October 1997, Vol. 11, No. 2
An "Ounce of Prevention..." News
Information and Ideas from Beekman & LaPointe for Practical Problem Solving in Special Education
PROPOSED IDEA REGULATIONS
FINALLY PUBLISHED
On October 22, 1997, the U.S. Department of Education finally published in the
Federal Register its proposed regulations for IDEA-97. Although the majority of IDEA was
immediately effective the day of its signing on June 4, 1997, the Department published the
proposed regulations only one day before the first of the several hearings scheduled
across the country to receive public comment on the regulations as proposed. The closest
future hearing site is in Northbrook, Illinois, on November 24, 1997. Persons
desiring to attend will in all likelihood have their comments limited to four minutes.
However, written comments can be submitted but must be received by the Department on or
before January 20, 1998.
The October 22 Federal Register "package" includes proposed regulations for
Parts B and C (formerly Part H) with accompanying notes. Additionally, there is
"supplementary information" containing an invitation to comment and an
explanation of the proposed regulatory changes (which for the most part merely restate the
actual changes made). Finally, the Federal Register proposed rules package contains a
revision of Appendix C to the rules (a question and answer segment on IEPs) involve
several more pages. In short, the proposed rules document is quite lengthy, rating from
109 pages as printed in the triple column per page format of the Federal Register to 200
plus pages for Internet versions. A copy of all or a part of this document can be obtained
by calling Laurie or Joan at (517) 349-4121 or off our web site at http://www.spedlaw.com.
(See information concerning the firm's new web page on page 5 of this issue of OP
News.)
It must be remembered that IDEA-97 was very prescriptive and oftentimes actually reads
like regulations. Understandably, the proposed regulations, for the most part, merely
restate the language of IDEA-97. However, in a few areas the proposals add something or
give a slightly different "twist" which may have significant implications for
districts. We shall attempt here to give you a general summary of some of the potentially
significant proposed regulations and comments and notes which we believe might be of
general interest.
Procedural Safeguards
The proposed regulations require that the written notice to parents inform them of the
state's complaint procedures, including how to file and time lines. Interestingly, the
proposal deletes a possible review of such complaints by the U.S. Department of Education.
The proposed regulations state that a due process hearing is not an available forum for
a complaint that a district has failed to meet the requirements relating to the provision
of services to students voluntarily placed by parents in private schools, including those
indicated on a child's IEP in such circumstances. However, complaints may be filed
concerning such alleged violations.
The state would be required to maintain a list of qualified mediators. In a note to the
proposed regulation, it is stated that whenever such a mediator is not selected on a
random basis from that list, the parent and district must agree on an individual who is
selected.
The proposed regulations define "impartial mediator" as a person who is not
an employee of a local education agency, state education agency that is providing direct
services to the subject child or a state agency. Further, the person cannot have a
personal or professional conflict of interest.
In a note to a proposed regulation, it is stated that nothing in IDEA-97 prohibits a state from enacting a law that would permit hearing officers to award attorneys fees to parents who are prevailing parties.
A proposed regulation provides that if the decision of a local or state hearing officer
agrees with the parents that a change of placement is appropriate, that placement must be
treated as an agreement between the district/state and the parents and thereafter serve as
the stay put (unless the district/state and parents agree otherwise).
Discipline
The proposed regulations basically reaffirm OSEP's recent guidance in this area, most
notably that unless a student with disabilities is suspended for more than 10 days, the
district may cease services and need not conduct manifestation determinations or make
behavioral intervention assessments. However, interestingly a note to a regulation makes
reference to OSEP's prior approach of considering a possible "pattern" of
exclusion where there is a series of suspensions with each less than 10 days, possibly
offering the basis for some confusion, although the proposed regulatory language is rather
clear.
The proposed regulations appear to add the requirement that an "appropriate behavioral intervention" be developed if a district did not previously conduct a behavioral assessment and implement an intervention plan. But, some construe this
provision to leave the door open to not developing a behavioral intervention plan if
one is not needed, given the use of the word "appropriate."
