September 21, 2018.

New Framework from OSERS

Editor’s Note:  This two page “New Framework” accompanying the  letter  below was issued by OSERS on September 20, 2018.  It is chock full of glittering generalities.  The only line that arouses some suspicion is that they intend to empower states to implement allowable flexibility.  

Even that would not necessarily cause one to raise an eyebrow if it were not for previous statements from its Secretary;  Secretary DeVos showed her ignorance of spedlaw during her confirmation hearing when after being asked if the states should be required to adhere to the requirements of the IDEA.  She replied, “I think that is a matter that is best left to the states.”  She later wrote a letter clarifying her position, saying she knew the IDEA was a federal law, but then, instead of talking about ways to strengthen school programs for the disabled, she  advocated for more voucher programs for the disabled so they could attend the private schools of their choice.  So whether this new framework will be a boon or a bust for  public school school children with disabilities remains to be seen.

Dear Colleagues: 

Office of Special Education and Rehabilitative Services (OSERS) Assistant Secretary Johnny Collett has released a framework that communicates the way OSERS will focus its work to advance the Secretary of Education’s priorities and continue to make progress toward achieving its mission to improve early childhood, educational, and employment outcomes and raise expectations for all people with disabilities, their families, their communities, and the nation.

The framework prioritizes rethinking all aspects of how we better serve infants, toddlers, children, youth, and adults with disabilities. It highlights OSERS’ commitment to support states in their work to raise expectations and improve outcomes for individuals with disabilities; to provide states flexibility to implement their programs within the constructs of the law; and to partner with parents, individuals with disabilities, and diverse stakeholders.

As an example of OSERS’ commitment to rethink anything and everything to ensure that it is in the best position to achieve its mission, Assistant Secretary Collett addressed in a blog the need to rethink special education to prepare each individual for successful careers and a meaningful life.

“This work is too important, the need is too urgent, and the stakes are too high for us to settle for anything less than whatever it takes to deliver on the promises we have made to individuals with disabilities and families in our country,” Collett said. “This will require an unwavering commitment to address any barriers that stand in the way of improving opportunities and outcomes for each person with a disability and to make needed changes at the federal, state, and local levels.”

October 21, 2017  ED under the Trump Administration rescinds 72 Guidance Letters

The list of rescinded documents may be found  by clicking on this link.

It appears within context that the purpose of this exercise was to eliminate “unnecessary” regulations, but none of these documents actually were regulatory in nature.  Memos 23 through 72 were written before passage of the IDEIA 2004 and offered outdated advice; it’s unclear if some  of them (listed as “link unavailable”) were  even available currently.

Also, of the documents issued after 2004, at least one was already outdated by June 2017 amendments to the IDEA resulting from passage of the ESSA, e.g., the guidance on highly qualified teachers (number 18).  And at least two post  2004 Q and As (19 and 22)  on parentally placed private school children  were superseded by a subsequent Q and A in 2011  There are also several OSEP letters from 2015 and 2016 on the topic of parentally placed children in private schools.

Rescinding the guidance did not, does not, and will not affect the respective rights of schools and parents in the 2006 Part B Regulations, as amended.

In short, most of the documents on the list above were outdated, had been superseded or were no longer completely accurate due to technical changes brought about by the ESSA.  Any guidance issued by ED, OSERS, or OSEP regarding the IDEA is by its very nature non regulatory in nature.    Rescinding non regulatory guidance could have absolutely no impact on the regulatory rights provided by Congress and the implementing regulations.

Apparently a week later OSERS determined that the unexplained rescinding of 72 guidance documents had become a public relations nightmare.

They reissued the list as part of a more comprehensive document but this time added reasons for their having rescinded them.  That more comprehensive discussion can be found by clicking on the following embedded link:  Rescinded ED documents.

I had found in my analysis that all but one document providing substantive guidance had been rescinded because it had been superseded by a more current guidance letter.  The link above provided information showing that even that one document had been superseded by guidance I had missed,   Although the document above provides a link to the rescinded 2009 document, it did  not provide a link to the newer guidance from 2013, which can be downloaded by clicking on this link:  Due Process Resolution Q & A.

A few days after this second release, we received a copy of a “news” item from a liberal news source which can be read in its entirety by clicking here.   It is entitled “Now De Vos has totally screwed over Childen with Special Needs.”  It goes on to say (citing the rescinding of the 72 documents above) in part —

DeVos’ decision to eliminate this critical guidance to school districts is a clear message: our school districts are free to interpret IDEA however they like, whether those interpretations meet the needs of disabled students or not.

