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IDEA Regulations on Fast Track, Expected in June

On May 18, 2005, Troy Justesen, Acting Director of the Office of Special Education Programs, was interviewed by Rachel Kosoy of the Disability Law Resource Project. During the interview, Dr. Justesen said he expects the proposed regulations for Part B of IDEA to be published during the first or second week of June.

[Wrightslaw Note: This interview was an audio webcast. Information about the presenters and sponsoring organizations. The original transcript of this interview was posted on the ILRU's website at:]

Dr. Justesen fielded questions about IDEA 2004, the proposed IDEA regulations, and how the public can make comments to request changes in the regulations. Dr. Justesen expects the proposed regulations for Part B of IDEA to be published in the first or second week of June. (Part B governs special education for children with disabilities between the ages of 3 and 21). Other proposed regulations will be issued at separate intervals. For example, the Part C regulations about services to infants and toddlers will be published after the Part B regulations.

After the proposed regulations are published, the public will have 75 days to comment on the regulations. If you want a regulation changed or think a regulation is not clear, you need to advise the Department of Education about the specific changes you want made to that regulation and why. (see the discussion of how to comment in this interview)

After the Department of Education reviews all public comments (they expect to receive between 10,000 and 50,000 comments), they will revise the regulations and publish the Final Regulations in the Federal Register. According to Dr. Justesen, they expect to publish the Final Regulations six or seven months after IDEA 2004 goes into effect on July 1, 2005 (December 2005- January 2006)

In this wide-ranging interview, Dr. Justesen answered questions a variety of topics, including:

Impact of NCLB: Full Inclusion of Children with Disabilities & Accountability for Children with Disabilities in the Regular Education Setting

How Regulations Are Written, Published, Revised, Published

Notice of Proposed Rulemaking (NPRM) and Final Rule: Proposed Regulations & Final Regulations Will Be Published in the Federal Register

New: Regulations Will Include Language of the IDEA Statute

Proposed Regulations for Part B Expected in Early June

Public Comment Period: Not Less Than 75 Days

Department of Education is Using Database to Track Comments & Concerns

New: Preamble to Regulations

New: Index of Regulations

New: Regulations Reorganized to Track IDEA Statute

Public Meetings: Summer 2005

How to Comment: Be Specific and Give Your Reasons

Form Emails and Form Letters "Not Useful"

Regulations Mirror the Statute

Effective Date of IDEA 2004 is July 1, 2005 - "The law is the law"

Current IDEA Regulations Helpful in Providing Guidance & Answering Questions

House Conference Report Answers Questions

Aligning IDEA & No Child Left Behind

Dr. Justesen indicated that the Department of Education has already received 6,500 comments, even though the proposed regulations have not been published. Most of these comments and concerns focused on the following issues and concerns:

Due Process: Legal Assistance Unavailable to Parents; Will Parents Have to Pay School's Attorney Fees?
Inclusion of Students with Disabilities in Assessments
Requirements for Alternate Assessments
Accessible Textbooks
Early Intervening Services
Research Based Instruction & Essential Components of Reading Instruction
Practices for Homeless Children
Services to Students in Private Schools
Requirements for Highly Qualified Special Education Teachers
Discipline: "Still a major area of concern"
Evaluation for Specific Learning Disabilities - "Moving Away from the Discrepancy Model"
IQ Tests: Not Intended to Be Used to Determine if Child Has a Learning Disability
Maintenance of Effort
3-Year IEP Option
New Appendix A

Wrightslaw Note: To make it easier for readers to find information about a specific topic or issue, we inserted subheads and links into the text of this interview.

Disability Law Resource Project
May 18, 2005

Presenter: Troy Justesen
Interviewer: Rachel Kosoy

KOSOY: Good afternoon everybody and welcome to today's webcast. Webcast today is about IDEA 2004. My name is Rachel Kosoy, I'm with the Disability Law Resource Project at ILRU, your sponsor for today's event.

I'll be moderating this webcast or basically voicing your questions or comments to our presenter. Before we get started, I just want to remind people about sending things in to us. We already have a lot of questions and we would like to get additional ones as well as comments. So as you have questions or comments, please go ahead and E-mail them to us so that we can try to fit in as much as we can. And comments that we do not get to during the live webcast, we will make sure to pass a long to Dr. Justesen.

So in order to submit a question, you can look at the bottom of your RealOne Player screen and there should be something there, a submit question button you can click there to submit a question.

Additionally, you can simply address something to us at Again, it's Okay, if anybody has technical difficulties today, you can also research us by phone, and our phone number is (713)520-0232. And that's both voice and TTY.

Okay, so today's topic is IDEA 2004. As I think most of you know, IDEA 2004 becomes effective July 1st of this year. In our webcast today, Dr. Justesen is going to give us an update on the development of the implementation -- implementing regulations for IDEA 2004. He's going to talk about the next steps in the process as well as opportunities for the public to provide comments. He's definitely going to address some of the key issues that have been raised during the comment period that will really help us understand some key changes that are being introduced with this latest version.

Now, of course the regulations are not yet published and so questions that come in today -- and we already have some -- that are asking specifically what do the regs say about X or what do the regs say about Y, we will not be able to address those questions. However, some people -- if you've sent us a question asking what do the regs say about X, if you would like to go ahead and send us a new E-mail which tells us what you're hoping the regs might say, in other words, if you want to turn that into a comment, then please go ahead and do that.

Okay, now I'd like introduce our presenter today. We are very excited to have with us today Dr. Troy R. Justesen. He is the acting deputy assistant secretary for the Office of Special Education and Rehabilitative Services in the U.S. Department of Education. In this position, Troy serves as the principal adviser to the assistant secretary of OSERS on all departmental matters related to special education and rehabilitation services.

Additionally, and this is a new title, he is also the acting director of the Office of Special Education Programs. Now, before coming to OSERS, Dr. Justesen served as the associate director for domestic policy at the White House. He assisted the office of domestic policy and the public liaison with the implementation of the New Freedom Initiative on matters that related to Native Americans, Pacific Islanders and Alaska natives.

He also has served as the deputy Executive Director of the President's Commission on Excellence in Special Education, and also worked for three years as an education policy analyst with the Department of Education in the office of special ed programs.

I could certainly go on. I definitely also want to let you know that he has served in the U.S. Department of Justice, Civil Rights Division, and please do look at his bio for any additional information. And now without any further ado, Troy, thank you for being with us and I'd like to turn the Mike over to you.

JUSTESEN: Hi, Rachel. Good morning and afternoon depending on where you are. I'm going to use the intercom function on my phone if that's okay. It gives me hands free and I tend to talk with my hands even if no one is in the room. If my voice coming through clearly, I'll do that. If it doesn't appear to just give me a nod, are you, Rachel.

KOSOY: Sure. Right now it's fine and it's let you know if we get comments otherwise.

Impact of NCLB: Full Inclusion of Children with Disabilities and Accountability for Children with Disabilities in the Regular Education Setting

JUSTESEN: Okay. It is a very unique and I guess exciting time for us to be talking about the IDEA and the regulations that will be implementing the IDEA because we also have a focus on education and special education within the administration that has really worked with Congress for the first time to make sure that children with disabilities are fully included in the regular educational experiences that all other children are to the degree that that's appropriate for each individual child. And by that I mean that we have a very landmark piece of legislation which is the No Child Left Behind Act that preceded the IDEA and is the first national realization I think that the full inclusion of children with disabilities is very important and that the accountability of children with disabilities in the regular education setting is crucial.

