STATE ALERT

From the National Down Syndrome Society

September 29, 2006

Introduction

Most States have been waiting to revise their special education laws and regulations until after final IDEA regulations were published. Even though the final regulations were not officially released until August 14, 2006, the States may be prepared to move forward quickly with this process. There are many ambiguous and harmful provisions in IDEA 2004 and its regulations that you don’t want to see incorporated at the State level. Key provisions will be highlighted in this document. The full NDSS Summary of IDEA Final Regulations can be found at http://capwiz.com/ndss/issues/alert/?alertid=8970991.

Some of the harmful changes can be avoided or minimized if parents work together to preserve and/or amend their State laws and regulations. The work that needs to be done at the State level is very complex, but this State Action Plan will serve as a guide. It will explain the relationship between the Federal and State statutes/regulations, provide tips on building coalitions, list strategies and describe key provisions for your coalition to focus on.

NDSS urges you to join forces with other family members of children with disabilities across your State. The more people you can enlist to join your advocacy efforts, the more successful you will be. It is critically important that parents meet with the State Director of Special Education, present testimony at any public meetings or hearings that are held on the State regulations and provide written comments. If your State statute is being amended, you will also need to communicate your position to your State legislator(s).

Parents have already successfully advocated at the State level for important protections in their statutes and regulations. For example, the Massachusetts Statewide Governmental Affairs Committee (GAC) joined with other advocates to stop their State regulations from being amended before the IDEA regulations were released. Also, the co-chair of the New Jersey GAC joined with other advocates to meet with the State Director of Special Education and the Commissioner of Education about the New Jersey regulations. One of the issues they discussed was the importance of short-term objectives for all students with disabilities. These regulations will soon be released in final form. Short-term objectives have been retained, in spite of the fact that the proposed regulations provided otherwise. The New Jersey Director of Special Education has credited parents with changing the outcome of the regulations.

The first step is to ensure that your State gives the public an opportunity to provide input in a meaningful manner as part of the regulatory process. You should try to get parent representation from your coalition on any task force or committee that is developing the regulations. It is also critically important that public meetings or hearings on the regulations are held at convenient times and in various locations spread throughout the State. When you meet with your State Director of Special Education you should discuss the State’s plan for obtaining public input and encourage opportunities for the broadest possible participation from stakeholders. If the list of locations, dates and times for public meetings or hearings is not adequate, you and your coalition members should appeal to as many State policymakers as possible (e.g. the State’s Superintendent or Commissioner of Education, Director of Special Education, Board of Education members, legislators) for additional meetings or hearings.

States Can Have Stronger Protections Than IDEA

In some instances, amendments to federal law, through IDEA 2004 and its regulations, have weakened protections for children with disabilities that still may exist under your State laws and regulations. State provisions giving students and their parents’ greater protections have NOT necessarily been “preempted” or overridden. IDEA dictates the minimum standards that a State must uphold in order to receive federal special education funding. States have the discretion to go beyond these requirements and to offer additional services and protections, as long as the State’s requirements do not conflict with IDEA requirements or undermine Congress’s purpose for the law.

A conflict occurs if it is impossible to follow both the IDEA 2004 and State requirements. As a result of this rule, there are some protections that you cannot get back at the State level. For example, IDEA 2004 expressly authorizes the district and the parent to make “agreements” that waive certain rights. Your State law and regulations will have to recognize these agreements because to deny their legality would contradict IDEA. However, your State can add a requirement that these agreements are only valid if there is evidence that a parent has been fully informed of the consequences of such an agreement. This additional safeguard does not appear in the IDEA 2004 or its regulations, but it doesn’t conflict with federal law or undermine Congress’s purpose in encouraging greater collaboration between parents and school districts.

The final IDEA regulations make it clear that broad authority is delegated to the States. State regulations have to be consistent with State law so you need to find out if any statutory amendments have been made to conform to IDEA 2004. To the extent your State law has already been amended to mirror the diminished State and local requirements in IDEA 2004, your efforts with respect to the State regulations will be limited by these changes. You can urge the State Department of Education to clarify these statutory provisions with regulations that preserve as many protections as possible for students with disabilities. To the extent your State law has not been amended, you have an opportunity to retain as many protective provisions as possible in both your State law and regulations and to add clarification where it is needed. The good news is that most States have not yet amended their laws to incorporate the new provisions in IDEA 2004.

