IDEA 2004: The Federal Implementing Regulations

1. IDEA 2004: The Federal Implementing Regulations Virginia Department of Education Office of Dispute Resolution & Administrative Services

2. IDEA Local Policies & Procedures Local Policies & Procedures State Regulations Federal Regulations Local Policies & Procedures

3. How Did We Get Here? • December 3, 2004 - Individuals with Disabilities Education Improvement Act of 2004 (IDEA 2004) P.L. 108-446 • Signed by President Bush. • Some elements such as “Highly Qualified” effective. • July 1, 2005 – All IDEA 2004 provisions in effect.

4. Regulatory Process • August 14, 2006 – USDOE published final regulations. • October 13, 2006 – The final regulations become effective. • October 2006 – Initiate the revision of the state special education regulations.

6. Key Points • The September 2006 Guidance Document: • Outlines the key changes in the federal regulations. • Is a companion to the May 2005 Guidance Document, which outlined the key provisions of IDEA 2004. • To guide implementation, it references non-regulatory guidance, USDOE’s “Analysis of Comments and Changes” section of the new federal regulations.

7. NOTE Virginia Regulations which were not impacted by IDEA 2004 and the new federal regulations remain in effect.

8. DEFINITIONS

9. Definitions • The new regulations cite to the following terms, which are defined in other statutes: • Dangerous Weapon • Highly Qualified • Homeless Children • Institution of Higher Education • Limited English Proficient • Scientifically based Research • Serious Bodily Injury • Universal Design The definition for each of these terms is reprinted in the Analysis Section of the federal regulations for reference.

10. Definitions The Analysis Section distinguishes the terms “consent” and “agree.” Both are used in the federal regulations. p. 46629

11. Developmental Delay§ 300.8 (b) • Virginia has the option of adopting a definition of developmental delay, but LEAs are not required to use the term. • Federal Regulations define DD as ages 3-9, or any subset of the age range. • If a LEA chooses to use the term, it must conform to both Virginia’s definition and age range, currently: • Preschool: Ages 2 to 5 (Virginia required/specific) • School-aged: Ages 5 to 8

12. HQ Special Education Teacher§ 300.18 • Virginia may develop a separate High Objective Uniform State Standard of Evaluation (HOUSSE) for special education teachers but cannot lower the standard for the content knowledge requirements. • Virginia may develop a separate HOUSSE for special education teachers that includes single HOUSSE evaluations that cover multiple subjects.

13. HQ Special Education Teacher§ 300.18 NOTE: • Children with disabilities who are suspended or expelled from their current placement must continue to be taught by highly qualified teachers. • Each Title 1 school must provide each parent timely notice that the parent’s child has been assigned, or has been taught for 4 or more consecutive weeks by a teacher who is not highly qualified, including special education teachers who teach core academic subjects.

14. HQ Special Education Teacher§ 300.18 NOTE: • Veteran regular education teachers reassigned to special education are considered “new to the profession” and must meet those standards to be highly qualified as a special education teacher. • Itinerant special education teachers must meet the highly qualified requirements.

15. Other Health Impaired§ 300.8(c)(9)(i) • The definition has been revised to include Tourette Syndrome, a neurological condition, as a chronic or acute health issue.

16. Parent§ 300.30 • Revisions to the definition: • Discusses “Biological” v. “natural” parents. • Delineates when a guardian may be considered a parent. --- It is based on the nature of the guardian’s appointment. (see p. 46556) • Identifies school divisions’ responsibilities in designating who is a parent for IDEA purposes. NOTE: • Court-appointed advocates cannot attend due process resolution meetings in place of a parent, unless: • The LEA has appointed the advocate as a surrogate parent; or • The LEA determines that the advocate meets the definition of “parent.”

17. Related Services§ 300.34(b) A “Surgically implanted device” -- • “Related services” do not include the optimization or mapping, maintenance, or replacement of the device. • Children must still receive those related services necessary for FAPE, as determined by the IEP team. • LEAs must ensure that the external components of the device are functioning properly. • The LEA must “appropriately monitor and maintain” medical devices necessary to maintain the child’s health and safety (ie. breathing, nutrition, operation of other bodily functions) while the child is transported to and from school or is at school.