And I think that Congress recognized its positive work on including children with disabilities in the elementary and secondary education act and remembered that vision, I think, when they reauthorized the IDEA last year.

As many of you know, the president signed into law the IDEA on December 3rd of last year. And I hope not to be too prescriptive or overly simplistic in my description of regulation activity, but I think, Rachel, it's important to kind of talk generally how regulations evolve and how they are written and how they actually are published in their final form because that gives a good description of the complexity that we're at in the IDEA's regulation development.

How Regulations Are Written, Published, Revised, Published

KOSOY: Yes, and there definitely is interest on that. So I'm glad you're going to do that.

JUSTESEN: Okay, I'll give you Troy's version of that, which omits about all the important things, but in my very simple way of describing the evolution of regulations, when a statute is authorized by Congress or reauthorized as the case is with the IDEA, Congress will assign in the legislation to an executive branch agency the responsibility for developing regulations to implement their law. And in this case, logically, the Department of Education was assigned as it always has been in developing the IDEA regs since the mid '70's. The department of Ed's responsibility for beginning to consider whether regulations are necessary and, if so, then the department must engage in a very prescripted public development of regulations that implement the law.

Notice of Proposed Rulemaking (NPRM) and Final Rule: Proposed Regulations & Final Regulations Will Be Published in the Federal Register

In effect, when regulations are complete and published in their final notice -- and final notice is a key phrase -- because the Federal Register publishes both draft regulations and other activities, but also the final notice. And it's important for folks in the field to know that if you see a notice of proposed rule-making on any federal regulation, what we call an NPRM, that those are actually draft proposals and do not carry the weight of law because they are an open discussion before the final rule is issued by a given federal agency. So on the cover of any regulations that you see, if it says Notice of Proposed Rule-Making, that is not the final document. And you need to look for the final document which will be dated considerably months after these days it's published on the NPRM. It must say Final Notice or Final Rule on the cover of the Federal Register notice for that to be the final regulations on a given issue.

Long before we meet, we arrive at the stage of a final set of regulations, a public agency -- in this case the Department of Education -- must engage in a period of time in which regulations are developed. In this case, the IDEA's regulations were begun in their concepts and development in December of last year, shortly after the law was passed. There are two elements that enforce the IDEA, one is the statute itself and the other governing document is the final rule notice that are the regulations.

That's an important distinction because what carries the most weight in very simplistic forms is the statute and what carries secondary weight in this very simple description is the regulations. But for the field, for those of you who are educators, those of you who are parents, advocates, administrators, when this final regulation is published, it will incorporate almost completely the statutory language so that we have one document that is a reference document for everyone in the field.

New: Regulations Will Include Language of the IDEA Statute

In this case, the final notice will incorporate most of the statutory language and regulatory language so that folks in the field don't have to switch between different documents. So folks that want to know what the statute says will be able to find that. Folks that want to know what the regulations expressing clarification on the regulations say, those will be contained and that's our vision here at the department, to have a final document that is one useful tool for the field.

What that means in practical application is that you're going to have a larger document that will be the end product. Then probably what a lot of you on the phone may be thinking about, it will be larger but it will be more useful because it is the statutory language and the regulatory language.

As I said, in December we started discussing how we would come to the final notice. One of the first things we talked about doing here at the department, which had not been done in previous regulation writing exercises, was that I thought it would be important for us, even though we didn't have draft regs to publish yet, for us to go out in the field and hear from folks, parents, educators, administrators, people with disabilities, advocates, throughout the country and get some sense of where we should be going in writing the draft regulations.

So at the last week of December, the department published in the Federal Register seven locations that we would travel to and hold public meetings about the regulations, about special education in general, about opening the whole issue up for discussion so that we can hear comments about anything related to the IDEA special education or children with disabilities.

And to be honest with you, a lot of folks tried to talk me out of doing this. Their argument was that we were doing them too early, the public meetings that is, people wouldn't have a chance to comment. It's wintertime. The department's never done this before. What value is there in public comment even before we issue regulations, draft regulations?

But nonetheless I felt it was important for us to go out in the field and hear what people had to say. It proved in the end of the seven meetings across the country to be very successful. In total, we roughly received about 6500 comments during that time. Our first meeting was held in Newark, Delaware. And we were thinking about holding the first meeting in a smaller community in a smaller state so that we could sort of learn from that experience and kind of be more prepared to go to larger communities, and when we started that first meeting at the end of January, I go rolling in to the public meeting at the University of Delaware campus and there is Congressman Mike Cassell waiting for me to show up to host the first public meeting. He wanted to be the first person to offer comment. And Congressman Cassell happens to be one of the original authors in the House on the IDEA reauthorization, and he was there waiting for us, and I knew right then we were in for a lot more public involvement in this process than a lot of folks around me had expected.

By the time that day ended, we had over 100 commenters. We had well over 100 people attend the meeting. We had folks comment on everything from the definition of parent, what does a highly qualified teacher mean, private school placement issues, learning disability and response to interventions, funding questions, all sorts of questions across the scope.

That was a very successful meeting. From there, we spread across the country. We held meetings in San Diego, Wyoming, Laramie, Wyoming was very interesting. That was our second to the last meeting. We went to Chicago. I'm blocking -- we went to about -- well, we went to seven different places throughout the country. I'm blocking, Rachel. Sorry.

KOSOY: I can look on the Internet and tell you.

JUSTESEN: I should be doing that. One was in Columbus, Ohio. The last one of course was in Washington D. C.

KOSOY: Let's see, San Antonio --

JUSTESEN: Those are the ones I'm about to announce. That's okay. The previous list are the ones we did before we started writing the comments.

To be perfectly honest to everyone listening on the phone. I love these rumors of having to work in D. C. and the level I'm at right now is a study in government and a study in public activity. It's very rewarding and actually I love it a lot, but one of the things I've learned is that perception means everything to a lot of folks and there was a rumor out there that the regulations had already been written. That the regulations already stated certain positions and that our seeking public comment was not legitimate or honest activity.

As the person who has been sitting here with a team of folks in the Office of Special Education Programs, I can tell you we probably wished the regs had been written because it was -- we didn't take a single day off. We worked seven days a week. And the regulations -- the draft is -- we waited -- well, we actually started writing certain sections of the regs based on the number of comments and the kinds of topics that seemed important during these seven meetings that we had traveled to and we sent a group of folks to a public meeting while a group of folks stayed here in D. C. and the folks that traveled to the meetings were required to E-mail their notes back to us so that we could make sure we responded to the needs of the field in developing the regulations.

Now, the draft is done on the Part B regulations. Part B is the set of regulations that apply to children with disabilities from roughly age 5 through 21 -- 3 through 21. I'm thinking preschool. 3 through 21. Did I say 19?

KOSOY: Yes, I think you did.

JUSTESEN: Sorry, Rachel. I'm wrong. You're supposed to correct me, Rachel, and make me look good.

KOSOY: So what ages is it now?

JUSTESEN: Three through 21.

KOSOY: Okay.

JUSTESEN: Work with me, Rachel. It's been a long day. So those Part B, including the 619 which is the preschool section are drafted and I'm probably going to get in trouble for speaking out of school too much, but they are at OMB for review. We expect them back any day now --

KOSOY: Can you tell us what OMB is?