The Importance of Coalitions

Working in collaboration with others prevents burn out, creates credibility and enhances your visibility. First, reach out to the other NDSS affiliates in your State. You can work as a Down syndrome coalition, but it’s even better if you can be part of a larger group. Determine if a statewide special education coalition already exists. If so, find out if it shares your goals and perspective. Also, find out if it has the capacity to take this issue on. If not, add members to it to create capacity or create a new coalition. Potential partners could include Parent Training and Information Centers (PTIs), Protection and Advocacy agencies (P&As), and other disability advocacy organizations. Find the PTI in your State at http://www.taalliance.org/centers/AllianceDirectory63006.pdf. The national website for P&A agencies is http://www.napas.org . On the right side in the middle of the home page there is a section for “Consumers” where you can scroll to find the P&A in your State. The PTI and/or P&A should be able to help you understand the status of the special education statute and regulations in your State, the process your State has for amending the statute and regulations and the provisions they contain on the key issues.

Strategies for Success

• Join or form a coalition.
  With the help of your coalition partners: determine the status of your State statute and /or regulations and the process for amending them and analyze the proposed amendments to the statute and/or regulations to determine all the recommendations that you will include in your written comments. They will be submitted to the State during the public comment period for the proposed regulations. The key provisions, described below, should be addressed in this list of recommendations, as well as any other provisions that should be retained, revised, added or deleted. In the written comments you should ask for everything you think is important. When providing oral testimony, talking to policy makers and writing letters to the editor, you should focus on a shorter list of recommendations concerning the key provisions.
• Get parent representation from your coalition on any task force or committee that is developing amendments to the State statute and/or regulations.
  Be prepared with a positive response in case your State policy makers tell you that that they have to conform to the federal statute and regulations. You can point out that States are permitted to provide more protections than IDEA as long as the State provisions do not conflict with the federal requirements. The State is required to submit to the U.S. Secretary of Education a list of any provisions in State law or regulations that go beyond the requirements of IDEA 2004. You need to convince your State policy makers that this is a small price to pay for continuing your State’s tradition of protecting the rights of children with disabilities
• Meet with the State Director of Special Education to discuss the State’s plan for obtaining public input and encourage opportunities for the broadest possible participation from stakeholders. Also, discuss the key provisions that you are concerned about.
• Appeal to State policy makers if the opportunities for public input are inadequate.
• Present testimony at any public meetings or hearings that are held on the State statute and /or regulations and submit written comments.
• Meet with your local school board members in order to enlist their support.
  Key changes in IDEA 2004 are designed for local school district “flexibility,” which is often a buzzword for diminished protections for students with disabilities. States will respond to pressure from the local level. You want to ensure that the local pressure is aimed at keeping the State statute and regulations strong instead of weakening their protections.
• Use newsletters from NDSS affiliates and other organizations to inform parents about the issues so they will feel prepared to talk to their school board members and respond to alerts from your coalition.
• Develop letters to the editor that can be submitted to State and local newspapers by your coalition and individual parents.

Check out the NDSS website for more advocacy tips: http://www.ndss.org/index.cfm?fuseaction=AdvCen.AdvGuide

Key Provisions for State Regulations (IDEA regulation sections listed in parentheses)

Each key provision and its importance to students will be described. In addition, an explanation you can use for policymakers will be provided (in bold print) that articulates why each recommendation will also benefit the State, the school districts and the schools.

Definition of Agreement (not in final regulations):

IDEA 2004 and its regulations contain many provisions that permit school districts and parents to make “agreements,” but this word has not been defined. A list of the provisions that permit agreements can be found at the end of the NDSS Summary of IDEA Final Regulations (see http://capwiz.com/ndss/issues/alert/?alertid=8970991). States should be encouraged to define a valid agreement as one where there is documentation that parents have been fully informed in their native language about the consequences of entering into such an agreement.

