Individual Education Programs: Changes in Implementation and Practice

1
Individual Education ProgramsChanges in
Implementation and Practice
AFT Special Education Action Network
Conference Baltimore, MD November 13-14, 2006

• Elizabeth A. Truly, Legal Consultant to AFT and
  UFT and
• Lawrence Waite, Associate in Educational
  Services, NYSUT
• Presenters

2
The Statute, Regulations, and Analysis of
Comments and Changes

• Citation format Is it Sec. 614 or Sec. 1414?
• One stop shopping the statute is now
  incorporated in the regulations
• Analysis of Comments and Changes
• Response to thousands of comments
• Comments include
• Objections to changes made by Congress
• Requests to retain prior regulations
• Requests for clarification of ambiguities and
  scope of State and local authority
• Appeals for additional protections for parents
  and school staff
• Discussion articulates the USDOEs position on
  many key issues
• Changes are changes from NPRM, not IDEA 97

3
A New Philosophy Permeates the Law and
Regulations and Limits Options

• Historically, federal law and regulations have
  set the floor and states and local school
  districts have had the option to be more
  protective of parents rights.
• New law and regulations emphasize
• Personal responsibility (characterized as parent
  empowerment)
• Reductions in regulatory burden at the State
  level
• Increased decision-making authority at the local
  level
• As a result, it will be more difficult to address
  issues at the State level.

4
Concrete Applications of the New Philosophy

• USDOE policy, expressed in the Discussion
  sections of the Analysis of Comments and Changes
• Prohibits States from legislating or regulating
  on certain issues
• Explicitly authorizes States to legislate or
  regulate on other issues
• Discourages States from legislating or regulating
  in a number of areas
• Allows school districts autonomy in deciding
  implementation practices

5
Reading the Tea Leaves

• Prohibitions
• We do not have the authority to allow a State to
  . . .
• A State must allow . . .
• It would be inconsistent with the Act to . . .
• The Act cannot be interpreted to require . . .
• There is no statutory authority to permit . . .
• The public agency may not . . .

6
Reading the Tea Leaves

• State Discretion
• State and local officials are in the best
  position to determine . . .
• There is nothing in the Act that requires a
  State to, or prohibits a State from . . .
• We decline to specify as we are not in a
  position to determine . . .
• The Act gives States considerable discretion to
  . . .
• A State could, if it chose to do so . . .
• There is nothing in the Act that limits States
  and LEAs from . . . so long as the requirement
  is not inconsistent with the Act or these
  regulations.

7
Reading the Tea Leaves

• State action discouraged but not prohibited
• We believe that it is important to give public
  agencies and parents wide latitude about . . .
  and therefore we decline to regulate on . . .
• We believe these requirements are sufficient . .
  . and do not believe that additional regulations
  on this subject are warranted. . .
• The Act does not require . .
• It would not be appropriate to . . .
• To require public agencies to . . . would be
  counter to the intent of . . .
• We do not believe it is appropriate to require.
  . .
• It would be overly burdensome to . . .

8
Questions to Consider in Deciding How to Respond
on a State and Local Level

• What is the current requirement/procedure/
  practice in your State/District?
• Does implementation of the new requirement have
  the potential to significantly change practice in
  your State/District?
• In your view, will this change have a positive or
  negative impact on the education of students with
  disabilities in your State/District?
• How will your members respond to the change in
  practice?  Will they support it, oppose it or
  accept it?

9
Questions to Consider in Deciding How to Respond
on a State and Local Level

• What, if anything, will your members expect you
  to do on a State or local level regarding this
  change?
• Will ameliorating the impact of this change be a
  priority issue for your members?
• Will other constituencies (school boards,
  parents, advocacy groups) seek your support in
  having this issue addressed in a particular
  manner?
• If action is necessary, what are your options?

10
Questions to Consider in Deciding How to Respond
on a State and Local Level

• Will this change alter the roles and
  responsibilities of your members?
• Will this change affect the terms and conditions
  of employment of your members?
• Will this change affect any other collective
  bargaining issues?