It appears that it isn’t only Breitbart on the right providing fake news; the left now seems to have its own purveyors of extremist rhetoric.

If you meet anyone who has received information similar to that being distributed above, please reassure them that , the IDEA is still alive and healthy, and that spedlaw attorneys need not fear that they will be out of jobs any time soon.

October 15, 2017,  ESSA State Plans

The United States Department of Education  required every state to submit a state plan for implementing the ESSA by September 2017.  As of this date, 48 states had done so and had their plans approved.  (Only Alaska and South Carolina had not.)  To find your state plan, click on the lick below.

June 2, 2017.  The United States Department of Education issues new IDEA web page.

Today, the U.S. Department of Education launched a new website dedicated to the Individuals with Disabilities Education Act (IDEA).

Secretary of Education Betsy DeVos directed the Department to expedite the development of a new, updated and more robust site specific to the IDEA after the Department’s Building the Legacy: IDEA 2004 (Legacy) site experienced a prolonged outage in February due to technical issues.

“The launch of this new and improved site is a big win for children with disabilities, their families and the entire IDEA community,” said Secretary DeVos. “It is incumbent upon the government to provide accessible and accurate information to our citizens. That’s why one of my first actions as Secretary was to order the Department to fix and revitalize its woefully outdated IDEA site so that parents, educators and service providers could readily access the resources they need.

“The Department will continue to improve upon the new site by seeking and incorporating feedback from IDEA stakeholders in the coming months. We are committed to ensuring all children with disabilities and their families have the supports and services guaranteed under the IDEA.”

The Department’s Office of Special Education and Rehabilitative Services (OSERS) spent more than two months collecting feedbackfrom parents, educators, administrators, service providers and advocates for infants, toddlers, children and youth with disabilities as to what they would like to see on a new IDEA site.

The initial launch of the new website incorporates feedback such as improved search capabilities, expanded content and an easier-to-navigate design compared to the previous Legacy site.

The IDEA is a law that ensures a free appropriate public education to eligible children with disabilities throughout the nation and ensures special education and related services to those children. IDEA stakeholders can continue to provide feedback on the new IDEA website to the Department on the OSERS Blog.

June 30, 2017.   OSERS issues letter announcing amendments to the 2006 FR for the IDEIA 2004 in order to (1) correct some cross referencing errors and (2) to bring the regulations into concordance with the ESSA.  The letter and links provided by OSERS follows:

IDEA Regulations Technical Changes On June 30, 2017 the U.S. Department of Education will publish final regulations under Parts B and C of the Individuals with Disabilities Education Act (IDEA) in the Federal Register. The final regulations make technical conforming changes needed to implement statutory amendments made to the IDEA by the Elementary and Secondary Education Act (ESEA) as amended by the Every Student Succeeds Act (ESSA), and can be found at the Federal Register’s public inspection site on Thursday, June 29th and in the Federal Register on Friday, June 30th. As you know, the ESSA, which was signed into law on December 10, 2015, reauthorized the ESEA, and also made certain changes to sections 602 and 611 through 614 of the IDEA. Consequently, we amended the IDEA regulations in Parts 300 and 303 to reflect the conforming changes and to ensure consistency between Title I of the ESEA and the IDEA Parts B and C regulations. As explained in the preamble to the final regulations, these changes revise relevant regulations that implement the IDEA statutory requirements amended by the ESSA that are applicable to children with disabilities. The amendments remove and/or revise IDEA definitions based on changes made to the definitions in the ESEA, as amended by the ESSA, and also update cross-references to the ESSA in the IDEA regulations. For example, the definitions of the terms “core academic subjects” in §300.10, “highly qualified special education teachers” in §300.18, and “scientifically based research” in 34 CFR §§300.35 and 303.32 have been removed because these terms have been removed from the ESEA, as amended by the ESSA. We note, however, that consistent with section 9214(d)(2) of the ESSA, we have moved the qualification requirements for special education teachers, including the requirements regarding alternate routes to special education teacher certification, from 34 CFR §300.18(b)(1) and (2) to 34 CFR §300.156(c)(1) and (2). In addition, we have revised the definition of “regular high school diploma” in §300.102(a)(3)(iv) to incorporate the definition of “regular high school diploma” in section 8101(43) of the ESSA. The amendments also made revisions to the alternate assessment requirements in 34 CFR §300.160(c). The changes clarify that if a State has adopted alternate academic achievement standards as permitted under section 1111(b)(1)(E) of the ESEA, the State must develop guidelines and conduct alternate assessments that measure the achievement of children with the most significant cognitive disabilities against those standards. To ensure consistency with regulations for Title I of the ESEA in 34 CFR §200.6(c), additional revisions have been made to 34 CFR §300.160(d), (e), (f) to clarify information to be provided to individualized education program Teams and parents regarding children with disabilities who are students with the most significant cognitive disabilities who take alternate assessments aligned with alternate academic achievement standards, as well as applicable reporting requirements. Finally, the amendments also include technical corrections to previously published IDEA Part B regulations. To assist with your review of the regulations, we are attaching a chart that summarizes each change included in the final regulations. This chart notes the previous regulatory language, includes the new regulatory language or notes the relevant deletion, and provides the reasoning and authority for the change. Thank you for your dedication and continued hard work in improving results for children with disabilities.

