IDEA
2004
State Implementation Project
The recently enacted Individuals
with Disabilities Education Improvement Act of 2004 makes
a number of changes affecting the education of students with
disabilities. Most provisions became effective July 1, 2005.
The amendments modify
the process for developing IEPs, their content and implementation,
expand the authority of school personnel to unilaterally remove
students from school, modify procedural protections and eliminate
safeguards for students and their parents. In certain limited
areas the new amendments will override State laws that conflict
with or undermine the purpose of the federal legislation. However,
there is still much room for States to exercise leadership
and autonomy, and, in particular, to hold schools and school
districts to higher State requirements that were designed to
enable all students with disabilities to meet challenging State
standards.
Currently nearly all
States have laws and regulations that provide students with
disabilities and their parents rights and protections that
exceed minimal Federal requirements. We believe that State
and local policymakers need to work with local school district
administrators, teachers and parents to preserve and protect
these State laws that encourage best practices and implementation
of effective, research based interventions that are helping
ALL students learn.
Why Are We
Concerned?
We
are concerned first, because some of the 2004 amendments to
IDEA erode longstanding
rights
and protections that currently exist under State laws and
regulations. Second, the 2004 amendments contain explicit
language that may discourage States from preserving their
existing laws, regulations and policies that exceed the
minimal Federal requirements. Subsections (a)(2) and (3) of
section
608 require States to: “identify in writing to local
educational agencies… and the Secretary any such rule,
regulation or policy as a State-imposed requirement that
is not required by this title and Federal regulations; and…minimize
the number of rules, regulations, and policies to which
the local educational agencies and schools located in the
State
are subject under this title.”
State
legislators, administrators, policymakers, parents, other members
of the
school community, and citizens need not be intimidated by this
language. Education is traditionally a matter of State and
local concern, and a field in which States have significant
autonomy and discretion. Furthermore, Section 608(b) of the
new amendments provides that: “State rules, regulations,
and policies in this title shall support and facilitate local
educational agency and school-level system improvement designed
to enable children with disabilities to meet the challenging
State student academic achievement standards.”(emphasis
added)
HOW THIS WORKS
As
noted above, the new amendments are likely to override a stronger
or more protective
State law only when it is not possible to comply with the requirements
of both Federal and State law, or when the State law is an
obstacle to accomplishing the purpose of the Federal legislation.
The new amendments, for example, require a resolution session
to be convened between parents and school authorities prior
to a due process hearing unless both parties agree to waive
the meeting; authorize school personnel to remove unilaterally
a student who inflicts “serious bodily injury”;
expand the definition of “prevailing party” for
purposes of awarding attorney’s fees to include State
education agency and school districts in very limited instances;
establish a 2 year statute of limitations. In these limited
instances, where it is not possible to meet what is required
by both State and Federal law (e.g., a State statute of limitations
period gives parents 3 years to bring a due process complaint;
a State law requires a Hearing Officer to remove a student
alleged to have “inflicted serious bodily injury”;
State law authorizes school personnel to refuse to meet with
parents who complain), or where the State law impedes Congress’ accomplishing
its purpose, Federal law will, as a rule, control.
This
does not mean that ALL or even most of the State law provisions
giving students
and their parents’ greater protections will be “preempted” or
overridden by Federal law. To the contrary, except as described
above, a State law that is more protective of the student will
override a less protective Federal law. This means that a State
law will be upheld that includes all the components of a Manifestation
Review, including two critical components eliminated by the
2004 amendments to IDEA. It is certainly possible to meet these
two criteria now found only in State law, (1) whether the child’s
IEP is appropriate, and (2) if the child’s disability
impaired his/her ability to control or understand the consequences
of the behavior, and to comply with the more truncated Federal
law to determine if a child’s behavior is a manifestation
of his disability. Furthermore, these two additional State
requirements do NOT undermine the purpose and intent of the
Federal legislation. Similarly, if a State chooses, consistent
with best practice, to maintain its current law that requires
transition planning to begin by age 14, State law will be upheld
even though that particular Federal law requirement was eliminated
by the 2004 amendments to IDEA. Once again, it is possible
to comply with the additional State law provision as well as
the Federal requirement to provide transition services at 16
years. And, the additional requirement is NOT an obstacle to
the Congressional purpose of the Federal legislation.
NO TIME TO
LOSE
Work to protect and
preserve your stronger State laws. Collaborate with your State
parent and disability organizations, advocacy groups. Reach
out to your State legislators, State and school district policymakers,
teachers and other members of the school community who are
committed to improving education for students with disabilities.
States and local school districts, with the input of parents,
advocates and other committed members of the school community,
are in a better position to determine how to implement the
new 2004 amendments to IDEA through their own State laws, regulations
and rules to support improved educational outcomes for students
with disabilities.
The 2004 changes to
IDEA do not become effective until July 2005. Until repealed,
your State is likely to have statutory provisions, regulations
or rules, based on the IDEA passed in 1997, that are stronger
than the new Federal law. Review your State law provisions,
use the attached tool if it is helpful to organize and develop
a strategy for approaching your State legislators and policymakers
to get them on board. We believe there are many State and local
school district personnel who want students with disabilities
to succeed, and who will recognize the importance of preserving
more protective State laws and regulations.
Unless a State proactively
takes steps to modify/repeal its stronger State law and/or
regulations to mirror the amended IDEA, the new and weaker
federal amendments will not apply in those States that retain
stronger state law protecting students with disabilities, except
in those very limited instances where it is impossible to comply
with both the Federal requirement and the State law, or the
stronger State law is an obstacle to accomplishing the purpose
of the Federal law.
Without
the voices of parents and constituents being raised, State
Education Agencies
are likely to move to begin the process for changing current
State laws and regulations to conform to the WEAKER Federal
law. If this is your State’s intent, it is likely that
the State will seek to do so by July 1, 2005, when most of
the 2004 changes to IDEA become effective.
You may only have
a few months to prevent your State special education laws and
rules from being watered down. We have prepared a template
with ideas about steps you can take to preserve key aspects
of your State statutes and rules. This is not meant to be an
exclusive list-you can add, delete or modify any or all of
it to fit your State. It is designed to help you and other
like-minded people to begin the process of developing strategies.
 Download
the Template for State
IDEA04 Implementation Policy Discussions
4 pages - Requires Acrobat Reader
If you don't have Acrobat Reader installed
on your computer, you can download
a copy for free.
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