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Matt Cohen
Monahan & Cohen
225 W. Washington Street
Suite 2300
Chicago, Illinois 60606
Telephone: (312) 419-0252
Facsimile: (312) 419-7428
TTY: (312) 419-7427
www.monahan-cohen.com
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US Department of Education Issues Final IDEA 2004
Regulations
In November of 2004,
the Congress enacted sweeping changes in the IDEA, to be 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 almost two years. On August
14, the Department released the final regulations. In many respects, the
regulations track the actual language of the law itself. However, there are
a number of important changes or additions, both in comparison to the law
and to the draft proposed regulations that they previously issued. For
those interested in obtaining a copy of the regulations, they can be
obtained online at the USDOE Office of Special Education website: http://www.ed.gov/policy/speced/guid/idea/idea2004.html#regulations.
Be forewarned that
the regulations and the supporting documentation are in excess of 1700
pages in length. The regulations alone, without narrative and
interpretation are only 307 pages. They can be obtained from the National Information Center for Handicapped Children and
Youth 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 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, except for those services that are specific to the implant,
such as "installing, maintaining, mapping, or replacing the
implant." (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 extra-curricular 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)) This makes clear that grades and credits are not the only
relevant factor in deciding whether a child has received FAPE. This is
particularly important, with respect to students that have enough
credit to graduate, but have not made sufficient progress on their
goals, transition needs or other life skills.
- Provides for a child to be determined to
have a learning disability either based on a lack of sufficient
progress in relation to state standards after receiving scientific,
research based intervention, or based on the child exhibiting a
pattern of strengths and weaknesses in performance, achievement or
both, that is relevant to the identification of a learning disability,
using appropriate assessments. (Sec. 300.309) Note that although the
Department of Education and others state otherwise, this latter
provision may breathe life back into the use of the discrepancy
formula, despite its having been disfavored by Congress.
- Indicates that parent consent must be
obtained before school staff may observe a child for purposes of
evaluation (Sec. 300.310(b)) This has been an
area where schools have often asserted that observation does not
require parent consent.
- 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)) It is advisable for parents to informally check in with
staff at the beginning of the year to make sure that this has occurred
and to share the IEP if it hasn't occurred.
- 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)) Whenever a member
of the staff and a parent seek to informally change the IEP, it is my
strong suggestion that a written draft of the proposed changes be
developed by the parent and staff member, and mutually agreed upon in
writing, in order to avoid the chance of misunderstanding or
subsequent disagreement.
- Provides for each state to develop a
process for appointment of the parent as representative for a child
that has turned 18 and is unable to make decisions for themselves, but
has not been determined incompetent (Sec. 300.520 (b)) Note that
because the statute does not provide for a particular process to
accomplish this, it is up to the states to determine how to do this,
consistent with state law.
- 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))
The Department of
Education will be holding meetings to explain the new regulations at eight
locations around the US:
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City
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Location
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Time
& Date
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Charlotte, NC
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UNC
Charlotte Conf. Services
9201 University City Blvd.
380 Bonnie E. Cone University Center
Charlotte, NC 28223
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5:30 pm - 9
pm
Tues, Sept. 26th
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Tampa, FL
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Gibbons
Alumni Center
4202 E. Fowler Avenue
University
of South Florida
Tampa, FL 33620
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5:30 pm - 9
pm
Wed, Sept. 27th
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Philadelphia, PA
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The
Conference Center at Penn State Great Valley Safeguard Scientifics Building 30 E. Swedesford
Rd.
Malvern, PA 19355
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5:30 pm - 9
pm
Tues, Oct. 17th
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Seattle, WA
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University
of Washington
Kane Hall, Room 130
Seattle, WA 98195-3095
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5:30 pm - 9
pm
Tues, Oct. 24th
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Minneapolis, MN
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PACER
Center
8161 Normandale Blvd.
Minneapolis, MN 55437
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5:30 pm - 9
pm
Wed, Oct. 25th
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Dallas, TX
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Region
10 Education Service Center
Region 10 Annex Building
904 Abrams Rd.
Richardson, TX 75081
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5:30 pm - 9
pm
Thurs, Nov. 2nd
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Denver, CO
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Arvada Center for the Arts &
Humanities
6901 Wadsworth Blvd.
Arvada, CO 80003-9985
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5:30 pm - 9
pm
Wed, Nov. 8th
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Sacramento, CA
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Capitol
East
End
Complex
1500 Capitol Ave.
Sacramento, CA 95814
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5:30 pm - 9
pm
Tues, Nov. 14th
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For further
information, please contact Tanya Kosinski at Tanya.Kosinski@ed.gov
or 202-245-7407.
