A Primer on IDEA 1997 and Its Regulations

The regulations on the Individuals with Disabilities Education Act (IDEA) 1997 were released on March 12, 1999. While most of the basic requirements have been in the law since 1977, IDEA '97 refined the basics and added new discipline provisions. Following are highlights of the law and its regulations that address some of the most pressing questions concerning IDEA 1997.

New Definitions

Child with a Disability. A child with a disability who needs a related service but not special education is not considered to be disabled unless the related service is defined under state law as special education. For example, a child who receives family counseling would need a related service but not be considered disabled under IDEA.

Developmental Delay. For children ages 3 through 9, the state and local education agency (LEA) may define "child with a disability" as a child who is experiencing developmental delays and needs special education and related services. With this change, young children do not have to be labeled to receive special education services.

Other Health Impairment. Attention deficit disorder and attention deficit hyperac-tivity disorder may result in eligibility for special education services under the "other health impairment" category.

Related Services. IDEA '97 adds "orientation and mobility services" to the list of examples under related services. *Supplementary Aids and Supports. Supplementary aids and services includes aids, services, and other supports that are provided in general education settings to enable children with disabilities to be educated with non-disabled children to the maximum extent appropriate.

Transition Services. Related services are now included under the definition of transition services.

Service Plans

Child Find. States must identify, locate, and evaluate all children with disabilities residing in the state, including children with disabilities attending private schools, regardless of the severity of their disabilities. Children do not have to be classified by their disability as long as they have a listed disability and need special education and related services.

Services and Aids that Benefit Children without Disabilities. A school may use funds for special education, related services, and supplementary aids and services provided in a general education setting for a child with a disability, even if children without disabilities receive incidental benefit from the services.

Transfer of Parental Rights at Age of Majority. When a child with a disability reaches the age of majority, the public agency must transfer all rights previously accorded to the parents and notify the child and parents of the transfer of rights. This does not apply to children with disabilities who are determined to be incompetent under state law.

Poor Instruction. A child shall not be deter-mined to have a disability if the reason for the child's learning difficulty is lack of instruction in reading or math or limited English proficiency.

Mediation

School and state education agencies must ensure that procedures are established and implemented to allow parents and schools to resolve their differences through mediation.

*Attorneys' Fees. The award of attorneys' fees relating to any Individualized Education Program (IEP) team meeting is prohibited unless (a) the meeting results from an administrative proceeding or judicial action or (b) at the discretion of the state, a mediation is conducted prior to the filing of a complaint. Attorneys' fees may be reduced if the attorneys representing the parents did not provide required information to the school district.

Evaluation

When evaluating a student for eligibility for special education, schools must

* Assess the child in all areas of suspected disability, including cognitive and behavioral factors in addition to physical or developmental factors.

* Use a variety of assessment tools and strategies to gather functional and develop-mental information The assess-ment tools and strategies must also help determine the child's educational needs.

* Include information from the parent that can help determine whether the child has a disability and the content of the IEP,

* Gather information related to the child's involvement and progress in the general education curriculum.

* Obtain informed consent from the parent before the evaluation is conducted. The agency may continue to pursue an evaluation if the parents refuse consent by using mediation and due process procedures.

Reevaluations

A reevaluation of a child with a disability must be conducted if conditions warrant, if the child's parent or teacher requests an evaluation, or at least once every three years.

For a reevaluation, the IEP team and other qualified professionals must review existing evaluation data and, on the basis of that review and input from the child's parents, identify

* What additional data are needed to determine whether the child has or continues to have a particular category of disability.

* The child's present levels of performance and educational needs.

* Whether the child needs or continues to need special education and related services.

* Whether any additions or modifications to special education and related services are needed for the child to meet performance goals and participate, as appropriate, in the general education curriculum.

*Obtain informed parental consent prior to the reevaluation unless the parents fail to respond to the agency's measures to gain their consent. If additional data are not needed, the LEA must notify the parents of that determination and the reasons for it, as well as the parent's right to request an assessment to determine if the child still has a disability.

Performance Goals and Indicators

The state must establish goals for the performance of children with disabilities and develop indicators to judge their progress. Thus, children with disabilities must be included in general state- and district-wide assessment programs, with appropriate accommodations as necessary. States or LEAs must develop guidelines for children with disabilities who cannot participate in state- and district-wide assessments to participate in alternate assessments. Those alternate assessments must be in place by July 1, 2000.

Graduation with a Regular Diploma

Parents must be notified before a child with a disability graduates from high school.