JUSTESEN: Office of Management and Budget. When regulations are written in their draft form, they must be presented from the federal agency that wrote them, once the federal agency has cleared them, to the Office of Management and Budget, which is an office within the White House; and that office then reviews the regulations, makes sure that those regulations are in compliance with a host of other laws and regulations, that they are responsive to the community, that they are presented in a strict regulation writing format, that they are -- that they address elements of the law that are necessary and if there is any missing information in those regs, OMB offers comments back to the Department of Education. We're expecting those comments back any day now. It is customary for OMB, the Office of Management and Budget, to offer comments, to ask for changes, to ask for suggestions, to ask for explanation, to ask us for meetings on the regulations. We must meet OMB's -- we must satisfy OMB from a management and budgetary perspective before the regulations can be printed in the Federal Register as a Notice of Proposed Rule-Making.

Proposed Regulations for Part B Expected in Early June

We are very close to the NPRM public announcement of those regs. I'm hoping it will be the first week of June, second week of June, depending on the amount of comments we get, but again, we're here to work seven days a week to get them out. And we hope to stay on that schedule.

KOSOY: And, Troy, one of the questions actually that had come in was how will people know when the NPRM is out?

JUSTESEN: That's a good question. And to answer it in a very strict form and then in a more public friendly form. The Federal Register is the federal government's mechanism for announcing public activities. We are required -- all federal agencies must publish their regulations in the Federal Register. Notice of public meetings, public hearings, changes in regulations, proposed changes in regulations, all must be published in the Federal Register. We must publish our locations of our public meetings in the Federal Register and we must publish our regulations in the Federal Register.

There is no active or affirmative obligation of the department, really, other than publishing those regulations in the Federal Register. It comes out every day, and we have no real obligation to -- other than letting the public know through the Federal Register -- of the availability of those regs. That's the public mechanism.

But that's not very useful. It meets the requirements of the law and everyone knows where to get them, and everyone has one document to look at, but the department takes a very active position in our need to be responsive to the field. We're going to put the notices on our OSERS website, the Office of Special Education and Rehabilitative Services website. We maintain a listserv. We'll send notices out on the listserv where many advocacy organizations will announce the availability of it. Trade publications will announce the regulations in proposed form have been announced. So there are a wide variety of ways of finding -- if you have access to the Internet, go to the Department of Education's website, from there go to the Office of Special Education Programs and the day it comes out, we will make it available on the website.

KOSOY: Okay, and I just want to throw in, too, that if anybody who is listening wants to make sure that you get alerted, you can go ahead and just shoot us an E-mail and say put me on the list and we will make sure that you get -- that you get an E-mail as soon as the NPRM is out.

JUSTESEN: That's great, Rachel. Thanks.

KOSOY: Sure.

Public Comment Period: Not Less Than 75 Days

JUSTESEN: A unique aspect of the IDEA statute is a requirement that the department issue the proposed regulations for not less than 75 days. That's kind of a new requirement. Usually it's 60 days or it can be 30 or 45, but it will be out and public for 75 days from the date of publication for public comment.

To be perfectly frank with folks, if we receive comments after the close of that 75 day period, we will accept them. It's kind of a practical deadline for us to at least start making sure that we've read every comment which we're required to do so those 6500 comments plus that we've already received, we actually have staff here that have to read them.

Using Database to Track Comments & Concerns

We have a database. We know how many comments we've received on state flexibility, how many comments, letters, E-mails we received on highly qualified teachers. We know exactly where the concerns are in the field.

We frankly expect several tens of thousands of comments, believe it or not, this summer. I've heard some folks who are well experienced in this process say we can get as many as 50,000. Other folks say as little as 10,000 comments. We do read them. We make copies and each person gets a stack to read at night, and we must and we want to make sure that the regulations are as user friendly and as understandable as we can make them and that reflect any questions that we get from the field and that we try and answer.

New: Preamble to Regulations

The regulations are -- will be in different sections. There is the regulation itself that is the final rule that will eventually be published, but in addition to that regulation, there is a document that precedes the regs that will be published at the same time that's called the preamble to the regulations.

The preamble is very important for you. It will describe to you the changes that have been made in the regulations that are different than the previous set of regulations that were issued in 1999.

We will describe why we have made changes in the regs, why we have deleted a section, why we have added a new section, what the rationale is for our position, where we have a justification for a change in the regulations, we'll cite conference report language, we'll cite the statutory language.

We are hoping that that preamble will be very useful, and I think because we have an excellent -- two excellent folks here -- one of whom is a gentleman by the name of Thomas Irvin, who is the only person to have written every set of regulations under the IDEA. He started his career here and these will be his final set of regulations, I believe. He could have retired a couple of years ago and because he's such a dedicated guy, he stayed on with the department to help us right now so that we can move through this process quickly and that we would have the benefit of his historical knowledge for us to be in a position to write the best set of regulations. It's Tom's handy work that you will see in the preamble. Not only does he have the documentation to go back to 1975, he can remember it in his head, and he can tell us why we've changed certain sections of the regulations historically and can help us in our explanation in the preamble as to why the draft proposed regs that you will see are written the way they are.

The preamble is a very good tool once the regulations are in final form. It still presents you an idea of where we were going. They can be more simplified in explaining why or more -- at least in my mind -- they are more understandable sometimes than the regulations are and they will be published in final form with the regulations.

New: Index of Regulations

We're also going to have an index in the regulations that is going to tell you -- because we've substantially reorganized the regulations. So if you wanted to know the definition of parent, and it's not where it used to be in the old regulations, you can go to the index and we will show you clearly and quickly in the index where the definition of parent is located in the new set of regulations.

New: Regulations Reorganized to Track IDEA Statute

The field -- and particularly state administrators and advocates are going to notice a dramatic change in the appearance of the regulations. Past regulations have been written using their own framework and their own rational for the way the regs have been organized. The new set of regulations that will be published soon are going to reflect the structure of the statute. They're going to be organized consistent with the organization in the statute so that once you learn where section 609 in Part A, paperwork reduction is in the statute, you'll also be able to find that same regulation and it will flow well in the regs and match the statute's structure and design.

I think that's important. It will be different to the field. There will be some folks that are uncomfortable with that new design, but I think it's important for us to start writing regulations that mirror the statute structure so that all folks have a general sense of where both documents are in their organization.

I also felt that was important in this regulation writing because this is a new statute with new changes and new direction in many areas, for example, response to intervention; and I didn't want the field to feel that we've neglected important parts of the regulations or that we've structured them in such a way that they're not intended to be the most useful and frankly not hiding some direction we're going in the regs. It's going to mirror the statute so that folks can easily -- especially during the summer's public comment period -- find what we've done and the department's position is stated clearly in the regulations and for folks to offer positive and negative comments and at least all of us to be on the same page as we look at the regulations.

Public Meetings: Summer 2005

This summer we are going to travel, again, throughout the country once the NPRM is published. We have plans to go to Texas, California -- I'll name the cities -- San Antonio, Sacramento, Nashville, Chicago, Las Vegas, New York, and the final meeting again in Washington D. C. That's our plan if OMB gives us the regulations in time -- of the cities we'll go to.