More information
on these presentations can be obtained from the Department's website: http://www.ed.gov/policy/speced/guid/
idea/idea2004- schedule.html
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Key No Child Left Behind Deadline Missed by All
States
The No Child Left
Behind Act was intended to dramatically improve the quality of public
education, in part by implementing national standards for teacher
qualifications. The NCLB standards required that all states have highly
qualified teachers in every core academic class by the end of the 2005-2006
school year.
According to a US
Department of Education (USDOE) report issued on August 16, NO STATE met
the federal requirement and 37 states met only some of the criteria
established by the US DOE. They will be required to submit new data or new
plans. Four states (Hawaii, Missouri, Utah and Wisconsin) failed the federal
requirements altogether.
The feds announced a
new goal of 100% compliance by the end of the current school year, but the
data released by the Department makes clear that many states are years away
from compliance. For more information, see http://www.ed.gov/news/pressreleases/2006/08/08162006a.html.
What is especially
troubling about this news is that the core of No Child Left Behind is the
provision of qualified teachers throughout the US. This is also troubling
because the new IDEA 2004 legislation provides for schools to make
available research-based reading intervention in regular education as an
alternative to special education services, even though many schools lack
teachers qualified to provide the specialized reading instruction. In each
instance, the Congress has established educational programs predicated on
having qualified teachers available, without the schools actually having
sufficient numbers of qualified teachers on their staffs. For children with
possible learning disabilities, this may mean that the process of
evaluating them for special education eligibility is delayed while they are
provided specialized instruction by teachers that are not adequately
trained to provide that instruction.
Please contact
me if you have questions or comments.
ON A PERSONAL NOTE, the CHADD MATT COHEN
Membership Support Fund, which was established by CHADD in my honor to fund
CHADD (Children and Adults with Attention Deficit/Hyperactivity Disorder)
memberships and CHADD conference registration and expenses for individuals
unable to otherwise participate, is running perilously low.
If you are interested
in making a contribution to the CHADD MATT COHEN Support Fund, you can
do so by printing off a CHADD Donation Form, at http://www.chadd.org/Content/CHADD/AboutCHADD/DonatetoCHADD/
Individuals/HowtoDonate/default.htm.
Please make sure to
check the box for the MATT COHEN Scholarship Fund when you send in your
donation. You can also donate directly via the CHADD website, at http://www.chadd.org/source/Donations/Donate.cfm.
In the scroll down bar, select Donated Memberships to ensure that the funds
are designated for the MATT COHEN fund.
If you make a
donation to the Fund, I would love to get an email
from you so that I can send you a personal thank you.
Thanks,
Matt Cohen
mdcspedlaw@earthlink.net
Monahan & Cohen
225 W. Washington Street, Suite 2300
Chicago, Illinois 60606
Telephone: (312) 419-0252
Facsimile: (312) 419-7428
TTY: (312) 419-7427
www.monahan-cohen.com
P.S. My upcoming presentation schedule
is as follows:
October
16 & 17, 2006
Matthew
Cohen
Transition Under the New IDEA: Untapped Opportunities / Unmet Responsibilities Illinois State Transition Conference Downers Grove, IL
October 19,
2006
Matthew
Cohen
IDEA vs. 504, Rights for Children with AD/HD Center for Educational
Excellence Hattiesburg, Mississippi
October 25,
2006 9:00 a.m. -
12:00 p.m.
Matthew
Cohen
Understanding the Law in Schools
CHADD National Conference
Hyatt Regency O'Hare, Chicago, Illinois www.chadd.org
October 27,
2006 3:30 p.m. -
5:00 p.m.
Matthew
Cohen
Reasonable Accommodations for College Students CHADD National Conference
Hyatt Regency O'Hare, Chicago, Illinois www.chadd.org
January 17,
2007 9:00 am - 4:30 pm
Matthew
Cohen
Keeping Current With Increasingly Common Diagnoses of ADHD, Autism, Asperger's, OCD and Tourette's
Lorman Education Services, Rosemont, IL www.lorman.com | 715-833-3940
February 28,
2007
Matthew
Cohen
Special Education Advocacy Services
Cleveland, Ohio
March 1-4, 2007 8:00 am - 5:00 pm
COPAA Conference
Baltimore Marriott Waterfront
www.copaa.com
March 7, 2007
Ohio Coalition for Education of Children with Disabilities
Toledo, Ohio
March 14, 2007 7:00 pm
Matthew
Cohen
Eligibility, Evaluations & IEP's
Lake County Learning Disability Association Gurnee, IL
Information about
the following presentations may be obtained by contacting the sponsoring
organization or Tami Kuipers at Monahan & Cohen: (312) 419-0252. Some presentations are free
of charge, while others require pre-registration and/or registration fees.
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