Individuals with Disabilities Education Improvement Act of 2004

Individuals with Disabilities Education Improvement Act of 2004 Opportunities and Challenges for Improving Results for Students with Disabilities Region 6 TA Conference“A Glittering Gathering” Ann M. Alexander, Ph.D., J.D.

It’s about “improvement.” Congress: Almost 30 years of research and experience has demonstrated that the education of children with disabilities can be made more effective by: • Strengthening the role of parents and ensuring meaningful opportunities to participate • Ensuring that special education is a service rather than a place • Providing services and supports in regular classrooms • Supporting high-quality, intensive professional development • Reducing the need to label children as disabled in order to address their learning needs • Focusing resources on teaching and learning while reducing paperwork and requirements that do not assist in improving educational results

IDEA-04 Provisions Supporting Improved Results • Providing “early intervening services” • Rethinking LD • Addressing disproportionality in identification and placement • Adding flexibility in IEP development • Focusing on academic achievement and functional performance • Promoting effective transitions from school to adult life • Addressing behavior that interferes with learning • Encouraging early resolution of disputes • Setting performance targets and publicly reporting results

Early Intervening Services • Professional development for staff to deliver scientifically based instruction and interventions; providing educational and behavioral evaluations, services, and supports (but not “special education”) • Under many names, refers to a system of enhanced general education support for struggling learners • Up to 15% of federal funds • If federal funds are used, must report # served and # eventually determined eligible

Disproportionality • Collection and examination of data to determine if significant disproportionality exists based on race/ethnicity: • identification as a child with a disability • identification as a child with a particular disability • incidence, duration, and type of disciplinary actions, including suspensions and expulsions • If significant disproportionality exists, must examine policies, practices, and procedures for compliance • Districts must publicly report on revision of policies, practices, and procedures when significant disproportionality is based on race/ethnicity

Rethinking LD • IDEA-04 emphasizes role of interventions in identification of learning disabilities • Recent research about intervention systems (LD Symposium) • some evidence of lower referral rates • some evidence of more appropriate referrals • some evidence that disproportionality associated with race/ethnicity is minimized • aside from the LD question--and this is critical--general education interventions provided within problem-solving models improve instruction and are effective for learners

Policy/position statements (NASDSE, NASP) • Conferences/summits (LD Summit) • President Bush’s Commission on Excellence in Special Education • discrepancy analysis creates “wait to fail” model “too little, too late” • too little emphasis on prevention • too little “aggressive” intervention • too few “research-based” approaches

“Data” from Commission: • 80% of those given LD label are there because they haven’t learned how to read • thus, up to 40% (80% of 50%?) of students with disabilities are there because they weren’t taught to read • few children placed in special education close the achievement gap

When determining LD, a district shall not be required to take into consideration severe discrepancy between achievement and intellectual ability • When determining LD, a district may use a process that determines if the child responds to scientific, research-based intervention as part of the evaluation procedures • Proposed Regulations add much that is problematic (including statement that the State Dept. of Ed. could prohibit discrepancy analysis) -- districts and states moving forward without final regulations will need policies and procedures in the absence of federal or state regulations

Opportunities for Communication and Collaboration Parent/Student Level Technical Assistance • Enhance parent involvement in design/implementation of early intervening services • Share what parents know about their child as a learner • Ask what parents should be doing at home to support strategies • Ask what interventions will be provided, and why • Ask how progress will be measured and on what schedule--what will we be looking for and when? • Support parents through LD eligibility process • If the district has moved to consideration of “responsiveness to research-based interventions” as a part of LD eligibility decision-making, engage parents in developing the plan for providing interventions, measuring responsiveness/improvement, collecting data, making decisions • Eligibility decision-making timeline may run concurrently with provision of general education interventions

Verify all procedural protections are in place for LD evaluation • Prior written notice of proposed evaluation • “Rights” upon initial referral for an evaluation • Written consent for all assessments selectively administered based upon suspicion of disability • Evaluation requirements (valid, reliable, multi-source) • Parents as members of eligibility teams • Engage in problem-solving when parents are dissatisfied (it is taking too long, or they disagree with result of eligibility decision) • Facilitate communication between parents and district • If unresolved, consider options for mediation and/or due process • If parents request a special education evaluation, districts have reasonable time to respond with written notice of proposals or refusals to evaluate • RTI focus may increase “refusals”; courts in 9th Circuit have upheld districts when refusing to evaluate because district did not yet have a suspicion of disability; courts have “okayed” providing general education interventions (even prior to IDEA-2004)