If a child with a disability graduates with a regular diploma, he or she loses eligibility for a free, appropriate public education (FAPE). If a child graduates with any other type of diploma or certificate, the child retains eligibility for

FAPE.

A child does not need to be reevaluated before graduating with a regular diploma.

IEPs

IDEA 1997 added new IEP requirements and expanded existing requirements. The IEP must include

* A statement of the child's present levels of educational performance, including how the child's disability affects his or her involvement and progress in the general education curriculum. For preschool children, it must describe how the disability affects the child's participation in appropriate activities.

* A statement of measurable annual goals, including benchmarks or short-term objectives related to
(a) meeting the child's needs that result from his or her disability and enable the child to be involved in and progress in the general education curriculum.
(b) meeting each of the child's other educational needs that result from the child's disability.

* A statement of the special education, related services, and supplementary aids to be provided to the child, or on behalf of the child, as well as any program modifications or support for school personnel that are needed for the children to be involved in and progress in the general education curriculum; to participate in extracurricular and other non-activities; and to be educated and participate with children with and without disabilities.

* The extent to which the child will not participate with children without disabilities in the general education class.

* Any modifications in the administration of state- or district-wide assessments that are needed for the child to participate in the assessment.

* If the child will not participate in the assessment or part of the assessment, a statement explaining why that assessment is not appropriate and how the child will be assessed.

* The projected date for the beginning of the services and modifications and their frequency, location, and duration.

* The child's transition service needs (beginning at age 14 and updated annually) that focus on his or her courses of study. This should include, when appropriate, the interagency responsibili-ties or needed linkages (beginning at age 16 or younger) and a statement that the child has been informed of the rights that will transfer to him or her on reaching the age of majority under state law.

*How the child's progress toward the annual goals will be measured and the extent to which the child's progress will enable him or her to achieve the goals by the end of the year.

*How the child's parents will be regularly informed of their child's progress at least as often as parents of non-disabled children are informed.

Developing the IEP

The IEP team must consider the following when developing an IEP:

* The child's strengths and the parents' concerns for enhancing their child's education.

* The results of the initial or most recent evaluation.

* The results of the child's performance on any general state- or district wide assessment programs.

* For children with behavior problems, the strategies, including positive behavioral interventions and supports, needed to address that behavior.

* For children with limited English proficiency, the child's language needs as they relate to the IEP

* Whether the child requires assistive technology devices and services.

* For children who are blind or visually impaired, instruction in and the use of Braille, if appropriate.

* The child's communication needs. For children who are deaf or hard of hearing, this includes the child's language and communication needs, as well as opportunities for direct communication with peers and professional personnel in the child's language and communication mode.

IEP Team

The IEP team must include at least one of the child's general education teachers if the child is or may participate in the general educational environment; the child's parents; at least one of the child's special education teachers; a representative of the public agency; an individual who can interpret the instructional implications of evaluation results; and other individuals who have knowledge or special expertise regarding the child, including related services personnel. The LEA representative must be able to provide or supervise the provision of specially designed instruction to meet the needs of children with disabilities, be knowledgeable about the general education curriculum, and be knowledge-able about the availability of LEA resources.

Including Parents in the IEP Team

Each LEA or state education agency (SEA) must ensure that the parents of each child with a disability are members of any group that makes decisions on the educational placement of their child.

Including General Education Teachers in the IEP Team

If the child participates or may be participating in the general education environment, the IEP team must include at least one of the student's general education teachers. The teacher must participate in the development, review, and revision of the child's IEP The general education teacher must also help deter-mine appropriate positive behavioral interventions and strategies for the child, as well as any supplementary aids, and program modifications and supports for school personnel that will be provided on the child's behalf.

No other school staff, such as a special education teacher or counselor, may be substituted for the general education teacher.

While at least one of the child's general education teachers must be a member of the IEP team, the teacher may not need to participate in all decisions made, be present at all meetings, or stay through an entire meeting. For example, the general education teacher would participate in discussions about the child's involvement and progress in the general education curriculum and environment. He or she would also participate in discussions about aids and supports for teachers and other school staff that are needed for the child to progress in the general education environment. However, the teacher does not need to participate in discussions concerning matters in which he or she is not involved.

The meetings the general education teacher must attend should be decided on a case-by-case basis.

Only one general education teacher is required for the IEP team, but others may attend IEP meetings. If more than one of the child's teachers would assist in the child's success in school, it may be appropriate for them to be members of the team and participate in meetings.

The school may designate which general education teacher or teachers will be on the IEP team.

