services, program modifications, appropriate positive behavioral interventions and strategies and support for school personnel.

In order to fulfill these particular responsibilities, the staff person at a minimum would need to be certified as a regular education teacher. In addition, the person should have such certification at the chronological age level of the student and/or have had experience working with students of that chronological age in a general education setting. Remember also, one staff person participating in an IEPC can fulfill more than one role. Accordingly, if another staff person at the IEPC would have certification as a regular education teacher, he or she technically would meet the requirement. If possible, in order for this regular education teacher to fulfill his/her role as an IEPC participant more meaningfully, it would be better if the regular education teacher fulfilling this role had some prior knowledge or involvement with the student. However, there may be situations where such is not possible and in those instances we would advise the attending regular education teacher to acquaint herself/himself with the student by reviewing pertinent records and discussing the student with staff currently serving her/him prior to the IEPC.

For an infant or toddler participating in early intervention programs from age 0 through 2, even if under traditional Part B IDEA (as opposed to Part C, formerly Part H), programs and services would typically be provided in the home and participation in any other practical equivalent of the general education curriculum would generally never arise. At the preschool age of 3 to 5, few but not many children might have IEPs calling for them to participate in activities with children without disabilities in regular preschool programs, Head Start or kindergarten as examples. Should a situation of this type arise, we would suggest applying the above principles to identify an appropriate regular education teacher to participate on the IEP team.

During the early year or years when a student is participating in a nonresidential or residential program in a segregated facility, depending upon the circumstances, this may be one of the few situations where even resolving all doubts in favor of the student, it is not at all reasonable to even consider she or he returning to the general education curriculum. But, at the point when it is a possibility, finding a regular education teacher may prove troublesome. There may be none at the segregated facility, the facility's teachers may be employed by a different district or be private and then even some distance from the district itself. Again, in this situation we can only suggest that if possible, have a regular education teacher who has some recent past acquaintance with the student participate or at least a regular education teacher who has credentials or experience with the student's chronological age group. Technically, the regular education teacher need not be from the district, but could be contracted by the district to fulfill this role. To do so meaningfully, again if the regular education teacher selected does not know the student she or he should become acquainted with the student before the IEPC by at least reviewing pertinent records and speaking with the staff serving the student.

Probably the most frequent of these difficult situations will be with students in their later years of school eligibility from 18 to 26 who are no longer attending traditional school programming, but rather receiving community-based instruction, supportive employment, and other services and activities pursuant to the transitioning aspects of their IEP. For these students, participation in "society" by working, living, and recreating is probably the practical equivalent of the general education curriculum. Accordingly, for most we foresee the need for a regular education teacher to participate in the IEPC. Many of the staff who would otherwise be participating in such a student's IEP might well have certification as a regular education teacher as part of their professional credentials even though they may now be serving in a position as a work study coordinator, transition specialist, etc. Again, such a person could fulfill more than one role on the IEP team, and would probably provide the easiest, and most meaningful way to meet this requirement.

While we have attempted to identify some of the instances where complying with the regular education teacher participation requirement may be problematic and some suggested strategies districts might consider, we recognize we have probably missed several situations and some will not be easily resolved by using any of the above suggestions. Quite frankly, this is an area where your own practical problem solving experiences will generate new ideas and creative solutions to meet this requirement. We would hope you might share them with us by giving us a call, dropping us a letter, sending us a fax, or an e-mail message.

WHAT HAPPENS WHEN PARENTS

DISAGREE OVER AN IEP?

Q & A

Q Do the notice requirements of Section 615(c) of IDEA-97 (prior written notice) apply to invitations to IEP meetings?

A IDEA-97 sets forth two different types of notice to be given under the IDEA. The first is the notice of the event referred to as "prior written notice." This notice is given any time a school district proposes or refuses to initiate or change the identification, evaluation, placement or special education program of a student. It would include such items as a description of the action proposed or refused, an explanation of why, a description of other options, etc. The second type of notice is a notice of rights or often referred to as "procedural safeguards."

When a school district provides notification of an IEP meeting, IDEA-97 requires that notice of procedural safeguards be provided as well as notice of the event. However, OSEP has taken the position (under prior interpretations of the regulations) that the prior written notice before an IEP meeting does not need to comply with all the requirements (e.g., the action proposed or refused, etc.). Instead, this prior written notice must only provide the parents with notice of the purpose, time, location and attendees that will participate at the IEP meeting.

Therefore, although IDEA-97 requires that the parents be given both the notice of the event and the notice of rights when being invited to an IEP meeting, all of the requirements set forth in Section 615(c) do not apply. But, when the IEP is given or sent to the parent it, with whatever other documents the district might choose (e.g., reports, evaluations, MET documents or a cover letter), must contain all of those items required in a typical "prior written notice." See, for example, Letter to O'Connor, 25 IDELR 320 (OSEP 1996). See also Letter to Evans, 17 EHLR 1105 (OSEP 1991).

SECTION 504 HEARINGS

Section 504 requires every district to adopt a policy setting forth how it will hold 504 due process hearings when requested by a parent. Such policies often include how the hearing officer will be selected, various timelines in terms of holding the hearing as well as various procedural requirements relating to the conduct of the hearing.

