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Wrightslaw: All About IEPs

Legal Resources

Statute l Regulations l Commentary l Caselaw l Appendices l OSEP l Recommended Resources - Updates

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Wrightslaw:  All About IEPsAt the end of each chapter in Wrightslaw: All About IEPs - Answers to Frequently Asked Questions About IEPs, you will find endnotes. These endnotes are the authority we relied upon in the answers. If you take this book to school meetings (and we hope you will), you will know the law, regulation, commentary, or government publication that supports each answer.

The Statute: Individuals with Disabilities Education Act

Statues are laws passed by federal, state and local legislatures. A statute is called an "Act."

The original federal special education law was "The Education of All Handicapped Children Act." When Congress reauthorized the law in 2004, they renamed it as "The Individuals with Disabilities Education Improvement Act of 2004."

References to law are called legal citations. Legal citations are standardized formats that explain where you can find a particular law, regulation, or case.

Congress first publishes laws in the Statutes at Large, then organizes laws by subject in the United States Code (U.S.C.). The Individuals with Disabilities Education Act is published in the Statutes at Large and in the United States Code.

Laws published in the Statutes at Large have sections (section 1, 2, 3, 4, etc.) and may have subsections (i.e., (a), (b), (c), (d)). The “Act” begins at Section 600.

When the Act is published in the United States Code (U.S.C.), the numbers change. IDEA 2004 is in Title 20 of the United States Code. Title 20 is about education. In each title, laws and indexed and assigned section numbers. The Individuals with Disabilities Education Act begins at Section 1400. Individualized Education Programs (IEPs) are in Section 1414 of the United States Code (cited as 20 U. S. C. § 1414) and are in Section 614 of “the Act.”.

Regulations

Regulations clarify and explain statutes or laws. A regulation has the same force of law as a statute, and must be consistent with the statute that it interprets or implements. it United States Code and has the same force of law. Before the Department of Education publishes regulations in the Code of Federal Regulations, the agency must publish the proposed regulations in the Federal Register (FR) and solicit comments from citizens about the proposed regulations.

On August 14, 2006, the Education Department published the Final Regulations for IDEA 2004 in the Federal Register (page 46540 to page 46845). The special education regulations are published in Volume 34, Part 300 of the Code of Federal Regulations. The legal citation for the regulations is 34 CFR § 300.

States must ensure that their statutes and regulations are consistent with federal statutes and regulations. While state statutes and regulations may provide more rights than federal laws, they cannot provide fewer rights than guaranteed by federal law. If a state law or regulation is in direct conflict with a federal law, the federal law controls, pursuant to the “Supremacy Clause” of the U. S. Constitution.

Commentary to the Regulations

When the Education Department published the regulations for IDEA 2004, they included an “Analysis and Commentary” on the regulations. In the Commentary, the Department described the comments they received about the proposed regulations, what changes were made or not made, and why.

In the Commentary, terms, definitions and requirements are explained in clear language. When you read a regulation, the Commentary will help you understand why the Department used specific language in a regulation.

If you are doing legal research or looking for the answer to a question, the Commentary is an invaluable resource. You can download the full text of the Commentary as one document or as eight files on different topics from www.wrightslaw.com/idea/commentary.htm.

IDEA 2004 Statute and Regulations at http://www.wrightslaw.com/idea/law.htm

IDEA 2004 Revision of Regulations 2008 at http://www.wrightslaw.com/idea/law.htm#rev

Section 504 and the ADAAA (2009) at http://www.wrightslaw.com/info/sec504.index.htm

Judicial Interpretations and Caselaw

Evolving Caselaw

Caselaw is always changing and evolving. The Individuals with Disabilities Education Act will continue to evolve and be re-defined by caselaw. Special education litigation usually begins with a special education due process hearing. In some states, the losing party can appeal directly to state court or federal court. In other states, the losing party must appeal to a review officer before they can appealing to court.

State courts and federal courts are different judicial systems. When a state court issues a decision, the decision may be appealed to a higher state court.

Federal judges are bound by rulings of their Circuit Court of Appeals. There are twelve circuit courts. Judges are not required to follow legal rulings from other circuits, although opinions from other circuits may be cited as persuasive authority.

All state and federal courts must follow rulings issued by the U. S. Supreme Court. If the U. S. Supreme Court issues a ruling with which Congress disagrees, Congress may enact a new law to change the impact of the Supreme Court decision.