December 11, 2016.   OSERS issues significant amendment to the 2006 FR regarding disproportionality.    For the complete regulation click on IDEA Part B Significant Disportionality Amendment 12/16/2016

“The U.S. Department of Education today made available to the public final regulations under Part B of the Individuals with Disabilities Education Act (IDEA), aimed at promoting equity by targeting widespread disparities in the treatment of students of color with disabilities. The regulations will address a number of issues related to significant disproportionality in the identification, placement, and discipline of students with disabilities based on race or ethnicity. The Department is also releasing a new Dear Colleague Letter addressing racial discrimination.

“Children with disabilities are often disproportionately and unfairly suspended and expelled from school and educated in classrooms separate from their peers,” said U.S. Secretary of Education John B. King Jr. “Children of color with disabilities are overrepresented within the special education population, and the contrast in how frequently they are disciplined is even starker.”

King added, “Today’s new regulations and supporting documents provide the necessary guidance and support to school districts and build upon the work from public education advocates and local leaders who believe, like we do, that we need to address racial and ethnic disparities in special education. This important step forward is about ensuring the right services get to the right students in the right way.”

In order to address those inequities, IDEA requires states to identify districts with “significant disproportionality” in special education—that is, when districts identify, place in more restrictive settings, or discipline children from any racial or ethnic group at markedly higher rates than their peers.

Children of color—particularly African-American and American Indian youth—are identified as students with disabilities at substantially higher rates than their peers. It is critical to ensure that overrepresentation is not the result of misidentification, including both over- and under-identification, which can interfere with a school’s ability to provide children with the appropriate educational services required by law. It is equally important to ensure that all children who are suspected of having a disability are evaluated and, as appropriate, receive needed special education and related services in the most appropriate setting and with the most appropriate discipline strategies employed.

This rule sets a common standard for identifying significant disproportionality in representation of students within special education, segregated school settings, and in receipt of disciplinary actions and ensures that school districts where disproportionality is found carefully review their policies and practices to determine root causes and whether changes are needed. The final rule ensures that school districts explore and address situations where the cause of significant disproportionality is due to under-identification of a group as well as over-identification.

President Obama’s My Brother’s Keeper Task Force identified restoring equity for students with disabilities as a key priority, because there are lasting impacts on children when they are misidentified, including them being taught in classrooms separate from their peers and subjected to inappropriate disciplinary action. Today’s announcement delivers on that commitment.

A Standard Approach

The final regulations establish a standard approach that States must use in determining whether significant disproportionality based on race or ethnicity is occurring in the state and in its districts. In 2013, the Government Accountability Office (GAO) issued a report finding that, because states currently use a wide variety of methodologies for examining their districts, few states take action to address significant disproportionality; in fact, as the GAO found, only two to three percent of all districts nationwide are identified as having significant disproportionality, and some states’ methodologies for identifying districts for disproportionality were constructed in such a way that the GAO found districts would likely never be identified. Accordingly, GAO recommended that the Department require that all states adopt a standard approach to identify racial and ethnic disparities. With these final regulations, all states will use the same methodology, which will allow for more accurate comparisons within and across states.

