additional requirements related to purchase of instructional materials are listed at 300.210. |
|Evaluations, Eligibility Determinations, Individualized Education Programs, and Educational Placements|
|15 ||Evaluation ||300.304 Evaluation procedures --- In addition to the changes to evaluation outlined in Administrative Advisory 2006-112, 300.304(c)(5) specifies that for students who transfer from one school district to another in the same school year, the current and former school districts must coordinate prior and subsequent evaluative information, as necessary and as expeditiously as possible, in order "to ensure prompt completion of full evaluations" for the student.|
300.306 Determination of eligibility --- While this regulation is substantially the same as the regulation promulgated in 1999, new language consistent with the statute has been added to emphasize that a child must not be determined to be eligible if the crucial factor in making that determination is the student's "lack of appropriate instruction in reading, including the essential components of reading instruction (as defined in section 1208(3) of the ESEA)" or "lack of appropriate instruction in math" (New language is in bold print.)
Lack of skill in reading is a primary reason why students are referred for an evaluation for special education eligibility. Research finds that strong reading instructional programs that include all of the essential components of reading instruction can address the difficulties that many students have in learning to read. If a district does not have a strong instructional program, inappropriate referrals to determine eligibility for special education are a likely outcome. By regulation, Teams are directed to make a finding of "no eligibility" when a student's low achievement is the result of a lack of appropriate instruction in reading and/or math. This regulation, along with new language related to eligibility by reason of a "specific learning disability" (described below), underscores the need to build strong supports in the general education environment rather than to consider special education as the answer to all instances of low academic performance.
|17||Specific Learning Disability
In addition to the changes described in Advisory 2006-113 for identifying a student as eligible for special education by reason of his or her specific learning disability (SLD), the new federal regulations include further requirements related to specific learning disabilities.
300.309 Determining the existence of a specific learning disability ---The final regulations provide additional information to assist States and districts in implementing the requirements in IDEA-2004 for SLD determination.
300.309(a)(1) lists new criteria for determining whether the child has a SLD, including whether the child achieves "adequately" to "meet state-approved grade-level standards" in one or more areas. These standards now include "reading fluency skills."
300.309(a)(2) states that the Team may determine that a child has a SLD if the child does not make sufficient progress to meet age or grade-level standards in those areas when the district uses a process based on response to scientific, research-based intervention (often referred to as response to intervention (RtI) programs), or the child exhibits a pattern of strengths and weaknesses in performance, achievement, or both, relative to the child's age, state-approved grade-level standards, or intellectual development, that is determined by the Team to be relevant to the identification of a SLD.
300.309(a)(3) requires that the findings in the areas discussed above may not primarily be the result of various factors such as the student's visual, hearing, or motor disability; mental retardation; emotional disturbance; or environmental or economic disadvantage. The list of exclusions now includes "cultural factors" and "limited English proficiency."
300.309(b) directs the Team to ensure that a child's underachievement is not due to lack of appropriate instruction in reading or math. This is the same standard included in 300.306 that describes requirements for determining eligibility for a student, regardless of the student's disability. However, 300.309(b) requires the group to consider additional data in determining the existence of a SLD. The Team must review data that demonstrates that the student was provided with appropriate instruction in the general education program and received assessments regularly to demonstrate the student's progress during instruction, and that the parent was provided with that assessment information.
Under 300.309(c), the district must "promptly request" parental consent to evaluate for special education eligibility a child suspected of having a SLD who has not made adequate progress when provided with appropriate instruction. The district must adhere to the required timelines for evaluation and reevaluation unless the parent and the Team extend the timeline (in writing) in order to offer the student appropriate instruction in reading or math, as described in 300.309(b)14. This is the only regulation that "requires" a school district to make a referral for a special education evaluation. This is also the only regulation that suggests there may be circumstances where the evaluation timelines may need to be expanded. These regulations continue to treat the determination of eligibility by reason of a SLD in a different manner than eligibility in any other disability category15.
At 300.311, these regulations continue to require districts to document the determination of a SLD with a written statement from all members of the eligibility Team. The Department is developing a format for the written statement and additional guidance on SLD and RtI and will make such materials and guidance available as soon as possible.
300.323(d) Accessibility of child's IEP to teachers and others --- This regulation requires that the IEP be accessible to the student's teachers and anyone providing services or accommodations to the student in accordance with the IEP, and that teachers and providers are specifically informed of their responsibilities and the specific accommodations, modifications, and supports that must be provided to the student. The intent is to ensure improved communication and coordination.
300.324 Development, review and revision of IEP --- In addition to considering the child's strengths, the parent's concerns, and evaluation results in creating or making changes to an IEP, under 300.324(a) the Team must also consider "the academic, developmental, and functional needs of the child."
300.324(a)(4) requires that if an IEP is amended by agreement between the district and the parent without convening the Team, the school district must ensure that all teachers and service providers who are responsible for implementing the student's IEP are informed of changes made to the IEP and how those changes affect their responsibilities.
We note that although the federal regulations require that the parent be informed in the IEP about how the child's progress toward meeting annual goals will be measured, regulations no longer prescribe the content of progress reports. The Department will be revising the progress report form 17 to reflect this change.
|19|| Notice of Procedural Safeguards|| The Department is now reviewing the U.S. Department of Education's model notice of procedural safeguards, and is preparing a final Notice of Procedural Safeguards that includes State requirements. The Department will make the final Notice available in English and in translated form as soon as possible. Until the final Notice is available, districts should use the Interim Notice that the Department prepared following reauthorization of IDEA-200418. |
We hope this guidance is helpful in highlighting and explaining key areas of change related to special education practice in Massachusetts as a result of IDEA-2004 final regulations. As noted above, this advisory outlines many, but not all, of the changes included in the final regulations. Additionally, the advisory does not address areas of current practice that have not been changed by the federal regulations. The Department recommends that you consult this and other available resources and guidance documents referred to in this document and published on the Department's website for additional information regarding the statutory and regulatory changes of IDEA-2004.
Please take all necessary steps to ensure that your district is in compliance with all new requirements of federal law.
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).