Information On IDEA 2004

The new law has brought many changes that will take years to sort out. There are points that will not be satisfactory to parents in areas such as manifestation determinations for disciplinary matters, and school districts have already expressed displeasure with the requirements for personnel to become “highly qualified.” The changes in the law are significant and important. However, of equal importance is that good solid advocacy---asking questions, getting evaluations, being prepared, and documenting in writing issues and concerns, to state a few--remains constant and paramount. Click the link below to read the main topics in IDEA 2004 that I believe parents need to know immediately:

Summary of Some Main Points in IDEA 2004
By Charles P. Fox, Attorney at Law

Disclaimer: IDEA 2004 is new and has not been construed in the courts, so the points below should be viewed as generalizations only and not specific legal advice. In addition, the changes to the law discussed below are meant to be only an overview. There are numerous websites that reproduce the entire law with detailed summaries.

1. The effective date for the law is July 1, 2005, but implementing regulations further defining the law may take up to 2 years based upon past timelines.
2. Initial evaluations must be completed within 60 days - not school days or per a timeline determined by the state.  It is not clear whether the timeline for reevaluation is also going to be 60 days or not.
3.  The learning disability definition has changed significantly. States are no longer required to use a severe discrepancy analysis, albeit they may continue with this type of analysis. Instead, schools may use a process that determines whether a child responds to scientific/research-based interventions as part of the evaluation process. The new acronym will be “RTI” for “responds to therapeutic intervention.” This is an area for much debate, likely open for litigation.
4.  Benchmarks and short terms objectives are no longer required, but there needs to be some indication of progress. Evaluation procedures and criteria in the IEP will become more critical, and outside testing more frequent. (e.g. achievement testing). For students who take alternative assessments, short term objectives and benchmarks remain.
5. Transition planning begins at 16, not 14. If there is a more obvious need to work on transition issues, it may still pay to advocate for earlier planning than 16.
6. Upon parental written consent IEP team members may be excused.  In lieu of atendance, or reports in writing may be allowed.
7. Amendments to the IEP may be made without the need for follow up meetings. This provision is not entirely clear and may cause litigation. For instance, it is no clear whether very material changes be made without a meeting, or only minor clerical changes (which is often the case now)
8. Conference calling for IEP meetings, mediations and other meetings is now officially permitted upon agreement of the parties.
9. A 2 year statute of limitations is now specified and must be stated in the procedural safeguards notice, except a state may provide for a shorter period. Illinois has consistently had a 2 year statute. Exceptions to the running of the statute are expressly provided for in situations where the parents are deceived.
10. Due process complaints must follow statutory guidelines and may be challenged for insufficiency. Amendments to the due process complaint are subject to agreement or hearing officer discretion. Liberal amendments should be permitted as long as they are timely. However, this provision is a tool that schools could use to lock parents into poorly worded due process complaints.
11. The school district (or the parents if they are the recipient of the due process) must respond in a manner that specifically addresses the issues in the complaint. At last, a provision that mandates schools lay out their position. Too often at due process schools shift their position as the hearing unfolds. On the other hand, parents will be required to state their allegations in a way that schools can specifically respond.
12. Mediation agreements are legally binding in state or federal court.
13.  A Resolution Session is now legally mandated. The school is not permitted to bring a lawyer unless the parents bring a lawyer. The school must have a person present who has authority to bind the school district. Relevant IEP team members may be present for this session. There will be a 3 day “cooling off” period following the session during which the agreement can be rescinded.  Though, such sessions can be good vehicles for resolution, they can also be abused. One the one hand, schools may use them to gather information and intimidate parents. Parents may find it hard to sit with school people right after filing due process (remember that conference calling is permitted). On the other hand, schools will need to show some of their cards as well. No attorney fees may be awarded for these sessions.
14. Procedural FAPE violations are limited to claims where the procedural violation denies parental participation, impeded the right to FAPE or caused a deprivation of educational benefits. This is a recap of the law as it exists currently, and it is helpful in many ways. This provision emphasizes that minor or technical procedural violations do not deny FAPE.
15. Appeals must be filed within 90 days, not 120 days as is the current law in Illinois.
16. Procedural safeguard notice will generally only be given once a year.
17. Attorneys fees may be shifted to parents and their attorneys where due process is unreasonable, frivolous or without foundation. This is a major change in the law! While the number of cases that will fall into this category is very small, schools will use this threat to intimidate parents--especially unrepresented parents. Fees should not be shifted in garden variety cases where a parent files due process with a sound basis, puts on a good case, and loses. This provision applies to the exceptional case where the parent brought a case or pursued a case without legal or factual foundation. Expect letters from school district lawyers wielding this provision as a stick even where it is not warranted.
18. There have been major changes to the manifestation determination rules for determining if a behavioral infraction is a manifestation of the child’s disability. First, an editorial comment, while this provision has been weakened, there was a lot political pressure to scrap it altogether.  Thus, it is an imperfect compromise, but better than the alternative.  Keep in mind the following information about the rules::
    1. The rule allows for case by case determinations -- a possible bulwark against “zero tolerance”.
    2. The burden of proof is on parents to show manifestation.
    3. The rules no longer require determinations as to whether the IEP or placement is inappropriate.
    4. Lack of IEP implementation is still relevant.
    5. The exceptions to “stay put“ now include serious bodily injury.
19. States must complete a “performance plan” to address compliance issues. It remains to be seen if this will actually increase the effectiveness of enforcement.
20. Children can not be barred from school for failing to take medications such as Ritalin or Concerta.
21. Teachers and paraprofessionals will need to become “highly qualified.” This is an area that is still being sorted out under No Child Left Behind. Questions about qualifications and training have always been relevant areas of inquiry, but even more so now under the new law. Schools should reveal these trainings/qualifications, but they may still object on grounds of personnel confidentiality.
22. Assistive technology still has a prominent role in the Act.  The term “Universal Design“ is newly inserted, which emphasizes the need for accessible technology.
23. The term “appropriate accommodations” relating to testing is inserted but not defined. Given the amount of testing called for in the Act, this will be an area for litigation.
24. Perhaps the most cryptic term in the new Act is that for States that provide Early Intervention services for children 3-5 (Illinois), FAPE is not required. The standard is not stated. Much litigation on this point can be expected.

Comments

[Sandy Alperstein]

Great summary of IDEA 2004, Charlie! Critical information summarized in a parent-friendly format. Thanks!!

Sandy Alperstein
Volunteer Co-Webmaster, Our Children Left Behind (http://www.ourchildrenleftbehind.com)

[Janet Mroz]

What about children that are privately placed, have an IEP, and the private school is not in the resident's school district? I understand that it is dependent on the funds of the non-resident school district. There is a service plan and there is no way a parent can voice concern regarding the lack of services, except for a letter of complaint. What if the child is dually enrolled and wants to get the services from the resident school district? How many hours must the child attend the public school? What if a child is home schooled? How many hours must they be home schooled? What are the requirements to home school a child in the State of Illinois? Any information provided would be greatly appreciated. Thanks

[Netta Anderson]

This is wonderful.
Netta

[Nora Hipskind]

The information is helpful, but I too have questions about privately placed students. I have 3 children enrolled at a private school who receive services through district 205. I have been told by the assistant superintendant of special services that privately placed students will no longer be receiving OT and social work, and that all IEPs of privately placed students will be converted to service plans. Is this legal? What can I do to change this?

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