Focusing on Discipline

In addition to requiring a standard methodology, the regulations shine a spotlight on disparities in the discipline of students with disabilities on the basis of race or ethnicity by requiring states to examine districts for significant disproportionality in their disciplinary practices. Specifically, the regulations clarify that States must address significant disproportionality in the incidence, duration, and type of disciplinary actions, including suspensions and expulsions, using the same statutory remedies required to address significant disproportionality in the identification and placement of children with disabilities.

Addressing the Root Causes of Disproportionality

In order to eliminate the racial and ethnic disparities that are the focus of these regulations, districts must identify and address the root causes of significant disproportionality. Accordingly, the final regulations clarify requirements for the review and revision of policies, practices, and procedures when significant disproportionality is found. Districts will be required to identify and address the factors contributing to significant disproportionality as part of comprehensive, coordinated early intervening services (CEIS). In addition, new flexibilities in the use of CEIS will further help districts identified with large disparities in addressing the underlying causes of the disparity.

Providing Support for Districts to Take Action

The Department understands that districts need support to effectively address significant disproportionality, and these final regulations provide that support through additional flexibilities in the use of CEIS. Prior to these final regulations, districts identified as having significant disproportionality were not permitted to use their required 15 percent set aside for CEIS in order to serve students with disabilities, even if the district had identified racial disparities in the discipline and placement of children with disabilities. Likewise, CEIS funds could not be used to serve preschool children. Now, with these final regulations, districts identified as having significant disproportionality will have the flexibility to use their CEIS set aside to assist students with disabilities and preschool children with and without disabilities.

All children who require special education services should be appropriately identified and supported. At the same time, no child should be inappropriately identified for special education services, segregated from his or her peers, or disciplined more frequently or harshly simply because they are a student of color with a disability. These regulations will help ensure that the promise of IDEA is fulfilled without regard to race or ethnicity.

The final regulations incorporate changes to the Department’s initial proposals from the comments we received in many ways, including:

• Better addressing how the risk ratio applies to small districts; under the final regulations;
• States need not calculate risk ratios for any racial or ethnic group that does not meet minimum cell or n-sizes set by the state;
• Explicitly prohibiting the use of quotas or of artificially reducing the number of children identified as children with disabilities; and
• Clarifying that states have flexibility not to identify significant disproportionality in districts that make reasonable progress in lowering risk ratios for two prior consecutive years.

To learn more about more technical assistance resources, click here.

Meanwhile, the Office for Civil Rights (OCR) is also releasing a new policy document to support educators and administrators as they work to identify students’ need for special education. This new policy document was created to remind states, school districts, and public schools of their legal obligation to prevent discrimination on the basis of race in special education. OCR’s enforcement experience suggests both over-identification and under-identification based on race are occurring in schools.

“All students deserve access to the world-class education federal civil rights laws demand,” said Catherine E. Lhamon, assistant secretary for civil rights. “The Department will continue its work with school communities to safeguard the rights of our students with disabilities, students of color, and all students to ensure educational equity.”

Specifically, the Dear Colleague Letter explains the Title VI requirement that students of all races and national origins have equitable access to general education interventions and to a timely referral for an evaluation for disability under the IDEA or Section 504; and that students of all races and national origins be treated equitably in the evaluation process, in the quality of special education services and supports they receive, and in the degree of restrictiveness of their educational environment.

The letter outlines how to avoid racial discrimination in the referral for disability evaluation, the evaluation process itself, and the provision of special education. It also provides ten illustrative examples that provide further guidance on those processes.”

Overview

Special Education law is inherently complex, confusing, and sometimes see
mingly arbitrary.   The interpretation of key terms like “free appropriate public education” is always relative to the individual needs and abilities of each child with a disability.  Therefore, no special education court case is ever a slam dunk, and while school systems historically win more than half the time, a review of court decisions (approximately 100 cases reach the courts every year) reveal that parents have prevailed in a substantial number of them.  For a chronological history of spedlaws in the United States from 1958 to 2001 see the  chronology of sped laws;  for the current laws and regulations themselves (and laws and amendments since then) see the sections following.

In order to apply special education law to a particular individual case, it is necessary to not only have a familiarity with the federal statutes and regulations for the IDEA, Section 504, the ADA, Title VI, Title IX, the Assistive Technology Act, and FERPA, but also the relevant regulatory advisories from the federal enforcement agencies, state regulations (for programs provided under the IDEA), and court decisions, particularly circuit court and Supreme Court decisions.   For that reason, we strongly recommend that whenever a school system is confronted with an actual adversarial situation that it obtain the services of an attorney specializing in special education law.