The special education rules regarding due process hearings do not automatically apply to Section 504 hearings. The only way which they might apply is if the school district has adopted a 504 policy as noted which states that Section 504 hearings will be conducted in accordance with the rules governing due process hearings under IDEA. The Michigan Department of Education would have no role to play with regard to a "pure" Section 504 hearing (i.e., a hearing involving solely questions arising under Section 504) inasmuch as the school district's policies will totally govern the proceeding. Although a "pure" Section 504 hearing is rare there have been a few held in Michigan and across the country. More frequently, parental requests for due process hearings under IDEA and Section 504 are consolidated by agreement of the parties with both hearings being conducted in effect simultaneously under the requirements of IDEA. If the parties do not agree to consolidate the hearings, there is no known basis of authority for the hearing officer to order their consolidation even though such might be a more efficient way of dealing with the disputes.

There have been a couple of recent rulings concerning Section 504 hearings which are of interest. First, in Letter to Anonymous, 26 IDELR 321 (OSEP 1997), the Office of Special Education Programs (OSEP) stated that a school district in its Section 504 policy may state that IDEA due process procedures will be utilized for its Section 504 hearings. It also stated that IDEA does not require districts to provide parents with notice of Section 504 procedural safeguards. (It should be noted, however, that Section 504 would require notice of such safeguards when the district was proposing or refusing to take action under Section 504.)

In another ruling, the Office of Civil Rights opined that a school district in its policy regarding how it will conduct Section 504 hearings is not required to allow a parent to cross-examine witnesses or to even have a court reporter present. Houston (TX) Indept Sch Dist, 25 IDELR 163 (OCR 1996). In this situation, the district's policy called for an impartial hearing officer, an informal and non-adversarial hearing, and an audiotape of the proceeding. The parent was allowed under the policy to ask follow up and clarification questions and was given a copy of the tape-recording. Again, it must be emphasized that this was a hearing solely under Section 504 as provided for in the district's

own Section 504 policy for this hearing certainly would not have met the requirements of a hearing under IDEA.

Warning: While the above article only touches upon that portion of a district's 504 policy which addresses due process hearings, Section 504 requires every district to have a policy which not only deals with due process hearings, but also sets forth the district's assurance that it will comply with Section 504, that it has a Section 504 coordinator, a grievance procedure, and a notice of rights, among other things. Despite the fact that the law has required such a policy for over two decades, too many districts have no 504 policy whatsoever or follow some type of "policy," even though it has never been formally adopted by the district's board of education. It is critical that every district have in place a Section 504 policy and procedures which has been formally adopted by its board. Make it one of your New Year's resolutions to check and make sure that your district has adopted a Section 504 policy!

The Seventh Circuit Court of Appeals issued an addendum to its recent decision finding that a district was not required to provide services to a student expelled for misconduct unrelated to his disability. This addendum found that the amendments to the IDEA were not retroactive. Doe v Bd of Ed of Oak Park and River Forest High Sch, 26 IDELR 282 (1997).

In this case, a student with a learning disability was found in possession of a pipe and a small amount of marijuana while at a school dance. The student was suspended and ultimately expelled following a manifestation determination that the behavior was not related to his disability. The parents appealed to a due process hearing which upheld the determination. This decision was then appealed to a state review officer who reversed the local hearing officer. The district appealed to federal court where the federal court found again that the behavior was not related to his disability. The federal court also ruled that the school district was not required to provide continuing services to the student given he was expelled for reasons which were unrelated to his disability. On reconsideration, the district court reversed itself and found that the school district was required to provide services. On second reconsideration, the district judge again reversed himself finding that the school was not required to provide services. The parents appealed to the Seventh Circuit.

The Seventh Circuit found that a school district was not required to provide services to a student who was expelled for misconduct unrelated to the student's disability. In essence, the court adopted the reasoning set forth Virginia v Riley. This opinion was issued prior to the enactment of IDEA-97.

Following the President's signing of IDEA-97, the parents requested rehearing and the Seventh Circuit issued an addendum to its original opinion. The court held that the "free appropriate public education" provisions of IDEA-97 that require continued services to students expelled or suspended are not to be applied retroactively. Although the court noted that the "noncessation" language would lead to a different result in the future, it would not apply to students suspended or expelled prior to June 4. The U.S. Supreme Court recently refused to review the ruling.

IMPLICATIONS:

We report this case not because it deals with discipline (in fact, our Sixth Circuit would have found a post-expulsion duty to provide services even before the IDEA-97 amendments), but because it is the first case to consider the retroactivity of IDEA-97. Although this opinion deals only with the amendments requiring continuation of services for students suspended or expelled, its holding arguably could apply to other provisions as well. For example, IDEA-97 requires consent prior to any reevaluation of a student. However, reevaluations which would have begun prior to June would not require consent, even though it may be utilized at an IEPC held in the fall.

The possible retroactive application of the various new provisions of IDEA-97 will vary with the circumstances and the stage of the procedure at the time of the enactment. Initially, one would think, given the passage of approximately six months, questions regarding possible retroactivity of IDEA-97 would not arise. But, it has been our experience that with regard to matters which are currently in hearing or in discussions with parents and parent advocates, during an IEPC or otherwise, arguments are made that certain district actions prior to June 4, 1997, violated the provisions of IDEA-97--even though those provisions were not in effect at the time the district took action! Such may arise with regard to the validity of a prior IEP or IEPC because they do not meet IDEA-97 requirements or the appropriateness of a prior evaluation or reevaluation might now be questioned on the same basis. Such contentions, whether made out of the lack of knowledge or in an attempt to support the parents' current position should be "nipped in the bud" by reliance upon this decision that IDEA-97 is not retroactive in any way. Questions regarding specific situations are best dealt with by discussing them with your district's legal counsel.