Copyright © Lozano Smith 2003 IDEA 2004: Where Are We Now? CASP Convention 2006 Presented By Howard...

Copyright© Lozano Smith 2003

IDEA 2004: Where Are We Now?IDEA 2004: Where Are We Now?

CASP Convention 2006CASP Convention 2006

Presented ByPresented ByHoward J. Fulfrost, Esq.Howard J. Fulfrost, Esq.


Presentation OverviewPresentation Overview

How Did We Get Here?: A Brief HistoryHow Did We Get Here?: A Brief History Where Are We Now?: A Comparison of IDEA Where Are We Now?: A Comparison of IDEA

2004, AB 1662 & the Proposed IDEA 2004 2004, AB 1662 & the Proposed IDEA 2004 RegulationsRegulations

What’s Left to Do?: Reviving AB 1092 as What’s Left to Do?: Reviving AB 1092 as Clean- Up LegislationClean- Up Legislation


Part IPart I

How Did We Get Here?: A Brief HistoryHow Did We Get Here?: A Brief History


A Brief History: The President’s CommissionA Brief History: The President’s Commission

President’s Commission on Excellence in Special President’s Commission on Excellence in Special Education issues report on July 1, 2002Education issues report on July 1, 2002– ““This report represents the thoughts, recommendations, and wisdom – spoken This report represents the thoughts, recommendations, and wisdom – spoken

and written – of and written – of more than 100more than 100 recognized special education experts, recognized special education experts, educational finance experts, education and medical researchers, parents of educational finance experts, education and medical researchers, parents of children with disabilities, individuals with disabilities, and others with expertise children with disabilities, individuals with disabilities, and others with expertise in the field of special education.”in the field of special education.”

– ““In addition, the commission heard from hundreds of other individuals and In addition, the commission heard from hundreds of other individuals and organizations at organizations at 13 public meetings13 public meetings held in cities nationwide. Interested held in cities nationwide. Interested individuals, including and parents of students with disabilities, also submitted individuals, including and parents of students with disabilities, also submitted letters and other written comments.”letters and other written comments.”(Letter of Transmittal from Terry E. Branstad to President Bush dated July 1, (Letter of Transmittal from Terry E. Branstad to President Bush dated July 1, 2002)2002)


A Brief History: Congress ActsA Brief History: Congress Acts

Part C of IDEA 1997 to be reauthorized in 2002Part C of IDEA 1997 to be reauthorized in 2002 President’s Commission recommends changes to President’s Commission recommends changes to

IDEA 1997 beyond Part CIDEA 1997 beyond Part C Senate & House Sponsor Reauthorization Bills Senate & House Sponsor Reauthorization Bills

– Senate & House bills Senate & House bills seek to address seek to address recommendations of President’s Commissionrecommendations of President’s Commission

– Senate & House Senate & House seek additional & extensive input seek additional & extensive input from all constituent groupsfrom all constituent groups


A Brief History: IDEA 2004 SignedA Brief History: IDEA 2004 Signed

President signs Individuals with Disabilities President signs Individuals with Disabilities Education Improvement Act 2004 on December 3, Education Improvement Act 2004 on December 3, 20042004– Title 20 United States Code (USC) § 1400 Title 20 United States Code (USC) § 1400 et seq.et seq.– Title 20 USC § 1401(a) provides that “[t]his title may be Title 20 USC § 1401(a) provides that “[t]his title may be

cited as the ‘Individuals with Disabilities Education Act’.”cited as the ‘Individuals with Disabilities Education Act’.”– We call it “IDEA 2004”We call it “IDEA 2004”– Most IDEA 2004 provisions are effective July 1, 2005Most IDEA 2004 provisions are effective July 1, 2005


A Brief History: IDEA 2004 in California A Brief History: IDEA 2004 in California

As things stood in December 2004, IDEA 2004 As things stood in December 2004, IDEA 2004 would would have have nono impact impact in Californiain California

Why?Why?– State law will control where it grants greater protections State law will control where it grants greater protections

to children with disabilitiesto children with disabilities– Then current California law could be interpreted to grant Then current California law could be interpreted to grant

greater protections to children with disabilities than greater protections to children with disabilities than IDEA 2004IDEA 2004

– Therefore, then current California would controlTherefore, then current California would control


A Brief History: AB 1092 A Brief History: AB 1092

January 2005:January 2005:– CSBA formed a work group to develop a state CSBA formed a work group to develop a state

conformity bill:conformity bill:• Authored by Assemblywoman Lynn DaucherAuthored by Assemblywoman Lynn Daucher• Formally sponsored by CSBA & ACSAFormally sponsored by CSBA & ACSA• Supported by many education organizationsSupported by many education organizations• Designated Assembly Bill 1092Designated Assembly Bill 1092


A Brief History: AB 1092A Brief History: AB 1092

The AB 1092 work group included, but was not The AB 1092 work group included, but was not limited to:limited to:– SELPA DirectorsSELPA Directors– School district attorneysSchool district attorneys– CSBA, ACSA, School Services of California, and CTA CSBA, ACSA, School Services of California, and CTA

representativesrepresentatives– Lobbyists and government relations representativesLobbyists and government relations representatives– Assemblywoman Daucher’s representativesAssemblywoman Daucher’s representatives


A Brief History: AB 1662A Brief History: AB 1662

Initially, the CDE sought to introduce three bills:Initially, the CDE sought to introduce three bills:– One bill would be “too hot”One bill would be “too hot”– The second bill would be “too cold”The second bill would be “too cold”– And the third bill would be “just right”And the third bill would be “just right”

January 2005:January 2005:– The CDE hired a consultant to develop one state conformity bill The CDE hired a consultant to develop one state conformity bill

in collaboration with CDE representatives:in collaboration with CDE representatives:• Authored by Assemblywoman Sally LieberAuthored by Assemblywoman Sally Lieber• Formally sponsored by CDEFormally sponsored by CDE• Designated Assembly Bill 1662Designated Assembly Bill 1662


A Brief History: Full ConformityA Brief History: Full Conformity

AB 1092 & AB 1662 both purportedly sought “full AB 1092 & AB 1662 both purportedly sought “full conformity” with IDEA 2004conformity” with IDEA 2004

What is “full conformity?”What is “full conformity?” ““Full conformity” means that California law would be Full conformity” means that California law would be

identical to IDEA 2004identical to IDEA 2004– AB 1092 sought to replace California law with IDEA 2004 in all AB 1092 sought to replace California law with IDEA 2004 in all

regardsregards– AB 1662 did AB 1662 did notnot seek to replace California law with IDEA 2004 in seek to replace California law with IDEA 2004 in

all regards:all regards:• AB 1662 replaced California law with IDEA 2004 citations AB 1662 replaced California law with IDEA 2004 citations • AB 1662 replaced California law with IDEA 2004 AB 1662 replaced California law with IDEA 2004 • AB 1662 kept California law unchangedAB 1662 kept California law unchanged



Why “full conformity?”Why “full conformity?”– IDEA 2004 was the product of thousands of hours of debate and IDEA 2004 was the product of thousands of hours of debate and

input from experts & all stakeholdersinput from experts & all stakeholders– IDEA 2004 conforms with NCLB (i.e., presumably reducing the IDEA 2004 conforms with NCLB (i.e., presumably reducing the

number of students referred for, and receiving, special education number of students referred for, and receiving, special education services)services)

– IDEA 2004 allows school districts to provide IDEA 2004 allows school districts to provide more servicemore service to to students with disabilitiesstudents with disabilities

• Fewer evaluationsFewer evaluations• Fewer IEP team meetingsFewer IEP team meetings• Fewer attendees at IEP team meetingsFewer attendees at IEP team meetings• Reduces paperwork burdensReduces paperwork burdens



Why “full conformity?”Why “full conformity?”– IDEA 2004 IDEA 2004 reduces disputesreduces disputes between parents and between parents and

school districtsschool districts• No liability when parents won’t consent to initial provision of No liability when parents won’t consent to initial provision of

special education servicesspecial education services• Advance notice of due process issuesAdvance notice of due process issues• Opportunity to resolve disputes earlyOpportunity to resolve disputes early• Allows districts to recoup attorney fees in specified casesAllows districts to recoup attorney fees in specified cases• Allows districts to remove dangerous studentsAllows districts to remove dangerous students

– IDEA 2004 limits the number of students considered IDEA 2004 limits the number of students considered eligible for special education serviceseligible for special education services



Why not “full conformity?”Why not “full conformity?”– IDEA 2004 sets minimum standardsIDEA 2004 sets minimum standards– States may set standards higher than the minimumStates may set standards higher than the minimum– IDEA 2004 is IDEA 2004 is notnot how we’ve done business in California how we’ve done business in California– IDEA 2004 would undo, in certain respects, the “years IDEA 2004 would undo, in certain respects, the “years

of work” put into creating California’s special education of work” put into creating California’s special education systemsystem


A Brief History: The Political Machinery At WorkA Brief History: The Political Machinery At Work