There are at least nine main sources of guidance with respect to special education law, ranked in order of reliability.

1.  The statutes.  Some are listed on this page, but the federal regulations (FR) implementing them offer more extensive guidance.  When Congress disagrees with how the Supreme Court has interpreted its laws, it may, as in the Americans with Disabilities Amendment Act of 2008, pass legislation over turning those decisions.
2. Federal regulations.  Federal regulations also carry the force of law.  Although occasionally challenged by attorneys, these challenges are hardly ever successful.  This page provides links to important federal spedlaw regulations
3. State regulations.  These regulations also carry the force of law within the boundaries of their respective states.  For links, see our State Regulations page.
4. Supreme Court case law.  The principles applied in deciding Supreme Court cases are universally binding on all lower courts.   However, while giving deference to the Supreme Court, different circuits may interpret the implications of their rulings differently.   While an Act of Congress can overturn decisions based on its statutes, only a Constitutional Amendment can overturn its decisions based on the U.S. Constitution.  For important case law, begin with our Landmark Cases page.
5. Circuit Court decisions.  Unless overturned by the Supreme Court, the principles applied in deciding cases are binding on lower courts within their jurisdiction.  Split decisions (disagreements between the circuits) are often appealed to the Supreme Court.
6. District court decisions.  To the extent that they are based on circuit and Supreme Court standards, offer guidance on how those standards may be interpreted by lower courts.
7. Guidance from OSERS/OSEP and OCR.  Generally reliable but non binding on any court.
8. Letters from OSERS/OSEP and OCR.  Letters from OSEP are instructive with respect to how they interpret their own regulations in a specific situation but are also non binding on any court.
9. Opinions of special education attorneys on Internet websites.  Generally based on their review and analysis of case law.  Most useful when they are simply summarizing the standards applied by a court in reaching a decision.  However, it is this writer’s recommendation that before relying on an attorney’s analysis that confirmation of the conclusions be found from at least two other independent sources.

We  recommend that school psychologists download and save on their own computers searchable copies of the IDEA regulations (the link is available directly below this note) and their state regulations (click on Links to other Spedlaw Pages at the bottom of this page or on  the Spedlaw tab on this site and then on State Regulations).  The Preface to the 2006 Final Regulations for the IDEA 2004 (pp. 46540-46753) is particularly illuminating when trying to understand some of the more obscure passages in the actual regulations (pp. 46755-46817). There is a Table of Contents on pp. 46753-46755 and an index on pp. 46817-46845. In the heat of a meeting, it is helpful to do a word search for 46753 to bypass the Preface and commentary and find your needed chapter and verse in the Table of Contents right away. Later, you can go back and search the commentary to find out what the heck they were thinking when they wrote the regulation

Draft Regulations for the ESSA

On May 26, 2016, the United States Department of Education (ED) published draft regulations for the ESSA.  These regulations do not, of course, carry the force of law, but they should provide readers with a good sense of what will eventually be required as a result of the ESSA, a replacement for NCLB.

Draft Regulations for the ESSA  (192 page)

ESSA Summary of Proposed Regulations (6 pages)

Chart of Major Changes from NCLB to ESSA

THE EVERY STUDENT SUCCEEDS ACT

The ESSA amended the ESEA of 1965, bringing substantial changes to the previous amendment, No Child Left Behind (NCLB).  For a complete copy of the amended statute, either click here or on the image above.

The entire text of the Every Student Succeeds Act , the 2015 amendment to the ESEA of 1965, ran 391 pages.   As amended, the ESEA now runs 443 pages.  While some of it is in plain English, because it is  an amendment to the Elementary and Secondary Education Act of 1965, the meaning of  some sections is obfuscated because multiple sections of the 1965 ESEA are included by reference.   Most of the changes affect services to all elementary and secondary school children, but the Act also includes 37 references to the IDEA.  It recommends adoption of a tiered model of intervention, especially in Target schools not meeting state standards, and it also requires states in their plans to state how they will be helping LEAs reduce the use of aversive behavioral interventions that compromise student health and safety.

The Act amended the previous regulations regarding highly qualified teachers,  shifting responsibility for determining teacher credentials back to the states.   With respect to special education teachers, the changes appear more complex.  Rather than independently analyze those changes, we’ve provided ED’s footnote from a January 16, 2016 Dear Colleague letter .

