Published by permission from the January-February 2005 edition of Alabama School Boards (magazine), page 6.
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After years of pleading with Congress for changes to make the nation's special education law more workable and less easily abused, school boards have gotten at least part of their wish in the newly revised Individuals with Disabilities Education Improvement Act.
The act, signed into law by President Bush in December, increases in some measure the power of schools to discipline students with disabilities and provides procedures to hold parents and their attorney financially responsible for pursuing frivolous lawsuits against school systems. In turn, it also mandates increased educational accountability measures and makes the "highly qualified" general education provisions of the No Child Left Behind Act immediately applicable to some special education teachers and paraprofessionals. The law, including the following provisions, takes effect July 1.
1. "Stay-Put" Provision Revised
The 1997 revision of IDEA provided a far reaching stay-put provision that generally allowed students even those not previously identified as disabled to remain in their pre- disciplinary setting during IDEA litigation. As a result, school systems encountered a flurry of due-process complaints solely filed to thwart an otherwise appropriate disciplinary sanction. IDEA '04 modifies the stay-put provision by providing that the disciplinary setting, as opposed to the pre-disciplinary setting, constitutes the stay-put placement of a child during the pendency of a due-process complaint.
2. Standard of Proof for Manifestation Heightened
IDEA '04 maintains the procedural protection of a review to determine if the child's behavior was manifestation of his disability, but it heightens the standard of proof used in making the determination. The old law only required that the student's disability "impair his ability to understand the impact and consequence of the behavior or his ability to control his behavior." If it did, the student could not be subjected to disciplinary sanctions. But under IDEA '04, a behavior now is deemed the result of a student's disability only if it is "substantially and directly related" to the disability. If such a substantial, direct link is not found at the manifestation review, the student may receive the same disciplinary placement as a regular education student. Of course, core curriculum instruction and special education services must be provided to the disabled student while he is in the disciplinary setting.
3. Behavior Category Added to Misbehaviors for Unilateral Removal
The old IDEA allowed school systems to unilaterally place a student in an alternative disciplinary setting for 45 days when he possessed drugs or certain weapons, even if his behavior was attributable to his disability. Although IDEA '97 also provided a mechanism to remove a student deemed to be "dangerous," a removal based upon danger only could occur by order of a hearing officer and only if the school system had established that danger in a due-process hearing.
IDEA '04 adds the behavior classification "serious bodily injury upon another person" to those infractions that can lead to unilateral removal by school personnel. Under the new law, if a student with a disability causes serious bodily injury to another person, the school system may unilaterally place him in an alternative disciplinary placement without seeking permission from an impartial hearing officer or a court of law.
1. Recovering Attorney Fees for Frivolous Litigation One of the more controversial provisions of IDEA '04 allows school systems to recover reasonable attorney fees if a parent files, or continues to litigate, any special education action determined by a court to be "frivolous, unreasonable or without foundation." Courts can also levy a fee against parents for a due-process compliant filed for an improper purpose, such as to harass, unnecessarily delay or needlessly increase the cost of litigation. IDEA '04 introduces a two-year statute of limitations for filing due-process complaints and adds new requirements for specificity in a parent's due-process complaint. Unfortunately, Congress rejected a provision that would have capped the amount that an attorney could recover for prevailing against a school system in a litigated special education matter.
2. New "Resolution Session" Added
To further reduce the scope and cost of special education litigation, IDEA '04 requires that a parent and the school system immediately meet upon the filing of a due-process complaint to try to resolve the complaint. In particular, a "resolution session" must be held between parents and members of the IEP (individualized education plan) team within 15 days of the school's receipt of a due-process complaint. The session must be attended by members of the IEP team who know about the circumstances identified in the complaint, as well as by someone from the school with decision-making authority to resolve the problem.
3. Mediation Provisions Remain Intact
The promotion of mediation remains a strong focal point of the new act in this latest incarnation of IDEA. The fact, while it does not significantly alter the mediation rules initially enunciated by IDEA '97, it does specify that agreements resulting from a mediation will be "legally binding" and enforceable in state or federal courts. As under IDEA '97, mediation discussions are deemed confidential and cannot to be used as evidence in any subsequent due process hearing.
IDEA '04 also imposes new federally mandates regarding the qualifications of special education teachers. The act codifies the requirement that special educators be certified in special education and competent in the subjects they teach. Yet more controversial is the new act's immediate supplemental imposition of NCLB's requirement that newly hired special ed teachers be "highly qualified" in the subjects they teach. New special education teachers teaching multiple subjects will have to meet NCLB's "highly qualified" standard in at least one core subject area (such as language arts, math, or science). Paraprofessionals must take a test, have 60 hours of college credit, or earn a higher education diploma if they work in a Title I school or provide instructional services to students.
The new act's immediate implementation of the HQ mandate will undoubtedly result in an even smaller pool of qualified special education teacher applicants.
IDEA '04 also makes substantial changes to the process for creating and implementing a student's IEP:
1. Teaching Methods Supported by Peer-Reviewed Scientific Research
IDEA '04 requires that special education and related services required by an IEP be based upon peer-reviewed scientific research. No longer may an IEP include approaches based solely upon a school's own preference or its record of past success with a particular methodology. The new law further provides that local schools must provide appropriate professional development to teachers so that they have the skills and knowledge necessary to implement and use scientifically based instructional practices.
2. Increased Focus on Accountability
IDEA'04 emphasizes the use of regular education statewide assessments as a means of gauging the achievement of disabled students. A student's progress towards IEP goals must be specifically measured and indicated on his report card. Short-term objectives and benchmarks will be removed from IEPs for all students except those who are alternatively assessed.
3. Three-Year IEP Pilot Program
Though Alabama wasn't selected, some states will pilot a program which giving parents the option of having a three-year IEP for their children, instead of a one-year IEP. If the parent decides the three-year IEP is not working, he can require the school to return to the traditional one-year IEP. The pilot program is designed to determine whether a three-year IEP can streamline and reduce paperwork while maintaining an appropriate educational benefit for a disabled student.
IDEA '04 mandates that schools cannot force students to take medication as a condition of attending school, receiving an evaluation or receiving services.
To provide for equitable participation of private school students, IDEA 04 expands the public schools' child-find and consultation responsibilities. Public schools will have to meet with private school representatives to explain, among other things, the child-find process, how disabled students can take advantage of public school special education programs, how funding of such programs work and who is responsible for providing such services.
IDEA '04 finds that a disproportionate number of minority students nationwide continue to be wrongly placed in special education classes, especially under a classification of emotionally disturbed. The new act mandates that school systems with significant over-classification of minority student institute early intervention programs to reduce the over classification. Such programs must provide intense educational and behavioral interventions before referring the student for services under IDEA.
IDEA '04 increases the proposed federal funding for special education. Federal funding currently covers only 17 percent of the national average per pupil expenditure for special education. But the new law states that Congress intends to increase federal funding incrementally so that it reaches 40 percent within six years. However, similar increases have been proposed in previous versions of IDEA, but Congress later failed to fund them through the required appropriations bills.
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Copyright 2005 Rodney C. Lewis