On March 12, 1999, the US Department of Education, Office of Special Education Programs (OSEP) released the final federal regulations for the Individuals with Disabilities Education Act (IDEA) Amendments of 1997. School system personnel and parents have been anxiously awaiting the final regulations since the release of the "draft" regulations in October 1997 in hopes that the final document would provide further guidance and stop the debate about controversial sections of the law, for example, the discipline of students with disabilities. Also, the NC Department of Public Instruction, Exceptional Children Division could not finish revising the state PROCEDURES Governing Programs and Services for Children with Special Needs without the final federal regulations. The regulations of most interest to families are those related to Part B of IDEA.

      The following pages of this Special Edition NEWS LINE only provide an overview of the changes made between the "draft" and the final regulations. Previous newsletters described the new law and proposed or draft regulations. You can also request additional information on IDEA and regulations on our web site www.ecac-parentcenter.org or by calling the ECAC office at 1-800- 962-6817.

Definitions

1. "Attention deficit disorder" and "attention deficit hyperactivity disorder" have been added as conditions that could render a child eligible under the "other health impairment" category. Relying on the US Department of Education's long-standing policy, the final regulations clarify that:

• ADD and ADHD have been listed as conditions that could render a child eligible under the "other health impaired" (OHI) category; and,
• The term "limited strength, vitality, or alertness" in the definition of "OHI", when applied to children with ADD and ADHD, includes a child's heightened alertness to environmental stimuli that results in limited alertness with respect to the educational environment.

2. The definition of "Parent Counseling and Training" now includes the statement "helping parents to acquire the necessary skills that will allow them to support the implementation of their child's IEP or IFSP".

3. "Travel training" has been added to the definition of "special education", and defined to mean: "Providing instruction, as appropriate, to children with significant cognitive disabilities and any other children who require this instruction, to enable them to develop an awareness of the environment in which they live; and learn the skills necessary to move effectively and safely from place to place within that environment (for example, in school, in the home, at work, and in the community)."

4. Prior to 1997, the law included only the term "day"" that was interpreted to mean "calendar day." Now, the law uses the terms "day", "business day", and "school day". The final regulations clarify that:

• Day means calendar day, unless otherwise indicated as business day or school day;
• Business day means Monday through Friday, except for Federal and State holidays, unless holidays are specifically included in the designation of business day;
• School day means any day (including a partial day that children are in attendance at school for instructional purposes; and, the term has the same meaning for all children with and without disabilities.

Free Appropriate Public Education (FAPE)

1. Comprehensive Evaluation &emdash; Each child's evaluation must be sufficiently comprehensive to identify all of the child's special education and related services needs, including any needs the child has that are linked to a disability other than the disability in which the child has been classified.

2. Services Based on Identified Need &emdash; Services provided to an eligible child must &emdash; (A) address all of the child's special education and related services needs, and (B) be based on the identified needs of the child, and not the child's disability category.

3. Use of Assistive Technology in a Child's Home &emdash; On a case-by-case basis, the use of school-purchased assistive technology devices in a child's home or in other settings is required if the child's IEP team determines that the child needs access to those devices in order to receive a free appropriate public education.

4. Extended School Year (ESY) Services &emdash; This section has been changed to clarify that a school system may not limit ESY services to particular categories of disability, or limit the type, amount, or duration of these services.

Graduation Policy

      Neither the old or revised IDEA speaks directly to the issue of students with disabilities graduating with a regular high school diploma. However, the 1997 amendments placed greater emphasis on involvement of disabled students in the general curriculum and in State and district-wide assessment programs. The final regulations clarify that:

• A student's right to a "Free Appropriate Public Education or FAPE" is terminated upon graduation with a regular high school diploma. A student's right to FAPE is not terminated by any other kind of graduation certificate or diploma.
• Graduation from high school with a regular diploma is considered a change in placement requiring written prior notice. School districts will be expected to provide the notice "a reasonable time" before proposing to graduate a student, in order to ensure that there is time for the parent and student to plan for, or challenge, the pending graduation.
• Evaluation is not required before graduation. The requirement that a student be evaluated before deciding that he or she is no longer eligible under IDEA does not apply if the termination of eligibility is due to graduation with a regular diploma or aging-out according to state law.

Individualized Education Programs (IEPs)

1. Regular Education Teacher Involvement &emdash; Prior to 1997, the law did not include a regular education teacher as a required member of the Individualized Education Program team. Under the l997 IDEA amendments, the IEP team for each child with a disability now must include at least one of the child's regular education teachers, if the child is, or may be, participating in the regular education environment. The new law also indicates that the regular education teacher, to the extent appropriate, participates in the development, review and revision of the child's IEP.

The final regulations clarify that:

• If a child has more than one regular education teacher, the school system may designate which teacher (or teachers) will be on the IEP team:
• Depending upon the child's needs and the purpose of the specific IEP team meeting, the regular education teacher need not be required to participate in all decisions made as part of the meeting or to be present throughout the entire meeting or attend every meeting;
• The extent to which it would be appropriate for the regular education teacher member of the IEP Team to participate in IEP meetings must be decided on a case-by-case basis; and,
• Each of the child's teachers, including the regular education teachers and providers must be informed of his or her responsibilities related to implementing the child's IEP and the specific accommodations, modifications, and supports that must be provided for the child.