Legal Research

When you research a special education legal issue, you should study:

• Statutes
• Regulations and Commentary
• Judicial decisions (caselaw)

Earlier Reauthorizations of IDEA - Appendix C and Appendix A

In earlier reauthorizations of the Individuals with Disabilities Education Act, the Education Department published appendices of Questions and Answers about IEPs and other issues.

Appendix C IDEA 1994

Appendix A IDEA 1997

The Education Department did not publish an appendix of questions and answers with the IDEA 2004 regulations.

OSEP Memoranda and Letters

The Office of Special Education Programs (OSEP), Office of Special Education and Rehabilitative Services of the U.S. Department of Education, issues guidance to provide States with information about how local educational agencies (LEAs) should implement the Individuals with Disabilities Education Act. This guidance represents the Department's current thinking on a certain topic. These guidance documents are dated and numbered. Example: (OSEP) Memorandum 88-17, June 4, 2003.

OSEP also publishes letters of clarification to answer questions about the interpretation and implementation of IDEA from individuals, local or state agencies.

Each quarter, the Education Department publishes a list of correspondence from individuals in the Federal Register. These letters describe the department's interpretations of IDEA or the regulations that implement IDEA

Recommended Resources

Wrightslaw: All About IEPs includes resources if you want or need to go deeper. In each chapter you will find a section on "Recommended Resources" with links to additional information and websites on important topics.

Websites and internet links are constantly changing. Since this book went to press, some resource links in the print copy have changed. For your convenience, you will find updated links below.

Updated Links

Chapter 2 - IEP Teams and IEP Meetings
Attorneys at IEP Meetings.
http://www.education.ne.gov/SPED/technicalassist/IEP%20DOCUMENT.pdf
(page 7)

Chapter 3 - Parental Participation and Consent
How to Ask Questions.
http://www.washingtonpost.com/wp-dyn/articles/A33056-2004Aug25.html

Chapter 5- Related Services, Supplementary Aids & Services
Model IEP Form.
http://www2.ed.gov/policy/speced/guid/idea/modelform-iep.pdf

Chapter 7 - Special Factors
Addressing Behavior Issues in the IEP.
http://nichcy.org/schoolage/iep/meetings/special-factors#behavior

Limited English Proficiency (LEP) Checklist.
http://www.education.ne.gov/SPED/technicalassist/IEP DOCUMENT.pdf (page 20)
http://nichcy.org/schoolage/iep/meetings/special-factors/considering-lep

Visual Impairment Checklist.
http://www.education.ne.gov/SPED/technicalassist/IEP DOCUMENT.pdf (page 20)
http://nichcy.org/schoolage/iep/meetings/special-factors/considering-visual

Learning Media Assessment.
http://www.perkins.org/resources/scout/literacy-and-braille/learning-media-assessment.html

Communication and Language Needs Checklist.
http://www.education.ne.gov/SPED/technicalassist/IEP DOCUMENT.pdf (page 21)
http://nichcy.org/schoolage/iep/meetings/special-factors/considering-hearingloss

Chapter 8 - Assistive Technology
The Essential Guide to Assistive Technology.
http://www.greatschools.org/special-education/assistive-technology/784-parents-guide-to-assistive-technology.gs?page=1

Evaluating Assistive Technology Products.
http://www.greatschools.org/special-education/assistive-technology/783-evaluating-consumer-AT-products.gs?page=1

Assistive Technology Checklist from the Wisconsin Assistive Technology Initiative.
http://www.wati.org/content/supports/free/pdf/form/Checklist-Form.pdf

Strategies for Assistive Technology Negotiations.
http://www.wrightslaw.com/info/at.strat.edyburn.htm

Glossary of Assistive Technology Terms.
http://www.fctd.info/factsheet/glossary

Chapter 9 - Transition
Transition Assessments - from the Age Appropriate Transition Assessment Toolkit. (3rd Edition)
http://nsttac.org/content/age-appropriate-transition-assessment-toolkit-3rd-edition

Chapter 13 - Transfers and Education Records
Moving to a New Location.
http://www.nichcy.org/families-community/moving

School Matters

CCSSO has taken SchoolDataDirect and its affiliated site, SchoolMatters (previously www.schoolmatters.com), offline for the next several months. CCSSO anticipates that SchoolDataDirect and SchoolMatters will be back online (probably as a single resource) in the not-too-distant future.

Last Revised: 05/28/13

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