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From Referral to PlacementWhats New?

• Requests for an Initial Evaluation
• Reevaluation Procedures (including triennials)
• Eligibility
• IEP Team Meetings
• Changes to IEP Content
• Annual Goals Benchmarks/Short-Term Objectives
• Progress Reports
• Statement of Special Education and Related
  Services
• Transition Services

12
Request for Initial Evaluation

• New language in statute
• Either a parent or a public agency may initiate a
  request for an initial evaluation
• Public agency does not include employees
• of SEAs or LEAs (e.g., teachers and related
  services providers) unless they are acting for
  the SEA or LEA or
• of other State agencies (e.g., probation
  officers, social workers, or State agency staff)

13
Request for Initial Evaluation

• Child find
• Permits referral from any source that suspects
  child may be eligible
• Typically involves some sort of screening
  process
• Employees of SEA, LEA and other public agencies
  responsible for the education of the child
  identify children who might need to be referred
  for an evaluation
• Initiating an evaluation
• The parent of a child and the public agency are
  responsible for initiating evaluation procedures.

14
Reevaluation Procedures Triennial Waiver

• New language in statute
• Reevaluation must occur once every three years
  unless the parent and the public agency agree
  that a reevaluation is unnecessary
• The agreement to waive the triennial occurs
  before the discussion of the need for additional
  data (since the discussion, which does not
  require a meeting, is part of the reevaluation)
• Agreement, i.e., an understanding between a
  parent and a public agency, is not the same as
  consent and does not need to be in writing

15
Reevaluation Procedures Triennial Waiver

• USDOE does not believe that
• Additional procedural safeguards are necessary to
  ensure that parents who waive the triennial are
  aware of the implications of their decision since
  school districts will discuss the advantages and
  disadvantages with parents prior to the decision
• It is necessary to clarify that waiver must not
  be a routine practice since it is a decision made
  individually for each child
• No explicit prohibition on State regulation that
  is consistent with statute and regulations

16
Reevaluation Procedures Students who Graduate
or Age-Out

• Graduation means graduation with regular
  diploma
• New language in statute requires the public
  agency to provide a summary of the child's
  academic achievement and functional performance,
  including recommendations on how to assist the
  child in meeting postsecondary goals
• State and local officials determine the content
  of the summary based on the childs needs and
  goals

17
Reevaluation Procedures Students who Graduate
or Age-Out

• Public agencies are not required to evaluate
  children to meet the entrance or eligibility
  requirements or to be considered a child with a
  disability at another institution (such as a
  college or career program)

18
Eligibility Special Rule

• Provision in prior law was tweaked to make it
  consistent with NCLB
• A child must not be determined to be a child with
  a disability if the determinant faction is lack
  of appropriate instruction in reading, including
  the essential components of reading instruction
  (as defined in NCLB)
• State and local officials determine whether a
  child has received appropriate instruction
• Curiously, information regarding the quality of
  instruction a child has received in the past is
  helpful but not essential.

19
IEP Team Attendance

• New language in statute
• An IEP Team member is not required to attend an
  IEP Team meeting, in whole or in part, if the
  parent and public agency agree in writing that
  the members attendance is not necessary because
  the members area of curriculum or related
  services is not being discussed or modified in
  the meeting.
• An IEP Team member may be excused from attending
  an IEP Team meeting, in whole or in part, when
  the meeting does involve a modification to or
  discussion of the members area of curriculum or
  related services, if
• The parent, in writing, and the public agency
  consent to the excusal
• The member submits written input into the
  development of the IEP to the parent prior to the
  meeting

20
IEP Team Attendance

• Intent is to provide flexibility in scheduling
  meetings and to avoid delays in holding meeting
  when a member cannot attend due to a conflict
• States must implement excusal provisions
• States may not restrict, or otherwise determine
  when an IEP Team member can be excused from
  attending a meeting, or prohibit the excusal of
  an IEP Team member when the LEA and parent agree
  to the excusal.