We're not just looking for comments on Part B. Again, Part B applies to children from three to 21 which is typically the elementary, middle and secondary age student population we're talking about, but we're also looking for comments on Part C of the regulations, which are infants and toddlers from birth through age two. The Part C regulations have been drafted. We're working on them now, finalizing them and they will be sent to OMB as soon as we receive the Part B regulations back from OMB.

How to Comment: Be Specific and Give Your Reasons

We are looking for any comment, again, on any area of special education. I'd like folks to keep in mind that when you make comments to us, if you can be very specific in what it is you support or would like to change in the regulations, that you tell us on Page 35, paragraph 2, the paragraph should read as follows -- with your suggested changes; rather than very abstract comments. Well, we don't like the regs or we do like the regs. That's not a very helpful tool for me as the regs writer.

If I can see very specifically what your issue with a given topic and what it is you would like to make the change and also if you'd be sure and describe why you're holding your given position, that's invaluable to our process because we don't know everything here and we don't claim to -- or at least I don't -- about how the law or the field will react to the law in implementation.

And describing why you're holding your position on a given topic is important for us. And I can tell you during the previous seven meetings we had in January and February and March, we -- I looked at the regulations very differently about the process because there were issues brought to my attention that I just hadn't thought of.

Form Emails and Form Letters Are "Not Useful"

And one set of comments that are never useful, and particularly not useful now, is form Emails or form letters that just have your name or you type your name in the top of the E-mail and send it to me. Those are not compelling. They are not useful. They won't serve your intended purpose. If there is a large body of folks -- take school superintendents, if all the school superintendents have the same issue, don't send me the same E-mail because it's not compelling.

Tell me why it's important in your school district. Tell me why it's important for children in your experience. Tell me why you need the change or why you need clarification and tell me in your words because it's important to hear what Santa Fe, New Mexico says and I'll bet those implications are different than New York City, and I'll bet they are different from Mancato to Memphis and those kinds of challenges that you have in the field will make these regulations better.

Regulations Mirror the Statute

Frankly, I'm -- Rachel, I don't want to speak with respect in detail to what the regulations may say on a given topic because they are still at OMB and it's not yet public. And I have learned in previous regs writing experiences that it's not appropriate for the agency that's writing regs to offer opinion or, in my case, my opinion because my opinion may not necessarily be what the regulations ultimately are going to set forth, and I also don't want to create the impression that I have a bias on any given issue if I speak about what I think the regs ought to say or whatever. I can talk about specific statutory language.

I can tell you that I've been very careful to mirror the statutory language as much as possible. I've tried not to add additional language that's regulatory unless it was necessary. I've tried to make the language as understandable as we could. Sometimes the lawyers get involved and twist the words around a little bit more and it's more complex to understand, but for the most part, I think the regs are more simple in their understanding. Their structure I think communicates clarity. And I think ultimately it's going to meet the vision that Congress had when they passed the law and the president signed it.

And I'm not trying to add regulations that aren't clearly in the statute. This is a common misunderstanding. I've learned that folks in the field will want to add or make comments about adding new provisions in regulations. If it's not in the statute, it won't make it into the regulations, and that is -- that is a nonnegotiable kind of a way in which regulations in my opinion should be written. I don't have the authority to imply more provisions than the statute gives me, and I think we're kind of at that stage.

If you want, I can either give you some of the key issues that we were looking at now, Rachel, or I can do that a little bit later and take some questions now. What do you want to do?

KOSOY: Let me try to give you some questions/comments, and then let's go back to your reviewing some of the key issues.

JUSTESEN: Okay, before we do that, I'll be able -- this is going to be recorded on the web, isn't it, so I can look and make notes or do I need to make notes now?

KOSOY: No, no, this is being recorded and it's also being -- we have a realtime captioner so there will be a transcript available as well.

JUSTESEN: Oh, good, then I won't focus on taking notes.

KOSOY: And some of this -- kind of bear with me. Some people sent in questions and yet really they were expressing their opinion and trying to make it into a question. So I'm going to try to -- I'm going to try to accurately represent some of what's come in.

JUSTESEN: That's okay. I mean, you're the moderator, but if people just want to express their opinion, that's fine with me.

KOSOY: Okay. Well, I think people felt like that wasn't okay, so the way some of these things are phrased, they've tried to mask that, but it's pretty clear to me what they're trying to say.

So, one thing is -- let's see, I have three or four Emails that came in that all have to do with the regulations for accessible textbooks and let me see if I can kind of summarize for you and get your comments.

I guess first off is the question about where are the regs for the accessible textbooks? Where is that section? Is that going to be in Part B?

JUSTESEN: Those are -- the regulations are in two places. They are incorporated into the Part B regulations, but there is a separate set of regulations that regulate the National Instructional Materials Accessibility Standards. Those regulations, frankly, I expect them back from OMB today. Depending on the number of comments we get, those will probably be the first set of regulations to get published in their NPRM form in the Federal Register. They are about 27 pages long and they are the first set that will probably come out.

But Part B, is the separate main set of regulations does address accessibility for instructional materials language as well, but you will see the standards come out first and hopefully within days the Part B will come out.

KOSOY: Can you tell people what NIMAS.

JUSTESEN: National Instructional Materials Accessibility Standards. That's textbook accessibility in short.

KOSOY: All right, in line with that, there is concern a number of people have sent in -- there is concern about the opt out provision for states and I guess there is understanding that a few states can demonstrate their capacity to deliver accessible instructional materials in a timely fashion. What I'm gathering from this E-mail is that there is the option for some states to claim that they lack the capacity to do this, and there is concern about -- I guess a process for how do we make sure that states who can do it will be doing it.

JUSTESEN: Okay, let me see if I can take your question in a way that I understand the ability to answer. Under the instructional materials standards, states may opt not to use the services of the NIMAC center, which is the National Instructional Materials Accessibility Center, and states can choose to work with the NIMAC center for their accessible materials or the state may choose not to. It is not a requirement.

What is a requirement is that children with visual impairments or are blind must receive their material in accessible formats as early as possible in the same manner that children who are not blind or sight impaired received them. In other words, equal to the rest of the kids in the classroom. States can choose whether to go to the NIMAC center or whether they want to go through any other process to obtain accessible instructional materials. That's up to the state, but accessibility for instructional materials is a requirement.

KOSOY: Okay. And is there anything about the basis on which states can choose to get the materials from NIMAC or to do it independently?

JUSTESEN: It's up to the state to decide. There isn't a lot of statutory language on this question.

KOSOY: Okay. I hoped if one of the people who wrote in about that, if I didn't accurately capture what you wanted to communicate or ask, please go ahead and send me an additional E-mail.

Let me just -- there is one additional E-mail on the same topic, perhaps you stated this, but if you could just help me through again. Will the notice address the issue of opt in states and what constitutes that process as well as the relationship of such states with the instructional materials depository? I think that's pretty repetitive.

JUSTESEN: Let me try to explain it this way. It is entirely the state's choice as to whether it will use the center for its resources or not. And we won't -- right now we don't have plans to dictate criteria for a state because the statute didn't give us those parameters to do that. It's purely optional for states to go to the NIMAC center or not, but what is not optional or what is required is that the state provide accessible materials. And that's it.

KOSOY: Okay.

JUSTESEN: And the statutory regs -- or I'm sorry -- the statute says in a timely manner.

