Individuals with Disabilities
Education Improvement Act of 2004

A New I.D.E.A.,

by Thomas F. Kendziorski, Esq. Executive Director,
The Arc of Oakland County, Inc.March 23, 2005

After a long and oftentimes contentious legislative battle, Public Law 108-446, or the “Individuals with Disabilities Education Improvement Act of 2004” (IDEA 2004) was passed by Congress and then signed by President George W. Bush on December 3, 2004. The earlier version, IDEA 1997, remains substantially in place; however this particular re-authorization of the statute contains many new provisions that take effect July 1, 2005. The highlights are:

Highly Qualified Teachers – redefines the education levels and certifications necessary for special educators who teach core academic subjects.

Fixed Fiscal Authorization Levels – specifically sets spending authorizations for the next six fiscal years (e.g., $12.4 billion in FY2005, and increasing each year to $26.1 billion in FY2011), as opposed to annual line-item budget battles.

Performance Goals and Indicators – instead of performance goals and measures established by a State, the new law requires that these be the same as the State’s definition of adequate yearly progress (AYP) for all children under the No Child Left Behind Act (NCLB), which would include a State’s objectives for progress by children with disabilities. Short-term objectives are no longer mandatory, except for those students with significant cognitive impairments taking alternative assessments that measure achievement.

Participation in Assessments – IDEA 2004 makes mandatory that all children with disabilities be included in all State and district-wide assessments, including those under NCLB, with accommodations or alternative assessments if necessary and as included in the child’s individualized education plan (IEP).

Initial Evaluation and Reevaluations – local districts are required to conduct a full and individual initial evaluation of a child before providing special education and related services, and to conduct reevaluations as warranted. School districts must still obtain consent from the parent prior to an initial evaluation, and the evaluations must take place within 60 days. IDEA 2004 no longer requires a mandatory three-year reevaluation, and prohibits reevaluations more frequently than once a year unless the parent and the local district agree.

Transition Planning – the requirement that the IEP contain a statement of “transition service needs” (from school to employment or independent living) now must occur “not later that the first IEP to be in effect when the child is 16.”

The I.E.P. Team and Process

Procedural Safeguards

Complaints may only be presented for a violation going back two years from the date the parent or school district “knew or should have known” about the alleged action, unless the State has other explicit time limitations or the parent received specific misrepresentations from the school district.

Notice of the procedural safeguards are now required to be given to parents annually, except where there is an initial evaluation, upon the filing of a written complaint, or when the parent requests a copy.

Mediation has been around since IDEA 1997, but now those who chose not to participate have another alternative – meeting with a disinterested party who could explain and encourage the use of mediation. Also new is where mediation is used and resolution is obtained, then a legally binding document must be written, signed, and is enforceable in a court of law.

“Resolution Session” is totally new. This is a requirement prior to a due process hearing. The IEP team must get together within 15 days of a parent providing written notice asking for a due process hearing. The school district cannot have its attorney present unless the parents bring their attorney. This requirement may be waived if the school district and the parents agree to do so in writing, or they agree to use mediation. If the school district has not resolved the problem within 30 days, then the due process hearing can occur with the usual timelines in place. Should the “resolution session” result in agreement between the parties, then a written, legally enforceable document must be executed.

The qualifications of a hearing officer are now specified and included within the statute.

The party requesting the due process hearing is not allowed to raise new issues at the hearing that were not raised in the due process complaint notice.

There is now a 2-year statute of limitations for requesting a due process hearing. Again, two years from the date the parent or the school district “knew or should have known” about the alleged action.

The party desiring to appeal a local due process hearing to a court of law has 90 days to do so, unless the State has explicit time limits already in place.

IDEA 2004 will allow for attorney’s fees against a parent for a local/county/state school district where the school district is the prevailing party and the complaint is found to be “frivolous, unreasonable, or without foundation” or where parents’ attorney continues to litigate such a case, or to harass, cause unnecessary delay or increase the cost of litigation; there is also a new provision that prohibits attorney’s fees for the new “resolution session.”

The revised statute essentially maintains the “stay put” provision, that is, where a student with a disability remains in his or her current educational placement during the pendency of due process proceedings. However, the “stay put” rule may be eliminated when it comes to a student who violates the school code of conduct --- unique circumstances on a case-by-case basis will be the test used by school personnel. An interim alternative placement with educational programming and ancillary-related services must be established by the school district, and that is where the student remains pending due process and any further appeals.

The manifestation determination rules will experience a major change, that is, the parent will now have the “burden of proof” (preponderance of the evidence) instead of the school district. Prior to this, the school district had to demonstrate that the student’s behavior had no direct and substantial relationship to the disability, and that the student had the ability to control or to understand the impact and consequences of the behavior in order to order a long-term suspension/expulsion.

A lot of technical stuff in this new law to be sure. These are but the highlights. As always, know your rights PRIOR to going to an IEP team meeting.

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