US Department of Education Issues Final IDEA 2004 Regulations


In November 2004, the Congress enacted major changes in the IDEA, effective July 1, 2005. Whenever federal law is changed, the federal department responsible for implementing the law must enact regulations that help to explain and interpret the law. The US Department of Education has been working on the proposed regulations for two years. On August 14, the Department released the final regulations. For the most part, the regulations track the actual language of the law. However, there are several important changes, both in comparison to the law and to the draft proposed regulations that were issued earlier. For a copy of the regulations, go to the USDOE Office of Special Education website: http://www.ed.gov/policy/speced/guid/idea/idea2004.html#regulations.

Note that the regulations and the supporting documents are more than 1700 pages. The regulations alone, without narrative and interpretation are 307 pages. They can be obtained from the National Information Center for Handicapped Children and Youth (NICHCY) at:

http://www.nichcy.org/reauth/IDEA2004regulations.pdf.


The Department of Education's Summary of the changes can be found at:

http://www.nichcy.org/idealist.htm.


A book comparing the old and new IDEA regulations has been published by the National Association of State Directors of Special Education and can be purchased for $15 from their website at:

http://www.nasdse.org/documents/SbSorderform.pdf


If you are interested in a summary of the regulations, USDOE has a fact sheet which can be downloaded:

http://www.ed.gov/admins/lead/speced/ideafactsheet.html

Some key highlights of the new regulations are:

• Adds Tourette Syndrome to the list of covered conditions within the Other Health Impaired Category (Sec. 300.8(c)(9)(i))
  
• Changes the new Specific Learning Disability (SLD) criteria to provide that the child be determined eligible if the child is not achieving adequately in relation to the child's age or in relation to state standards, if the child has received "appropriate" (replacing the reference to "research based") instruction (Sec. 309(a and b)). This appears to be a compromise blending some variation of the old discrepancy formula with provision of regular ed instruction to rule out inadequate instruction as the cause of the child's delay
  
• Clarifies that there are no limits to the related services for which a child with a cochlear implant is eligible (Sec. 300.34(b)(2))
  
• Reinforces that the provision of supplementary aides, supports and services to children receiving special education should include services necessary for the child to participate in extracurricular and non-academic activities (Sec. 300.42)
  
• Provides that a child is entitled to a free appropriate public education (FAPE) even if the child is receiving passing grades, progressing from year to year, or has not been retained from progressing to the next grade level (Sec. 300.101(c))
  
• Appears to mandate lack of response to regular education research-based intervention as a prerequisite for determination that a child has a learning disability (Sec. 300.309)
  
• States that parent consent must be obtained before school staff may observe a child for purposes of evaluation (Sec. 300.310(b))
  
• Requires all staff, including teachers, related services personnel, and paraprofessionals, to be advised of their responsibilities in relation to each child's IEP (Sec. 300.323(d))
  
• Requires that the IEP team be informed of any informal changes agreed to between a member of the staff and the parent (Sec. 300.324(a)(4))
  
• Provides for appointment of the parent as representative for a child who has turned 18 and is unable to make decisions for themselves but has not been determined incompetent (Sec. 300.520 (b))
  
• Provides that if the IEP team determines that a child's behavior is directly caused by the school's failure to appropriately implement the IEP, the failure must be rectified by the school district (Sec. 300.530(e)(3))
  
• Provides that in determining whether a child's placement is being changed due to a series of short-term suspensions, each of which is less than 10 days, but which total more than 10 days, the school staff will decide if the different incidents reflect a "pattern of behavior," which would trigger stay put safeguards, subject to the right of the parent to challenge the determination in a due process proceeding (Sec. 300.536(b)) Previously, there was no direction as to how the decision about whether there was a pattern of behavior should be made.
  
• Provides for the State Education Agency to enforce written settlement agreements under some circumstances (Sec. 300.510(d)(2))