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Special Education Law

Legal Updates

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IDEA Regulations, Part B

Update: On September 28, 2011, the DOE issued proposed regulations relating to a revision of a school system’s right to access Medicaid and the Notice that is to be provided to the parent. On February 14, 2013 the “Final Regulation” was published in the Federal Register and is effective on March 18, 2013. Click here to see Pete's reformat of the Commentary. The Federal Register is hard to read, so Pete reformatted and footnoted it with the Comments, Discussion, and Changes. Click here to see the USDOE's Guidance Memorandum with 13 FAQ's about the revision.

On September 28, 2011, the IDEA 2004 Part C Final Regulations governing the Early Intervention Program for Infants and Toddlers with Disabilities were published in the Federal Register. These regulations are effective on October 28, 2011. PDF Format

On December 1, 2008, the U. S. Department of Education issued additional Part B regulations in order to clarify and strengthen current federal regulations implementing the Individuals with Disabilities Education Improvement Act, 2004 (IDEA 2004). Effective date of the revised regulations was December 31, 2008.

The most significant changes in the regulations concern Parental Consent, Representation by Non-Lawyer Advocates, Compliance Issues, and Allocation of Funds, as well as a statutory requirement relating to the employment of individuals with disabilities.

IDEA Federal Regulations - Part B Additional Requirements, 2008
Implementation Date: December 31, 2008.

Regulations & Analysis of Comments and Changes (Commentary) were published in the Federal Register, Vol. 73, No. 231, December 1, 2008, p. 73006.

34 CFR 300 - Assistance to States for the Education of Children with Disabilities.

On April 9, 2007, the U. S. Department of Education published Final regulations for 34 CFR §300.160 in the Federal Register for Alternate Assessment based on Modified Achievement Standards (AA-MAS).

Students who participate in an AA-MAS may be from any disability category, and their IEP goals must align with grade-level content standards. The regulations also require that students must have access to grade-level content but be unlikely to achieve grade-level proficiency within the time period covered by their IEP. States may count up to 2% of all students as proficient who met proficiency standards with an AA-MAS (U.S. Department of Education, 2007). States are not required to offer this assessment option. (Effective Date, May 2007).

Regulations & Analysis of Comments and Changes (Commentary) were published in the Federal Register, Vol. 72, No. 67, April 9, 2007, p. 17748.

US DOE, Non-Regulatory Guidance Modified Academic Achievement Standards, Final version July 20, 2007.

Fact sheets and resources on AA-MAS from the National Center on Educational Outcomes (NCEO).

The Family Education Rights and Privacy Act (FERPA)

In December 2008 the Department of Education adopted changes and clarifications to FERPA, effective January 8, 2009. The new regulations implement US Supreme Court decisions and statutory amendments, and address issues identified through practical experience in administering FERPA. Analysis of Comments and Changes or Commentary was published in the Federal Register, Volume 73, No. 237, December 9, 2008. The Analysis of Comments and Changes explains why a regulation was changed or not changed. Download Commentary.

The most significant changes in the regulations concerned adding new exceptions permitting the disclosure of personally identifiable information from education records. At the K-12 level, parents must consent to the release of their children’s educational records that contain personally identifiable information.

FERPA Regulations. Updated regulations written as frequently asked questions (FAQs).

Brief summary of the final regulations from US Department of Education. Section by Section analysis of the final regulations.

Americans With Disabilities Act (ADA) Amendments Act of 2008

On September 25, 2008, the President signed the Americans with Disabilities Act Amendments Act of 2008 (ADAAA) . The Act, effective January 1, 2009, emphasizes that the definition of disability should be construed in favor of broad coverage of individuals to the maximum extent permitted by the terms of the ADA.

ADAAA Changes Apply to Section 504. The new law amends the meaning of "disability" in the ADA and the Rehabilitation Act of 1973, of which Section 504 is a part.

Changes made to the ADAAA also apply to public school students under Section 504. Changes may increase the numbers of Section 504 plans schools must prepare for students whose needs previously were handled under health plans.

Caselaw

Winkelman v. Parma City School District (No. 05-983) (2007) - Supreme Court rules that parents may represent their children's interests in special education cases, and are not required to hire a lawyer before going to court. The Court held that parents have legal rights under the IDEA and can pursue IDEA claims on their own behalf, although they are not licensed attorneys. Decision in html and in pdf.

Analysis of Winkelman by Peter Wright, Esq. and Pamela Wright, MA, MSW - Supreme Court Rules: "Parents Have Independent, Enforceable Rights"

Forest Grove School District v. T. A. - A case about tuition reimbursement for a child who was never found eligible and never received special education services from the public school.

The question was whether parents who unilaterally enroll their disabled child in a private school are entitled to tuition reimbursement if the child never received special education from the district.

There was a split among circuits on this question: “whether 20 U.S.C. § 1412(a)(10)(C) creates a categorical bar to reimbursement of private school tuition for students who have not ‘previously received special education and related services.’”

Learn more about the Supreme Court's ruling in Supreme Court Issues Decision in Forest Grove School District v. T. A. by Pete Wright and Pam Wright.

Wrightslaw: Special Education Law, 2nd Edition
by Peter W. D. Wright & Pamela Darr WrightWrightslaw: Special Education Law, 2nd ed. by Peter W. D. Wright & Pamela Darr Wright

Wrightslaw: Special Education Law, 2nd Edition was first published in 2006. Please note the following updates in regulations.

Section One: Law, Background and History
Chapter 1. Introduction
Chapter 2. Statutes, Regulations, Commentary, Judicial Interpretations and Caselaw
Chapter 3. A Short History of Special Education Law

Section Two – Individuals with Disabilities Education Improvement Act of 2004 (IDEA 2004)
Chapter 4: Overview of IDEA 2004
    Note: The most significant change in the implementing regulations now allows a parent to revoke consent for special education and related services at any point before or after the initial provision of services.
Chapter 5: Individuals with Disabilities Education Improvement Act of 2004 with analysis and commentary.
Chapter 6: IDEA 2004 Regulations (34 C.F.R. 300, et seq.)
    Note: IDEA Federal Regulations - Part B Additional Requirements, Final Rule 2008
              Final regulations for 34 CFR §300.160

Section Three: Other Federal Education Statutes
Chapter 7. Section 504 of the Rehabilitation Act
Chapter 8. No Child Left Behind Act of 2001
Chapter 9. Family Educational Rights and Privacy Act (FERPA)

    Note: The definition of personally identifiable information has been updated and the "easily traceable" standard has been removed from the regulations. Summary of Changes
Chapter 10. McKinney-Vento Homeless Assistance Act

Section Four – Special Education Caselaw
Chapter 11. Overview of Special Education Caselaw
Chapter 12. Special Education Law Casebook (includes major decisions in special education cases by the U. S. Supreme Court)
    Note:
New Cases
    Winkelman v. Parma City School District (No. 05-983) (2007)
    Forest Grove School District v. T. A. (No. 08–305). (2009)

Section Five: Resources
Appendix A: Resources and References
Appendix B: Glossary of Special Education Abbreviations, Acronyms and Terms
Bibliography
Index


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Revised: 02/14/13
Created: 04/08/09


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