April 2005:April 2005:– AB 1662 was passed out of the Assembly Education CommitteeAB 1662 was passed out of the Assembly Education Committee– AB 1092 was tabled and re-designated as a two-year billAB 1092 was tabled and re-designated as a two-year bill

May through September 2005:May through September 2005:– A coalition of education organizations formally opposed AB 1662A coalition of education organizations formally opposed AB 1662– The CDE negotiated changes to AB 1662 with this education The CDE negotiated changes to AB 1662 with this education

coalition so that AB 1662 more closely conformed to IDEA 2004coalition so that AB 1662 more closely conformed to IDEA 2004


A Brief History: AB 1662 Signed into LawA Brief History: AB 1662 Signed into Law

On October 7, 2005, Governor Schwarzenegger On October 7, 2005, Governor Schwarzenegger signed AB 1662 into lawsigned AB 1662 into law– AB 1662 was urgency legislationAB 1662 was urgency legislation– AB 1662 was effective October 7, 2005AB 1662 was effective October 7, 2005– AB 1662 brings California law into conformity with IDEA AB 1662 brings California law into conformity with IDEA

2004 in many – 2004 in many – but not all but not all – respects– respects


Part IIPart II

Where Are We Now?: Where Are We Now?:

A Comparison of IDEA 2004, AB 1662 & A Comparison of IDEA 2004, AB 1662 & the Proposed IDEA 2004 Regulationsthe Proposed IDEA 2004 Regulations


Current State of AffairsCurrent State of Affairs

Actually in EffectActually in Effect– IDEA 2004IDEA 2004– Education Code § 56000 Education Code § 56000 et seq.et seq. as amended by AB as amended by AB

16621662– IDEA 1997 regulations IDEA 1997 regulations to the extent they do not conflict to the extent they do not conflict

with IDEA 2004with IDEA 2004– SEHO and OAH rulings and decisionsSEHO and OAH rulings and decisions

Non-Authoritative GuidanceNon-Authoritative Guidance– Proposed IDEA 2004 regulations (June 21, 2005)Proposed IDEA 2004 regulations (June 21, 2005)– At least one CDE advisory with one on the wayAt least one CDE advisory with one on the way


Key Definitions – Assistive TechnologyKey Definitions – Assistive Technology

IDEA 2004:IDEA 2004: Excludes medical device that is Excludes medical device that is surgically implanted (or its replacement) from surgically implanted (or its replacement) from definition of “assistive technology” or “related definition of “assistive technology” or “related services”services”

AB 1662:AB 1662: Follows IDEA 2004 Follows IDEA 2004 Proposed CFR:Proposed CFR: Follows IDEA 2004 Follows IDEA 2004 What do we do?What do we do? Follow IDEA 2004 Follow IDEA 2004


Key Definitions – Highly Qualified TeacherKey Definitions – Highly Qualified Teacher

IDEA 2004:IDEA 2004: Borrows definition from NCLB as it Borrows definition from NCLB as it relates to special ed teachers.relates to special ed teachers.



Key Definitions -- ParentKey Definitions -- Parent

IDEA 2004:IDEA 2004: – Natural, adoptive, or foster parentNatural, adoptive, or foster parent– A guardian (but not the State)A guardian (but not the State)– Those acting in the place of a natural/adoptive parent with whom child livesThose acting in the place of a natural/adoptive parent with whom child lives– A surrogate parentA surrogate parent

AB 1662:AB 1662:– A person having legal custody of a childA person having legal custody of a child– An adult student for whom no guardian or conservator has been appointedAn adult student for whom no guardian or conservator has been appointed– A person acting in the place of a natural/adoptive parent with whom the child livesA person acting in the place of a natural/adoptive parent with whom the child lives– A surrogate parentA surrogate parent– A foster parent if the authority of a parent to make educational decisions on the child’s A foster parent if the authority of a parent to make educational decisions on the child’s

behalf has been specifically limited by court orderbehalf has been specifically limited by court order Proposed CFR:Proposed CFR: Follows IDEA 2004 Follows IDEA 2004 What do we do?What do we do? Be cautious. Ask for documentation. Follow Be cautious. Ask for documentation. Follow

California law.California law.


Key Definitions – Specific Learning DisabilityKey Definitions – Specific Learning Disability

IDEA 2004:IDEA 2004: – LEA is not required to consider severe discrepancy LEA is not required to consider severe discrepancy – LEA may consider whether a student responds to scientific, research-based LEA may consider whether a student responds to scientific, research-based

interventionsinterventions AB 1662:AB 1662: Follows IDEA 2004 Follows IDEA 2004 Proposed CFR:Proposed CFR: SEA must adopt SLD criteria (and LEA must use SEA must adopt SLD criteria (and LEA must use

such criteria) that:such criteria) that:– May prohibit the use of severe discrepancy modelMay prohibit the use of severe discrepancy model– May not require severe discrepancy modelMay not require severe discrepancy model– Must permit the use of a process that determines if the child responds to Must permit the use of a process that determines if the child responds to

scientific, research-based interventionscientific, research-based intervention– May permit the use of other alternative research-based proceduresMay permit the use of other alternative research-based procedures

What do we do?What do we do? Follow IDEA 2004 or maintain the Follow IDEA 2004 or maintain the status quo status quo until until the CDE adopts SLD criteriathe CDE adopts SLD criteria


Key Definitions – Related ServicesKey Definitions – Related Services

IDEA 2004:IDEA 2004: Supportive services “as may be Supportive services “as may be required to required to assist a child with a disability to benefit from special assist a child with a disability to benefit from special educationeducation, including “school nurse services” designed to , including “school nurse services” designed to enable a child with a disability to receive a FAPE as enable a child with a disability to receive a FAPE as specified in his/her IEP.specified in his/her IEP.

AB 1662:AB 1662: Follows IDEA 2004 (“Designated instruction and Follows IDEA 2004 (“Designated instruction and services” means “related services.”)services” means “related services.”)

Proposed CFR:Proposed CFR: Follows IDEA 2004 Follows IDEA 2004 What do we do? What do we do? Follow IDEA 2004 Follow IDEA 2004 except that a CDE except that a CDE

advisory has indicated that it will seek clean up legislation advisory has indicated that it will seek clean up legislation to revert back to the former definitionto revert back to the former definition


Key Definitions – Special EducationKey Definitions – Special Education

IDEA 1997 & 2004: IDEA 1997 & 2004: Specially designed instruction, Specially designed instruction, including instruction in the classroom, and in other including instruction in the classroom, and in other settings, and physical educationsettings, and physical education

AB 1662: AB 1662: No change (“specially designed No change (“specially designed instruction … and related services”)instruction … and related services”)

Proposed CFR: Proposed CFR: Follows IDEA 2004Follows IDEA 2004 What do we do?What do we do? Follow California law Follow California law


Key Definitions – Transition ServicesKey Definitions – Transition Services

IDEA 2004: “IDEA 2004: “A coordinated set of activities … A coordinated set of activities … within a “results oriented process, that is focused within a “results oriented process, that is focused on improving the academic and functional on improving the academic and functional achievement of the child with a disability ...”achievement of the child with a disability ...”

AB 1662: AB 1662: Cites IDEA 2004, Cites IDEA 2004, but then requires an but then requires an “outcome-oriented process”“outcome-oriented process”

Proposed CFR: Proposed CFR: Follows IDEA 2004Follows IDEA 2004 What do we do?What do we do? Follow IDEA 2004 Follow IDEA 2004


Parentally Placed Private Schools Students – Child FindParentally Placed Private Schools Students – Child Find

IDEA 2004:IDEA 2004: LEA where child LEA where child attends private school attends private school responsible for child find, including assessmentresponsible for child find, including assessment– Child find process should include activities, and be completed in a time period, Child find process should include activities, and be completed in a time period,

similar to those undertaken for public school students similar to those undertaken for public school students – Process must be designed to ensure “equitable participation” of parentally Process must be designed to ensure “equitable participation” of parentally

placed private school children and an accurate count of such childrenplaced private school children and an accurate count of such children– Proportionate share of federal funds may not be used for child find activitiesProportionate share of federal funds may not be used for child find activities

AB 1662:AB 1662: LEA where LEA where child resides child resides responsible for child responsible for child find, including assessment, find, including assessment, but cites to federal law for what but cites to federal law for what child find activities must includechild find activities must include

Proposed CFR:Proposed CFR: Follows IDEA 2004 Follows IDEA 2004 What do we do?What do we do? Follow California law Follow California law


Parentally Placed Private Schools Students – ServicesParentally Placed Private Schools Students – Services

IDEA 2004:IDEA 2004: LEA where child LEA where child attends private attends private school school responsible for providing servicesresponsible for providing services

AB 1662: AB 1662: Cites to IDEA 2004, Cites to IDEA 2004, suggesting that the suggesting that the LEA where the child LEA where the child attends private school attends private school is is responsible for providing servicesresponsible for providing services

Proposed CFR:Proposed CFR: Follows IDEA 2004 Follows IDEA 2004 What do we do?What do we do? Follow IDEA 2004 Follow IDEA 2004


Parentally Placed Private Schools Students – Parentally Placed Private Schools Students – ConsultationConsultation