KOSOY: Okay. So I guess then that's something that the regs could comment on, is what is timely -- what constitutes timely manner?

JUSTESEN: It could be, but we haven't done it yet. So I shouldn't have told you that, but now I gave you a little bit of opening on our need for comments on that issue.

KOSOY: Okay, guys, you heard that. We actually did get one question about that, too.

JUSTESEN: Strike that. Don't write that down. Nobody play that back. I have a twin brother. Some people on the phone know that. His name is Tracy. Tracy walked in and said that.

KOSOY: Okay. Okay.

JUSTESEN: Don't say that, Tracy.

KOSOY: Amazing the two of you sound so much alike.

JUSTESEN: We do, although my voice is much more charismatic than his. I'm sure you can tell the difference.

KOSOY: Okay, I'm going to just move along there.


KOSOY: Okay, this is shifting gears a little bit. This is a suggestion that came in --

JUSTESEN: I guess you can't tell me who is asking questions, if people want me to know, I'd like to know who is asking. You don't have to.

KOSOY: For some of them, I can tell and people have identified themselves. If I just have a name, it's not really possible. I'll try to let you know if this comes from a parents group or a protection and advocacy center.


KOSOY: This one clearly comes from a parent and it looks like a parent who is probably involved in a parents group. They are very grateful that you are taking the time to do this webcast and the suggestion is that it would be really helpful to have -- the OSEP leadership conference webcast. Basically they're very interested in having access to primary source information.

Effective Date of IDEA 2004 is July 1, 2005 - "The law is the law"

And along those lines, this question/comment actually is going to lead into a handful of others which I'm sure you can anticipate which has to do with what happens after July and yet when the regs are not complete?

JUSTESEN: That's a good question. Can I interrupt you right there, Rachel.

KOSOY: Sure, go ahead.

JUSTESEN: That was a very good question and actually the webcasting is a very good idea. One thought about that is it would be horribly expensive for us to be able to webcast an entire conference, but that is a really interesting idea and it's making me think about a couple of other options about how we can make sure we're as open as possible in our meetings so that we reach every parent and every teacher that we can.

The question about having the statute become effective before the regulations is a common one. Believe it or not, regulations are often issued at considerably later times than when the law becomes effective. A good example in this context is that it took over two years to get the regulations on Part B out the last time around.

The law is the law. It becomes effective on July 1st.

States -- state educational agencies, local educational agencies are required to comply with the IDEA 2004 on its effective date, July 1st of this year. Regulations and the absence of regulations isn't a compelling argument for not being able to comply to a degree. You have to comply with the law, but the regulations are very, very helpful and that's how most of us use the regs.

We're trying to get them out as quickly as possible so that the delay will only be six or seven months between the effective date and the date the regs are issued. That's common. It happens all the time, but if someone wants to comply -- well, everyone wants to comply, of course. In short, I will say that July 1st is the effective date and if you need to know how to comply with the statute, go to the new law and use that law.

Current IDEA Regulations Will Provide Guidance & Answer Questions

The current regulations, to the extent that they are not inconsistent can be helpful for you. In other words, look at the new statute, which is published. It's been out since December 3rd. That's the law, and look at the current regulations that exist on the previous law and if you can draw consistency between the new law and the regulations, those regs will help you understand, I hope, how to implement the new law.

We don't just throw out regulations from previous reauthorizations. You can't do that, as a matter of fact. Many of the regulations that are in the old law, if I can use my words, are still applicable unless Congress made direct changes to that particular provision, and if Congress didn't, the old regulations will be very helpful for you. And I hope that is even understandable, Rachel.

KOSOY: Okay, I think I got it, but I have to tell you that during this conversation I did get a few more Emails on the same topic. So it's basically people are wanting to know, and maybe if you can just repeat it, is it true that beginning with July 1st, '05, that people must follow IDEA 2004?

JUSTESEN: That is correct.

KOSOY: Okay. And the regs will not be final at that point?

JUSTESEN: The regs will not be final at that point. That is correct, too.

KOSOY: Okay.

JUSTESEN: So that you're required to comply with the statute and regs are helpful to comply with the statute, but just because they don't exist yet, doesn't mean that you can't at least make the best possible effort to understand what the statute means. Because the statute is the most important document.

KOSOY: Okay. Now there is concern from some parents who are afraid that the school system might interpret the new law in a way that they don't agree with, and what happens or what advice or suggestion can you give to parents if they feel like sort of what's being forced on them is not actually in compliance with the law?

JUSTESEN: Well, that's really important, and that's where regs are very helpful and that's why we're working really, really hard to get them done and we'll all take vacation next year, but this year we're here to do one things that we can say we've done in our careers and that's get these regulations out as soon as possible so we can avoid as many of these problems. The problem will be in that case is one in which there is an open interpretation as to what the statute does or doesn't require.

Conference Report Answers Questions

I tell advocates and parents to go to the conference report. The conference report is a document that's published -- and the one on the IDEA was published November 17th -- and the conference report is a report published by the House that is -- and I'm using my words -- a description of the agreement between the U.S. House and the U.S. Senate on the IDEA bill and it provides a great deal of additional description about what is in the final statute and about what decisions were made to put something in the final statute.

I have a copy. I'm looking at it right now. I use it all the time. It provides an explanation statement of the committee of the conference. It helps folks to understand what the statute intended. You'll see throughout the draft regulations, when they are published, I made a great deal of referrals to the conference report. It's very helpful and I would -- I would direct folks to those -- to that as much as possible.

KOSOY: Okay, great. And to let people know, we will go ahead and we will put a link to the conference report on our website for you.

This -- for first timers with our webcast, all of our webcasts are archived. So you will be able to come back. You'll be able to listen to the conversation again and you also will be able to read the transcript and so there will be an archived page and we will add to that page a link to the conference report.


KOSOY: Okay. All right, there is a lot of interest in due process. Actually, most of these I'm not sure exactly how to kind of turn into comments for you; but one that seems fairly straightforward -- and my sense is that this comes from a parent, but it's not entirely clear -- and basically what she's addressing is that her understanding is that in IDEA 2004 there is a provision for attorney's fees to go to the school district if the administrative law judge has found that a parent wrongfully filed for a due process hearing. So we want to know clarity. Is that what the law says?

JUSTESEN: Well, if the parents' attorney -- frivolous is the word that is used in the statute. If the parent's attorney pursues a case that is frivolous or could have been resolved earlier and that's obvious, then there might be a decision of a due process hearing officer to award attorney's fees. That is in the statute and I'm paraphrasing what the statute says, but yes is the answer to that question.

KOSOY: Okay, but that's only for -- if parents are using an attorney?

JUSTESEN: That's -- I don't know the answer to that question. I'd have to look that one up.

KOSOY: Okay.

JUSTESEN: Let me tell you the due process procedures are in sections 300.500 through 300.519 in the regs -- sorry, in the existing regs. And the statute is very clear on many of the due process procedures.

KOSOY: Okay.

JUSTESEN: If anyone can draw some conclusions from that.

KOSOY: It looks like there is a little confusion here about if a parent -- actually this comes from a parent who clearly I can tell from the longer E-mail feels that parents can't actually get people to assist them in the legal proceedings. So this is parents who are going through these proceedings by themselves.


