The regulations that implement the Individuals with Disabilities Education Act (IDEA) are complex, detailed and broad. Therefore, it is not surprising that there is a great deal of misunderstanding about them, and it is not uncommon for school staff, who generally have good intentions, to misstate a regulation or to rely on an assumption about a particular regulation. When school staff rely on special education mythology, two things occur: the school risks being in noncompliance; and more importantly, the all-important relationship with parents is undermined, eroding the trust that is necessary to achieve genuine consensus.
The comments to the regulations that implement the IDEA state that “[t]he IEP Team is expected to act in the best interest of the child.” [34 C.F.R. Part 300, Analysis of Comments and Changes, Subpart A–General, Federal Register, Vol. 71, No. 156, p. 46657 and 46658 (August 2006)] When the parent-school relationship is undermined by ignorance, it is knowledge of the regulations that can help remedy the situation. To build knowledge of the regulations, I provide a free Special Education Tip of the Week to help correct misconceptions about the regulations and to dispel special education myths. Sign-up for this free service at my website www.SpecialEdCompliance.com
Below are ten common misunderstandings about some of the IDEA regulations, followed by an explanation that cites the pertinent regulation, explanations from the Commentary to the regulations, reference letters from OSEP (US Department of Education/Office of Special Education Programs), or pertinent case law. (Bob Fitzsimmons is not an attorney, and the information below should not be considered legal advice.)
1. Schools must give parents 10-days’ advance notice before scheduling an individualized education program (IEP) meeting or a multidisciplinary evaluation team (MET) meeting.
There is no such requirement in the IDEA. The regulations that implement the IDEA state that a school “must take steps to ensure that one or both of the parents of a child with a disability are present at each IEP Team meeting or are afforded the opportunity to participate.” Schools must notify “parents of the meeting early enough to ensure that they will have an opportunity to attend,” and schedule “the meeting at a mutually agreed time and place.” [34 C.F.R. § 300.322(a)(1)and(2)] (Emphasis added) The regulations do not specify any specific timeframe for providing parents with a meeting notice.
2. Parents must approve and sign an IEP before it can be implemented.
There is no such requirement in the IDEA.* Although it is required that parents provide informed written consent prior to the initial provision of special education services [34 C.F.R. § 300.300(b)], there is nothing in IDEA that requires IEP team members to sign the IEP. OSEP states that it believes it would be overly burdensome to impose such a requirement. [Federal Register, Vol. 71, No. 156 (August 14, 2006) pg. 46682] While working toward consensus is laudable and is an expectation of the IDEA regulations, there is no requirement in the IDEA regulations that the parties reach consensus on all aspects of an IEP before it is valid. [A.E. v. Westport Board of Education, 06-5920-cv (2nd Dist. 2007)] If consensus is not possible, schools have a duty to come up with an appropriate plan with the information from the IEP meeting, and then provide the parents the opportunity for due process if they disagree. [Doe v. Maher, 793 F.2d 1470 (9th Cir. 1986)]
* Some states may require IEP team participants to sign the IEP, but the IDEA regulations do not.
3. When a new eligibility category is determined (for a student already receiving SPED services), the school must have written consent from the parents before it can begin to provide services in that new area.
There is no such requirement in the IDEA. The regulations that implement the IDEA require that parents provide informed written consent prior to the initial provision of SPED services [34 C.F.R. § 300.300(b)]. (Emphasis added) There is no requirement that schools obtain written consent when a new disability category or new related services are determined to be necessary to provide the child with a FAPE (free appropriate public education).
4. IEP and MET teams can and should vote when making decisions.
This is neither required nor recommended. In Doe v. Maher, 793 F.2d 1470 (9th Cir. 1986), the 9th U.S. Circuit Court of Appeals addressed the question of whether, in the IEP team decision-making process, the team is required to follow a “majority rules” type of vote in making decisions. The court reasoned that a head count did not make sense due to the inconsistent makeup of IEP teams at meetings, and the potential for encouraging parties to “stack the deck.” Thus, schools have a duty to come up with an appropriate plan with the information from the meeting, and provide parents the opportunity for due process if they disagree. [Id.]