The ESSA amended the Individuals with Disabilities Education Act (IDEA) by removing the definition of “highly qualified” in section 602(10) and the requirement in section 612(a)(14)(C) that special education teachers be “highly qualified” by the deadline established in section 1119(a)(2) of the ESEA, as amended by NCLB. Accordingly, during the 2016-2017 school year, States are not required to ensure that special education teachers are “highly qualified” as defined in the ESEA. However, the ESSA also amended section 612(a)(14)(C) of the IDEA by incorporating the requirement previously in section 602(10) (B) that a person employed as a special education teacher in elementary school, middle school, or secondary school has obtained full certification as a special education teacher (including certification obtained through alternative routes to certification), or passed the State special education teacher licensing examination and holds a license to teach in the State as a special education teacher, the teacher has not had special education certification or licensure requirements waived on an emergency, temporary, or provisional basis, and the teacher holds at least a bachelor’s degree. States must continue to comply with these certification requirements during the 2016-2017 school year.

The statute also reduced  the allowable percentage of students taking alternative assessments to one percent (1%).    The actual impact of these changes is difficult, at this point, to predict, since the Act explicitly prohibits the establishment of local caps and leaves the decision as to the most appropriate assessments in the hands of IEP teams.  (p. 1177 – 28.)  At this time, OSERS has not issued a draft amendment to the IDEA Amendments of 2006.

Section 300.302 of the IDEA says that screenings for instructional purposes are not evaluations.  The word “screenings” is not defined within the IDEA, but “evaluation” is defined as testing to determine the eligibility and present levels of academic achievement and functional performance of a child suspected of a disability.  So unless the testing is being done for a child suspected of having a disability, it is not an evaluation, and a school does not need prior written consent from a parent to use a test, whether administered in a group or individually, if the purpose is done for instructional purposes.  (See OSEP’s Letter to Torres, April 7, 2009.)  The ESSA clarifies schools’ responsibility to provide literacy education for all by defining instruction as instruction that  ” uses age-appropriate, valid, and reliable screening assessments, diagnostic assessments, formative assessment processes, and summative assessments to identify a child’s learning needs, to inform instruction, and to monitor the child’s progress and the effects of instruction.”  (p. 1177 – 135.) Student support teams may, therefore, use whatever diagnostic tests they determine necessary to individualize the instructional process, even tests that require a specialist to remove the child from the regular classroom and test him in a separate setting.

The Senate conveniently provided a Summary of The Every Student Succeeds Act of 2015

The United States Department of Education issued its own brief summary in a December 18, 2015 Letter.   The Education Department’s web page on the ESSA contains multiple links to additional information.

A discussion of the new one percent rule and its implications for students with moderate to severe disabilities who want to graduate with a diploma is provided in a December, 2015 article in DisabilityScoop at:  Education Law Tightens Testing Cap For Students With Disabilities

Despite multiple references to the Individuals with Disabilities Education Act in the ESSA (53, total), OSERS had not as of 12/20/2015 commented on the possible implications for services to children with disabilities.

However, in February, 2016, NASP published two documents, one a worksheet, aimed at assisting schools to mesh the requirements of their MTSS teams with the requirements of the ESSA.

Crosswalk ESSA MTSS PM FINAL  and the worksheet:
Crosswalk Planning Worksheet

Sections possibly relevant to school psychologists and special educators from the ESSA:

Supports One-Percent Assessment for Students with the Most Significant Cognitive Disabilities – The bill supports a state-level cap of one-percent on students with the most significant cognitive disabilities tested on the alternate academic achievement standards. This provides school districts with flexibility, as long as the number of those proficient scores does not exceed one percent of all students in the state.

Maintains reporting of disaggregated data – The bill maintains annual reporting of disaggregated data of groups of children, which provides valuable information about whether all students are achieving and whether schools are meeting the particular needs of low-income students, students of color, students with disabilities, and English learners.

The bill affirms the state’s responsibility to establish and implement statewide entrance and exit procedures for English learner programs, and provides additional information to states and school districts to help meet the needs of long-term English learners and English learners with a disability

Additional Resources for the ESSA (Courtesy of Ron Benner, added August 28, 2016)

Final 1999 Regulations for the IDEA 1997

The 1999 Federal Regulations were of course superceded by the 2006 Final FR, but some of the advice in Appendix A, not repeated in the 2006 FR, still remains relevant.  Nevertheless, given the extensive changes made by Congress and incorporated into the 2006 Federal Regulations, they no longer carry the force of law.   A copy of those regulations is included here for historical reference.