KOSOY: And I guess part and parcel of this is, is there anything -- if the U.S. Department of Education going to be looking at the ramifications of the reauthorization? Those are her words, you know, kind of the effect of these provisions?

JUSTESEN: Rachel, help me, I'm not sure what the question is or is it a comment?

KOSOY: Well, that -- well, I guess I said more than one thing at a time. The first thing I was saying is that this comment comes from -- comment/question comes from a parent who is in Oregon and apparently there she says it is very rare to have an attorney help parents through the legal proceedings. And so it looks like there is fear that the parents can file for due process hearing, they go through it, the administrative law judge rules against them and then these parents are now having to pay attorneys' fees back to the school. And so I guess there is some confusion about does the law say that parents can be liable for attorneys' fees or is it simply that parents' attorneys -- in the case where parents have attorneys that they can be liable for the fees?

JUSTESEN: That's a good question. Don't know the answer to it. I'd have to look that up.

KOSOY: Okay.

JUSTESEN: And I would invite you to take a look at the draft regulations when they get published on that.

KOSOY: Okay. Okay, I think what would make sense now is for you to go back to what you were mentioning before. If you can go through some of the -- I guess key issues and changes in IDEA 2004.

JUSTESEN: First I want to talk about the alignment between the IDEA and No Child Left Behind. And just kind of give the listeners a sense of how closely aligned these two statutes are.

The Elementary and Secondary Ed Act is also the NCLB, in other words, if I use -- (no audio).

(please stand by -- technical difficulties)

JUSTESEN: Okay, that makes me really nervous, Rachel. Thanks a lot.

KOSOY: Okay, sorry for the interruption there, but we're back. Troy, you were going to talk about some of the key changes we're going to be seeing in IDEA 2004.

Aligning IDEA & No Child Left Behind

JUSTESEN: Yeah, and I started off with kind of saying that I wanted to talk a little bit about the close alignment between the IDEA and No Child Left Behind.

And No Child Left Behind is the new name of the Elementary and Secondary Ed Act which was first passed by Congress in 1965. So if I say No Child Left Behind, that's the same law. It's just NCLB is the new name of the law. So you might hear me say that, switch back and forth, but I thought it would be important for folks. Sometimes there is a question about are we talking about different laws or what's going on here.

No Child Left Behind is referenced in the IDEA statute 23 times. And we -- there are -- no, I'm sorry, I'm looking at my notes. I can't even read my handwriting. It is referenced 23 times in the draft regulations, not in the statute. And what we've tried to do is some broad alignments in the goals of the two statutes. First, we've used consistent definitions. Both statutes used consistent definitions for highly qualified special education teachers, the definition of charter school is the same, limited English proficiency, these are all consistent with the definitions used in the Elementary and Secondary Ed Act. Those are just examples. So we've tried to make the alignment of the requirements for state performance goals and reporting. State performance goals under the IDEA must be the same as the state's definition of AYP, which is adequate yearly progress.

Under alignment, what states are required to report to the secretary and the public, elements that may include reports required under EASE. The assessment requirements, reinforce requirements under EASE, those are all children must be included in state and district-wide assessments. Alternate assessments must be aligned with academic standards. We've tried to describe the flexibility and the use of funds to support No Child Left Behind activity. There are funds for early intervening services. These are for students that are not identified for special education yet, and these funds may be used for early intervening activities under No Child Left Behind.

Local educational agencies can use IDEA funds to carry out school-wide programs under No Child Left Behind. Funds that are in excess of those required to meet local maintenance of effort requirements must be used to carry out activities under No Child Left Behind.

There is a great deal of cooperation with the elementary and secondary education act to link records of migratory children. Now, local educational agencies must cooperate with efforts under No Child Left Behind to link those records of migratory children among states.

There is a stronger focus on scientifically-based research and instruction between the two statutes. The IDEA now refers to essential components of reading instruction defined in No Child Left Behind. Discretionary funds must be used to support scientifically-based research and practices. And now there is practices for homeless children. There is an alignment with the IDEA and No Child Left Behind with the McKinney-Vento Homeless Assistance Act. That's an important step forward. Another example is state advisory councils for special education must include state and local officials who carry out the activities of the McKinney-Vento Act as long as there is a quick overview of the alignment of the IDEA and No Child Left Behind.

Public Issues and Concerns

Some of the big issues and themes that we found since we have begun writing and seeking public comment in drafting the regulations, they surround some of the big issues, private school questions have been a source of a number of comments. The definition of highly qualified for special education teachers and special ed teachers teaching to alternate achievement standards and subject matter knowledge, appropriate to the level of instruction -- we've received a lot of comments about that.

People have asked us lots of questions about the discipline provisions which seems to be still a major issue of concern. You'll see we've tried to reflect a lot of comments we've received about that. Evaluating children for specific learning disabilities is a dramatic changes -- and there is a greater emphasis on the child's response to scientific research-based intervention which has received lots of public comment about that.

KOSOY: Troy, if I can just jump in, we did get a number of Emails about assessment of kids with learning disabilities. Can you say a little more about it?

JUSTESEN: Well, the statute for the first time has made it a direct change in setting forth kind of the -- Congress' vision for evaluating children for specific learning disabilities. And it's an emphasis in moving away from what we call the discrepancy model which is how a child -- the difference between a child's achievement and their IQ. Let me explain it differently.

Often in practice, in the past, but it is still happening, children will be given an IQ test and there will be -- because Johnny may not be doing well in school and he's given an IQ test and he has, you know, an average to above average range in his IQ and Johnny is not performing well in the classroom. And Johnny -- many Johnnies in the country have been identified as having a specific learning disability just on what we call batch discrepancy models, the difference between IQ and achievement.

Those aren't the best tools to be using to determine whether a child has a specific learning disability. And it's true under present law and past law that one assessment mechanism or one tool for assessment is not appropriate. And an IQ was never used -- was never developed nor intended nor should be used in determining whether a child has learning disability. It certainly shouldn't be the number one method of determining children with specific learning disabilities.

Congress wanted a directional change so that we could focus more on a set of procedures and a process that examines whether a child responds to scientific research-based instruction and intervention. And so you're going to see in the regulations an explanation of that, which I am particularly interested in knowing what the field things about that. And it is an area that I think we'll receive a lot of comments this summer on.

KOSOY: Great. That was very helpful.

JUSTESEN: Okay. let's see, I'm just going over the tally list here and kind of getting an idea of -- if any of you on the phone are administrators at the local or state level, we've asked -- been asked some questions about maintenance efforts provision. We have a lot of statutory language on that area, but we've been asked a lot about that.

KOSOY: Can you explain what that is?

JUSTESEN: Well, okay. Let me read to you what the statutory language is just briefly on one part here that might help explain. Local educational agencies do not have to spend the same amount of money of local funds as the previous year if they no longer have to provide special education for high cost students because the student graduated, moved or no longer needed services, or there was a year which there was a catastrophic event in that local school system in which there was a higher cost.

Maintenance of effort is the minimum amount of funds that a local school district must spend from one year to the next on special ed and related services. And that's the baseline -- if this year a school district spends a million dollars on special ed, next year the school district cannot spend less than a million dollars unless it has a good justification for doing so. That baseline is called a maintenance of effort. And a school district cannot really go lower than that million dollars as an example unless the school district has a very, very good reason for doing so. And it sets forth the minimum amount that a school district must contribute.

KOSOY: Okay, thank you.