IDEA 2004:IDEA 2004: LEA should ensure timely and meaningful LEA should ensure timely and meaningful consultation regarding:consultation regarding:– The child find processThe child find process– The determination of the proportionate share of federal fundsThe determination of the proportionate share of federal funds– The consultation process (including how it will operate throughout the school The consultation process (including how it will operate throughout the school

year)year)– How, where, and by whom special education and related services will be How, where, and by whom special education and related services will be

providedprovided– How the LEA will provide an explanation of the reasons why the LEA chose to How the LEA will provide an explanation of the reasons why the LEA chose to

provide particular services if the the private school officials disagreeprovide particular services if the the private school officials disagree AB 1662: AB 1662: Cites to IDEA 2004Cites to IDEA 2004 Proposed CFR:Proposed CFR: Follows IDEA 2004 Follows IDEA 2004 What do we do?What do we do? Follow IDEA 2004 Follow IDEA 2004


Parentally Placed Private Schools Students – Written Parentally Placed Private Schools Students – Written Affirmation & ComplianceAffirmation & Compliance

IDEA 2004:IDEA 2004: – LEA must obtain written affirmation from private school officials LEA must obtain written affirmation from private school officials

that consultation has occurred. that consultation has occurred. – Private school officials may file compliance complaints if LEA did Private school officials may file compliance complaints if LEA did

not: not: • Timely or meaningfully consult; or Timely or meaningfully consult; or • Give “due consideration to the views of the private school official.”Give “due consideration to the views of the private school official.”

AB 1662: AB 1662: Cites to, and reiterates language of, IDEA 2004Cites to, and reiterates language of, IDEA 2004 Proposed CFR:Proposed CFR: Follows IDEA 2004 Follows IDEA 2004 What do we do?What do we do? Follow IDEA 2004 Follow IDEA 2004


Initial Evaluation -- TimelineInitial Evaluation -- Timeline

IDEA 2004:IDEA 2004: LEA must determine eligibility within 60 days of parental LEA must determine eligibility within 60 days of parental consent to assess (or within State-established timeline)consent to assess (or within State-established timeline)

AB 1662:AB 1662: – LEA must convene an IEP team meeting to determine eligibility and LEA must convene an IEP team meeting to determine eligibility and

educational needs within 60 days of parental consent to assess (possibly educational needs within 60 days of parental consent to assess (possibly excluding days between the student’s regular school sessions or vacations in excluding days between the student’s regular school sessions or vacations in excess of five school days)excess of five school days)

– LEA must convene an IEP team meeting within 30 days from the date the LEA LEA must convene an IEP team meeting within 30 days from the date the LEA determines that the student needs special education & related services determines that the student needs special education & related services

Proposed CFR:Proposed CFR: Follows IDEA 2004 Follows IDEA 2004 What do we do?What do we do? Follow IDEA 2004 Follow IDEA 2004 since the CDE has indicated since the CDE has indicated

that it will seek clean up legislation to clarify that it intended a 60-day that it will seek clean up legislation to clarify that it intended a 60-day timeline for all evaluationstimeline for all evaluations


Initial Evaluation -- Exceptions to TimelineInitial Evaluation -- Exceptions to Timeline

IDEA 2004:IDEA 2004: The 60-day timeline will not apply if: The 60-day timeline will not apply if:– The child enrolls in another LEA after the timeframe has begun The child enrolls in another LEA after the timeframe has begun

to run only if the subsequent LEA is making sufficient progress to to run only if the subsequent LEA is making sufficient progress to ensure a prompt completion of the evaluation and the parent and ensure a prompt completion of the evaluation and the parent and subsequent LEA agree to a specific time when the evaluation will subsequent LEA agree to a specific time when the evaluation will be completed; orbe completed; or

– The parent repeatedly fails or refuses to produce the child for The parent repeatedly fails or refuses to produce the child for the evaluationthe evaluation



Initial Evaluation – Parental ConsentInitial Evaluation – Parental Consent

IDEA 2004:IDEA 2004: LEA must obtain informed parental LEA must obtain informed parental consent before an initial evaluation consent before an initial evaluation – Not construed as consent for servicesNot construed as consent for services– If parent fails to provide consent, LEA may pursue If parent fails to provide consent, LEA may pursue

due process to override lack of consentdue process to override lack of consent AB 1662:AB 1662: Cites to, and reiterates, IDEA 2004 Cites to, and reiterates, IDEA 2004 Proposed CFR:Proposed CFR: Follows IDEA 2004 Follows IDEA 2004 What do we do?What do we do? Follow IDEA 2004 Follow IDEA 2004


Reevaluation -- FrequencyReevaluation -- Frequency

IDEA 2004:IDEA 2004: LEA must reassess: LEA must reassess:– If LEA determines that the educational or related services needs of the child If LEA determines that the educational or related services needs of the child

warrant a reevaluation; orwarrant a reevaluation; or– If the child’s parents or teacher requests a reevaluationIf the child’s parents or teacher requests a reevaluation– Not more than once a year unless parent and LEA agree otherwiseNot more than once a year unless parent and LEA agree otherwise– At least every three years unless parent and LEA agree that “a reevaluation is At least every three years unless parent and LEA agree that “a reevaluation is

unnecessary.” unnecessary.” AB 1662:AB 1662: Cites to, and reiterates language of, IDEA 2004 Cites to, and reiterates language of, IDEA 2004

except that it requires except that it requires writtenwritten agreement not to conduct agreement not to conduct triennial reevaluationtriennial reevaluation

Proposed CFR:Proposed CFR: Follows IDEA 2004 Follows IDEA 2004 What do we do?What do we do? Follow IDEA 2004 Follow IDEA 2004 except obtain except obtain writtenwritten

agreement not to conduct triennial reevaluationsagreement not to conduct triennial reevaluations


Revaluation -- ProceduresRevaluation -- Procedures

IDEA 2004:IDEA 2004: – The IEP team and other qualified professionals must: (1) review existing data The IEP team and other qualified professionals must: (1) review existing data

on the child; and (2) on the basis of that review and input from the student’s on the child; and (2) on the basis of that review and input from the student’s parents, identify what additional data, if any, are needed to determine eligibility, parents, identify what additional data, if any, are needed to determine eligibility, identify the student’s educational needs, and develop the student’s IEP.identify the student’s educational needs, and develop the student’s IEP.

– If no additional data are needed to determine eligibility and identify the If no additional data are needed to determine eligibility and identify the student’s educational needs, the LEA:student’s educational needs, the LEA:

• Must notify the student’s parents of that determination, the reasons for it, and the Must notify the student’s parents of that determination, the reasons for it, and the right to request an assessment anywayright to request an assessment anyway

• Will not be required to complete an evaluation unless requested by the student’s Will not be required to complete an evaluation unless requested by the student’s parents.parents.

AB 1662: AB 1662: Follows IDEA 2004Follows IDEA 2004 Proposed CFR:Proposed CFR: Follows IDEA 2004 Follows IDEA 2004 What do we do?What do we do? Follow IDEA 2004 Follow IDEA 2004


Reevaluation – Parental ConsentReevaluation – Parental Consent

IDEA 2004: IDEA 2004: LEA must obtain informed parental LEA must obtain informed parental consent before a reevaluation except whenconsent before a reevaluation except when– The parent fails or refuses to respond after LEA’s The parent fails or refuses to respond after LEA’s

documented diligent attempts to obtain consentdocumented diligent attempts to obtain consent– The LEA prevails in a due process hearing on The LEA prevails in a due process hearing on

assessmentassessment AB 1662:AB 1662: Follows IDEA 2004 Follows IDEA 2004 Proposed CFR:Proposed CFR: Follows IDEA 2004 Follows IDEA 2004 What do we do?What do we do? Follow IDEA 2004 Follow IDEA 2004


Reevaluation -- TimelineReevaluation -- Timeline

IDEA 2004:IDEA 2004: No timeline for reevaluation No timeline for reevaluation AB 1662:AB 1662: LEA must convene an IEP team meeting within LEA must convene an IEP team meeting within

60 days of parental consent to reevaluation60 days of parental consent to reevaluation– Excluding days between the student’s regular school sessions or Excluding days between the student’s regular school sessions or

vacations in excess of five school daysvacations in excess of five school days– An IEP must be developed within 30 days after the start of the An IEP must be developed within 30 days after the start of the

subsequent regular school year for students for whom a referral subsequent regular school year for students for whom a referral has been made within 20 days or less prior to the end of the has been made within 20 days or less prior to the end of the regular school yearregular school year



Reevaluation – Before Graduation or “Aging Out”Reevaluation – Before Graduation or “Aging Out”

IDEA 2004:IDEA 2004: – LEA is LEA is notnot required to reevaluate before the termination of a required to reevaluate before the termination of a

student’s eligibility due to graduating with a regular high school student’s eligibility due to graduating with a regular high school diploma or “aging out.” diploma or “aging out.”