1999 Final Regulations for the IDEA 1997

The 1997 IDEA Reauthorization  is archived on the federal website.

Just a summary of the most important changes by Peter Wright in 2006 ran six pages.  ASHA published a Side by Side Comparison Analysis that runs 99 pages.  Not necessarily recommended reading, but nevertheless a rough indication of how much the requirements changed from 1999 to 2006,

THE IDEIA OF 2004

The purpose of the Act was to reauthorize the IDEA.  Congress made a number of significant changes, the purpose of which was to hold children with disabilities to higher standards, while simplifying  some of the paperwork.

The Individuals with Disabilities Act of 2004

The 2006 Final Part B Regulations for the IDEA 2004

The 2004 IDEIA directed the Secretary of the United States Department of Education (ED) to issue regulations implementing the law:

‘‘SEC. 607. REQUIREMENTS FOR PRESCRIBING REGULATIONS. ‘‘(a) IN GENERAL.—In carrying out the provisions of this title, the Secretary shall issue regulations under this title only to the extent that such regulations are necessary to ensure that there is compliance with the specific requirements of this title.

The Office for Special Education and Rehabilitative Services (OSERS) had the responsibility within ED to write those regulations.   A first draft was issued by OSERS in 2004 for public comment.  Final Regulations, however, were not issued until 2006.  Those regulations are posted below and (just like the statute above) carry the force of law.

https://www.govinfo.gov/content/pkg/FR-2006-08-14/pdf/06-6656.pdfThe 2006 Final Regulations for the IDEA 2004

Amendments to the 2006 FR

Since 2004 there have been four amendments to the IDEA (not counting the changes brought about the Every Child Succeeds Act, which would make five.) The first amendment gave parents more control over whether or not their children received special educational services.  The second was Rosa’s Law, 2010, which changed  “mental retardation” to “intellectually disabled.” The Third made it easier for schools to access parents’  federal insurance.  And the Fourth emphasized the federal requirements to hold all students, including students with disabilities, to high standards.

2008 Amendment Giving Parents the Right to Withdraw Consent

In 2008, OSERS issued final regulations giving parents the unilateral right to reject special educational services.

2008 Amendment Giving Parents the Right to Withdraw Consent

OSERS published the revision of Section 300.300 on its website.

OSERS published Non Regulatory Guidance on the 2008 Supplemental Regulations in April, 2009.

Additional non regulatory guidance was provided in a Letter to Cox, August 21, 2009.

Rosa’s Law

In 2010, Congress passed Rosa’s Law, forever after changing “mentally retarded individual” to “individual with an intellectual disability” in all regulations.  While the previously published regulations may still retain the “old” wording, the statute says

For purposes of regulations issued to carry out a provision amended by this Act— (1) before the regulations are amended to carry out this Act— (A)a reference in the regulations to mental retardation shall be considered to be a reference to an intellectual disability; and (B) a reference in the regulations to the mentally retarded, or individuals who are mentally retarded, shall be considered to be a reference to individuals with intellectual disabilities; and (2) in amending the regulations to carry out this Act, a Federal agency shall ensure that the regulations clearly state— (A) that an intellectual disability was formerly termed mental retardation; and (B) that individuals with intellectual disabilities were formerly termed individuals who are mentally retarded.

Rosa’s Law (2010)

Specifically, Rosa’s Law resulted in the following changes to the IDEA 2006 Part B Regulations

As stated above, the final regulations published today in the Federal Register implement Rosa’s Law. Because Rosa’s Law amended IDEA, we have made conforming changes to the IDEAregulations (34 CFR part 300). The term “mental retardation” has been changed to “intellectual disability” in the following Part B regulations:

• §§300.8(a)(1) and (c)(6), (c)(7), and (c)(10)(ii) (Child with a disability);
• §300.309(a)(3)(ii) (Determining the existence of a specific learning disability); and
• §300.311(a)(6) (Specific documentation for the eligibility determination).

Rosa’s Law also made the same changes in Section 504 of the Rehabilitation Act.