District/State Level Leadership • Increase knowledge about culturally responsive evaluation, curriculum, and instruction; understand dynamics of measuring “significant disproportionality” in your state • Increase knowledge about models for providing general education interventions and the research that supports efficacy • Work with local/state officials to shape LD eligibility model(s) through identifying concerns grounded in data and proposing solutions • Use dissemination/training opportunities to inform parents about what to expect, how to improve communication, and the importance of developing relationships • What else?

Flexibility in IEP Development • Attendance not necessary • Written agreement between parents & district that required member’s attendance is not necessary at an IEP meeting because area of curriculum or related services will not be discussed • Excusal • Written consent between parents & district that required member whose area of curriculum or services WILL be discussed may be excused--member must provide written input to IEP committee prior to meeting • Revision to IEP without IEP meeting • Agreement between parents & district that IEP may be revised without IEP meeting (NOT the annual IEP)

Academic Achievement and Functional Performance • Address both in present levels of performance • Measurable academic and functional goals • Short-term objectives no longer required

Secondary Transition (IEPs in effect at 16) • Present Levels of Performance • Results of age-appropriate transition assessments for training/education, employment, and independent living skills (as appropriate) • Statement of Desired Post-School Outcomes in: • Training/Education • Employment • Independent Living Skills (as appropriate) • Statement of Coordinated Activities • Interagency linkages no longer required • Measurable Post-Secondary Goals • Linked to desired outcomes in three areas above • Based on age-appropriate transition assessments

For students exiting special education with a regular diploma or aging out at age 22, district must provide a summary of academic achievement and functional performance with recommendations to assist meeting post-secondary goals • Evaluating and reporting outcomes on % of youth within one year of leaving high school who are: • Competitively employed • Enrolled in some type of postsecondary school • Or both

Opportunities for Communication and Collaboration Parent/Student Level Technical Assistance • Ensure parents understand ramifications of agreeing to “flexible” IEP development • Which actions require consent (“excusal”); which require written agreement (“attendance not necessary”); which require agreement (IEP revision without IEP meeting) • Reconvene if in an unanticipated way, a required member whose attendance was agreed “not necessary” suddenly becomes “necessary” • How to respond to district’s request to revise IEP without a meeting? How/under what circumstances to agree/request that an IEP be revised without a meeting? • Need for clear documentation of agreements reached, and between whom

Present levels of performance, goals/objectives • Be prepared to describe both functional performance and academic achievement in present levels of performance as well as goals • If district no longer writes short-term objectives or benchmarks, make sure goals contain all criteria for measurability: • Direction of behavior (increase, maintain, decrease) • Area of need (reading, social skills, communication) • Level of attainment or success (to grade level, with 100% accuracy) • How progress will be measured • If district no longer describes “course of study” at age 14, engage in relevant discussion at IEP meeting • Is my child taking the classes she will need to graduate? • Is my child learning what she will need to know to pass the high school exit exam? • What do we think we’re preparing her for after she graduates?

District/State Level Leadership • Use dissemination/training opportunities to inform parents about what to expect and how to use the flexible IEP options • Collaborate with states/districts to develop/disseminate information about academic achievement & functional performance as the building blocks for PLOP and annual goals • Use community and business connections to establish relationships with business community to create opportunities for during- and post-school work • Highlight and publicize success of students working in communities (make business look good--it is good for business) and pursuing post-secondary education • Support districts/states in communicating the importance of students completing post-secondary surveys • What else?

