On December 3, 2004, President Bush signed IDEA 2004 into law. The bill had almost unanimously passed both the U.S. House of Representatives and the U.S Senate. Figure 5.3 depicts the process that resulted in passage of the new law. Appendix A contains a table that depicts the major changes of IDEA 2004.
The primary goal of Congress in passing IDEA 2004 is to align IDEA with NCLB, thereby increasing accountability for improving student performance. Thus, IDEA 2004 includes measures to increase academic results for students with disabilities such as requiring the use of scientifically based practices. The law also defines highly qualified special education teachers in line with the definition in NCLB. Additionally, Congress sought to reduce the paperwork burden on teachers, expand options for parents, and reduce litigation.
Congress stated that the IDEA has successfully ensured access to educational services for millions of children and youth with disabilities. Nevertheless, implementation of the IDEA had been impeded by low expectations and an insufficient focus on applying scientifically based research on proven methods of teaching children and youth with disabilities. Specifically, Congress stated that having high expectations for students with disabilities and ensuring their access to the general education curriculum would assist them to be prepared to lead productive and independent lives. Moreover, IDEA 2004 sought to support high quality, intensive preservice preparation and professional development based on scientific research. Congress, in passing IDEA 2004, also sought to encourage schools to develop schoolwide approaches to reduce the need to label children as disabled and to provide assistance to all children who need it. Indeed, one of the major purposes of IDEA 2004 is
providing incentives for whole-school approaches, scientifically based early reading program, positive behavioral interventions and supports, and early intervening services to reduce the need to label children as disabled in order to address the learning and behavioral needs of such children. (IDEA, 20 U.S.C. § 1401(c)(5)(F))
In IDEA 2004, Congress made significant changes to the law. Some of the areas affected include the IEP, discipline, assessment, attorney’s fees, “highly qualified” teachers, scientifically based instruction, and funding. Readers should note that these are changes in the federal law. When this book was completed, regulations implementing IDEA 2004 still had to be written by the U.S. Department of Education, and states still must pass legislation or write regulations regarding these changes.
The Individualized Education Program
In IDEA 2004, Congress attempted to alter the IEP process so it (a) is easier for IEP teams to navigate, (b) involves less paperwork and meetings, and (c) increases accountability.
Changes in the IEP Development Process. The IDEA requires that the IEP team must, at a minimum include (a) the student’s parents; (b) the special education teacher; (c) a general education teacher (at least one, if a student has multiple general education teachers); (d) a representative of the local educational agency (i.e., school) who can provide, or supervise the provision of, special education services; (e) an individual who can explain the instructional implications of the evaluation results; and (f) others at the discretion of the student’s parents or the school. IDEA 2004, however, allows a member of the IEP team whose attendance is not necessary because his or her area of curriculum or related services are not being modified or discussed at the meeting to be excused from attending the IEP meeting or other meetings if the student’s parents and the local education agency agree that the person’s presence is not necessary. To be excused the team member must submit a request in writing to the parents and the IEP team, and the parents and IEP team must agree with excusing the team member. This change may make it easier to schedule meetings.
Changes in the IEP Document. The federal law no longer requires that benchmarks or short-term objectives be included in the IEP, except for students with severe disabilities who take alternate assessments. Rather, IDEA 2004 emphasizes the importance of writing measurable annual goals and then measuring progress toward each goal during the course of the year. Teachers must inform students’ parents of their progress toward each annual goal at least every 9 weeks. If students are not making sufficient progress to enable them to reach their goals by the end of the year, instructional changes must be made to their instructional program.
Changes in the IEP Modification Process. According to IDEA 2004, programming changes are proposed to a student’s program after the annual IEP meeting has been held. The IEP team and a student’s parents could agree to make the changes in a written document rather than reconvening the IEP team to make the changes. These modifications would then become part of the IEP. This is a significant change because previously an IEP team had to be reconvened to revise a student’s special education program. Congress believed this would allow teachers to spend less time having to schedule, prepare for, and attend IEP meetings.
Three-Year IEPs. IDEA 2004 allows up to 15 states to develop and implement 3-year IEPs. If the states applied to the U.S. Department of Education and were accepted for the pilot program, they could offer parents the option of developing a comprehensive 3-year IEP designed to coincide with natural transition points in their child’s education (e.g., preschool to kindergarten, elementary school to middle school, middle school to high school). Parents had to agree to this option. States that did not apply for this pilot program are still required to develop and implement 1-year IEPs.
IEPs for Transfer Students. When a special education student transfers from an in-state or out-of-state school district to a new school district, the accepting school is required to continue to provide the student with a FAPE. In other words, the new school must continue to provide services comparable to those described in the student’s previous IEP. Moreover, the accepting school is required to consult with the student’s parents regarding the services. If the student is from out of state, the new school is required to conduct an evaluation and, if appropriate, develop a new IEP.
Disciplining Students in Special Education
Congress made changes in IDEA 2004 designed to provide schools with greater flexibility to maintain safe educational environments while protecting the disciplinary safeguards that were extended to students with disabilities in the IDEA Amendments of 1997.