You should explain to State and local policymakers that this definition will reduce the due process complaints and litigation that are generated by misunderstandings and promote improved collaboration between parents and school districts.

Highly Qualified Teachers (Section 300.18):

IDEA 2004 and its regulations allow middle and high school special education teachers in self-contained classes for students assessed against the alternate achievement standards to be considered “highly qualified” for purposes of the No Child Left Behind Act (NCLB) without having the same content knowledge as other middle and high school teachers. They only have to be meet the NCLB highly qualified requirements for elementary school teachers and “have subject matter knowledge appropriate to the level of instruction being provided and needed to effectively teach to the alternate achievement standards. ”

NCLB requires alternate achievement standards to be aligned to grade-level content standards. In other words, everyone enrolled in the same grade is supposed to be learning the same general content for each subject, although the questions on an alternate assessment on alternate achievement standards might be simpler than those on a regular assessment or the expectations for how well students know particular content standards may be less complex but still challenging. Therefore, teachers need subject matter knowledge for the grades in which their students are enrolled, even if the curriculum is significantly modified and extended for his or her students.

The preamble of the IDEA regulations (the section where the U.S. Department of Education responds to public comments) interprets IDEA 2004 and the regulations as allowing a high school student, in a class for students assessed on the alternate achievement standard, to be taught by a teacher with only 4th grade subject matter knowledge if the student is being instructed at that level (regardless of whether the student is capable of learning some grade-level objectives). It is important that the State regulations clearly reflect a higher standard (see suggested language below).

Your State and local policymakers want to be known for having high expectations for all students. Give them examples of your child’s academic achievements that were made possible by high expectations and qualified teachers. Children can only learn what their teachers are qualified to teach them.

Suggested language in lieu of Section 300.18(c)(2) of the IDEA regulations (italics indicate the changes):

(2) Meet the requirements of subparagraph (B) or (C) of section

9101(23) of the ESEA as applied to an elementary school teacher, or, in the case of a secondary school teacher, meet the requirements of subparagraph (B) or (C) of section 9101(23) of the ESEA as applied to an elementary school teacher, be able to teach to the State's alternate achievement standards for grade(s) in which the students are enrolled, and have sufficient subject matter knowledge to be able to provide instruction aligned to the academic content standards for the grade levels in which the students are enrolled, as determined by the State.

Preschool Inclusion (Sections 300.114-300.118):

The preamble for the IDEA regulations clarifies that public agencies that do not have an inclusive public preschool that can provide all the appropriate services and supports must explore alternative methods to ensure that the least restrictive environment (LRE) requirements are met. The preamble also states if a public agency determines that placement in a private preschool program is necessary as a means of providing special education and related services to a child with a disability, the program must be at no cost to the parent. Although the Department’s interpretation of its own rules provides important insight, these statements should be incorporated in your State regulations so that parents have a clear understanding of their children’s rights. This language might help you get reimbursed for private preschool or encourage your State or school district to develop public inclusive preschool options.

You should point out to policymakers that students with disabilities would improve their achievement under the No Child Left Behind Act (NCLB) if more of these students started their education in inclusive settings where there is more focus on pre-academic skills. In addition, an inclusive preschool setting provides typical peer models for communication and behavior.

Parentally-Placed Private School Children Ages 3-5 (Section 300.132)

IDEA 2004 provides that districts have the responsibility to spend a proportionate amount to provide services to children with disabilities who have been parentally-placed in private elementary schools and secondary schools. If the district determines that a private school student with a disability should receive some services, a service plan is formulated for that child. The IDEA regulations state that children ages 3-5 are not considered to be parentally-placed private school children for these purposes unless they are enrolled in a private school that meets the definition of elementary school. Since most private preschools are not in elementary schools, their students would not qualify for any services that may be provided under the IDEA provisions for “parentally-placed private school children.” States should be permitted to expand this provision to include children ages 3-5 who are placed by their parents in private schools that do not qualify as elementary schools.

It is important for policy makers to understand that these preschool age children are likely to enter public school when they are old enough for kindergarten. Therefore, States and districts have an interest in ensuring that these children are eligible for services while in preschool.

