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A year and a half after the federal Individuals with Disabilities Education Improvement Act (IDEA) was reauthorized by Congress, the U.S. Department of Education (USDE) finally issued the accompanying regulations, which were published in the Federal Register on Aug. 14, 2006. Key changes in the reauthorized IDEA and the new regulations include the following:

Specific Learning Disability (SLD)

A major change in the reauthorized law reflects the desire by Congress and the USDE to crack down on the number of students who are labeled “learning disabled.” Several provisions were enacted to accomplish that, including one that sets out extensive criteria for determining whether a child has a SLD and makes clear that a student cannot be labeled with a SLD if the child’s low achievement is due to lack of appropriate instruction in reading or math. The USDE stated in the comments that “Whether a child has received ‘appropriate instruction’ is appropriately left to State and local officials to determine.”

Additionally, the reauthorized law and regulations indicate that the traditional way of determining whether a child has a SLD, the “discrepancy” model, in which a severe discrepancy between IQ and achievement is found, is no longer in favor. The new regulations provide that states must adopt criteria for determining whether a child has a SLD, and the criteria cannot require schools to use the discrepancy model, but instead must permit the use of a process based on the child’s response to intervention (RTI). Accordingly, states can permit the use of discrepancy models, but it is more likely states will use other models, such as the research-based RTI.

Early intervention

Districts can use IDEA funds for early intervention services for children in grades K-12 who have not been identified as needing special education services but who need additional academic and behavioral support to succeed in the general education environment.

Fewer meetings, less paperwork

Individualized Education Program (IEP) team members excused from attending IEP team meeting: The parent and district can excuse IEP team members from attending an IEP team meeting if the parent of the student and the school district agree that the member’s attendance is not necessary because the member’s area of the curriculum or related services is not being modified or discussed in the meeting.

Notice of student progress: Parents of disabled students no longer have to be informed of their child’s progress at least as often as parents of nondisabled children. The new regulations merely require the IEP to include a description of when periodic reports on the child’s progress will be provided.

No evaluation required if parents do not consent: Schools are no longer required to pursue evaluations if parents do not consent.

Teacher screening does not require parental consent: Screening of a child by a teacher to determine appropriate instructional strategies is not considered an evaluation, which would ordinarily require parental consent (Section 300.302). In comments accompanying the regulations, the USDE stated that “screening is typically a relatively simple and quick process that can be used with groups of children. Because such screening is not considered an evaluation under §§300.301 through 300.311 to determine eligibility for special education services, parental consent is not required.”

IEP no longer required to be in effect before special education services can be provided: Despite TCTA’s objection, the new regulations remove language contained in the former regulations that required an IEP to be in effect before special education services could be provided.

Teacher consultation with parents clarified: District personnel are prohibited from requiring parents to obtain a prescription for a child as a condition of attending school, receiving an evaluation or receiving special education services (Section 300.174(a)). However, the regulations do clarify that “nothing shall be construed to create a federal prohibition against teachers and other school personnel consulting or sharing classroom-based observations with parents or guardians regarding a student’s academic and functional performance, or behavior, or regarding the need for evaluation.”

Highly qualified status

Parents cannot sue because teacher not “highly qualified” under the federal No Child Left Behind Act: A parent or student may not file a due process complaint on behalf of a student, or file a judicial action on behalf of a class of students for the failure of a particular state or school district employee to be highly qualified; however, a parent may file a complaint about staff qualifications with the state education agency.

Role of paraprofessionals

In comments accompanying the regulations, the USDE stated that paraprofessionals should not instruct students. The regulations “specifically allow paraprofessionals and assistants who are appropriately trained and supervised, in accordance with State law, regulation, or written policy, to assist in providing special education and related services to children with disabilities under the Act. However, this provision should not be construed to permit or encourage the use of paraprofessionals as a replacement for teachers or related services providers who meet State qualification standards. ...Paraprofessionals in public schools are not directly responsible for the provision of special education and related services to children with disabilities; rather, these aides provide special education and related services to children with disabilities only under the supervision of special education and related services personnel.”

Discipline

Manifestation determination: There is no longer a requirement to determine whether the student’s conduct is a manifestation of his/her disability before deciding whether a series of removals constitutes a change of placement. This essentially means that disciplinary actions for special education students will occur more quickly.

Determining whether a series of removals constitutes a change of placement: The child’s behavior must be substantially similar to the child’s behavior in previous incidents that resulted in a series of removals in order to find that a change of placement has occurred.

Tourette syndrome: Tourette syndrome is added to the list of eligible disabilities under “Other Health Impairments” because the USDE found that Tourette syndrome is commonly misunderstood to be a behavioral or emotional condition, rather than a neurological condition. “ Therefore, including Tourette syndrome in the definition of other health impairment may help correct the misperception of Tourette syndrome as a behavioral or conduct disorder and prevent the misdiagnosis of their needs.”

TCTA input impacts final regulations

When the regulations were first proposed last summer, TCTA gave input to USDE and was successful in impacting the final regulations in the following ways:

  • Ensuring that teachers are informed of their specific responsibilities under a child’s IEP;
  • Ensuring that states can establish a separate procedure for special education teachers to show they are “highly qualified”;
  • Allowing educators to use factors other than whether the student is performing adequately for the child’s age in determining if a student has a SLD;
  • Eliminating vague language contained in the proposed regulations regarding criteria for determining if a child has a SLD;
  • Clarifying that screening by a teacher for instructional purposes does not require parental consent;
  • Clarifying that teachers are properly allowed to refer students for an evaluation; and
  • Clarifying that even though the new law prohibits teachers from requiring parents to obtain a prescription for a child as a condition of attending school, receiving an evaluation or receiving special education services, there is no federal prohibition against teachers speaking with parents or guardians regarding a child’s academic and functional performance, behavior in the classroom or school, or the need for an evaluation to determine the need for special education or related services.

 

The Classroom Teacher, Winter 2006

Archive of other TCTA Publications

THE CLASSROOM TEACHER (ISSN-0279-2494) is the official publication of the Texas Classroom Teachers Association (TCTA), providing news and opinions in the interest of education excellence. All contents are copyrighted and may not be reproduced without the publisher’s permission. The views and opinions contained in this publication are not necessarily those of the publisher. Copyright © 2006. Publication schedule is quarterly. Annual membership dues for TCTA are $110, $5 of which is allocated to a one-year subscription to THE CLASSROOM TEACHER. Subscriptions for nonmembers are available for $10 per year.