Beginning August 10, 2017, the regulations implementing Section 504 of the Rehabilitation Act of 1973 (“Section 504”), 34 C.F.R. Part 104, and the Individuals with Disabilities Education Act (“the IDEA”), 34 C.F.R. Part 300, will be revised to change references to “mental retardation” to “intellectual disability.”  The revisions are being made pursuant to Public Law 111-256, better known as Rosa’s Law.  Originally enacted in October 2010, Rosa’s Law is named for Rosa Marcellino, a child with Down Syndrome whose family advocated for more accurate and progressive terminology in legislation affecting individuals with disabilities.  The Marcellino family’s efforts are part of a larger trend toward replacing outdated or pejorative legal terms with language that acknowledges the dignity and capabilities of individuals with disabilities

IDEA Regulations:

Amendment to the IDEA easing restrictions on schools’ access to Medicaid insurance

These amendments revise the parental consent requirements a public agency must meet before it may access for the first time a child’s or parent’s public benefits or insurance (e.g., Medicaid) to pay for services required under the Act; ensure that parents of children with disabilities are specifically informed of all of their legal protections when public agencies seek to access public benefits or insurance (e.g., Medicaid) to pay for services required under the Act; and address the concerns expressed by State educational agencies (SEAs) and local educational agencies (LEAs) that requiring parental consent each time access to public benefits or insurance is sought, in addition to the parental consent required by the Family Educational Rights and Privacy Act (FERPA) and section 617(c) of the IDEA, imposes unnecessary costs and administrative burdens.

On February 26, 2016, the US Department of  Education published its first FAQ on Transitioning to the ESSA (17 pages).   While all of the document is relevant to general educators, only the following Q and A dealt specifically with special education.

D.1  Must a State ensure that special education teachers are “highly qualified,” as defined in section 9101 of the ESEA, as amended by NCLB, in the 2016-2017 school year.
No. The ESSA amended the Individuals with Disabilities Education Act (IDEA) by removing the definition of “highly qualified” in section 602(10) and the requirement in section 612(a)(14)(C) that special education teachers be “highly qualified” by the deadline established in section 1119(a)(2) of the ESEA, as amended by NCLB. Accordingly, a State is not required to ensure that special education teachers are “highly qualified” as defined in the ESEA beginning with the 2016-2017 school year but must ensure that they meet the requirements described in D-1a.

IDEA Part B Regulations Regarding Parental Consent for the Use of Public Benefits or Insurance to Pay for Services under the IDEA

OSEP also issued Non-Regulatory Guidance on the IDEA Part B Regulations Regarding Parental Consent  to use Public Health Benefits including a seven page Q and A.

August 21, 2015 Part B Amendments  Regarding Modified Academic Standards

SUMMARY: The Secretary amends the regulations governing title I, Part A of the Elementary and Secondary Education Act of 1965, as amended (ESEA) (the ‘‘Title I regulations’’), to no longer authorize a State to define modified academic achievement standards and develop alternate assessments based on those modified academic achievement standards for eligible students with disabilities. In order to make conforming changes to ensure coordinated administration of programs under title I of the ESEA and the Individuals with Disabilities Education Act (IDEA), the Secretary is also amending the regulations for Part B of the IDEA. Note: Nothing in these regulations changes the ability of States to develop and administer alternate assessments based on alternate academic achievement standards for students with the most significant cognitive disabilities or alternate assessments based on grade-level academic achievement standards for other eligible students with disabilities in accordance with the ESEA and the IDEA, or changes the authority of IEP teams to select among these alternate assessments for eligible students

August 21, 2015 Amendment to Part B Regulations

Links to other Spedlaw Pages

FERPA  Discussion of federal (and state) confidentiality laws regarding education records

Landmark Court Cases   Some of the cases more frequently mentioned as setting precedent

Forest Grove v. T.A.  An illustrative of a case that ran the gamut from administrative hearing to the Supreme Court and back again

OSERS and OSEP Guidance  Sampling of letters with links to Letters by topics

Selected Excerpts:  2006 Federal Regulations

Part C  This page include the Part C regulations, OSEP letters, a sampling of case law, and links to state guidance on assessing infants and toddlers (0-3).

Damages  Discussion of case law with links

State Regulations Part B  Links to state regulations, RTI guidance, state forms

Parents Disagree: Test or Not Test

Title IX  Prohibits discrimination based on sex

Section 504, ADA, and OCR   Title II of the ADA prohibits discrimination based on disability

Title VI  Prohibits discrimination based on race, color, or national origin

Blind Deference  Discusses implications of Supeme Court guidance