Postsecondary Education (Section 300.320):

The preamble clarifies that IDEA funds may be used for a student to participate in a transitional program on a college campus, if the student’s IEP Team includes such services on the IEP. Many districts don’t think they can use IDEA funds for postsecondary programs. The Department’s interpretation of its own rules provides important insight. However, since this language does not expressly appear in the text of the federal regulations, it is important to clarify this point in your State regulations.

State and local policy makers will be interested in learning that over one hundred such programs at two and four year colleges and universities are listed on the US Department of Education-funded website www.thinkcollege.net and that these transitional opportunities lead to greater employment, independence, and community living. Most policymakers understand the State and local budgetary impact of improving these outcomes for individuals with disabilities.

Short-term Objectives (Section 300.320):

IDEA and its regulations only require short-term objectives for students who are assessed on alternate achievement standards. However, the preamble to the regulations clarifies that States may choose to determine the extent to which short-term objectives are used for other students with disabilities, rather than eliminate the requirement. Therefore, you should urge your State to continue to require short-term objectives for all students as the appropriate way to measure progress toward annual goals regardless of the type of assessment they take. A number of states have already decided to take that position. If your State decides not to continue to require short-term objectives for all students, its statute and/or regulations should allow school districts to decide whether to retain this requirement. At a minimum, the IEP team should be permitted to decide whether to use short-term objectives on a case-by-case basis, even if the student does not take an assessment on an alternate achievement standard.

Your discussions with policymakers about short-term objectives should focus on their importance for quality instruction, paperwork reduction and parental involvement. These are issues that will resonate at the State and local level. Short-term objectives are the basis for quality instruction because they provide a blueprint of the steps a student must take to achieve their goals. They also reduce the paperwork involved in generating progress reports because the teachers are able to report progress on objectives that are already in the IEP. Otherwise, they have to create a narrative to describe the means they are using to measure student progress. Progress reports are required by IDEA and are critically important for informed parent involvement in their child’s education.

Age for Transition Planning (Section 300.320):

IDEA and its regulations require that the IEP include transition services beginning not later than the first IEP to be in effect when the child turns 16. The IEP team can begin earlier if the team determines it to be appropriate. The preamble to the regulations indicates that States may choose to require a younger age. Your State should be encouraged to retain the requirement that the IEP include transition services at age 14 or at least allow the school districts to retain this requirement. In addition, your State statute and regulations should retain the provision which states that, at age 16, or younger if determined appropriate by the IEP team, a statement of interagency responsibilities and any needed linkages may be provided. Although this statement is not required, the language serves as a reminder that the IEP team should consider the need for providing this information.

State and local policy makers need to understand that the earlier the IEP team starts to plan for transition services and the more information a parent has about interagency responsibilities and linkages, the more likely it is that the student will be prepared for his/her postsecondary or employment goals.

Statute of Limitations (Sections 300.507 and 300.511)

The IDEA provisions regarding the time limit for parents to file due process complaints (2 years) and civil actions (90 days) may be shortened by the State and are based on what parents “should have known.” This latter term is undefined. With the added complexity of due process under IDEA 2004, a shorter time limit to navigate the system is a problem for parents especially if it is determined they “should have known” about the violation earlier than they actually found out about it. Your State should be encouraged to follow the federal time limits and eliminate the words “should have known.”

It is important to help policymakers see this issue from the child’s perspective. The function of any due process or civil statute of limitations is to provide the party who is filing the complaint with a fair opportunity to discover that harm has occurred. A statute of limitations that is shorter than 2 years for due process complaints and 90 days for civil actions and that is based on what the parents should have known, rather than what they actually knew, is fundamentally unfair to the child. It is particularly difficult for parents to find out about a violation, if their child does not have the communication skills to tell them what has happened. Unfortunately, if the child’s parents didn’t know something they “should have known” or are not able to quickly navigate the complex procedural rules in IDEA (or afford an attorney to do it for them), it is the child who suffers the consequences.