– In such cases, LEA must provide the student with a summary of In such cases, LEA must provide the student with a summary of the student’s academic achievement and functional performance, the student’s academic achievement and functional performance, including recommendations on how to assist the student in including recommendations on how to assist the student in meeting post-secondary goals. meeting post-secondary goals.

AB 1662:AB 1662: Cites to, and reiterates, IDEA 2004 Cites to, and reiterates, IDEA 2004 Proposed CFR:Proposed CFR: Follows IDEA 2004 Follows IDEA 2004 What do we do?What do we do? Follow IDEA 2004 Follow IDEA 2004


Reevaluation – Before ExitingReevaluation – Before Exiting

IDEA 2004:IDEA 2004: LEA must evaluate a child with a LEA must evaluate a child with a disability before determining that the child is no disability before determining that the child is no longer a child with a disability longer a child with a disability



ScreeningScreening

IDEA 2004:IDEA 2004: “The screening of a student by a teacher or “The screening of a student by a teacher or specialist to determine appropriate instructional strategies specialist to determine appropriate instructional strategies for curriculum implementation shall not be considered to be for curriculum implementation shall not be considered to be an evaluation for eligibility for special education and related an evaluation for eligibility for special education and related services.” services.”

AB 1662:AB 1662: Cites to, and reiterates, IDEA 2004 Cites to, and reiterates, IDEA 2004 Proposed CFR:Proposed CFR: Follows IDEA 2004 Follows IDEA 2004 What do we do?What do we do? Follow IDEA 2004, Follow IDEA 2004, and, as screening is and, as screening is

not an evaluation, it does not therefore require informed not an evaluation, it does not therefore require informed parental consentparental consent


Parental Consent – Initiation of ServicesParental Consent – Initiation of Services

IDEA 2004:IDEA 2004: If a parent refuses the initial provision of If a parent refuses the initial provision of special education services, the LEA special education services, the LEA cannot cannot request due request due processprocess– The LEA will not be considered to be in violation of the The LEA will not be considered to be in violation of the

requirement to make FAPE available for failing to provide those requirement to make FAPE available for failing to provide those services for which the LEA seeks consentservices for which the LEA seeks consent

– The LEA will not be required to convene an IEP team meeting or The LEA will not be required to convene an IEP team meeting or develop an IEP for the child for the special education and related develop an IEP for the child for the special education and related services for which the LEA requests such consent services for which the LEA requests such consent

AB 1662:AB 1662: Reiterates IDEA 2004 Reiterates IDEA 2004 Proposed CFR:Proposed CFR: Follows IDEA 2004 Follows IDEA 2004 What do we do?What do we do? Follow IDEA 2004 Follow IDEA 2004


Parental Consent – Continuation of ServicesParental Consent – Continuation of Services

IDEA 2004:IDEA 2004: No parental consent requirement for No parental consent requirement for continuation of servicescontinuation of services

AB 1662:AB 1662: – If parent refuses all services, having consented in the past, LEA If parent refuses all services, having consented in the past, LEA

must file for due process.must file for due process.– If parent consents to some IEP components, but not others, LEA If parent consents to some IEP components, but not others, LEA

shall provide those services to which consent has been provided shall provide those services to which consent has been provided and initiate due process regarding the others, if necessary to and initiate due process regarding the others, if necessary to provide FAPE. provide FAPE.

Proposed CFR:Proposed CFR: Follows IDEA 2004 Follows IDEA 2004 What do we do? What do we do? Follow California lawFollow California law


EligibilityEligibility

IDEA 2004:IDEA 2004: A determinant factor cannot be lack of A determinant factor cannot be lack of appropriate instruction in reading, including the appropriate instruction in reading, including the essential components of reading instruction as essential components of reading instruction as defined in NCLBdefined in NCLB



IEP Team Meetings -- AttendanceIEP Team Meetings -- Attendance

IDEA 2004:IDEA 2004: – Parent and LEA may agree in writing not to require Parent and LEA may agree in writing not to require

attendance if team member’s area not topic of meetingattendance if team member’s area not topic of meeting– Parent and LEA may agree in writing to excuse attendance if Parent and LEA may agree in writing to excuse attendance if

team member’s area is topic of meeting, but submits written team member’s area is topic of meeting, but submits written input to parent and IEP team prior to meetinginput to parent and IEP team prior to meeting

AB 1662:AB 1662: Follows IDEA 2004, but requires parent and Follows IDEA 2004, but requires parent and LEA to consent to excusal LEA to consent to excusal after conferring with the team after conferring with the team membermember



IEP Team Meetings – RevisionsIEP Team Meetings – Revisions

IDEA 2004:IDEA 2004: – After annual review, IEP revisions may be made After annual review, IEP revisions may be made

• By the entire IEP team; or By the entire IEP team; or • By developing a written document amending the IEP, if the parent and By developing a written document amending the IEP, if the parent and

LEA agreeLEA agree– Upon request, the parent must be provided a copy of the revised Upon request, the parent must be provided a copy of the revised

IEP with the amendments incorporated. IEP with the amendments incorporated. AB 1662:AB 1662: Cites to, and reiterates, IDEA 2004, Cites to, and reiterates, IDEA 2004, but requires but requires

the written document to be signed by the parent and a LEA the written document to be signed by the parent and a LEA representativerepresentative

Proposed CFR:Proposed CFR: Follows IDEA 2004. Follows IDEA 2004. What do we do?What do we do? Follow California law Follow California law


IEP Team Meetings – Goals & ObjectivesIEP Team Meetings – Goals & Objectives

IDEA 2004:IDEA 2004: – IEPs must include measurable annual goalsIEPs must include measurable annual goals– For students who take alternate assessments For students who take alternate assessments

aligned to alternate achievement standards, the IEP aligned to alternate achievement standards, the IEP must include a description of benchmarks or short-must include a description of benchmarks or short-term objectives. term objectives.



IEP Team Meetings -- Transition ServicesIEP Team Meetings -- Transition Services

IDEA 2004:IDEA 2004: Not later than the first IEP in effect when the Not later than the first IEP in effect when the student reaches 16, and updated annually thereafter, IEP student reaches 16, and updated annually thereafter, IEP must include:must include:– Appropriate measurable postsecondary goals based on age-Appropriate measurable postsecondary goals based on age-

appropriate transition assessmentsappropriate transition assessments– Transition services to assist the student in reaching the goalsTransition services to assist the student in reaching the goals– Beginning not later than one year before the child reaches 18 Beginning not later than one year before the child reaches 18

years old, a statement that the student has been informed of years old, a statement that the student has been informed of his/her rights, if any, that will transfer on reaching 18 years oldhis/her rights, if any, that will transfer on reaching 18 years old

AB 1662:AB 1662: Reiterates IDEA 2004 Reiterates IDEA 2004 Proposed CFR:Proposed CFR: Identical to IDEA 2004 Identical to IDEA 2004 What do we do?What do we do? Follow IDEA 2004 Follow IDEA 2004


IEP Team Meetings -- Extended School YearIEP Team Meetings -- Extended School Year

IDEA 2004: IDEA 2004: No provision regarding ESYNo provision regarding ESY AB 1662:AB 1662: Reiterates IDEA 1997 and proposed Reiterates IDEA 1997 and proposed

CFRCFR Proposed CFR:Proposed CFR: Reiterates IDEA 1997 CFR (ESY Reiterates IDEA 1997 CFR (ESY

services must be included in IEP, and provided to services must be included in IEP, and provided to student, if necessary for FAPE)student, if necessary for FAPE)

What do we do?What do we do? Follow California law Follow California law


Students Transferring Mid-YearStudents Transferring Mid-Year

IDEA 2004:IDEA 2004: – Within the same state: Within the same state: LEA must provide “services LEA must provide “services

comparable to those described in the previously held IEP … comparable to those described in the previously held IEP … in consultation with the parents until such time as the LEA in consultation with the parents until such time as the LEA adopts the previously held IEP or develops, adopts, and adopts the previously held IEP or develops, adopts, and implements a new IEP.” implements a new IEP.”

– Between states: Between states: LEA must provide “services comparable to LEA must provide “services comparable to those described in the previously held IEP … in consultation those described in the previously held IEP … in consultation with the parents until such time as the LEA conducts an with the parents until such time as the LEA conducts an evaluation, if necessary, and develops a new IEP, if evaluation, if necessary, and develops a new IEP, if appropriate.” appropriate.”

– Records: Records: The new LEA must promptly obtain the student’s The new LEA must promptly obtain the student’s records; and the previous LEA must promptly respond to a records; and the previous LEA must promptly respond to a records request. records request.


Students Transferring Mid-Year (Continued)Students Transferring Mid-Year (Continued)

AB 1662:AB 1662: – Within SELPA:Within SELPA: New LEA must continue, New LEA must continue, without delaywithout delay, to provide , to provide

services comparable to those described in the services comparable to those described in the existing approved IEPexisting approved IEP, , unless the parent and the new LEA agree to develop, adopt, and unless the parent and the new LEA agree to develop, adopt, and implement a new IEP.implement a new IEP.

