Our staff is knowledgeable and provides experienced assistance and support to parents or guardians in preparing and understanding the Individual Education Plan (IEP), based on the 2004 re-authorized federal Individuals with Disabilities Education Improvement Act (“I.D.E.I.A.”) and Michigan’s Mandatory Special Education Act for children and young adults with intellectual and developmental disabilities.
The I.D.E.A Act of 2004
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
Members of the IEP team can now be excused from the IEP meeting if the parent and the local school district agree in writing. This would be done if the team member has nothing to do with the topic under discussion. If an absent member’s expertise is needed, the requirement is that it be provided to the parent and other members of the team.
After the IEP team meeting, parents and the school district may make changes to the IEP via a written document without holding a formal meeting.
Fifteen States will be allowed to pilot the concept of an optional “three-year IEP” that coincides with the child’s “natural transition points” (e.g., elementary to middle school, middle to high school, etc.).
Students transferring between school districts within a State must have their IEP’s continued with comparable services until the next IEP is developed and implemented – students transferring between States still must have their IEP’s honored by the receiving district until a new evaluation is completed (if necessary) and a new IEP is developed.
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.
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 law to be sure. These are but the highlights. As always, know your rights PRIOR to going to an IEP team meeting.
New Extended School Year Rules Now Official
Michigan FINALLY decided to make the Extended School Year (ESY) rules official. Following many months of debate and uncertainty about the subject, the State Board of Education on August 12, 2008 approved these new standards. A legislative committee quickly and unanimously okayed the changes the next day.
Are the rules perfect? Probably not. But we (students, parents, advocates, and educators) now have something definitive to work with at annual IEP Team meetings. At this point everyone is urged to carefully read the rules and the amplifying information at the state Department of Education webpage.
After you have reviewed this material, please plan on discussing ESY services at your child’s next IEP Team meeting. It is required! In a nutshell, there must be one or more current IEP annual goal(s) where significant concerns exist regarding a student’s skill maintenance during a break in school services. A goal area of concern should represent skills essential to the progress of a student. A student may be determined to need ESY services due to:
- a serious potential for regression of skills beyond a reasonable period of recoupment, or
- the nature or severity of the disability, or
- critical stages or areas of learning.
Whatever you do, don’t wait until next May or June to hold an IEP Team meeting since mediation, formal complaints, or even due process hearings take a good deal of time to resolve and may negate any chance at summer educational programming for your student. Begin early to collect educational and behavioral data on your child. Don’t just rely on school-based reports either; obtain private clinical data if possible.
Extended School Year Facts
by Laura Athens, Special Education Attorney, Hearing Officer, Parent, and Member of The Arc of Oakland County. Originally published in The Arc’s newsletter, PROFILES, Spring 2002 issue. Reprinted with permission.
Educational agencies must ensure that extended school year (ESY) services are available as necessary to provide a free appropriate public education (FAPE). ESY services that are provided beyond the normal school year in accordance with the IEP must meet state educational standards, and be provided at no expense to the parents.
- The IEP team must make an individualized determination of whether ESY services are necessary.
- ESY services must be provided only if the IEP team determines that such services are necessary.
- A school district may not limit ESY to certain categories of disability or unilaterally limit the type, amount, or duration of ESY services. 34 C.F.R. Sec. 300.309
Traditionally, Michigan has used a regression-recoupment standard. A former Michigan Department of Education (MDOE) IEP Team manual, January 1998, stated that to be eligible for ESY, the student must have experienced or be likely to experience a significant regression in performance as measured by recoupment of IEP goals and objectives during the first nine weeks of the school year. The current MDOE IEP Team Manual, December 1999, does not include the regression-recoupment standard. Instead, it cites and reflects the current federal regulations.
Under the Michigan Revised Administrative Rules for Special Education, the severely mentally impaired (SMI) and severely multiply impaired (SXI) programs operate on an extended school year basis for a duration of 230 days.
School districts often have their own ESY guidelines or policies. If guidelines or policies exist, the school district must follow them to ensure procedural due process. To the extent that the guidelines conflict with federal law, they would be preempted.
Actual Regression is Not Required
A student does not, in fact, have to regress in order to be eligible for ESY services. The United States Court of Appeals for the Sixth Circuit has ruled that a parent does not need to prove that the child has regressed over the summer, and empirical evidence of regression is not required. The court reasoned that requiring the parent to empirically prove prior regression would be unfair. Conscientious parents who provide summer programming should not be punished for doing so and children should not have to suffer regression to prove their right to ESY services. Under circumstances in which there is no empirical data available, the need for ESY may be proven through expert opinion based on a professional individual assessment. The Sixth Circuit has acknowledged that the regression-recoupment is one consideration, but has also stated that the ESY standard should be open to developments in special education field, and not bound to any particular standard.
Cordrey v. Euckert, 917 F.2d 1460, 1471-72 (6th Cir. 1990).
