NSBA

 

Individuals with Disabilities Education Improvement Act of 2004: Expanded Authority to Local School Boards

A Quick Reference Guide for Local School Board Members

December 2004

On December 3, 2004, President Bush signed the Individuals with Disabilities Education Improvement Act of 2004 into law. NSBA believes that the passage of the new law will result in significant improvements for school boards, school staff, parents and students with disabilities. NSBA played a major role in securing a more balanced approach to meeting the educational needs of the 6.7 million students with disabilities.

NSBA is pleased with the strong Congressional support for our specific recommendations, and welcomes this new law that substantially shifts the focus from one of compliance to one of education outcomes for all students.

This information is provided as a Quick Reference Guide only. As local school board members, you will want to request briefings from your school district staff and your attorney regarding how specific provisions of the new law may impact on policies, budget development, and new options in program implementation. You are encouraged to review the actual provisions of the law prior to taking any formal board actions.

The following highlights are provided concerning key provisions to this critical law (Information in italics denotes changes in the law):

Due Process

The law includes provisions that require:

  • Complainants to give notice of all issues prior to the hearing or the complainant risks not having the issue addressed during the hearing.
  • A 90-day limit on filing appeals under due process procedures.
  • A meeting within 15 days with the complaint to resolve complaints before a due process hearing.
  • Options for mediation conducted by a qualified and impartial mediator (to be paid for by the state)
  • An option to meet with a disinterested party to encourage the use of mediation and explain the benefits of the mediation process (to be paid for by the state)
  • A hearing on the 31st day after the filing of the complaint if no resolution has been reached.
  • Revised qualifications for hearing officers to ensure they possess content knowledge, are able to conduct a hearing, and they do not have perceived or real conflicts of interest.
  • Elimination of decisions by hearing officials based only on procedural errors unless the procedural errors adversely affected the implementation of the IEP.
  • Hearing decisions to be made on the basis of whether the school district provides a free appropriate education (FAPE).
  • A statute of limitations of 2 years regarding complaints.
  • Only one copy of the procedural rights to be provided annually, except 1) upon initial referral or parental request for evaluation, 2) upon the first occurrence of the filing of a complaint, and 3) upon request of the parent.
  • Any discussions occurring during the mediation process to be considered confidential and not be used as evidence in any subsequent due process hearing or civil proceeding.

The law also permits local school districts to place a copy of the procedural rights on the Internet website.

Qualifications of and Decisions by Hearing Officers

The hearing officer is:

  • Restricted from serving if the individual is an employee of the state education agency or local school district, or has any personal or professional interest that conflicts with the person's objectivity
  • Required to possess knowledge of, and the ability to understand the provisions of the IDEA law, the ability to conduct hearings in accordance with standard legal practice, and possess the knowledge and ability to render and write decisions in accordance with appropriate, standard legal practice.
Attorney Requirements & Fees

The new law:

  • Restricts attorneys of the local school district from being present during the mediation or optional sessions prior to the hearing unless an attorney accompanies the parent.
  • Authorizes local school districts to collect attorney fees for frivolous or malicious complaints.
  • Permits a reduction in the attorneys' fees if a parent or parent attorney unnecessarily delays a lawsuit.
  • Prohibits reimbursement of fees in any action or proceeding for services performed subsequent to the time of a written offer of settlement (when made within the time prescribed by Federal Rules of Procedure, the offer is not accepted within 10 days,

*(Information in italics denotes changes in the law)

  • the relief finally obtained by the parents is not more favorable to the parents than the offer of settlement).
  • Requires fees to be based on rates prevailing in the community, and no bonus or multiplier may be used in calculating the fees.
Private Placements
  • As provided in previous law, if the local school district is providing a free appropriate public education, the local school district is not obligated to pay for private placement simply because the parents elect to place the child in a private school or facility.
  • Additionally, the cost of reimbursement for private placement may be reduced or denied if:

1) at the time of the IEP meeting the parents did not inform the IEP Team that they were rejecting the placement proposed by the local school district;

2) the parents failed to give at least a 10-day written notice to the local school district regarding concerns with public placement; or

3) the parents failed to make the child available for evaluation after the local school district properly notified the parents of its intent to conduct such evaluation.

  • The law also provides additional criteria regarding exceptions to the restriction on reimbursements, including inappropriate notification, the likely emotional harm to the child, inappropriate notification by the local school district, or illiteracy of the parent.

Individual Education Programs (IEPs) & Paperwork Reduction
  • The law offers a 15-state pilot Demonstration Program for states to identify ways to reduce paperwork burdens and other administrative duties, including the option to develop multi-year IEPs up to three years. IF approved by the Secretary, the state could waive statutory requirements of, or regulatory requirements related to part B for a period of time not to exceed 4 years. Applicable civil rights requirements may NOT be waived.
  • Parents and local school officials may agree to use alternative means of meeting participation such as video conferencing and conference calls.
  • IEP Teams must be composed of 1) the parents, 2) at least 1 regular education teacher; 3) at least 1 special education teacher; 4) a qualified representative of the local school district, and at the discretion of the parent or local school district, other individuals who have knowledge or special expertise. The law requires the child with the disability to be present whenever appropriate.
  • Any member may be excused from attending the IEP Team meeting if agreed by both parent and local school district official.
  • Team members may also submit written information without being present if the

parent and school district official agree.
*(Information in italics denotes changes in the law)

  • All agreements by the parent must be in writing.
  • In making changes to the IEP after the annual IEP meeting for the school year, the parent and local school district official may agree not to convene an IEP meeting, and instead may develop a written document to amend pr modify the IEP.
  • Any changes to the IEP may be made either by the entire IEP Team or by amending the IE P rather than redrafting the entire plan.
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595 Baeten Road
Green Bay, WI 54304
Phone: 920/492-5960
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