Special Education Law
IDEA Regulations, Part B
Update: August 2017: U.S. Department of Education Final Regulations. Rosa’s Law changes references to “mental retardation” in Federal law to “intellectual disability” or “intellectual disabilities.” These final regulations implement this statutory change in applicable Department of Education regulations. These regulations are effective August 10, 2017.
Update: Equity in IDEA. On December 19, 2016, the US Department of Education issued Final Regulations establishing a standard approach that States must use in determining whether significant disproportionality based on race or ethnicity is occurring in the state and in its districts. Update appearing in the Federal Register for 34 CFR Part 300
The new regulations clarify that States must address significant disproportionality in the incidence, duration, and type of disciplinary actions, including suspensions and expulsions, using the same statutory remedies required to address significant disproportionality in the identification and placement of children with disabilities.
The final rule ensures that school districts explore and address situations where the cause of significant disproportionality is due to under-identification of a group as well as over-identification.
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
Regulations & Analysis of Comments and Changes (Commentary) were published in the Federal Register, Vol. 73, No. 231, December 1, 2008, p. 73006.
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).
Americans With Disabilities Act (ADA) Amendments Act of 2008
October 2016: New Regulations The U.S. Department of Justice issued new regulations significantly expanding who’s covered under the Americans with Disabilities Act. This final rule clarifies Congress’s original mandate and sets forth clear new rules, new examples and detailed guidance to ensure that courts, covered entities and people with disabilities better understand the ADAAA. The new regulations took effect October 16, 2016.
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.
McKinney-Vento Homeless Assistance Act
December 2015: ESSA reauthorized the Elementary and Secondary Education Act (ESEA) and the education subtitle of the McKinney-Vento Homeless Assistance Act, including new provisions related to the education of homeless children and youth.
The ESSA amendments to the education subtitle of the McKinney-Vento Act (Subtitle VII-B) took effect on October 1, 2016.
Endrew v. Douglas County (No. 15-827) (2017), the U.S.Supreme Court unanimously rejects the “de minimis” standard for one that “is markedly more demanding than the 'merely more than de minimis' test applied by the 10th Circuit." In his opinion, Chief Justice Roberts says “a student offered an educational program providing ‘merely more than de minimis’ progress from year to year can hardly be said to have been offered an education at all."
Endrew v. Douglas County: IDEA Demands More - Inclusion & Progress in Regular Curriculum; IEP 'Tailored to Unique Needs.' Discussion and analysis of the SCOTUS decision by Pete Wright.
Fry v. Napoleon (No. 15-497) (2017). The U.S. Supreme Court vacated and remanded the Sixth Circuit's Decision in Fry, framing new standards and limits to the "exhaustion doctrine."
Discussion and Analysis of Fry by Pete Wright of the unanimous 8-0 decision. SCOTUS reversed the Court of Appeals decision and ruled in favor of the parents. The Court explained that "We hold that exhaustion is not necessary when the gravamen of the plaintiff's suit is something other than the denial of the IDEA's core guarantee - what the Act calls a 'free appropriate public education.'"
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 was first published in 2006. Please note the following updates in regulations.
Section One: Law, Background and History
Section Three: Other Federal Education Statutes
Section Four – Special Education Caselaw
Section Five: Resources