21
IEP Team Attendance

• Agreement
• An understanding between a parent and public
  agency, which in the case of IEP Team meetings,
  must be in writing
• Consent
• Means that the parent has been fully informed in
  his or her native language or other mode of
  communication and understands that the granting
  of consent is voluntary and may be revoked at any
  time.
• It is unclear whether States can establish
  additional procedural safeguards, as USDOE may
  interpret additional safeguards as limiting
  parent rights.

22
IEP Team Attendance

• Public agency, not the parent, determines the
  specific personnel who will fill the roles of
  mandated team members.
• If parent invites other agency personnel not
  designated by the agency to be on the IEP Team,
  they are not required to attend.
• LEAs may not routinely or unilaterally excuse IEP
  Team members and those that do are subject to the
  States monitoring and enforcement procedures.

23
IEP Team Attendance

• Excusal provisions apply to federally mandated
  members of the IEP Team
• The regular education teacher of the child (if
  the child is, or may be, participating in the
  regular education environment)
• The special education teacher of the child, or,
  where appropriate, the special education provider
  of the child
• A representative of the public agency who is
  qualified to provide or supervise the provision
  of specially designed instruction, knowledgeable
  about the general education curriculum and
  knowledgeable about the availability of the
  resources of the public agency
• An individual who can interpret the instructional
  implications of the evaluation results
• In some circumstances, a member may serve more
  than one role.

24
IEP Team Attendance

• It would be inconsistent with the Act to
• Set a limit on the number of times an IEP Team
  member could be excused
• Prohibit excusals for initial IEP Team meetings
• Restrict the number of excusals per meeting
• Prohibit certain IEP Team members from being
  excused
• Otherwise restrict or limit parents and LEAs from
  agreeing to excuse IEP team members.

25
IEP Team Attendance

• It is up to State and local officials to
  determine if teachers and service providers other
  than mandated members can attend an IEP Team
  meeting.
• There is no requirement that the excused IEP Team
  member, a teacher, or the other IEP Team members
  agree to excuse a members attendance.
• Each public agency determines who can enter into
  agreements or provide consent on the agencys
  behalf to excuse and IEP Team member.

26
IEP Team Attendance

• The Act and regulations do not specify
• How far in advance a parent must be notified of
  an agencys request to excuse a member
• When the parent and LEA must sign a written
  agreement or provide consent to excuse an IEP
  Team member
• How far in advance of the meeting written input
  must be provided to the parent and the IEP Team
  members
• But requiring these activities to take place
  within a specific period of time prior to the
  meeting, according to the USDOE, would
  effectively prevent IEP Team members from being
  excused in many situations and, thus, be counter
  to the intent of providing parents additional
  flexibility in scheduling meetings.

27
IEP Team Attendance

• The form and content and method of providing
  written input by an excused team member is not
  specified in the Act.
• According to the USDOE, such decisions are best
  left to local officials to determine based on the
  circumstances and needs of the child, the parents
  and other members of the IEP Team.
• State and local officials determine
• How and when the information about the childs
  IEP is shared with the excused IEP Team
  member(s)
• How parents questions and concerns are addressed.

28
Changing the IEP After Annual Review

• New language in statute
• The parent and the public agency may agree not to
  convene an IEP Team meeting for the purpose of
  making changes after the annual review and may
  instead develop a written document to amend or
  modify the childs current IEP.
• The agreement does not have to be in writing.
• If changes are made in a childs IEP without a
  meeting the public agency must
• Inform the childs IEP Team of the changes
• Provide the parent with a revised copy upon
  request

29
Changing the IEP After Annual Review

• The Act does not place any restrictions on the
  types of changes that may be made, so long as the
  parent and the public agency agree.
• States must allow changes to an IEP without an
  IEP Team meeting because these provisions are
  intended to benefit parents.
• Amendment to an IEP cannot take the place of
  annual review.
• State and local officials determine when public
  agencies must make the IEP accessible to service
  providers responsible for implementation or
  otherwise notify them of the changes.