Other Relevant Factors
- The degree of impairment
- The child’s rate of progress
- Behavioral or physical problems
- Availability of alternative resources
- The child’s ability to interact with non-disabled peers
- Vocational needs
- The curricular areas needing continuous attention
- Emerging skills and breakthrough opportunities
Johnson v. Independent School District No. 4, 921 F.2d 1022 (10th Cir. 1990); Reusch v. Fountain, 872 F. Supp. 1421 (D. Md. 1994).
When assessing the need for ESY services, it is important to consider all of the child’s unique needs not only academic, but also social, emotional, behavioral, physical, and communication needs.
Extended School Year (ESY) FAQ and Historical Perspective
Is it true that federal law will no longer allow the State of Michigan to provide year-round special education for students who are either Severely Multiply Impaired (SXI) or Severely Cognitively Impaired (SC-I)?
No, however, it will no longer be automatic. Specifically, the culprit is contained within last summer’s new federal regulations implementing the I.D.E.I.A. (Individuals with Disabilities Education Improvement Act of 2004). After nearly 36 years of providing automatic 230-day school programming for SXI and SC-I students, the State of Michigan must move to align its administrative rules governing special education services with that of the federal interpretation and direction.
IDEIA 2004 is all about providing education and services to all children with special needs. Generally speaking, things available to a general education student must be provided to one with special needs. This even includes the school day itself. Michigan’s School Aid Act requires that “each district shall provide at least 1,098 hours of pupil instruction.” On a six-hour instructional school day, this equates to a minimum of 183 days of school for all students in Michigan.It is important to note that the law uses the words “at least” to describe the number of hours. The concept of legally stating a minimum number of hours in school is nothing new.
A nationally recognized professor of special education law and public policy, H. Rutherford Turnbull, III, cites in his 1986 book entitled, “Free Appropriate Public Education: The Law and Children with Disabilities,” a 1979 federal court case known as Armstrong v. Kline. That court held a state’s refusal to pay for more than 180 days of schooling each year for severely and profoundly retarded and severely emotionally disturbed children violated their rights to an appropriate education under federal law. In its argument the court noted that some children will regress significantly during breaks in their education, recoup their losses more slowly than non-handicapped children, and thus are denied an appropriate education when they are not given year-round education. Three years later, the U.S. Supreme Court in Board of Education v. Rowley demanded that individualization of education be based on professionally developed programs in order to be appropriate. Yet, politicians and bureaucrats continue to fiscally and politically defend a fixed number of school days each year.
Thus was born the concept of the Extended School Year (ESY).
The “[s]chool day has the same meaning for all children in school, including children with or without disabilities.” A state is allowed to provide more. According to commentary on the federal regulations, because Extended School Year (ESY) services are only provided to students with disabilities, days on which ESY services are provided cannot be counted as a school day. Therefore, only an Individualized Education Planning (IEP) team in accordance with the IDEIA rules and regulations can give more than the minimum number of school days.
ESY must be considered by each IEP Team, but is not automatically provided merely because a request is made. Federal regulations implementing the I.D.E.I.A. 2004 clearly state that, “[e]xtended school year services must be provided only if a child’s IEP Team determines, on an individual basis … that the services are necessary for the provision of FAPE [Free Appropriate Public Education] to the child.” Further, a state or local educational agency may not, “limit extended school year services to particular categories of disability, or unilaterally limit the type amount, or duration of those services.”
As noted in the article above, according to a Michigan special education law attorney and parent, Laura Athens, “[s]chool districts often have their own ESY guidelines or policies. If guidelines or policies exist, the school district must follow them to ensure procedural due process. To the extent that the guidelines conflict with federal law, they would be preempted.”
Ms. Athens continues that, “[a] student does not, in fact, have to regress in order to be eligible for ESY services. The United States Court of Appeals for the Sixth Circuit has ruled that a parent does not need to prove that the child has regressed over the summer, and empirical evidence of regression is not required. The court reasoned that requiring the parent to empirically prove prior regression would be unfair. Conscientious parents who provide summer programming should not be punished for doing so and children should not have to suffer regression to prove their right to ESY services. Under circumstances in which there is no empirical data available, the need for ESY may be proven through expert opinion based on a professional individual assessment. The Sixth Circuit has acknowledged that the regression-recoupment is one consideration, but has also stated that the ESY standard should be open to developments in special education field, and not bound to any particular standard.
Cordrey v. Euckert, 917 F.2d 1460, 1471-72 (6th Cir. 1990).”
Finally, attorney Athens states that the IEP Team, when contemplating ESY, must consider things like: (1) the degree of impairment, (2) the child’s rate of progress, (3) behavioral or physical problems, (4) availability of alternative resources, (5) the child’s ability to interact with non-disabled peers, (6) vocational needs, and (7) the curricular areas needing continuous attention emerging skills and breakthrough opportunities.
Johnson v. Independent School District No. 4, 921 F.2d 1022 (10th Cir. 1990; Reusch v. Fountain, 872 F. Supp. 1421 (D. Md. 1994).