– Within state, different SELPA:Within state, different SELPA: New LEA must provide “services New LEA must provide “services comparable to those described in the comparable to those described in the previously approved previously approved IEP, in IEP, in consultation with the parents, for a period not to exceed 30 days, by which consultation with the parents, for a period not to exceed 30 days, by which time the LEA must adopt the previously approved IEP, or must develop, time the LEA must adopt the previously approved IEP, or must develop, adopt, and implement a new IEP.”adopt, and implement a new IEP.”

– Between states: Between states: Cites to, and reiterates, IDEA 2004Cites to, and reiterates, IDEA 2004– Records:Records: Reiterates IDEA 2004. Reiterates IDEA 2004.

Proposed CFR: Proposed CFR: Follows IDEA 2004Follows IDEA 2004 What do we do?What do we do? Follow California law Follow California law


Notice of Procedural RightsNotice of Procedural Rights

IDEA 2004:IDEA 2004: – Parents must receive one copy per year and upon initial Parents must receive one copy per year and upon initial

referral or parental request for evaluation, upon first due referral or parental request for evaluation, upon first due process request, and upon request.process request, and upon request.

– May receive by e-mail, if LEA makes available.May receive by e-mail, if LEA makes available. AB 1662:AB 1662: Reiterates IDEA 2004, Reiterates IDEA 2004, except that the parent except that the parent

must still receive a copy with an assessment planmust still receive a copy with an assessment plan Proposed CFR:Proposed CFR: Follows IDEA Follows IDEA, but clarifies that parent , but clarifies that parent

must also receive a copy upon first State complaintmust also receive a copy upon first State complaint What do we do?What do we do? Follow state law Follow state law


Prior Written NoticePrior Written Notice

IDEA 2004:IDEA 2004: Prior written notice must now include Prior written notice must now include description of other options considered by IEP description of other options considered by IEP team and reasons for rejection and description of team and reasons for rejection and description of relevant factors in LEA’s decision. relevant factors in LEA’s decision.

AB 1662:AB 1662: Cites to IDEA 2004 Cites to IDEA 2004 Proposed CFR:Proposed CFR: Follows IDEA 2004 Follows IDEA 2004 What do we do?What do we do? Follow IDEA 2004 Follow IDEA 2004


Compliance Complaints – Statute of LimitationsCompliance Complaints – Statute of Limitations

IDEA 2004: IDEA 2004: It may require It may require a complaint to set forth “an alleged a complaint to set forth “an alleged violation that occurred not more than two years before the date the violation that occurred not more than two years before the date the parent or public agency knew or should have known about the alleged parent or public agency knew or should have known about the alleged violation,” or “in such time as the State law allows” except if the parent violation,” or “in such time as the State law allows” except if the parent was prevented from filing a complaint due to:was prevented from filing a complaint due to:– Specific misrepresentations by the LEA that it had resolved the problem forming Specific misrepresentations by the LEA that it had resolved the problem forming

the basis of the complaint; orthe basis of the complaint; or– The LEA’s withholding of information from the parent that was required to be The LEA’s withholding of information from the parent that was required to be

provided to the parent.provided to the parent. AB 1662: AB 1662: Follows Proposed CFR (A compliance complaint must Follows Proposed CFR (A compliance complaint must

“allege a violation that occurred not more than one year prior to the “allege a violation that occurred not more than one year prior to the date that the complaint is received by the CDE.”), date that the complaint is received by the CDE.”), but references IDEA but references IDEA 1997 CFR which has an exception for continuing violations1997 CFR which has an exception for continuing violations

Proposed CFR:Proposed CFR: SeeSee AB 1662, AB 1662, aboveabove.. What do we do?What do we do? Follow California law Follow California law


Due Process – ComplaintsDue Process – Complaints

IDEA 2004:IDEA 2004: – Must contain:Must contain:

• The child’s name, address (or available contact info if homeless child), The child’s name, address (or available contact info if homeless child), and attending school;and attending school;

• A description of the nature of the problem relating to proposed initiation or A description of the nature of the problem relating to proposed initiation or change, including facts; andchange, including facts; and

• Proposed resolution of the problem. Proposed resolution of the problem. – A party may not have a due process hearing until the party files a complaint A party may not have a due process hearing until the party files a complaint

that meets these requirementsthat meets these requirements– A party may not raise issues in a due process hearing that were not included A party may not raise issues in a due process hearing that were not included

in the complaint, unless the other party agrees otherwise.in the complaint, unless the other party agrees otherwise. AB 1662:AB 1662: Follows IDEA 2004 Follows IDEA 2004 Proposed CFR:Proposed CFR: Follows IDEA 2004 Follows IDEA 2004 What do we do?What do we do? Follow IDEA 2004 Follow IDEA 2004


Due Process – Statute of LimitationsDue Process – Statute of Limitations

IDEA 2004:IDEA 2004: Two years from the date the parent or agency Two years from the date the parent or agency knew or should have known about the alleged action (with knew or should have known about the alleged action (with exceptions for parent delay due to LEA’s exceptions for parent delay due to LEA’s misrepresentation or withholding information)misrepresentation or withholding information)

AB 1662:AB 1662: – Three years until October 9, 2006, if parent participates in Three years until October 9, 2006, if parent participates in

resolution session or mediation; otherwise, two yearsresolution session or mediation; otherwise, two years– After October 9, 2006, two years from the date the parent or After October 9, 2006, two years from the date the parent or

agency knew or should have known about the alleged action agency knew or should have known about the alleged action (with exceptions for parent delay due to LEA’s (with exceptions for parent delay due to LEA’s misrepresentation or withholding information)misrepresentation or withholding information)

Proposed CFR:Proposed CFR: Follows IDEA 2004. Follows IDEA 2004. What do we do?What do we do? Follow California law Follow California law


Due Process – Response to ComplaintDue Process – Response to Complaint

IDEA 2004:IDEA 2004: – Prior Written Notice: Prior Written Notice: LEA must provide prior written notice within 10 LEA must provide prior written notice within 10

days of receipt of the DP complaint if LEA has not previously provided days of receipt of the DP complaint if LEA has not previously provided such notice. response such notice. response

– Other Party Response:Other Party Response: LEA must respond to the DP complaint (by LEA must respond to the DP complaint (by specifically addressing the issues in the DP complaint) within 10 days specifically addressing the issues in the DP complaint) within 10 days of receipt of the DP complaintof receipt of the DP complaint

– Notice of Insufficiency – Notice of Insufficiency – Responding party must provide Notice of Responding party must provide Notice of Insufficiency within 15 days of receipt of the DP complaintInsufficiency within 15 days of receipt of the DP complaint

• Hearing Officer must decide whether DP complaint is sufficient within five days of Hearing Officer must decide whether DP complaint is sufficient within five days of receiving Notice of Insufficiencyreceiving Notice of Insufficiency



Due Process – Amended ComplaintDue Process – Amended Complaint

IDEA 2004: IDEA 2004: A party may amend its DP complaint only if:A party may amend its DP complaint only if:– The other party consents in writing and is given the opportunity to resolve the The other party consents in writing and is given the opportunity to resolve the

complaint through the resolution meeting process; orcomplaint through the resolution meeting process; or– The hearing officer grants permission, except that the hearing officer may only The hearing officer grants permission, except that the hearing officer may only

grant permission at any time not later than five days before a due process grant permission at any time not later than five days before a due process hearing occurshearing occurs

The applicable due process hearing timelines will The applicable due process hearing timelines will recommence at the time the party files an amended DP recommence at the time the party files an amended DP complaint.complaint.



Due Process – Resolution MeetingDue Process – Resolution Meeting

IDEA 2004:IDEA 2004: LEA required to convene resolution session within 15 days of LEA required to convene resolution session within 15 days of receipt of due process complaint with parent and relevant team, including LEA receipt of due process complaint with parent and relevant team, including LEA decision-makerdecision-maker– No LEA attorney unless parent brings attorneyNo LEA attorney unless parent brings attorney– Parents discuss issues and facts forming basis of DP complaintParents discuss issues and facts forming basis of DP complaint– LEA has opportunity to resolve the matterLEA has opportunity to resolve the matter– By agreement can waive, or agree to use mediationBy agreement can waive, or agree to use mediation– If no agreement after 30 days, hearing can occur and DP hearing timelines commence If no agreement after 30 days, hearing can occur and DP hearing timelines commence – If issues are resolved, the parties must execute a legally binding agreement (signed by both parties and If issues are resolved, the parties must execute a legally binding agreement (signed by both parties and

enforceable in court), voidable within 3 business days. enforceable in court), voidable within 3 business days. AB 1662:AB 1662: Reiterates IDEA 2004 Reiterates IDEA 2004 Proposed CFR:Proposed CFR: Follows IDEA 2004 Follows IDEA 2004 except that it provides that the parent and except that it provides that the parent and

LEA will determine the relevant team membersLEA will determine the relevant team members What do we do?What do we do? Follow IDEA 2004 Follow IDEA 2004