After one of the proposed regulations appears a note which states that home instruction
is usually appropriate only for a few children, e.g., medically fragile and those not able
to participate in a school setting with other children. Such language might be construed
to suggest that home instruction is usually inappropriate in a behavioral context.
"Expedited" hearings in the discipline context, which under IDEA-97 both
parents and districts may request in various circumstances, are defined. Whereas regular
hearings are to be concluded by decision within 45 calendar days from the request,
expedited hearings under the proposed regulations are to be concluded within ten
"business" days from the request. The five-day rules regarding exhibits, witness
lists and evaluations are shortened to two days.
Evaluations/IEPs
Basically, the proposed regulations in these areas merely reflect the requirements in
IDEA-97. But, the notes after some of the proposed regulations offer significant comments.
One note states that it would be "reasonable to expect" that a district would
implement an IEP within 60 days after it receives consent for an initial evaluation.
Another note remarks that the new emphasis on participation in the general education
curriculum is intended to produce greater attention on the accommodations/adjustments to
access the general education curriculum and the necessary special services for
participation, not major expansions in the size of the IEP by way of detailed
goals/benchmarks/objectives in every curricular content standard skill.
Another note states that while teaching and related service methodology/approaches are
an appropriate topic for discussion and consideration by an IEPC, such are not to be
included in the IEP nor should changes in particular methods/approaches require a new IEPC
(such adjustments being made by the regular or special education teacher on a day-to-day
basis).
Clarifying IDEA-97's requirement that parents have the opportunity to participate in
all meetings regarding identification evaluation, placement and FAPE, the proposed
regulations define "meetings" as a "prearranged event" in which
district personnel come together to discuss one of the above topics. But the term does not
include informal/unscheduled conversations or conversations regarding methodology, lesson
plans, or coordination of service, if such are not in the IEP. Also noted is that the term
does not include preparatory activities to develop a proposal/response to a parent
proposal to be discussed in a meeting.
Private Schools
The proposed regulations clarify how the allocated portion of federal funds required to
be spent on services to students parentally placed in private schools is to be determined.
Importantly, the proposed regulations expressly state that alleged violations of
requirements regarding services to students parentally placed in private schools must
be addressed through complaint procedures and not due process procedures as noted above.
The proposed regulations substitute the words "religiously affiliated" in
place of the previously used term "parochial."
The proposed regulations state that transportation must be provided when services to
such private school students are off site when it is necessary for the child to
benefit/participate in such services. Also noted is that the cost of such transportation
is includable in the allocated portion of federal funds noted above (which may in effect
result in a decrease in the range/amount of services which can be provided to all such
students utilizing the allocated portion of federal funds).
Remember, these are only proposed regulations and accompanying notes. But, in all likelihood there will not be substantial changes for two reasons. First, they for the most part mirror
IDEA-97 which was extremely prescriptive itself. Second, typically there are very few
changes made in proposed regulations, particularly where, as here, they were drafted if
not concurrently with the statute, shortly thereafter.
Despite the fact that these are only proposed regulations, given their high likelihood
of becoming final in this form, districts would be well advised to consider them a good
guideline to interpret IDEA-97 and, accordingly, their obligations and responsibilities
under it. While the finalized regulations will be binding upon districts as law, the notes
will never have such status. But, such notes have in the past, and will in the future, be
looked to by our own Michigan Department of Education, hearing officers, and courts as an
expression of intent and, therefore, often given deference.
In the forthcoming months, OP News from time to time will be referring to these proposed regulations and accompanying notes, while discussing the implications of a particular case or in our question and answer feature.
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STAY PUT NOT APPLY WHEN
CASE AT COURT OF APPEALS
The Sixth Circuit Court of Appeals (in which Michigan is located) became the first
federal circuit court of appeals to rule on whether the stay put provision of IDEA applies
when the case has reached the federal court of appeals level. It held it did not. Kari
H v Franklin Special Sch Dist, 26 IDELR 569 (6th Cir, 1997). In doing so, it
agreed with a couple of federal district court decisions to the same effect.