18. Related Services § 300.34 (c) • “Interpreting Services” includes: • Transcription Services (ie. CART, C-Print, Type Well.) • Special Interpreting Services for deaf-blind students. • “Orientation & Mobility” includes teaching children who are blind or VI to use a service animal. • The distinction between “school nurse services” and “school health services” is clarified.

19. Services Plan§ 300.37 • A written statement that describes the special education and related services that an LEA will provide to parentally-placed private school children with disabilities who have been designated to receive equitable services.

20. Supplementary Aids and Services § 300.42 These supports must also be provided in extracurricular and nonacademic settings to enable children with disabilities to be educated with non-disabled children to the maximum extent appropriate.

21. FREE APPROPRIATE PUBLIC EDUCATION (FAPE)

22. Advancing Grade to Grade § § 300.101; 300.111(c)(1) • FAPE must be available to children with disabilities even if the child “has not failed or been retained in a course or grade,” and is advancing from grade to grade. • Children who are suspected of having a disability, even though they are advancing from grade to grade, must be included in child find.

23. Preschoolers§ 300.102(a)(4) • Preschool-aged children with disabilities, who are receiving early intervention services under Part C, are not eligible for special education and related services under Part B.

24. Exception to FAPE § 300.102(a)(3)(iv) • Children with disabilities who have graduated from high school with a regular diploma are no longer entitled to FAPE. However, a “regular high school diploma” does not include an alternative degree that is not fully aligned with the State’s academic standards. • In Virginia, students with a GED, Modified Standard Diploma, or Special Diploma, who are age-eligible, are still entitled to FAPE.

25. Nonacademic Services§ § 300.107(a); 300.117 Each school division must provide a student with a disability an equal opportunity to participate in nonacademic and extracurricular services and activities, including providing supplementary aids and services, as determined appropriate and necessary by the child’s IEP team. * Also note the LRE implications, at § 300.114(a).

26. Physical Education§ 300.108(a) • The FAPE entitlement includes the opportunity to participate in physical education (PE) if PE is provided to all children in the same grades. NOTE: If PE is part of the child’s IEP, the LEA has to provide it even though it is not provided to non-disabled children.

27. Hearing Aids & External Componentsof Surgically Implanted Medical Devices§ 300.113(a) & (b) • LEAs must ensure that the external components of surgically implanted medical devices are functioning properly. However… • The LEA is NOT responsible for the post-surgical maintenance, programming or replacement of the surgically implanted device or its external components.

28. LEAST RESTRICTIVE ENVIRONMENT (LRE)

29. Nonacademic Services§ § 300.107(a); 300.117 Each school division must provide a student with a disability an equal opportunity to participate in nonacademic and extracurricular services and activities, including providing supplementary aids and services, as determined appropriate and necessary by the child’s IEP team. * Also note the LRE implications, at § 300.114(a).

30. General Guidance • OSEP distinguishes between “placement” and “location.” • The LEA is responsible for the site/specific place/location of the service. • The IEP team is responsible for determining placement for the provision of special education and related services. • The LRE requirements apply to all children with disabilities, including preschool children who are entitled to FAPE. • LRE and Discipline Placements -- See p. 46586

31. PARENTALLY-PLACED PRIVATE SCHOOL STUDENTS

32. General Guidance • The new Federal Regulations underscore the LEA’s responsibility for parentally-placed students with disabilities attending private schools located within its jurisdiction. • Appendix B – Provides guidance regarding the calculation of a LEA’s “Proportionate Share,” the amount of Part B funds to be expended on children with disabilities who are parentally-placed in private schools.

33. Child Find§ 300.131 • The cost for child find, including individual evaluations, may NOT be considered in the calculation of the expenditure of the proportionate share of federal funds. • The child find process must be completed in a time period comparable to that of students attending public schools in the LEA.

34. Additional Provisions • Responsibility for a privately-placed child with a disability rests with the LEA where the private school is located – even if the student resides out of state/out of the country. § 300.131 (f) • Parental consent is required for disclosure of the education records of parentally-placed private school children between LEAs. § 300.622 (b)(3). • LEAs, not State Educational Agencies (SEAs), are responsible for developing services plans. § 300.132(b).

35. Child Find§ 300.300(d)(4) • Parents who place their children in private schools have the option of not participating in the LEA’s child find activities under § 300.131. • If the parent of a child who is home schooled or privately placed does not provide consent for an initial evaluation or reevaluation: • Due process procedures may not be used to obtain consent; and • The LEA is not required to consider the child for equitable services.