Due Process – Hearing Officer DecisionDue Process – Hearing Officer Decision

IDEA 2004:IDEA 2004: – A hearing officer decision must be made on substantive grounds A hearing officer decision must be made on substantive grounds

based on a determination of whether the child received a FAPE.based on a determination of whether the child received a FAPE.– In matters alleging a procedural violation, a hearing officer may find In matters alleging a procedural violation, a hearing officer may find

that a child did not receive a FFAPE only if the procedural violations: that a child did not receive a FFAPE only if the procedural violations: • Impeded child’s right to FAPE;Impeded child’s right to FAPE;• Significantly impeded parents’ opportunity to participate in the decision-Significantly impeded parents’ opportunity to participate in the decision-

making process regarding the provision of a FAPE; ormaking process regarding the provision of a FAPE; or• Caused a deprivation of educational benefitsCaused a deprivation of educational benefits

AB 1662:AB 1662: Reiterates IDEA 2004, Reiterates IDEA 2004, except also keeps old except also keeps old language in Education Code § 56505(j) language in Education Code § 56505(j)



Due Process – Attorney Fees for LEADue Process – Attorney Fees for LEA

IDEA 2004:IDEA 2004: Court may award if LEA prevails against Court may award if LEA prevails against– Parent attorney for filing that is frivolous, unreasonable, without Parent attorney for filing that is frivolous, unreasonable, without

foundationfoundation– Parent attorney who continues litigation that is frivolous, Parent attorney who continues litigation that is frivolous,

unreasonable, without foundation unreasonable, without foundation Court may award fees to LEA againstCourt may award fees to LEA against

– Parent attorney/parent, if filing presented for improper purpose Parent attorney/parent, if filing presented for improper purpose such as to such as to harass, cause unnecessary delay, or needlessly harass, cause unnecessary delay, or needlessly increase the cost increase the cost



Student Discipline – Current StatusStudent Discipline – Current Status

IDEA 2004: IDEA 2004: Special education students may be Special education students may be disciplined in accordance with IDEA 2004 (20 USC § disciplined in accordance with IDEA 2004 (20 USC § 1415(k))1415(k))

California Law (EC § 48915.5): California Law (EC § 48915.5): Special education Special education students may be disciplined in accordance with:students may be disciplined in accordance with:– IDEA (20 USC § 1415(k)); IDEA (20 USC § 1415(k)); – IDEA 1997 regulations (34 CFR §§ 300.519 – 300.529); andIDEA 1997 regulations (34 CFR §§ 300.519 – 300.529); and– Other applicable California Education Code provisionsOther applicable California Education Code provisions

1997 CFR: 1997 CFR: IDEA 1997 regulations (34 CFR §§ 300.519 – IDEA 1997 regulations (34 CFR §§ 300.519 – 300.529) remain in effect 300.529) remain in effect to the extent they are consistent to the extent they are consistent with IDEA 2004with IDEA 2004


Student Discipline: Authority of School PersonnelStudent Discipline: Authority of School Personnel

IDEA 2004: IDEA 2004: School personnel may consider:School personnel may consider:– any unique circumstances any unique circumstances – on a case-by-case basis on a case-by-case basis – when determining whether to order a change in when determining whether to order a change in

placement for a special education studentplacement for a special education student– who violates a code of student conductwho violates a code of student conduct


Student Discipline: Authority of School PersonnelStudent Discipline: Authority of School Personnel

IDEA 2004: IDEA 2004: School personnel:School personnel:– May remove a special education studentMay remove a special education student– Who violates a code of student conductWho violates a code of student conduct– From his/her current placement toFrom his/her current placement to

• An appropriate interim alternative educational setting (IAES) as An appropriate interim alternative educational setting (IAES) as determined by the IEP team;determined by the IEP team;

• Another setting; orAnother setting; or• A suspensionA suspension

– For not more than 10 school days For not more than 10 school days – To the extent that such alternatives are applied to students To the extent that such alternatives are applied to students

without disabilitieswithout disabilities– In such cases, the same procedural protections that apply to In such cases, the same procedural protections that apply to

non-disabled students apply to special education students non-disabled students apply to special education students


Student Discipline – RemovalStudent Discipline – Removal

1997 CFR: 1997 CFR: – Children are “removed” when they cannot continue to:Children are “removed” when they cannot continue to:

• Progress in the general curriculum;Progress in the general curriculum;• Receive the services specified on their IEP; and/orReceive the services specified on their IEP; and/or• Participate with nondisabled children to the extent they would Participate with nondisabled children to the extent they would

have in their current placement.have in their current placement.– Removals may include:Removals may include:

• In-school suspensionsIn-school suspensions• Bus suspensionsBus suspensions


Student Discipline – Change of PlacementStudent Discipline – Change of Placement

1997 CFR:1997 CFR:– A “removal” that constitutes a “change of placement” triggers A “removal” that constitutes a “change of placement” triggers

significant procedural protections.significant procedural protections.– A “removal” is a “change of placement” when it:A “removal” is a “change of placement” when it:

• Is for more than 10 consecutive school days (i.e., an expulsion).Is for more than 10 consecutive school days (i.e., an expulsion).• Is for more than 10 cumulative school days and constitutes a pattern Is for more than 10 cumulative school days and constitutes a pattern

because:because:– They cumulate to more than 10 school days in a school year; and– Because of factors such as:

» The length of each removal;» The total amount of time the child is removed; and » The proximity of the removals to one another.


Student Discipline – No Change of PlacementStudent Discipline – No Change of Placement

1997 CFR:1997 CFR:– What happens when a student is removed for more than 10 What happens when a student is removed for more than 10

cumulative school days and the conduct does cumulative school days and the conduct does not not constitute a constitute a pattern?pattern?

– The IDEA 1997 regulations provide that:The IDEA 1997 regulations provide that:• General disciplinary rules applyGeneral disciplinary rules apply• The student has the right to educational services on the 11The student has the right to educational services on the 11thth day of day of

removal in order to enable him/her to:removal in order to enable him/her to:– Continue to participate in the general education curriculum, although in Continue to participate in the general education curriculum, although in

another setting; andanother setting; and – Continue to receive those educational services contained in the child’s IEP, Continue to receive those educational services contained in the child’s IEP,

so that the child can progress toward achieving IEP goalsso that the child can progress toward achieving IEP goals• School personnel are to consult with at least one of the student’s teachers School personnel are to consult with at least one of the student’s teachers

to determine the scope of services and location, if anyto determine the scope of services and location, if any


Student Discipline – Authority of School Student Discipline – Authority of School PersonnelPersonnel

IDEA 2004:IDEA 2004: If school personnel seek to: If school personnel seek to:– Order a change in placement that would exceed 10 school days, Order a change in placement that would exceed 10 school days,

and and – The behavior that gave rise to disciplinary action is determined The behavior that gave rise to disciplinary action is determined

notnot to be a manifestation of the student’s disability to be a manifestation of the student’s disability– The relevant disciplinary procedures applicable to students The relevant disciplinary procedures applicable to students

without disabilities may be applied to the special education without disabilities may be applied to the special education student in the same manner and for the same duration in which student in the same manner and for the same duration in which the procedures would be applied to students without disabilitiesthe procedures would be applied to students without disabilities

– Except that the student is entitled to a free appropriate Except that the student is entitled to a free appropriate public education (FAPE) despite the disciplinary action public education (FAPE) despite the disciplinary action (although it may be provided in an appropriate IAES)(although it may be provided in an appropriate IAES)



IDEA 2004: Educational Services. IDEA 2004: Educational Services. A special education A special education student removed from his/her current placement for more student removed from his/her current placement for more than 10 school days and/or removed to an appropriate than 10 school days and/or removed to an appropriate IAES:IAES:– Irrespective of whether the behavior is determined to be a Irrespective of whether the behavior is determined to be a

manifestation of the student’s disabilitymanifestation of the student’s disability– Must:Must:

• Continue to receive FAPE, so as to enable the student to continue to Continue to receive FAPE, so as to enable the student to continue to participate in the general education curriculum, although in another participate in the general education curriculum, although in another setting, and to progress toward meeting the goals set out in the student’s setting, and to progress toward meeting the goals set out in the student’s IEPIEP

• Receive, as appropriate, a functional behavior assessment, behavior Receive, as appropriate, a functional behavior assessment, behavior intervention services, and modifications, that are designed to address the intervention services, and modifications, that are designed to address the behavior violation so that it does not recur.behavior violation so that it does not recur.