5. Summer vacation is a legitimate excuse to delay having an IEP meeting or completing an evaluation.
No. Summer vacations do not provide cover for a district for not developing an IEP for a student. An IEP must be in place for a student at the start of a school year [34 C.F.R. § 300.323(a)], even if this means that a school has to arrange a meeting with the parents during the summer. [Myles S. v. Montgomery County Board of Education, 824 F.Supp. 1549 (M.D. Ala. 1993)] The regulations that implement the IDEA state that an initial evaluation “must be conducted within 60 days of receiving parental consent for the evaluation” (or within the state timeline “if the state establishes a timeframe within which the evaluation must be conducted.”) [34 C.F.R. § 300.301(c)(1)]
6. A parent can request an IEE (independent educational evaluation) at any time in the evaluation process.
No. Under the regulations that implement the IDEA, “[a] parent has the right to an independent educational evaluation at public expense if the parent disagrees with an evaluation obtained by the public agency.” [34 C.F.R. § 300.502(b)(1)] (Emphasis added) A parent is entitled to only one IEE each time a school conducts an evaluation with which the parent disagrees. [34 C.F.R. § 300.502(b)(5)] If a parent requests an IEE at public expense, the school “must, without unnecessary delay, either file a due process complaint” on the grounds that its evaluation is appropriate, “or ensure that an IEE is provided [to the parent] at public expense.” [34 C.F.R. § 300.502(b)(2)(i)and(ii)] If a district has not yet completed an evaluation, the parent obviously cannot disagree with that evaluation until it has been completed.
7. A manifestation determination meeting must occur prior to the decision to suspend a student for more than ten days in a single school year.
There is no such requirement in the IDEA. The regulations that implement the IDEA state that “within 10 school days of any decision to change the placement of a child with a disability because of a violation of a code of student conduct,” the school, parent and relevant members of the student’s IEP team must determine if the behavior was caused by or had a direct and substantial relationship to the child’s disability, and if the conduct in question was the direct result of the school’s failure to implement the IEP. [34 C.F.R. § 300.530(e)(i)-(ii)] The school determines on a case-by-case basis whether or not a pattern of removals constitutes a change in placement. [34 C.F.R. § 300.536(b)(1)] Therefore, the manifestation determination meeting must take place within ten school days of the decision to change the child’s educational placement for disciplinary reasons.
8. Accommodations and academic support equate with special education.
No. “Employing accommodation[s] and other compensatory strategies [such as academic support, or assisting a student with his/her assignments] without increasing a student’s skill level does not represent compliance with the IDEA; it is not sufficient to simply ‘escort’ an educationally challenged student through the school system.” [J.L. and M.L. v. Mercer Island School District, US District Court, Western District of Washington, C06-494P, 46 IDELR 273 (December 2006)] A contention that accommodations alone are sufficient to meet the test of the IDEA regulations is without merit. While some form of accommodation may well be necessary for a disabled child to have access to the general curriculum, an emphasis solely on accommodations, as opposed to specially designed instruction that moves a disabled child toward self-sufficiency and independent living “is at odds with the focus and purpose of the IDEA.” [Id.]
9. Students who are earning passing grades are not eligible for special education instruction and services.
The regulations that implement the IDEA require that in discharging its Child Find obligations, a school must include children who are suspected of having a disability, even if they are advancing from grade to grade. [34 C.F.R§ 300.311(c)(1)] The threshold for suspecting a disability “is relatively low; inquiry is not whether the student actually qualifies, but whether the student should be referred for [an] evaluation.” [Scottsdale Unified School District, Arizona State Educational Agency. 03F-II02025-ADE (SEA February 12, 2003), citing Dep’t. of Ed. State of Hawaii v. Carl Rae S., 158 F. Supp. 2d 1190, 1195 (D. Haw. 2001)]
10. In disciplinary matters, the protections of the IDEA only extend to students who have been determined eligible for special education instruction and services.
All eligible students are entitled to the protections of the IDEA. However, these protections in disciplinary matters also extend to students who are not yet eligible for special education services but who may qualify for special education services in three possible situations: (1) If the parents express in writing to a school’s administrative or supervisory staff a concern that their child needs special education, then the protections of IDEA apply; (2) when the parents request an evaluation; and (3) when school personnel express specific concerns about a student’s pattern of behavior to the school’s special education director or other school administrators. [34 C.F.R. § 300.534(b)(1)-(3)]
Bob Fitzsimmons, MEd, MA, has 30 years of experience in special education as Complaint Investigator for the Arizona Department of Education/Office of Dispute Resolution, Special Education administrator and Special Education teacher. He is now a Special Education Consultant for Special Education Compliance Group, LLC, offering guidance to districts and charter schools in Arizona about special education compliance issues. Sign-up for a free Special Education Tip of the Week at www.SpecialEdCompliance.comSpecial Education Compliance Group, L.L.C. Bob Fitzsimmons, M.A., M.Ed., Consultant Phone: 520-419-9250 Email: bob@SpecialEdCompliance.com Web: www.SpecialEdCompliance.com