JUSTESEN: That's called maintenance of effort. We've had a lot of question about early intervening services. We've had a lot of questions about high cost risk pools, pilot programs.

The statute actually has two pilot programs in it that allow for each pilot program up to 15 states to apply to the Department of Education in a competitive process and we're going to issue regulations on these two pilot programs very soon after Part B comes out that will allow up to 15 states to compete to present to the department one of two options: Method of reducing paperwork burden among school teachers there at the local level; the other is the three year IEP option that would give up to 15 states the option to implement whether an IEP would not be reviewed annually as is currently required, that the local school district and the state would have the flexibility to consider under certain circumstances on a case-by-case basis whether a review of an IEP is -- can be done every three years. Except for key points -- transition points -- moving from elementary school to middle school, from middle school to high school or unless the parent objects. Even if the state is awarded one of the pilot programs and has the flexibility of a three year IEP that's not an absolute if a parent objects to it for their child, they can have an annual review as the law currently requires.

Those pilot programs are interesting. It gives on a national level an opportunity for the department to learn more about whether we can reduce the burden of paperwork and how and what are the best methods to do that. Whether three year IEP's are functional, serve children and reduce challenges that many think currently exist, and so we will be competing those pilot programs under the statute early next year.

I'm drawing a blank, Rachel.

KOSOY: Okay, whenever you're ready to take a break --

JUSTESEN: Let's take some questions.

KOSOY: Not to worry. Okay, you did get a couple of comments here from people in different parts of the country basically people are, you know, would like public hearings in their areas as well. Specifically there is interest in having one in Atlanta or the mid south --

JUSTESEN: Actually, Rachel, let me interrupt you. One of our meetings in the first phase was in Atlanta. That was the second meeting -- I'm thinking out loud -- yeah, the second meeting was in Atlanta.

KOSOY: Okay. And we also got an E-mail from somebody in Alaska saying please don't forget them.

JUSTESEN: I'm coming to Alaska in September hopefully.

KOSOY: Okay, you guys hear that? Alaska in September.

JUSTESEN: Art Arnold is the special ed director in Alaska and he has invited me to Alaska at the end of September and I currently have plans to go. Where we will talk about -- and we can talk real -- very openly by then because the regulations will be public and we can talk about every single word in the regs if folks would like to do that.

KOSOY: Okay, so just tell people again who should they call to find out how to see you when you are there?

JUSTESEN: In Alaska?

KOSOY: Yeah, who is organizing that?

JUSTESEN: Oh, boy. I probably shouldn't have said that. Call Alaska and ask them. I just got the invite on Monday.

KOSOY: So is it through the State Department of Education?

JUSTESEN: Yeah, I'm coming up for a conference that they are organizing.

KOSOY: All right. Hopefully that gives people good information.

Okay, just some points of clarity. People want the make sure they understand the process. Is it accurate that you will be publishing separate NPRM's as they are approved as opposed to publishing the entire notice, the regs for the entire statute at the same time?

JUSTESEN: The answer to that is yes. First of all, I don't think it's useful to the field to hold all of the regulations and publish them all at once. That would be too many for everyone to contemplate them and think about them. This is just my view, but this is the view that will govern how we're going to do this.

As a regulation is approved and has received all the clearance from OMB, the department and whatever other procedures we must go through for official clearance, once that's done, I will send them to the Federal Register as each section is complete.

Currently, Part B will be published -- well, the NIMUS standards will probably be published first. Part B of the IDEA will probably be published second. Part C will probably be published and we have a small section of the regulations on part D. So they will be published as soon as they've been approved.

KOSOY: Okay. And then to follow that, as each one is published, then is it accurate that you said there are 75 days in which people can comment on that proposed rule?

JUSTESEN: That is correct. For each set the clock is different, but in total -- per set, each set, 75 days for each set of regulations.

KOSOY: Okay. And at the end of that 75 days, then what can people expect for -- what's the next thing people should expect?

JUSTESEN: Well, they should expect me to get a night's sleep and then come in the next morning and while we receive comments, if we receive comments today, I read them. Throughout this process, we read them as they come in. We don't wait for the closing date, and we will -- there is no time limit on the amount of time it takes us to review the comments and to issue the final rule; but what will happen is that we're going to be reading the comments as they come in.

We will work through the comments. Make adjustments to the regulations based on response to the field's needs and we will at some time after the closing date work to issue the final notice; which will be published in the Federal Register. And when it says final rule, that is the end. That's the official regulation on that particular subject. It's my hope -- we're required again, by the way, to receive departmental clearance once again and OMB clearance all over again after we've modified and edited the draft set of regulations. It must go through the same clearance process. Once that is done, we will issue the final notice.

KOSOY: Okay.

JUSTESEN: But the process repeats itself twice.

KOSOY: Okay, and you can't say at this point approximately how much time it will take before we see ' the final regs for any section?

JUSTESEN: Well, Rachel, just between you and me --

KOSOY: And all the people listening in.

JUSTESEN: Just between you and me, Rachel, if we receive 10,000 comments, we might get them out sooner than if we receive 50,000 comments. So that's all governed by, you know, what changes we need to make to the regs that are based on the field's comments.

KOSOY: Okay.

JUSTESEN: And so that's hard to say. It really is.

KOSOY: Okay. And I think -- obviously here this is really important all these comments are really important and it's nice to see here directly from you that you really are reading all of them.

JUSTESEN: We have to. That's why we're in these positions. If you don't want to do that, go get another job.

KOSOY: All right. I did just get a suggestion from somebody. Request suggestion: When you're writing the regs is there any way you can include examples to help illustrate or elaborate, you know, give examples specific scenarios in which the regs would apply?

JUSTESEN: We do in some cases already. I'm curious what folks will say about them.

KOSOY: Yeah, it seems like regarding disciplinary actions there is particular interest.

JUSTESEN: Well, that's where the preamble is very useful. The preamble will host language throughout that gives scenarios and explanations. The preamble is the most useful tool if you're looking for description about activities.

KOSOY: Okay.


KOSOY: All right, I was just handed a whole other stack of Emails that I can't, you know, I can't go through them all while we're having the conversation. And I know that we have about ten minutes left designated for this conversation.

Is there something else that you want to make sure to get in before we end? And then I will -- I'm doing my best to -- you know, to get to all of these comments. I just want to let people know that I've got probably 30 here at least that I haven't had a chance to get to yet. I want you to know that I am not ignoring them. We just are a bit overwhelmed with the number of things coming in. We will make sure that all of the comments get forwarded to Troy, and if there are some -- there are a few questions in here that we can go ahead and just send you answers to, we also will send you an E-mail if we feel like you sent a question and perhaps you'd like to turn that into a comment and send it in, we'll let you know how to do that.

JUSTESEN: Rachel, let me be perfectly honest. I'm not going to be answering people's Emails

KOSOY: No, I'm sorry. I'm glad you said that.

JUSTESEN: Because --

KOSOY: We're not forwarding you questions. We will forward you comments.