IDEA 2004: Manifestation Determination. IDEA 2004: Manifestation Determination. – Within 10 school days of any decision to change a special Within 10 school days of any decision to change a special

education student’s placement for disciplinary reasonseducation student’s placement for disciplinary reasons– The school district, the parent, and relevant IEP team members The school district, the parent, and relevant IEP team members

(as determined by the parent and the school district)(as determined by the parent and the school district)– Shall review all relevant information in the student’s file including Shall review all relevant information in the student’s file including

• The student’s IEPThe student’s IEP• Any teacher observations, and Any teacher observations, and • Any relevant information provided by the parentsAny relevant information provided by the parents



IDEA 2004: Manifestation Determination. IDEA 2004: Manifestation Determination. – Based on that review, the school district, parents, and Based on that review, the school district, parents, and

other IEP team members shall determine:other IEP team members shall determine:• If the conduct in question was caused by, or had a direct and If the conduct in question was caused by, or had a direct and

substantial relationship to, the student’s disability; orsubstantial relationship to, the student’s disability; or• If the conduct in question was the direct result of the school If the conduct in question was the direct result of the school

district’s failure to implement the IEPdistrict’s failure to implement the IEP– The conduct must be determined to be a manifestation The conduct must be determined to be a manifestation

of the student’s disability if either of the above appliesof the student’s disability if either of the above applies


Student Discipline – Authority of School PersonnelStudent Discipline – Authority of School Personnel

IDEA 2004: Behavior Was a Manifestation. IDEA 2004: Behavior Was a Manifestation. If the If the conduct was a manifestation of the student’s disability, the conduct was a manifestation of the student’s disability, the IEP team must:IEP team must:– Conduct a functional behavior assessment (FBA), and implement Conduct a functional behavior assessment (FBA), and implement

a behavior intervention plan (BIP), provided that the school a behavior intervention plan (BIP), provided that the school district had not conducted a FBA before the behavior that district had not conducted a FBA before the behavior that resulted in a change in placement;resulted in a change in placement;

– If a BIP has already been developed, review and modify the BIP, If a BIP has already been developed, review and modify the BIP, as necessary, to address the behavioras necessary, to address the behavior

– Return the child to the placement from which the child was Return the child to the placement from which the child was removed, unless the parent and the school district agree to a removed, unless the parent and the school district agree to a change in placement as part of modifying the BIP (except if the change in placement as part of modifying the BIP (except if the student is moved to an IAES under special circumstances)student is moved to an IAES under special circumstances)



Functional Behavior Assessment (FBA)Functional Behavior Assessment (FBA)– This is a This is a federal requirementfederal requirement. . – It may be an assessment requiring parental consent or a review It may be an assessment requiring parental consent or a review

of existing data by the IEP team.of existing data by the IEP team. Functional Analysis Assessment (FAA)Functional Analysis Assessment (FAA)

– This is a This is a state requirementstate requirement..– It is an assessment requiring parental consent conducted when a It is an assessment requiring parental consent conducted when a

student exhibits a serious behavior problem that significantly student exhibits a serious behavior problem that significantly interferes with implementing IEP goals and objectives.interferes with implementing IEP goals and objectives.

One component of a FBA may be to determine whether One component of a FBA may be to determine whether the student’s behavioral history warrants a FAAthe student’s behavioral history warrants a FAA



IDEA 2004: Special Circumstances.IDEA 2004: Special Circumstances. School personnel School personnel may remove a student to an IAES for not more than 45 may remove a student to an IAES for not more than 45 school days school days without regard to whether the behavior is without regard to whether the behavior is determined to be a manifestation of the student’s determined to be a manifestation of the student’s disabilitydisability, in cases where a student, while at school, on , in cases where a student, while at school, on school premises, or at a school function:school premises, or at a school function:– Carries or possesses a weapon Carries or possesses a weapon – Knowingly possesses or uses illegal drugs, or sells or solicits the Knowingly possesses or uses illegal drugs, or sells or solicits the

sale of a controlled substancesale of a controlled substance– Has inflicted serious bodily injury upon another personHas inflicted serious bodily injury upon another person

The IEP team must determine the appropriate IAESThe IEP team must determine the appropriate IAES



A “weapon” is A “weapon” is “a weapon, device, instrument, material, or substance, animate or “a weapon, device, instrument, material, or substance, animate or inanimate, that is used for, or is readily capable of, causing death or serious bodily inanimate, that is used for, or is readily capable of, causing death or serious bodily injury, except that such term does not include a pocket knife with a blade less than injury, except that such term does not include a pocket knife with a blade less than 2 2 ½ inches in length.” (18 USC § 930(g)(2).)½ inches in length.” (18 USC § 930(g)(2).)

A “controlled substance” is A “controlled substance” is “a drug or other substance identified under “a drug or other substance identified under Schedules I, II, III, IV, or V in section 202(c) of the Controlled Substances ActSchedules I, II, III, IV, or V in section 202(c) of the Controlled Substances Act.” .” (21 USC § 812(c).)(21 USC § 812(c).)

An “illegal drug” is An “illegal drug” is “a controlled substance; but does not include a substance “a controlled substance; but does not include a substance that is legal possessed or used under the supervision of a licensed health-care that is legal possessed or used under the supervision of a licensed health-care professional or . . . under any other authority under the Controlled Substances Act professional or . . . under any other authority under the Controlled Substances Act or under any other provision of Federal law.”or under any other provision of Federal law.”

““Serious bodily injury” is Serious bodily injury” is “bodily injury which involves a substantial risk of death, “bodily injury which involves a substantial risk of death, extreme physical pain, protracted and obvious disfigurement or protracted loss or extreme physical pain, protracted and obvious disfigurement or protracted loss or impairment of the function of a bodily member, organ or mental faculty.” (18 U.S.C. impairment of the function of a bodily member, organ or mental faculty.” (18 U.S.C. §§ (h)(3).) (h)(3).)



Notification.Notification. Not later than the date on which the Not later than the date on which the decision to take disciplinary action is made, the decision to take disciplinary action is made, the school district must notify the parents:school district must notify the parents:– Of that decision; andOf that decision; and– All procedural safeguards accorded under IDEA 2004All procedural safeguards accorded under IDEA 2004


Student Discipline – IAESStudent Discipline – IAES

IDEA 2004 & 1997 CFR: IDEA 2004 & 1997 CFR: An IAES must be selected so as An IAES must be selected so as to enable the student to:to enable the student to:– Continue to participate in the general education curriculum Continue to participate in the general education curriculum

(although in another setting); and (although in another setting); and – Continue to receive those educational services contained in the Continue to receive those educational services contained in the

child’s current IEP, that will enable the child to meet the goals set child’s current IEP, that will enable the child to meet the goals set out in that IEPout in that IEP

– Include services and modifications to address the misconduct that Include services and modifications to address the misconduct that are designed to prevent the behavior from recurringare designed to prevent the behavior from recurring

Only the last IAES component (i.e., services to prevent the Only the last IAES component (i.e., services to prevent the behavior from recurring) is different from a district’s behavior from recurring) is different from a district’s educational placement obligation for expelled special educational placement obligation for expelled special education students.education students.


Student Discipline – AppealStudent Discipline – Appeal

A hearing may be requested by:A hearing may be requested by:– A parent of a special education student who disagrees A parent of a special education student who disagrees

with any decision regardingwith any decision regarding• The placement, orThe placement, or• The manifestation determinationThe manifestation determination

– A school district that believes that maintaining the A school district that believes that maintaining the current placement of the student is substantially likely to current placement of the student is substantially likely to result in injury to the student or to others result in injury to the student or to others


Student Discipline -- AppealStudent Discipline -- Appeal

The appeal must occur on an expedited basis:The appeal must occur on an expedited basis:– The hearing must occur within 20 school days of the date the hearing is The hearing must occur within 20 school days of the date the hearing is

requestedrequested– The decision must be rendered within 10 school days after the hearingThe decision must be rendered within 10 school days after the hearing

An ALJ may order a change in placement by:An ALJ may order a change in placement by:– Returning the student to the placement from which he/she was removedReturning the student to the placement from which he/she was removed– Ordering a change in placement to an appropriate IAES for not more than 45 Ordering a change in placement to an appropriate IAES for not more than 45

school days if the ALJ determines that maintaining the current placement is school days if the ALJ determines that maintaining the current placement is substantially likely to result in injury to the child or to otherssubstantially likely to result in injury to the child or to others

The student must remain in the IAES pending the decision of the The student must remain in the IAES pending the decision of the ALJ, or until the expiration of the 45-day time period, whichever ALJ, or until the expiration of the 45-day time period, whichever occurs first, unless the parent and school district agree otherwiseoccurs first, unless the parent and school district agree otherwise


Student Discipline – Stay PutStudent Discipline – Stay Put

1997 CFR: 1997 CFR: The student must remain in his/her “stay put” The student must remain in his/her “stay put” placement pending resolution of due process proceedings unless placement pending resolution of due process proceedings unless the district and parent agree otherwise.the district and parent agree otherwise.– If the parent disagrees with the IAES and requests due process, the stay If the parent disagrees with the IAES and requests due process, the stay

put placement is the IAES until the decision is issued or 45 school days put placement is the IAES until the decision is issued or 45 school days expires, whichever comes firstexpires, whichever comes first

– If the parent disagrees with any other IEP team decision and requests due If the parent disagrees with any other IEP team decision and requests due process, the stay put placement is the student’s last agreed upon and process, the stay put placement is the student’s last agreed upon and implemented educational placement.implemented educational placement.

The “stay put” placement is “the placement called for in the The “stay put” placement is “the placement called for in the student’s IEP which has been implemented prior to the dispute student’s IEP which has been implemented prior to the dispute arising.” (arising.” (Thomas v. Cincinnati Bd. of Ed.Thomas v. Cincinnati Bd. of Ed., 918 F.2d 618 (6, 918 F.2d 618 (6thth Cir. Cir. 1990); 1990); Alameda USDAlameda USD, 32 IDELR 159 (2000).), 32 IDELR 159 (2000).)