30
Addressing the Impact of Excusal and IEP Change
Provisions
The opportunity to directly address the impact
of the excusal and IEP change provisions
in State laws and regulations is extremely
limited.

• Think outside the box
• You cant do this alone
• You will probably be most successful in a
  supporting role to parent and advocacy groups
• Collect data to support state complaints and
  future changes in federal law and regulations

31
IEP Annual Goals

• New language in statute
• IEP includes present Levels of academic
  achievement and functional performance and
• A statement of measurable annual goals, including
  academic and functional goals and
• For children with disabilities who take alternate
  assessments aligned to alternate achievement
  standards, a description of benchmarks or
  short-term objectives

32
IEP Annual Goals

• The Act does not require goals for each specific
  discipline or outcomes and measures on a specific
  assessment tool.
• States can continue to require benchmarks or
  short-term objectives for students other than
  those who are assessed against alternate
  achievement standards.
• There is no requirement to write a benchmark or
  short-term objective for each alternate
  achievement standard.

33
IEP Periodic Progress Reports

• IDEA 2004 reduces the specificity of the required
  reporting
• The IEP must describe
• how the childs progress toward meeting annual
  goals will be measured and
• when periodic reports on the childs progress
  toward meeting annual goals will be provided

34
IEP Periodic Progress Reports

• The Act does not require report cards or
  quarterly reports or reports concurrent with the
  issuance of report cards
• State and local officials determine
• the specific times that progress reports are
  provided to parents and
• the specific manner and format in which the
  progress is reported.

35
IEP Statement of Special Education and Related
Services

• New language in existing provision
• The IEP must include a statement of the special
  education and related services and supplementary
  aids and services, based on peer-reviewed
  research to the extent practicable, to be
  provided to the child or on behalf of the child.

36
IEP Statement of Special Education and Related
Services

• Peer-reviewed research, while not defined in
  the regulations, generally refers to research
  that is reviewed by qualified and independent
  reviewers to ensure that the quality of the
  information meets the standards of the field
  before the research is published.
• The phrase to the extent practicable generally
  means to the extent possible, given the
  availability of peer-reviewed research.
• The USDOE did not require
• All IEP Team meetings to include a focused
  discussion of research-based methods or
• Public agencies to provide prior written notice
  when an IEP Team refuses to provide documentation
  of research-based methods.

37
IEP Statement of Special Education and Related
Services

• The service with the greatest body of research is
  not necessarily required for the child to receive
  FAPE.
• Failure to provide services based on
  research-based methods does not automatically
  result in a denial of FAPE.
• Services may be provided even if no research
  exists if they are appropriate.
• The Act does not require all programs for
  children with disabilities to be research-based.
• The Act does not require an IEP to include
  specific methodologies, but if the IEP Team
  determines they are necessary for a child to
  receive FAPE they may be included on the IEP.

38
IEP Transition Services

• Substantial change in existing provision
• The IEP must include, beginning not later than
  the first IEP to be in effect when the child
  turns 16, or younger, if determined appropriate
  by the IEP Team,
• Appropriate measurable postsecondary goals based
  upon age appropriate transition assessments
  related to training, education, employment, and,
  where appropriate, independent living skills and
  
• The transition services, (including courses of
  study) needed to assist the child in reaching
  those goals

39
IEP Transition Services

• States can require transition services to begin
  before age 16 for all children in the State.
• The Act does not require IEPs to address
  vocational and career training or workplace
  accommodations.
• IDEA funds can be used for college and community
  based transition programs, if such programs are
  determined to be appropriate by the childs IEP
  Team.
• States are accountable for transition services
  through State performance plans.

40
Keep in touch!

• Let us know what is happening in your
• State or district.
• We are especially interested in hearing good
  news, i.e., laws, regulations, policies and
  practices that promote effective instruction and
  respect members participation and expertise.
• Liz Truly etruly_at_aol.com
• Larry Waite lwaite_at_nysutmail.org