Discipline • Maintains right of district to impose disciplinary suspension for up to 10 school days without triggering procedural safeguards • Maintains definition for “disciplinary change of placement” as removal for more than 10 consecutive days; or for more than 10 cumulative days when a “pattern” has developed • Maintains rule that disciplinary change of placement may only proceed if conduct is NOT a manifestation of disability • Exceptions: 45 school day IAES for drugs, weapons, serious bodily injury AND Hearing officer determination of “dangerousness” • Manifestation determination rule: Conduct is a manifestation if the conduct was caused by, or had a direct and substantial relationship to the student’s disability OR the conduct in question was a direct result of the district’s failure to implement the IEP • Maintains right of students to receive services on the 11th and each day of removal thereafter during a school year

Behavior • If behavior impedes student’s or others’ learning, IEP committee must consider the use of positive behavioral interventions, supports, and other strategies, to address that behavior • If behavior is a manifestation of disability, must conduct functional behavioral assessments and develop/review/revise Behavior Intervention Plans • If behavior IS NOT a manifestation of disability, must conduct FBA and provide behavior intervention services as appropriate • If rate of suspensions/expulsions is significantly discrepant from statewide rate, must examine policies and procedures to ensure compliance • Emphasis on positive behavior interventions & supports

Opportunities for Communication and Collaboration Parent/Student Level Technical Assistance • Enhance parent involvement in design/implementation of positive behavioral supports • Encourage behavior intervention plans • Support implementation of behavior intervention plans at home • Manifestation determinations • No more attenuated relationships; no more tangential failures to implement the IEP • If contested in due process, the “removal” setting is the “stay-put” placement pending resolution of due process or suspension/expulsion expires (whichever comes first) • Services on the 11th day of removal • To the extent necessary to enable student to appropriately progress in general curriculum (What defines “progress” for this student, at this grade? Promotion to the next grade? Earning X number of credits in X content areas? These are the areas to address.) • To appropriately advance toward achieving IEP goals • If it is for a removal that constitutes a change of placement, the IEP committee determines extent of services necessary

District/State Level Leadership • Support schools/districts in establishing schoolwide positive behavior support systems • Increase knowledge and disseminate information about providing general education interventions that improve behavior, particularly interventions sensitive to cultural contexts • Work with local/state officials to expand and improve options for services on the 11th day • What else?

Due Process Hearings • Requests for hearing must specify issues and facts + proposed resolution. • If imprecise, other party may challenge “sufficiency” and IHO rules • If due process hearing is requested, a “resolution session” must occur within 15 days, unless parents and district agree to waive or to use state mediation • No attorney for district unless parent attorney is present • Written agreement enforceable in court • Agreement can be voided within 3 business days • If no resolution within 30 days, 45-day timeline commences • Schaffer v. Weast (2005) -- burden of proof on party seeking relief • Districts can recover attorney’s fees from parents or parents’ attorney if due process hearings are brought to harass; districts can recover attorney’s fees from parents’ attorney if due process request is frivolous, unreasonable, without foundation

Performance Targets and Public Reporting • In December 2005 each state developed a performance plan to evaluate state’s efforts to implement the requirements and purposes of Part B • Performance plans must establish measurable and rigorous targets to measure indicators • States must report valid/reliable data on the performance indicators • States must report annually to the public on the performance of each district on the targets in the state’s performance plan

Performance Targets: • Regular diploma graduation rates • Dropout rates • Participation/performance on statewide assessments • Suspension/expulsion rates • Placement in LRE (3-5 and 6-21 reported separately) • Early childhood outcomes • Parent involvement • Disproportionate representation • Initial evaluation timelines • IEPs by 3rd birthday for eligible children from Part C • IEP goals and transition services at age 16 • Post-school outcomes • Identification and correction of noncompliance • Due process, mediation, state complaint data

Nevada’s Approach to Improving Results • Supporting teachers to improve instruction in all classrooms • Focused and continuous monitoring of student progress, linking progress monitoring to instruction • Emphasizing access to general curriculum • Engaging in collaborative problem-solving (student level, school level, district level) • Data-based decision-making • Annual special education data for performance indicators • School- and district-improvement planning • Clarifying targets and expectations for all staff members • Your State’s Approach to Improving Results?

Opportunities for Communication and Collaboration District/State Level Leadership • Support and promote parent responses to “parent involvement” surveys • Learn how graduation rates and dropout rates are calculated and understand the limitations of state-to-state comparisons • Collaborate with local/state educators to make data accessible and understandable • Continue to be solution-oriented in your work on advisory committees, task forces, commissions • What else?

Individuals with Disabilities Education Improvement Act of 2004