IDEA provides that during the pendency of any proceedings "conducted pursuant to this section" unless the district and a parent agree otherwise, the child shall remain in the then current educational placement until all such proceedings have been completed. That section only refers to due process hearings, state administrative reviews, and civil actions filed in state or federal court. Notably, not mentioned are appeals to federal circuit courts of appeal or
higher levels of state courts. The Sixth Circuit said to extend the stay put rule to
the court of appeals level would contradict the above language in IDEA. Further, the court
said in Honig, the U.S. Supreme Court explained that one of the purposes of the
stay put rule was to protect children from unilateral displacement by school authorities
pending completion of due process proceedings. However, once a federal district or state
court has approved a proposed change in a child's placement, that change is no longer the
result of unilateral action by school authorities. Thus, the Sixth Circuit concluded the
underlying purpose of the stay put provision would also be contradicted if it continued to
apply at the court of appeals level.
In the Kari case, a 14-year old student with severe mental retardation had previously been in an inclusive classroom for 30 hours per week with an aide and in a special education classroom for five hours a week. An IEPC was held determining that the child should be in a self-contained special education class with mainstreaming for music, art, etc. The administrative law judge (ALJ) basically upheld the IEP. The ALJ's decision was upheld when the parents appealed to the federal district court. Just prior to filing their appeal in the circuit court, the parents sought injunctive relief from the district court requesting that it require the district to
maintain the prior stay put placement. The district court refused and the circuit court
subsequently upheld the ruling for the reasons noted above.
IMPLICATIONS:
This decision is not published. From a legal standpoint this means it cannot be cited
and relied upon by lawyers as precedent in courts within the Sixth Circuit. But, as a
practical matter, the Michigan Department of Education hearing officers and probably most
courts would follow it.
Bottom line, this decision will mean that districts who prevail at the federal district court or state court level will be allowed to immediately change a student's placement rather than having to wait until the parent's appeal is concluded. Since in Michigan we have few appeals which are even taken to court and accordingly very few that reach the Sixth Circuit or a state appellate court, this decision will rarely have an effect. But, when it does, it will be important for districts in terms of implementing the IEP which it thought was appropriate for the student immediately on prevailing at court. Additionally, with many parents who are merely trying to drag the case out in order to keep the placement they desire through application of the stay put, this decision may result in those parents not pursuing any further appeal.
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SPED LAW WEB SITE NOW UP AND RUNNING
In an effort to keep our clients abreast of the new and ever changing aspects of
special ed law, Beekman & LaPointe, has been in the process of creating a web site
solely dedicated to special education issues. While the web site is still "under
construction," many aspects of the site are available at this time. The web site
includes recent legislative and judicial decisions which will impact the way school
districts
implement and provide special education services. Notable among these documents are the
full text of IDEA-97, OSEP's guidance on discipline and Title I services to parochial
schools, as well as the new proposed regulations. Additionally, we are in the process of
loading all back issues of OP News on-line, and constructing a site which will
provide resource documents such as model policies, forms, and letters to be accessed by
retainer clients. Some of the areas of this web site will ultimately require a password
(your retainer client number) to gain access.
The web site can be accessed at http://www.spedlaw.com
As we indicated, there are some areas of the web site that currently remain under
construction. As we build this resource, we would appreciate your input as to how we can
make this site more useful and beneficial to you. Your comments and suggestions can be
e-mailed to our new e-mail addresses. These are:
admin01@spedlaw.com (for Joan Narodowiec)
lapointe.sharon@acd.net (for Sharon LaPointe)
bevins.michael@spedlaw.com (for Michael Bevins)
eaddy.michele@spedlaw.com (for Michele Eaddy)
Please take the time to browse our web site. We hope this new service will assist you
as you endeavor to provide quality special education programs and services to children
with disabilities throughout our state.
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Beekman & LaPointe, P.C.
2143 Commons Parkway
Okemos, MI 48864-3987