CEC Opposes New IDEA Regulations on Selected
Issues
On December 1, 2008, the U.S. Department of Education published final
regulations on selected provisions within the Individuals with
Disabilities Act (IDEA) applicable to school aged children and
youth that focus on: parental revocation of consent for special
education services, representation by non-attorneys in due process
hearings, and allocation of funds to school districts not serving
students with disabilities.
In July, CEC issued a detailed response to the U.S. Department of
Education outlining areas of agreement and disagreement within the
proposed regulations. While CEC is pleased that the Department
retained many of the CEC supported provisions in its final regulations,
CEC remains concerned that many of the changes made are unnecessary at
this time and will not provide any enhanced protections for children and
their families that cold not be addressed under current Federal
policy. In addition, these changes are costly and
burdensome.
Final Regulations Opposed by CEC Include:
Parental Revocation of Consent for Special Education
Services: The final IDEA regulations specify that a parent may
revoke consent for special education and related services at any time
and prohibits a public agency (school district) from using due process
procedures (including mediation) to overturn a parent’s revocation
of consent. Furthermore, this regulations relieves the public
agency of the responsibility to provide FAPE, conduct an IEP meeting or
develop an IEP.
CEC opposed this regulation because it believes that a school
district’s responsibility to provide FAPE to an eligible child
with a disability is central to IDEA. If a school district
believes a child continues to need special education and related
services, these regulations should permit the school district to pursue
a due process hearing or mediation to attempt to override a
parent’s decision to revoke consent.
Additionally, CEC requested clarification in the following areas:
-
Parent’s responsibility to provide written notification of
their decision to revoke consent for special education and related
services for their child. In response to CEC’s request, the
Department clarified in its final regulations parental revocation of
consent must be in writing and that once consent is revoked the school
district must provide the parent with written prior notice.
-
How revocation of consent would impact eligibility with regard to
discipline procedures; intersection with section 504 of the
Rehabilitation Act of 1973. In response to CEC’s request,
the Department stated that the regulations to not attempt to address any
overlap between protections and requirements of IDEA and section 505 and
the Americans with Disabilities Act.
-
Provisions for determining the status of the child’s
eligibility and previous IEP if, after revoking consent, the parent
provides consent at a later time. In response to CEC’s request,
the Department stated that a school district must treat requests for
re-enrollment as a request for an initial evaluation, though depending
on the data available, a new evaluation may not always be
required.
Representation by Non-Attorneys in Due Process
Hearings: The final IDEA regulations would require States to
determine the extent to which either party in a due process hearing
would have the right to be represented by non-attorneys in accordance
with State law. The Department acknowledged that IDEA is silent
regarding the representational role of non-attorneys in IDEA due process
hearings and that the issue of whether non-attorneys may
“represent” parties to a due process hearing is a matter
that is left, by law, to each State to decide.
CEC opposed this regulation because CEC is not aware of any data to
suggest that silence in the current regulations is creating a problem
for parents or public agencies and recommended that this issue be
revisited during the next reauthorization of IDEA.
Allocation of Funds to Local Education Agencies (LEAs) that
Are Not Serving Any Children with Disabilities: The final
IDEA regulations would distribute Part B funds to local education
agencies, including public charter schools that operate as LEAs, even if
they are not currently serving any children with disabilities.
CEC strongly opposed this regulation because it will result in taking
already limited Federal funds from LEAs and public charter schools that
are currently serving children with disabilities and give it to LEAs and
public charter schools that are not currently serving any children with
disabilities.
Final Regulations Supported by CEC Include:
Parental Consent: CEC supported the
regulations which states that if a parent revokes consent for their
child’s receipt of special education and related services after
the child has been receiving these services, the public agency is not
required to amend the child’s education records to remove any
references to the child’s receipt of special education because of
the revocation of consent.
States’ Sovereign Immunity and Positive Efforts to
Employ and Advance Qualified Individuals with Disabilities: CEC
supported the regulations which requires each recipient of assistance
under IDEA Part B to make positive efforts to employ , and advance in
employment, qualified individuals with disabilities in programs assisted
under Part B.
State Monitoring, Technical Assistance, and
Enforcement: CEC supported these regulatory changes because
they are based on either IDEA 2004 statutory provisions or longstanding
policy by the Department of Education.
Other examples of provisions contained in the final regulations
include:
Parental Consent: Clarifying the effect of a
parent’s revocation of consent on the context of his or her
child’s education record including a discussion of parental rights
under the confidentiality of information requirements.
Timeframe for Public Reporting About LEA
Performance: The timeline for a state’s public reporting
on the performance of LEAs was changed from 60 to 120 days from
submission of annual performance report.
These regulations will require multiple changes to current state and
LEA policies and procedures. These regulations take effect on December
31, 2008.
Read the final Part B and Preschool regulations
Read CEC’s response to the proposed
regulations
|