When all of the child's general education teachers are not members of the IEP team, the school should get input from the teachers who will not be attending.

Access to the IEP

The IEP of a child with a disability must be accessible to each general education teacher, as well as to each special education teacher, related service pro-vider, and other service providers, who is responsible for implementing the IEP.

Each teacher must be informed of his or her specific responsibilities related to implementing the IEP and the accommodations and supports the child will receive.

Discipline

Behavioral Assessments and Behavioral Interventions

IEP team meetings to develop a behavioral assessment plan or review a current behavioral intervention plan are required only when the child has been removed from his or her placement for more than ten school days in a school year and/or when removing the child constitutes a change in placement.

After removing the child for more than 10 consecutive school days or beginning action to remove a child and change his or her placement, the IEP team must meet within 10 school days to plan a functional behavioral assessment and implement a behavioral intervention plan to address the problem behavior. If the child already has a behavior intervention plan, the IEP team should review the plan and modify it to address the behavior.

If subsequent removals occur, the IEP team members review the child's behavioral intervention plan and its implementation to determine if it should be modified. The IEP team meets only if one or more team members believe that modifications are necessary.

Removing a Child from Current Placement

Schools may remove a child with a disability from his or her placement for up to 10 school days. A school may remove the child for additional periods of up to 10 days for separate acts of misconduct, as long as the removals do not constitute a pattern (see Conditions, below).

Schools must provide a free, appropriate public education to all children with disabilities, including those who have been suspended or expelled for more than 10 days in a school year.

Schools do not have to provide services during the first 10 school days a child is removed from his or her placement.

During any subsequent removal for less than 10 days, schools must provide services to the child to the extent neces-sary to enable the child to appropriately progress in the general curriculum, as well as advance toward achieving his or her IEP goals. School personnel and the child's special education teacher will determine which services the child will receive. If weapons, drugs, or injury to self or others was involved, services must address the behavior.

If a child is removed from school long- term for behavior that is not a manifes-tation of his or her disability, the school must provide services to the child to the extent necessary to enable him or her to progress in the general curriculum, as well as advance toward achieving his or her IEP goals. In such cases, the IEP team determines which services the child should receive.

In-school suspension does not count toward the 10 days of removal from school if the child continues to receive the services in his or her IEP, has the oppor-tunity to progress in the general curricu-lum, and continues to participate with non-disabled children to the same extent as before.

A child with a disability can be excluded from school for disciplinary reasons with no continuation of services if (1) the exclusion does not exceed 10 consecutive days or constitute a change in placement and (2) a nondisabled child who engaged in the same behavior would receive the same consequence.

States are required to examine data to determine if significant discrepancies are occurring in the rate of long-term suspen-sions and expulsions of children with disabilities among LEAs or compared to rates for children without disabilities. If discrepancies are occurring, the SEA must review and, if appropriate, revise policies, procedures, and practices related to the development and implementation of IEPs, the use of behavioral interventions, and procedural safeguards.

Interim Alternative Educational Setting (IAES)

When determining whether removing a child from his or her placement is appropriate, the IEP team must select an IAES. (A child may be placed in the IAES for up to 45 days.) The IAES selected must enable the child to participate in the general education curriculum (although in another setting) and receive services and modifications that will enable him or her to meet IEP goals. The services and modifications must also address the child's inappropriate behavior so that it does not recur.

Conditions Warranting a Change of Placement

The child's behavior is not a manifestation of child's disability and the child's removal exceeds 10 consecutive school days

A child who carries a weapon or knowingly engages in activities involving a controlled substance while at school or a school function can be placed in an IAES for the same amount of time that a child without a disability would be subject to discipline, but for not more than 45 days.

A hearing officer may order a change in placement of a child with a disability to an IAES for not more than 45 days if the child's current placement is likely to result in injury to the child or to others. ED suggests that changes of placement in such instances may also be available through a court order.

A child is removed for more than ten consecutive school days or is subjected to a series of removals that constitute a pattern. A pattern may be determined by removals that accumulate to more than 10 school days in a school year, length of each removal, the total amount of time the child is removed, and the proximity of the removals to one another. (Whether a pattern of removals constitutes a change of placement is determined on a case-by-case basis by school personnel.)

Manifestation Determination

A manifestation determination is a review of the relationship between the child's disability and the behavior subject to the disciplinary action. If the IEP team determines the child's behavior was not a manifestation of his or her disability, the child may be disciplined in the same manner as a child without a disability, except exclusion may not exceed 10 consecutive days or constitute a change in placement. Also, the child must continue to receive educational services, though the child may be placed in an alternative setting.