JUSTESEN: I look forward to comments and I get lots of E-mail questions and actually the reputation of me is starting to get out that I'm not responding to people's Emails Well, I'm not because I'm in the phase of not offering my opinion. I'm in the phase of taking comments, sort of the black hole. I want all the information to come in, but nothing is going to go out until we published the NPRM. And then that sets forth where we are as an department, as an administration on the regs, and the other practical reason why I'm not going to respond or cannot is because my E-mail system I think is at the maximum amount of memory the department allows and by every three days there is a person that comes in and stores the amount of public comments I receive into a special section because my E-mail fills to maximum capacity. So for those of you who know me and know my E-mail address, if I haven't responded, I apologize because there are so many Emails coming in.

I read them, but I don't always take the time to respond to each one.

New Appendix A

KOSOY: Okay, great. There is a question here -- the appendix -- there is an appendix A. in the old regs that have been very helpful apparently to people, especially parents. Will there be a similar feature in the upcoming regs?

JUSTESEN: Yes, there will be.

KOSOY: Okay. Super. Can you give any sense of when people can expect to see Part C regs?



JUSTESEN: That applies to infants and toddlers. The answer is I can't tell you yet because they haven't even gone to OMB and OMB -- I don't want to overwhelm them with too many regs. They already have the NIMUS Part B and D. I don't know -- I'm hoping next month, but I can't say.

KOSOY: Okay. Here is a follow-up comment about the state's opting in and not -- and this comes from national organization of parents of blind children with the National Federation of the Blind, and they have been writing in some of these comments and want to make sure that there is some clarity here and what they are passing a along. And their big concern is about enforcement. They want to make sure there is some sort of enforcement. There seems to be a feeling that if states opt out and students don't get their textbooks in a timely manner, that there is recourse for parents, teachers and schools?

JUSTESEN: Well, there was always recourse. It would be the standard recourse available under the, you know, the procedural safeguards provisions in the statute. So that would be the same recourse that exists now.

KOSOY: Okay.

JUSTESEN: But the answer is there are protections and it would be in the procedural safeguards section of the statute and the regulations.

KOSOY: Okay. Okay, there is another question and maybe we'll end with this, not just because the time is winding up, does IDEA 2004 apply to students who have graduated from high school and are transitioning into post-secondary?

JUSTESEN: Okay, ask me that again?

KOSOY: Does IDEA 2004 apply to people who have graduated high school and are now transitioning into post-secondary? Is post-secondary affected by IDEA 2004?

JUSTESEN: The question isn't that simple. If a student graduates from high school, a student is eligible under the IDEA, graduates from high school with a regular high school diploma, the IDEA no longer provides protections to that student. The IDEA ends in terms of the benefits that student has for special ed-related services.

If the student earns a nonregular high school diploma or drops out or remains in school and does not receive a nonregular high school diploma, depending on state law, but generally through age 21, that student maybe entitled to services through IDEA. Once the student moves to post-secondary education, presumably that student has a regular high school diploma, the IDEA does not apply.

KOSOY: Okay, great.

JUSTESEN: As a general matter, I do want to say if it's a public college or university, Title II of the ADA and Section 504 of the Rehab Act are available. If it's a private college or university, Title III of the ADA applies, and 504 most likely applies as well.

KOSOY: Okay, great. Well, I know that you felt like this was a funny time during the process to come and to have this forum with us, but we certainly appreciate it. There was tremendous interest and I think maybe what we'll do is invite you back at the beginning of the year or when we've got some final regulations out. And at that point some people -- people can ask some of these additional questions that they have if they're not clear. It sounds like the format of the upcoming regs is going to be very easy to use and very accessible.

JUSTESEN: Well, if you ask me my opinion, they will be, but sure. I mean, we know and expect a number of -- a need from here to provide a lot of technical assistance and training on the regulations and then we can be very specific and speak directly to any questions anyone asks.

KOSOY: Okay. Well, great. Is there anything you wanted to say before I do some thank yous?


KOSOY: Okay. Well, thank you very much. No, no, no, thank you. Again, I really appreciate your coming and doing this and I know that early on I got a message -- somebody came in my office and said that there were at least 300 people on the line.


KOSOY: You certainly have responded to great interest out there. So thank you very much and thank you for really updating people on where we are and I think that we've got a much better informed group now who can work cooperatively with you so that these regs will come out and will address people's concerns.

JUSTESEN: Well, I hope so, Rachel. And actually, thank you and for all the listeners, I'm not the easiest person to work with. Some people are laughing, going, yeah, we know.

And you folks at ILRU have been wonderful and I want you to know and all the listeners to know that you have done -- you've gone above and beyond to be helpful to the department and our ability to help communicate this message. So I'm very grateful to you.

KOSOY: Thank you. Our pleasure.

So, again, people this will be archived. You'll be able to come back and listen again as well as read the transcript. And in addition to thanking Troy, I also would like to acknowledge NIDRR which is a part of the Department of Education and it is NIDRR who actually funds the Disability Law Resource Project here at ILRU, your host for today.

And there is a team of folks here at ILRU who have contributed to make today possible as well and I'd like to acknowledge them, we have Marj Gordon, Sharon Finney, Dawn Heinsohn, Vinh Nguyen, Maria Del Bosque, Rob Dickehuth and our fabulous realtime captioner, Marie Bryant; so, again, thank you everybody for joining us today and we look forward to additional conversations with you in the future. Have a great afternoon everybody. Bye-bye.


Note: The original transcript is located on the ILRU's website at:

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Presenters and Sponsoring Organizations

Troy R. Justesen, Acting Director, Office of Special Education Programs

U.S. Department of Education,
400 Maryland Avenue, SW., Room 5138
Potomac Center Plaza,
Washington, DC 20202
(202) 245-7468

Disability Law Resource Project (DLRP)

DLRP provides three core services - technical assistance, training and materials dissemination.
Activities designed to carry out the DLRP's mission in Texas, Arkansas, New Mexico, Oklahoma and Louisiana are facilitated through the home office in Houston, TX as well as affiliations and partnerships.

The DLRP is one of ten Disability and Business Technical Assistance Centers (DBTACs) funded by the National Institute on Disability and Rehabilitation Research (NIDRR). It also houses additional projects designed to educate targeted audiences about working with persons with disabilities.

The Disability Law Resource Project is a program of ILRU (Independent Living Research Utilization), at TIRR in Houston, Texas. The DLRP is funded by a grant from the Department of Education's National Institute on Disability and Rehabilitation Research (NIDRR).

The Disability Law Resource Project (DLRP)
2323 S. Shepherd, #1000
Houston, Texas 77019
(800) 949-4232

Independent Living Research Utilization (ILRU)

The Independent Living Research Utilization (ILRU) program is a national center for information, training, research, and technical assistance in independent living. Its goal is to expand the body of knowledge in independent living and to improve utilization of results of research programs and demonstration projects in this field. It is a program of TIRR (The Institute for Rehabilitation and Research), a nationally recognized medical rehabilitation facility for persons with disabilities.

Independent Living Research Utilization (ILRU)
2323 S. Shepherd, Suite 1000
Houston, Texas 77019
(713) 520-0232

Institute for Rehabilitation and Research (TIRR)

The Institute for Rehabilitation and Research (TIRR) is regarded as a world leader in medical rehabilitation and research. The TIRR Spinal Cord Injury Program has been a Model System with funding by the U.S. Department of Education for over 30 years. The Brain Injury Research Center of TIRR is currently funded by three grants from the National Institute on Disability and Rehabilitation Research.

The Institute for Rehabilitation and Research (TIRR)
5100 Travis
Houston, TX 77002-9746
(713) 942-6159

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