Definition of Free, Appropriate, Public Education (FAPE) for Discipline (Section 300.530)

The protections under the discipline provisions of IDEA only apply if there is a change of placement. This occurs when there is a removal of longer than 10 consecutive school days or there has been a series of removals that total more than 10 days (constituting a pattern). One of these protections is the continuation of educational services. A significant change in IDEA 2004 and the regulations is that different terms are used to describe FAPE for children whose removals constitute a change in placement than are used in the general FAPE definition. For example, the FAPE definition refers to “progress in the general education curriculum,” whereas the discipline provision uses the term “participate in the general education curriculum.” The preamble asserts that IDEA 2004 modified the concept of FAPE for students who have disciplinary changes in placement. This interpretation of the Act underscores the importance of convincing your State to retain more protective language.

State and local policymakers have an interest in retaining the same definition of FAPE for students who have a disciplinary change of placement as applies to students in regular placements. They need to understand that a lower standard is likely to have a negative impact on assessment scores for the purposes of calculating Adequate Yearly Progress (AYP) under NCLB. The services and supports that constitute FAPE for an individual child are necessary for academic achievement. It has long been recognized that if a child with a disability loses critical services and supports during a disciplinary change of placement he is much less likely than his typical peers to be able to make up for that lost time. It is a disservice to the child and to the teachers who have worked hard on his progress to allow him to lose ground during a disciplinary change in placement.

Manifestation Determination Review (Section 300.530):

A manifestation determination review is a meeting to determine if the usual disciplinary procedures should not be applied to a child with a disability whose removal constitutes a change in placement. The decision hinges on whether the behavior was a manifestation of the child’s disability. If this is the case, the usual disciplinary procedures will not apply. Numerous critically important elements of the manifestation determination review were omitted in IDEA 2004, which merely states that the conduct should be determined to be a manifestation of the child’s disability if it was caused by or directly and substantially related to child’s disability or was a direct result of the district’s failure to implement the IEP. Your State should be encouraged to retain the following language from IDEA 1997 regulation Section 300.353 (c) and (d), which requires a much more thorough consideration of the connection between the child’s disability and the behavior and does not permit the IEP team to determine that the behavior is not a manifestation of the disability unless certain criteria are met.

The more detailed manifestation determination provisions from IDEA 1997 are critically important to prevent the inequity that occurs when a child is punished for behavior that is connected to his or her or disability. The 1997 provision requires a determination that the child was able to understand the impact and consequences of his or her behavior and that the disability did not impair his or her ability to control the behavior before applying the same disciplinary procedures that apply to other students.

Your State and local policymakers should want to ensure that these children are treated fairly and that the consequences of the behavior are calculated to prevent future problems. Punishing a child who did not understand the consequences of the behavior or couldn’t control the behavior serves no purpose and is likely to escalate unwanted behavior rather than extinguish it. Positive behavioral supports, developed through a functional behavioral assessment and incorporated into a behavioral intervention plan, are the best means for preventing future behavioral problems. If you are faced with the hypothetical example of a gun-wielding student with a disability, you should point out that there are other provisions in IDEA that allow for the immediate removal of a student in circumstances that involve weapons, drugs and serious bodily injury.

IDEA 1997 Manifestation Determination Provision:

c) Conduct of review. In carrying out a review described in paragraph (a) of this section, the IEP team and other qualified personnel may determine that the behavior of the child was not a manifestation of the child's disability only if the IEP team and other qualified personnel-
(1) First consider, in terms of the behavior subject to disciplinary action, all relevant information, including –
(i) Evaluation and diagnostic results, including the results or other relevant information supplied by the parents of the child;
(ii) Observations of the child; and
(iii) The child's IEP and placement; and
(2) Then determine that—
(i) In relationship to the behavior subject to disciplinary action, the child's IEP and placement were appropriate and the special education services, supplementary aids and services, and behavior intervention strategies were provided consistent with the child's IEP and placement;
(ii) The child's disability did not impair the ability of the child to understand the impact and consequences of the behavior subject to disciplinary action; and
(iii) The child's disability did not impair the ability of the child to control the behavior subject to disciplinary action.

(d) Decision. If the IEP team and other qualified personnel determine that any of the standards in paragraph (c)(2) of this section were not met, the behavior must be considered a manifestation of the child's disability.

If you have questions or comments about this alert, contact Ricki Sabia at rsabia@ndss.org.
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