Student Discipline – Stay PutStudent Discipline – Stay Put

Federal lawFederal law does not interpret “current placement” to does not interpret “current placement” to include a specific school or classroom. include a specific school or classroom.

California regulationsCalifornia regulations defines “specific educational defines “specific educational placement” as “that unique combination of facilities, placement” as “that unique combination of facilities, personnel, location, or equipment necessary to provide personnel, location, or equipment necessary to provide instructional services.” instructional services.”

Our old hearing office has interpreted this regulation to Our old hearing office has interpreted this regulation to require districts to maintain children at particular school require districts to maintain children at particular school sites (and/or in particular classrooms) to comply with the sites (and/or in particular classrooms) to comply with the “stay put” provision of the law. (“stay put” provision of the law. (Vista USDVista USD, 29 IDELR 749 , 29 IDELR 749 (1998).)(1998).)


Student Discipline – Children Not Yet EligibleStudent Discipline – Children Not Yet Eligible

A student not determined eligible for special A student not determined eligible for special educationeducation– Who engaged in behavior subject to disciplinary action Who engaged in behavior subject to disciplinary action – May assert IDEA protections May assert IDEA protections – If the district had knowledge that the student is disabled If the district had knowledge that the student is disabled

before the behavior that precipitated the disciplinary before the behavior that precipitated the disciplinary action occurredaction occurred



A district will be deemed to have knowledge that a A district will be deemed to have knowledge that a student is disabled if, before the behavior that student is disabled if, before the behavior that precipitated the disciplinary action occurred:precipitated the disciplinary action occurred:– The student’s parent expressed concern in writing to district The student’s parent expressed concern in writing to district

supervisory or administrative personnel, or a teacher of the supervisory or administrative personnel, or a teacher of the student, that the student is in need of special education and student, that the student is in need of special education and related services;related services;

– The student’s parent requested a special education evaluation.The student’s parent requested a special education evaluation.– A teacher of the student, or other district personnel, expressed A teacher of the student, or other district personnel, expressed

specific concerns about a pattern of behavior demonstrated by specific concerns about a pattern of behavior demonstrated by the child, directly to the director of special education or to other the child, directly to the director of special education or to other district supervisory personnel district supervisory personnel



A district will A district will notnot be deemed to have knowledge be deemed to have knowledge if:if:– The parent of the child has not allowed an evaluation of The parent of the child has not allowed an evaluation of

the child or has refused services; or the child or has refused services; or – The child has been evaluated and it was determined The child has been evaluated and it was determined

that the child was not a child with a disability.that the child was not a child with a disability.



If a district did not have knowledge that the If a district did not have knowledge that the student is disabled before taking disciplinary student is disabled before taking disciplinary action, the child action, the child – May May notnot assert IDEA protections; and assert IDEA protections; and– May be disciplined like his/her general education peers. May be disciplined like his/her general education peers.



If a parent requests a special education evaluation when the If a parent requests a special education evaluation when the student is subjected to disciplinary measures, the district student is subjected to disciplinary measures, the district must:must:– Complete the evaluationComplete the evaluation in an expedited manner in an expedited manner– Notice and convene an IEP team meeting to determine eligibility; Notice and convene an IEP team meeting to determine eligibility;

and, if the child is determined to be eligible, develop an IEP that and, if the child is determined to be eligible, develop an IEP that offers FAPEoffers FAPE

We recommend that the district We recommend that the district stay disciplinary stay disciplinary proceedingsproceedings pending completion of the IEP process pending completion of the IEP process

Pending the evaluation results, the student must remain in the Pending the evaluation results, the student must remain in the placement determined by the district (i.e., the “stay put” placement determined by the district (i.e., the “stay put” provision does provision does notnot apply to a child not yet eligible) apply to a child not yet eligible)



If the child is determined to be eligible for special If the child is determined to be eligible for special education, the district will likely decide to:education, the district will likely decide to:– Dismiss its disciplinary proceedings; andDismiss its disciplinary proceedings; and– Proceed with the IEP process.Proceed with the IEP process.

If the child is determined If the child is determined notnot to be eligible for special to be eligible for special education:education:– The parent may request a due process hearing on the issue of The parent may request a due process hearing on the issue of

eligibility (and the manifestation determination); andeligibility (and the manifestation determination); and– The district may proceed with its disciplinary proceedings.The district may proceed with its disciplinary proceedings.


Student Discipline – Reporting a CrimeStudent Discipline – Reporting a Crime

IDEA 2004 does IDEA 2004 does notnot::– Prohibit a district from reporting a crime committed by a special education Prohibit a district from reporting a crime committed by a special education

student to appropriate authorities, or student to appropriate authorities, or – Prevent State law enforcement and judicial authorities from exercising their Prevent State law enforcement and judicial authorities from exercising their

responsibilities with regard to the application of federal and state law to responsibilities with regard to the application of federal and state law to crimes committed by special education studentscrimes committed by special education students

The district must ensure that copies of the student’s special The district must ensure that copies of the student’s special education and disciplinary records are transmitted for consideration education and disciplinary records are transmitted for consideration by the appropriate authorities to whom it reports the crimeby the appropriate authorities to whom it reports the crime

Records may be transmitted only to the extent permissible under Records may be transmitted only to the extent permissible under the Federal Educational Rights & Privacy Act (FERPA)the Federal Educational Rights & Privacy Act (FERPA)– The extent to which FERPA allows such disclosure without parental The extent to which FERPA allows such disclosure without parental

consent, court order, or lawfully issued subpoena is unclearconsent, court order, or lawfully issued subpoena is unclear


Part IIIPart III

What’s Left to Do?: What’s Left to Do?: Reviving AB 1092 as Clean-Up Legislation Reviving AB 1092 as Clean-Up Legislation


What’s Left to Do?What’s Left to Do?

Use IDEA Terms:Use IDEA Terms:– Evaluation instead of assessmentEvaluation instead of assessment– Child with a disability instead of IWENChild with a disability instead of IWEN– Related services instead of DISRelated services instead of DIS

Definition of Special Education:Definition of Special Education: Unlike IDEA 1997 & Unlike IDEA 1997 & 2004, California law defines “special education” to include 2004, California law defines “special education” to include “related services.” “related services.” – Eligibility in California is expanded to children who have a disability Eligibility in California is expanded to children who have a disability

and need related services onlyand need related services only Initial Evaluation TimelinesInitial Evaluation Timelines Parental Consent Requirement for Continued Provision Parental Consent Requirement for Continued Provision

of Special Education Servicesof Special Education Services



Private School Students: Private School Students: Unlike IDEA 2004, California law Unlike IDEA 2004, California law requires the LEA of residence to conduct child find activities, requires the LEA of residence to conduct child find activities, including assessment, for parentally placed private school children including assessment, for parentally placed private school children with disabilities. (Ed. Code § 56171)with disabilities. (Ed. Code § 56171)

Procedural Notice: Procedural Notice: Unlike IDEA 2004, California law requires that Unlike IDEA 2004, California law requires that a copy of the LEA’s parental rights notice accompany each a copy of the LEA’s parental rights notice accompany each assessment plan. (Ed. Code 56321(a).)assessment plan. (Ed. Code 56321(a).)

Compliance ComplaintsCompliance Complaints Statute of Limitations: Statute of Limitations: Unlike IDEA 2004, California law currently Unlike IDEA 2004, California law currently

has a three-year statute of limitations for due process cases. has a three-year statute of limitations for due process cases. California law should be updated to indicate that the two-year statute California law should be updated to indicate that the two-year statute of limitations will commence on October 9, 2006. of limitations will commence on October 9, 2006.



10-day Statement of Issues:10-day Statement of Issues: Unlike IDEA 2004, Unlike IDEA 2004, California law continues to require a ten-day statement of California law continues to require a ten-day statement of issues. (Ed. Code §§ 56043(u) and 56505(e).)issues. (Ed. Code §§ 56043(u) and 56505(e).)

Decisions Based on Procedural Violations: Decisions Based on Procedural Violations: Unlike Unlike IDEA 2004, California law allows a hearing officer to base IDEA 2004, California law allows a hearing officer to base a decision on procedural grounds if he/she “finds that the a decision on procedural grounds if he/she “finds that the nonsubstantive procedural errors resulted in the loss of nonsubstantive procedural errors resulted in the loss of educational opportunity to the pupil or interfered with the educational opportunity to the pupil or interfered with the opportunity of the parent or guardian of the pupil to opportunity of the parent or guardian of the pupil to participation in the formulation process of the [IEP].” (Ed. participation in the formulation process of the [IEP].” (Ed. Code § 56505(j).)Code § 56505(j).)

Copyright © Lozano Smith 2003 IDEA 2004: Where Are We Now? CASP Convention 2006 Presented By Howard...

Documents

Transcript of Copyright © Lozano Smith 2003 IDEA 2004: Where Are We Now? CASP Convention 2006 Presented By Howard...