2. Inviting "Other Individuals" to be on IEP Team &emdash; To ensure that parents may invite any individual "with knowledge or special expertise" to be on the IEP team, the final regulations provide that the determination of the individual's knowledge or expertise is made by the party who invited the individual (for example, the parent or school system).

3. Considering Each Child's Performance on General Assessments &emdash; The final regulations clarify that, in developing each child's IEP, the IEP team, in addition to considering the strengths of the child and the results of evaluations, must also consider "as appropriate, the results of the child's performance on any general State or district-wide assessments."

4. Parents to Receive Copy of IEP &emdash; Parents must be given a copy of their child's IEP, without cost and without having to request it.

5 . IEP Accountability and Parent's Right to Due Process &emdash; The final regulations make clear that:

• Each school system, in addition to providing services, must make a good faith effort to assist the child to achieve the goals and objectives or benchmarks listed in the IEP; and
• Parent's have a right to ask for revisions of the child's IEP or to request due process procedures if they feel that the efforts to assist the child to achieve the goals and objectives or benchmarks listed in the IEP are not being made.

Procedural Safeguards

1. Independent Education Evaluation (IEE) &emdash; If a parent requests an IEE, the school system may ask why the parent objects to the public evaluation, but may not require the explanation; and "the public agency may not unreasonably delay either providing the independent evaluation at public expense or initiating a due process hearing to defend the public evaluation."

2. Informed Parent Consent &emdash; The final regulations on parental consent replace "consent" with "informed parent consent" and

• add "reevaluation" to the list of actions requiring consent;
• add that a school system may not use a parent's refusal to consent to one service or activity to deny the parent or child another service, benefit, or activity of the public agency;
• A school system or other public agency may access a parent's private insurance only if the parent provides informed consent.

3. Mediation &emdash; The final regulations provide that if a mediator is not selected on a random basis from the State's list, both parties must be involved in selecting and agree on the mediator.

4. Change of Placement Based on Hearing Officer Decision &emdash; The final regulations provide that if a State's due process hearing officer's decision agrees with the parent's position that a change in the child's placement is appropriate, the decision must be implemented at that point, even if the school system appeals. This provision ensures that children will not remain in inappropriate placements for prolonged periods of time while the school system appeals a decision in the parent's favor.

Evaluation-Eligibility; Least Restrictive Environment (LRE)

1. Obtaining Parent Input &emdash; "Parent input" has been added to the variety of sources the school system will use in interpreting evaluation data for the purpose of determining a child's eligibility.

2. LRE-Placements &emdash; A new regulation has been added that prohibits the removal of a child with a disability from an age-appropriate regular classroom solely because of needed modifications in the general curriculum.

State Complaint Procedures

      IDEA requires that each state provide a complaint process for parents who feel that a school system is violating a requirement of IDEA or regulations. A complaint is filed with the state education agency which in NC is the Department of Public Instruction (NC DPI), Exceptional Children Division. The complaint is then investigated by NC DPI staff. The final regulations include changes to this process.

1. Remedies for Denial of Appropriate Services &emdash; If the state education agency, in resolving a complaint, finds a failure to provide appropriate services to a child with disability, that agency must address how to remediate the denial of those services, including, as appropriate, the awarding of monetary reimbursement for corrective action, which could include compensatory services or other corrective action appropriate to the needs of the child.

2. Complaints vs. Due Process Hearings &emdash; A new regulation has been added to clarify that if an issue in a complaint is also the subject of a due process hearing, that issue would be set aside until the conclusion of the hearing. The regulations also state that the decision in a due process hearing on the issue is binding and a local school system's failure to implement a due process decision would have to be resolved by the state education agency.

Students with Disabilities Must Be Included in State-wide Assessments

      The 1997 IDEA amendments specifically require that students with disabilities must be included in general State and district- wide assessment programs. This requirement must be met if the state is to be eligible for funding under the Individuals with Disabilities Education Act. The final regulations require that States and local school systems must:

• Provide for the participation of children with disabilities in general State and district-wide assessments, with appropriate accommodations and modifications in administration, if necessary;
• Provide for alternate assessments no later than July 1, 2000 for students who cannot participate in the general assessment programs: and
• Make available and report to the public on the assessment results of disabled children, with the same frequency and in the same detail as reported on the assessment results of non-disabled children.

      These regulations are extremely important because our North Carolina State Board of Education is currently struggling with how students with disabilities will be included in the new mandatory state promotion policies. In addition, advocates for students with disabilities hope that the new reporting requirements will encourage school systems to include students with disabilities in all efforts to expand educational opportunities, provide appropriate modifications and accommodations and improve test scores.

Appendix A of the IDEA regulations contains questions and answers about IEPs.«
Call the ECAC office for a copy.