The Manifestation Determination. IDEA 2004 keeps the manifestation determination mandate that requires LEAs to determine if a student’s misbehavior leading to a suspension is related to the student’s disability whenever schools suspend students with disabilities for more than 10 school days. This provision simplifies and strengthens the manifestation determination standard because a behavior could be determined to be a manifestation of a student’s disability only if the conduct in question is “caused by” or has a “direct and substantial relationship” to the student’s disability. Additionally, if a school fails to implement a student’s IEP, a direct relationship would also exist. Many educators believe the new standard makes it easier for IEP teams to find that there is no relationship between a student’s misbehavior and disability, thus subjecting a student with disabilities to the regular school disciplinary policies regarding suspensions and expulsions. Additionally, when a student with disabilities is suspended in excess of 10 school days or expelled, the law requires that he or she must continue to receive educational services.
Behaviors that can lead to a 45-Day Disciplinary Removal. The IDEA Amendments of 1997 listed behaviors that could result in a student with disabilities being removed to an IAES for up to 45 calendar days, even in situations where the behavior is a manifestation of a student’s disability. IDEA 2004 adds the offense of committing “serious bodily injury upon another person” to drugs and weapons offenses that were previously included. Additionally, the law changes the time that a student could be in an IAES from 45 days to 45 school days.
If a student with disabilities, therefore, engages in behavior that causes serious bodily injury to another person while at school, on school grounds, or at a school function, the school can place the student in an interim alternative setting for up to 45 school days. This can be done even when the misbehavior is related to his or her disability.
Stay-Put Provision. Under the previous IDEA, when a student was disciplined and his parents filed for due process, the student had to stay put in his or her previous educational setting during the hearing. IDEA 2004 changes the requirement so that the stay-put placement is no longer the previous setting; rather, it becomes the IAES. Congress believed this change would remove the temptation for parents to litigate or file for due process, which was created by the old stay-put provision because it allowed students to remain in the pre-discipline placement during the hearing except in situations involving drugs or weapons.
Dispute Resolution
Congress attempted to reduce litigation in special education in two major ways when it enacted IDEA 2004. First, the law limits the time that parents can request due process hearings to 2 years from the date they knew or should have known about the issues that led to the due process request, and it imposes a 90-day limit for filing appeals. Second, the law creates a resolution session that school districts are required to hold in an attempt to settle the complaint that led the parents to request a due process hearing. This session must be held within 15 days of the request for the due process hearing. The representative of the school district is required to be at the meeting. A school district cannot send an attorney to the session unless the parents have an attorney. If the school district and parents decide to go to mediation and bypass the resolution session, they must agree to this in writing. If the school district and parents decide to go ahead with the process and reach an agreement regarding the issue, both parties most sign a binding settlement agreement.
Attorney’s Fees
IDEA 2004 altered the attorney’s fees provision by not allowing attorneys to be reimbursed for any actions or proceedings performed before a written settlement is made by the school district. Neither are attorneys allowed to receive reimbursement for attending IEP meetings, unless the meetings are ordered by a hearing officer. IDEA 2004 also allows courts to award attorney’s fees to school districts, when parents’ attorneys (a) file a compliant that is frivolous, unreasonable, or without foundation; (b) continue to litigate after the case is shown to be frivolous, unreasonable, or without foundation; or (c) bring a complaint or action to harass, cause delay, or increase the costs to the school district.
Eligibility of Students with Learning Disabilities
The regulations that implemented IDEA 1997 required that states use a discrepancy formula to determine if a student had a learning disability. This formula is used to determine if there is a severe discrepancy between a student’s achievement, as measured by a standardized achievement test, and a student’s ability, as measured by an intelligence test. This requirement was changed in IDEA 2004. States can no longer require school districts to use a discrepancy formula; instead, school districts may use a process that determines whether a student responds to scientific, research-based interventions.
Funding
IDEA 2004 allows states greater flexibility in their use of IDEA funds. For example, states can use their IDEA funds for technical assistance and direct services to provide supplemental educational services to students with disabilities who attend schools that have failed to make adequate yearly progress for 3 years in a row and are identified for improvement. However, these schools must have been identified for improvement solely because of the performance of the students with disabilities subgroup.
Additionally school districts may use as much as 15% of their IDEA funding for early intervention services to teach at-risk students who have not yet been identified as IDEA eligible. States may also establish risk pools by setting aside 10% of the reserve funding. The purpose of the state risk pools is to help schools pay for the high cost of teaching students with the most serious disabilities or unexpected increases in student enrollments.
Highly Qualified Teachers
IDEA 2004 defines a highly qualified special education teacher according to standards developed in NCLB. IDEA 2004 requires that all new special education teachers (a) obtain a bachelor’s degree, (b) be certified by the state as a special education teacher, and (c) demonstrate competency of subject matter. Additionally, special education teachers cannot be highly qualified if they hold an emergency, temporary, or provisional certification.
Demonstrating subject matter knowledge for an elementary special education position requires that the teacher pass a rigorous state test of knowledge in the basic elementary curriculum. Demonstrating subject matter knowledge for a special education teacher who teaches a number of different subjects requires that the teacher pass a rigorous state test in the core academic subjects he or she teaches. However, Congress eased these requirements by letting experienced teachers meet NCLB’s highly qualified requirements by passing a state’s high, objective, uniform state standard of evaluation (HOUSSE). Additionally, if new teachers are certified in mathematics, reading, or science, they could also use HOUSSE requirements to demonstrate subject matter competency in the other subjects taught. The HOUSSE requirements must be met no later than 2 years after they are hired by a school district.
Teachers of students with severe disabilities, who would be assessed by using an alternative achievement measure, could demonstrate subject matter competency by passing an elementary test, if their students learn at the level of elementary school students, or by passing a test at their students’ level of instruction. This level would be developed by individual states.
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