36. Preschoolers § 300.133(a)(2)(ii) • Provisions for parentally-placed children apply to preschoolers with disabilities, if they are enrolled in a private school that meets the definition of elementary school in § 300.13. • Virginia distinguishes between day care centers and preschools. Preschools: • Provide educational instruction; and • Are counted as instructional settings under Section 619 of the Annual Plan.

37. Carry-over Funding§ 300.133(a)(3) If an LEA has not spent all of its “proportionate share” amount providing equitable services to parentally-placed private school children with disabilities by the end of the fiscal year for which the funds were appropriated, the LEA must obligate the remaining funds for services during a carry-over period, lasting one additional year.

38. Complaints § 300.136 (b) &(c) • A private school official may file a complaint if the LEA did not: • Engage in meaningful & timely consultation; or • Give due consideration to the official’s views. • In Virginia, such complaints will be resolved using the Complaint Resolution Procedures.

39. Dispute Resolution § 300.140(b)(2) • A state complaint may allege a violation of the procedural mandates regarding parentally-placed private school students. • However, to allege a violation of the child find requirements in § 300.131, a due process hearing request must be filed with the LEA where the private school is located. • Due Process may also be used regarding the evaluation and consent requirements.

40. Additional Guidance • HQ requirements do not apply to private school teachers, even if serving publicly-placed children, or providing equitable services to parentally-placed private school children. § 300.138 (a)(1) • The LEA where the private school is located may not seek reimbursement from the LEA of residence for the evaluation cost or request the LEA of residence to do the evaluation. p. 46592 • Reevaluation is part of the LEA’s child find responsibilities. p. 46593

41. Additional Guidance • If a child is determined eligible by the LEA where the private school is located, the LEA of residence must make FAPE available unless the parent makes clear the intention to keep the child in the private school in another LEA. p. 46593 • If a private school straddles two LEAs, VDOE must determine which LEA is responsible. p. 46594

42. Additional Guidance • Home-schooled Children -- Whether considered parentally-placed private school children is a matter of State law. p. 46594 • Virginia Regulations currently include these children. • IEE -- If a parent of a parentally-placed child disagrees with an evaluation obtained by the LEA where the private school is located, the parent may request an IEE at public expense with that LEA. p. 46597

43. METHODS OF ENSURING SERVICES

44. Public Benefits/Insurance§ 300.154 (d) • To access public benefits or insurance for children with disabilities, the LEA must: • Obtain parental consent each time that the LEA is accessing the parent’s public benefits or insurance; and • Notify the parents that refusal to consent to access of public benefits or insurances does not relieve the LEA’s responsibility to ensure all required services are provided at no cost. NOTE: • Currently, Virginia’s Regulations require parental consent and notification only if the LEA is accessing the parent’s insurance. The new requirements apply to both public benefits and insurance.

45. EARLY INTERVENING SERVICES

46. Additional Guidance • A child previously identified as being a child with a disability, who currently does not need special education and related services, may receive early intervening services. p. 46626 • Early intervening services are for children K-12, with emphasis on children K-3. p. 46627 • Children receiving or being considered for early intervening services are not entitled to FAPE. • Therefore, they are not entitled to procedural safeguards (ie. notice, consent) p. 46626

47. PARENTAL CONSENT

48. Initial Evaluation § 300.300 (a)(2) Ward of the State: • If the student is not living with the parent, and the LEA is seeking consent for an initial evaluation, the LEA is not required to obtain informed parental consent for the evaluation, or appoint a surrogate to do the evaluation, IF: • The LEA has made reasonable efforts to obtain parental consent, but the parent’s whereabouts are unknown; • The rights of the parent have been terminated; OR • A judge has subrogated the parent’s rights & appointed an individual to represent the child, and the appointed person has consented to the initial evaluation.

49. Additional Guidance Ward of the State: p. 46630-46631 • Reevaluations – The consent exception does not apply. A surrogate should already have been appointed. • The appointment of a surrogate should move forward in accordance with the procedures for surrogate parents, at § 300.519 (b) – (h).

50. Refusal to Consent§ 300.300 (a)(3) & (c)(1) • If a parent refuses or fails to consent to an evaluation, VDOE and/or the LEA would not violate its procedural requirements, if it opts not to pursue the evaluation. • However, the LEA may use mediation or due process to obtain consent.