If the child was involved in drugs, brought weapons to school, or engaged in behavior that would result in injury to self or others and the behavior was not a manifestation of his or her disability, the school may discipline the child as it would a non-disabled child, except that the child must continue to receive educational services. Again, those services may be provided in an alternative setting.

Manifestation determinations are required only if removing a child from his or her current setting constitutes a change in placement.

Manifestation determinations are required within 10 school days of any proposed change in placement for disciplinary reasons.

Finding the Behavior Is Not a Manifestation of the Disability

The IEP team may determine the child's behavior was not a manifestation of his or her disability only if the team

* Considers all relevant information, including evaluation and diagnostic results, other information from the child's parents, observations of the child, and the child's IEP and placement.

* Determines that in relationship to the behavior, the child's IEP and placement were appropriate and the special education services, supplementary aids and services, and behavior intervention strategies were consistent with the child's IEP and placement.

* Determines the child's disability did not impair his or her ability to understand the impact and consequences of the behavior or to control the behavior.

Parent Appeal and Child Placement

Parents who disagree with any decision regarding placement may request a hearing. If they do, the SEA or LEA must arrange for an expedited hearing. During the appeal, the child remains in the IAES pending the hearing officer's decision or until the 45-day time limit ends, whichever occurs first.

If a child is placed in an IAES and the school proposes to change the child's placement after the IAES ends, the child remains in his or her current placement (the placement prior to the IAES).

However, if a hearing officer determines that there is a likelihood of injury to the child or others in his or her prior placement, the placement may be changed.

Children Not Yet Eligible for Special Education

A child who has not been determined eligible for special education and has engaged in behavior that violated the school's rules may assert any of IDEA's protections if the school knew the child had a disability before the behavior occurred. The school shall be deemed to know the child has a disability if

* The child's parent expressed concern that the child needed special education services in writing to the appropriate education agency.

* The child's behavior or performance demonstrated the need for special education services.

* The child's parent requested an evaluation of the child.

* The child's teacher or other school personnel expressed concern about the child's behavior or performance to the director of special education or other school personnel.

If the LEA did not know the child had a disability, the child may receive the same disciplinary measures as nondisabled children.

A Couple More Items of Note

States may require a school to include in the records of a child with a disability a statement of any current or previous disciplinary action that has been taken and transmit the statement to a new school. If the state adopts such a policy and the child transfers to another school, the child's records must include the current IEP and any statement of current or previous disciplinary action taken.

Nothing prohibits an agency from reporting a crime committed by a child with a disability to appropriate authorities or prevents state law enforcement authorities from exercising their responsibilities concerning federal and state law to crimes committed by a child with a disability.

Charter Schools

Children with disabilities attending all publicly chartered schools must be provided with all of the rights and services guaranteed under IDEA and served in the same manner as those in non-chartered schools.

Private Schools

States are not required to pay for the cost of education, including special education and related services, of a child with a disability at a private school if the state made FAPE available to the child and the parents placed him or her in a private school.

The cost of reimbursement for private school may be reduced or denied if:
(a) The parents did not inform the IEP team that they were rejecting the placement the public agency proposed or if the parents failed to give the public agency written notice 10 business days before removing the child from the public school.
(b) If, prior to the parents' removing a child from the public school, the public agency informed the parents of its intent to evaluate the child, but the parents failed to make the child available for the evaluation, or a court finds the parents' actions unreasonable.

If the parents of a child with a disability who received special education under a public agency enroll the child in a private school without the public agency's consent or referral, a court or hearing officer may require the agency' to reimburse the parents for the cost of enrollment if the agency did not make FAPE available to the child in a timely manner prior to that enrollment.

Infants and Toddlers with Disabilities

Individualized Family Service Plan (IFSP). The IFSP must include a justification of the extent, if any, to which early intervention services will not be provided in a natural environment.

At state and local discretion and if the parent agrees, a preschool child with a disability may have an individualized family service plan instead of an IEP.

Transition from Early Intervention Services to Preschool and Other Appropriate Services.

A conference can be convened among the lead agency, the family, and the LEA at least 90 days before the child is eligible for preschool services. If a child is ineligible for preschool services, the lead agency can convene a conference to discuss the appropriate services the child may receive at age 3.

For more information on IDEA 1997 and its regulations, order: IDEA 1997: Let's Make It Work (#R5235P) $14.95, CEC members, $10.50 Call 888/CEC-SPED